[Federal Register Volume 62, Number 172 (Friday, September 5, 1997)]
[Proposed Rules]
[Pages 46922-46933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23612]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 /
Proposed Rules
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 9
RIN 3150-AF78
Electronic Freedom of Information Act: Implementation
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend
its regulations to implement the Electronic Freedom of Information Act
Amendments of 1996 (EFOIA), which are designed to bring the Freedom of
Information Act (FOIA) into the information and electronic age by
clarifying that FOIA applies to records maintained in hardcopy or
electronic format. The proposed rule would implement statutory
provisions of the law that broaden public access to government
information by placing more records on-line and expanding the role of
the agency public document room. The proposed rule would implement
statutory amendments that recognize the difficulty in responding to
requests in the 10 working days formerly required and extend that time
to 20 working days. It also provides procedures for agencies to discuss
ways of tailoring requests to improve responsiveness. The proposed rule
would amend NRC's FOIA regulations to comply with the requirements of
the new statute. Certain other changes have been made to correct
administrative errors and to update or remove obsolete information.
DATES: Submit comments by October 6, 1997. Comments received after this
date will be considered if it is practical to do so, but the NRC is
able to assure consideration only for comments received on or before
this date.
ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemakings and
Adjudications Staff.
Hand deliver comments to: 11555 Rockville Pike, Rockville,
Maryland, between 7:30 am and 4:15 pm Federal workdays.
For information on submitting comments electronically, see the
discussion under Electronic Access in the Supplementary Information
section.
Examine comments received at: The NRC Public Document Room, 2l20 L
Street, NW. (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: Russell A. Powell, Chief, Freedom of
Information/Local Public Document Room Branch, Office of Chief
Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone: (301) 415-7169, e-mail: RAP1@nrc.gov.
SUPPLEMENTARY INFORMATION:
Background Information
On October 2, 1996, the President signed into law the Electronic
Freedom of Information Act Amendments of 1996 (EFOIA), Public Law 231,
110 Stat. 3048 (1996). EFOIA includes provisions authorizing or
requiring agencies to promulgate regulations implementing certain of
its requirements, including the tracking of Freedom of Information Act
(FOIA) requests, the aggregation of FOIA requests, and the expedited
processing of FOIA requests. In addition, EFOIA changes the time limit
for responding to a FOIA request from ten to twenty working days, the
requirements for reporting FOIA activities to Congress, and the cases
in which an agency may extend the time within which it will respond to
a FOIA request. EFOIA also includes provisions regarding the
availability of documents in electronic form, the treatment of
electronic records, and the establishment of ``electronic reading
rooms.''
The Nuclear Regulatory Commission proposes to amend its regulation
implementing the FOIA, 10 CFR Part 9. The proposed amendments would
revise the NRC's FOIA regulations to comply with EFOIA.
New Provisions
A. New and Revised Definitions
The proposed rule would establish a new title, Freedom of
Information Act and Privacy Act Officer, for the designated official
responsible for administration of the FOIA and Privacy Act in lieu of
using the organizational title of the responsible individual which may
not be as indicative of these specific responsibilities. A new
definition is proposed to be added to 10 CFR 9.13 to reflect this new
title.
The definition of record would be amended to add ``any information
that would be an agency record subject to the requirements of (5 USC
552) when maintained by an agency in any format, including an
electronic format'' and to read ``Record also includes a book, * * *
drawing, diagram, * * *''.
The definition of review time would be revised to remove from the
definition the period spent ``excising from the records those portions
which are to be withheld.''
B. Electronic Records
Section 3 of EFOIA amends 5 U.S.C. 552(f)(2) to define ``agency
record'' for purposes of FOIA as including ``any information that would
be an agency record subject to the requirements of (5 U.S.C. 552) when
maintained by an agency in any format, including an electronic
format.'' Section 552(f) thus clarifies that the term ``agency record''
includes information stored in any computer readable format as well as
traditional paper documents. The proposed regulations would amend 10
CFR 9.13 to specifically include information in an electronic format
within the definition of the term ``agency record.'' 10 CFR 9.13
specifically includes in the definition of ``search'' time spent
reviewing records by automated means as well as manually.
C. Electronic Reading Room
Section 4 of EFOIA amends 5 U.S.C. 552(a)(2), which previously
required agencies to make available for public inspection and copying
certain information, such as agency opinions and policy statements,
administrative staff manuals and staff instructions that affect a
member of the public. The new law expands these categories to include
agency records that have been made publicly available and are likely to
be the subject of repetitive public requests, as well as a general
index of these frequently sought documents. The amendments further
provide that section 552(a)(2) records created on or after November 1,
1996, must be made
[[Page 46923]]
available by computer telecommunications within one year after such
date, or if computer telecommunications have not been established, by
other electronic means. The general index of these records is to be
available by computer telecommunications by December 31, 1999. These
new requirements, as well as the on-line address for NRC's homepage on
the Internet, would be incorporated in 10 CFR 9.21 (c)(6) and (f).
Finally, where material has been withheld in electronic records
made available to the public, the extent of the deletions must now be
indicated on the portion of the record made available or published and,
where technically possible, must be indicated at the place in the
record where the deletion occurred. This new requirement would be
included at 10 CFR 9.19(d).
D. Honoring Form or Format of Requests
EFOIA, 5 U.S.C. 552(a)(3) contains three significant new
provisions. First, 5 U.S.C. 552(a)(3)(B) requires agencies, when making
records available to the public, to do so ``in any form or format
requested by the person if the record is readily reproducible by the
agency'' in the requested manner. This new requirement would be
included in 10 CFR 9.15. Second, 5 U.S.C. 552 (a)(3)(C) makes it clear
that when an FOIA request is received, an agency should not only search
for hard copies, but should also search for the records in their
electronic form. This new requirement would be included in 10 CFR 9.15.
Finally, a ``search'' under the amendments means to review, manually
``or by automated means,'' agency records for the purpose of locating
those records which are responsive to a request. This new requirement
would be incorporated in 10 CFR 9.13 in the definition of ``search
time.''
E. Time Limits for Responding to Requests
In recognition of the fact that 10 working days is not a realistic
timeframe, the EFOIA amendments, 5 U.S.C. 552(a)(6)(A)(i), extend the
time to respond to a request from 10 to 20 working days. 10 CFR 9.25
would be amended to reflect the change in the time limits for initial
disclosure determination from 10 to 20 working days effective October
2, 1997.
F. Multitrack Processing of Requests
However, Congress recognized that even with the increase in time to
process requests, many agencies may not be prepared to meet a 20
working-day deadline for some requests. Therefore, to help ensure
timely agency responses to requests, the new law, 5 U.S.C.
552(a)(6)(D)(i), authorizes agencies to establish separate systems
within the agency for handling simple and complex requests. Under these
types of systems, called ``multitrack processing,'' requests would be
categorized based on the amount of agency effort involved in processing
the request. This would replace the current first-in, first out
approach generally employed at the NRC. Agencies must still exercise
due diligence within each track. The new law, 5 U.S.C.
552(a)(6)(D)(ii), also requires agencies to give requesters the
opportunity to limit the scope of their requests to qualify for
processing under a faster track. This provision is intended to permit
more requests to be completed more quickly by providing an incentive
for requesters to frame narrower requests for fewer documents. These
new provisions would be incorporated in NRC's proposed three-track
system described in 10 CFR 9.25(c).
The first track is for simple requests or requests of moderate
complexity that are expected to be completed within 20 working days
(e.g., a request that does not involve a large volume of documents,
retrieval of documents from regional offices, or extensive coordination
between NRC offices).
The second track is for requests involving unusual circumstances
that are expected to take between 21-30 working days to complete.
The third track is for requests that, because of their unusual
volume or complexity, are expected to take more than 30 working days to
complete.
Upon receipt of a request, NRC would notify the requester of the
track in which the request has been placed for processing and the
estimated time for completion. Should subsequent information
substantially change the estimated time to process the request, the
requester would be notified telephonically or in writing. A requester
may modify the request to allow it to be processed under a different
track for a faster response.
G. Unusual Circumstances
Even with use of multitrack processing, Congress recognized that in
some circumstances the statutory response time will not be met. The
EFOIA retains the provisions for agencies to extend the initial 20
working day response time for an initial request, or the 20 working day
response time for an appeal, an additional 10 working days in ``unusual
circumstances.'' Agencies must provide the requester with a written
justification for the extension that contains the date of the expected
agency response. The amendments would retain the definition of
``unusual circumstances'' as time needed to search for and collect the
requested records from field facilities or other establishments that
are separate from the office processing the request; the need to search
for, collect and appropriately examine a voluminous amount of material
demanded in a single request; and the need for consultation with
another agency having a substantial interest in the determination of
the request or among two or more parts of the agency having substantial
interest in the request. These consultations must be conducted ``with
all practicable speed.'' 5 U.S.C. 552(a)(6)(B)(iii).
H. Exceptional Circumstances
In addition to extensions under unusual circumstances, the EFOIA
amendments, 5 U.S.C. 552(a)(6)(B)(ii), authorize the agency to
negotiate a response time with a requester that may exceed the
statutory maximum (20 working days plus a 10 working-day extension) for
those FOIA requests that the agency determines cannot be processed
within the statutory time limits. The agency must offer the requester
an opportunity to limit the scope of the request so that it may be
processed within the prescribed 20 working days. Congress asserted that
this process for negotiated time limits reflects the policy that FOIA
works best when requesters and agencies work together to define and
fulfill reasonable requests. This new provision would be incorporated
in 10 CFR 9.25(c).
I. Aggregation of Requests
The EFOIA amendments, 5 U.S.C. 552(a)(6)(B)(iv), authorize agencies
to promulgate regulations that allow for the aggregation of FOIA
requests by the same requester or by a group of requesters acting
together. Aggregation may occur if the agency ``reasonably believes''
that these multiple requests do indeed constitute a single request.
This new provision would be implemented in 10 CFR 9.39(e).
J. Requests for Expedited Processing
The EFOIA amendments, 5 U.S.C. 552(a)(6)(E)(i), require agencies to
promulgate regulations to provide for ``expedited processing'' in cases
where the person requesting the records demonstrates a ``compelling
need'' and in other cases where the agency determines expedited
processing is warranted. The amendments define ``compelling need'' in
two ways. One is where ``a failure to obtain requested
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records on an expedited basis * * * could reasonably be expected to
pose an imminent threat to the life or physical safety of an
individual.'' The other is where a ``person primarily engaged in
disseminating information'' to the public has ``an urgency to inform
the public concerning actual or alleged Federal Government activity.''
The House Committee report explaining the legislation states that a
person ``primarily engaged'' in the business of dissemination of
information ``should not include individuals who are engaged only
incidentally in the dissemination of information,'' but requires that
``information dissemination be the main activity of the requester,
although it need not be their sole occupation.'' A requester who is
``only incidentally'' involved in information dissemination, in
addition to other activities, would not satisfy this requirement.
The report further explains that the term ``urgency to inform,''
one of the qualifying elements for expedited processing, must involve a
matter of ``current exigency to the American public'' such that any
reasonable person could conclude that delaying a response to a FOIA
request would compromise a ``significant recognized interest.'' The
public's right to know, while ``significant and important,'' would not
stand alone as sufficient to satisfy this standard. Agencies will have
to make both ``factual and subjective judgments'' about situations
cited by requesters as reasons for expedited processing and must
demonstrate ``fairness and diligence'' in exercising their discretion.
Requesters must provide detailed explanations to support their
expedited requests.
The EFOIA amendments, 5 U.S.C. 552(a)(6)(E)(ii), require that
agency regulations provide that requesters be given notice within 10
calendar days after the date of the request as to the determination
whether it qualifies for expedited processing. Once expedited
processing is granted, agencies must process it ``as soon as
practicable'' (5 U.S.C. 552 (a)(6)(E)(iii)). Any administrative appeal
to a denial of expedited processing must be handled with ``expeditious
consideration'' (5 U.S.C. 552 (a)(6)(E)(ii)(II)). If an agency denies
the request for expedited processing or fails to act upon the request
within the prescribed 10 calendar days, petitioner may seek judicial
review. The NRC would implement the EFOIA requirements for expedited
processing at 10 CFR 9.25(e) and 9.29.
K. Estimates of the Volume of Materials Denied
EFOIA, 5 U.S.C. 552(a)(6)(F), requires agencies to make a
reasonable effort to estimate the volume of any requested record
material that is denied in whole or in part, and to provide the
estimate to the requester unless providing such estimate would harm an
interest protected by a FOIA exemption. This new requirement would be
implemented at 10 CFR 9.19(c).
L. Annual Report to Congress
The EFOIA, 5 U.S.C. 552(e), amended the annual requirements for
reporting agency FOIA activities to Congress. On or before February 1
of each year beginning in 1999, agencies must submit to the Attorney
General an annual report that covers the preceding fiscal year and
includes the number of determinations made by the agency not to comply
with the requests for records made to the agency and the reasons for
those determinations; the number of appeals made by persons, the
results of those appeals, and the reason for the action upon each
appeal that results in a denial of information; a complete list of all
statutes that the agency used to authorize the withholding of
information under Section 552(b)(3), which exempts information that is
specifically exempted from disclosure by other statutes; a description
of whether a court has upheld the decision of the agency to withhold
information under each of those statutes cited, and a concise
description of the scope of any information upheld; the number of
requests for records pending before the agency as of September 30 of
the preceding year, and the median number of days that these requests
had been pending before the agency as of that date; the number of
requests for records received by the agency and the number of requests
the agency processed; the median number of days taken by the agency to
process different types of requests; the total amount of fees collected
by the agency for processing requests; the average amount of time that
the agency estimates as necessary, based on the past experience of the
agency, to comply with different types of requests; the number of full-
time staff of the agency devoted to the processing of requests for
records under this section; and the total amount expended by the agency
for processing these requests. The NRC would implement this amended
EFOIA reporting requirement in 10 CFR 9.45.
The amendments require each agency to make these annual reports
available to the public through a computer network, or by other
electronic means if computer networking is not a possibility for the
agency. The NRC has posted its annual report on its website on the
Internet that is accessible through the NRC homepage at:
http\\www.nrc.gov. The report is also available in the NRC Public
Document Room.
Electronic Access
Comments may be submitted electronically, in either ASCII text or
WordPerfect format (version 5.1 or later), by calling the NRC
Electronic Bulletin Board (BBS) on FedWorld or connecting to the NRC
interactive rulemaking web site, ``Rulemaking Forum.'' The bulletin
board may be accessed using a personal computer, a modem, and one of
the commonly available communications software packages, or directly
via Internet. Background documents on the rulemaking are also available
for downloading and viewing on the bulletin board.
If using a personal computer and modem, the NRC subsystem on
FedWorld can be accessed directly by dialing the toll free number: 1-
800-303-9672. Communication software parameters should be set as
follows: parity to none, data bits to 8, and stop bits to 1 (N,8,1).
Using ANSI or VT-100 terminal emulation, the NRC rulemaking subsystem
can then be accessed by selecting the ``Rules Menu'' option from the
``NRC Main Menu.'' For further information about options available for
NRC at FedWorld, consult the ``Help/Information Center'' from the ``NRC
Main Menu.'' Users will find the ``FedWorld Online User's Guides''
particularly helpful. Many NRC subsystems and databases also have a
``Help/Information Center'' option that is tailored to the particular
subsystem.
The NRC subsystem on FedWorld can also be accessed by a direct-dial
phone number for the main FedWorld BBS: 703-321-3339; Telnet via
Internet: fedworld.gov (192.239.93.3); File Transfer Protocol (FTP) via
Internet:ftp:fedworld.gov (192.239.92.205); and World Wide Web using:
http://www.fedworld.gov (this is the Uniform Resource Locator (URL)).
If using a method other than the toll-free number to contact
FedWorld, access the NRC subsystem from the main FedWorld menu by
selecting ``F--Regulatory, Government Administration and State
Systems,'' then selecting ``A--Regulatory Information Mall.'' At that
point, a menu will be displayed that has an option ``A--U.S. Nuclear
Regulatory Commission'' that will take you to the NRC Online Main Menu.
You can also go directly to the NRC Online area by
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typing ``/go nrc'' at a FedWorld command line. If you access NRC from
FedWorld's Main Menu, then you may return to FedWorld by selecting the
``Return to FedWorld'' option from the NRC Online Main Menu. However,
if you access NRC at FedWorld by using NRC's toll-free number, then you
will have full access to all NRC systems, but you will not have access
to the main FedWorld system.
If you contact FedWorld using Telnet, you will see the NRC area and
menus, including the Rules Menu. Although you will be able to download
documents and leave messages, you will not be able to write comments or
upload files (comments). If you contact FedWorld using FTP, all files
can be accessed and downloaded but uploads are not allowed; all you
will see is a list of files without descriptions (normal Gopher look).
An index file listing all files within a subdirectory, with
descriptions, is included. There is a 15-minute time limit for FTP
access.
Although FedWorld also can be accessed through the World Wide Web,
like FTP, that mode only provides access for downloading files and does
not display the NRC Rules Menu.
You may also access the NRC's interactive rulemaking web site
through the NRC home page (http://www.nrc.gov). This site provides the
same access as the FedWorld bulletin board, including the facility to
upload comments as files (any format), if your web browser supports
that function.
For more information on NRC bulletin boards call Mr. Arthur Davis,
Systems Integration and Development Branch, U.S. Nuclear Regulatory
Commission, Telephone: 301-415-5780; e-mail: AXD3@nrc.gov. For
information about the interactive rulemaking site, contact Ms. Carol
Gallagher, Telephone: 301-415-6215; e-mail: [email protected]
Environmental Impact--Categorical Exclusion
The NRC has determined that this proposed 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 proposed rule.
Paperwork Reduction Act Statement
This proposed rule does not contain a new or amended information
collection requirement subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the
Office of Management and Budget, approval number 3150-0043.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Regulatory Analysis
This proposed rule would implement the EFOIA by amending 10 CFR
Part 9, Subpart A--Freedom of Information Act Regulations. This is an
administrative regulatory action that would make NRC's regulations
reflect the new provisions of the EFOIA. The proposed rule would not
have any adverse economic impact on any class of licensee or the NRC;
on the contrary, the proposed rule with its new provisions allowing
expedited and multitrack processing may provide some new and additional
benefit to those who may opt to use these regulations to obtain access
to NRC records and information.
This constitutes the regulatory analysis for this proposed rule.
Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)),
the Commission certifies that this rule does not have a significant
economic impact on a substantial number of small entities. The
amendments to 10 CFR Part 9 are procedural in nature and are required
to implement the Electronic Freedom of Information Act Amendments of
1996 (EFOIA), 5 U.S.C. 552.
Backfit Analysis
The NRC has determined that the backfit rule 10 CFR 50.109 does not
apply to this proposed rule; therefore, a backfit analysis is not
required for this proposed rule because these amendments do not involve
any provisions that would impose backfits as defined in 10 CFR Chapter
I.
List of Subjects in 10 CFR Part 9
Criminal penalties, Freedom of information, Privacy, Reporting and
recordkeeping requirements, Sunshine Act.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 552, 552a, and 553; the NRC is
proposing to adopt the following amendment of 10 CFR Part 9, Subpart
A--Freedom of Information Act Regulations.
PART 9--PUBLIC RECORDS
1. The authority citation for Part 9 continues to read as follows:
Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201);
sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841).
Subpart A 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 also issued under 5 U.S.C. 552b.
2. In Sec. 9.8, paragraph (b) is revised to read as follows:
Sec. 9.8 Information collection requirements: OMB approval.
* * * * *
(b) The approved information collection requirements contained in
this part appear in Secs. 9.23, 9.29, 9.40, 9.41, 9.53, 9.54, 9.55,
9.65, 9.66, and 9.67.
3. In Part 9, Subpart A is revised to read as follows:
Subpart A--Freedom of Information Act Regulations
Sec.
9.11 Scope of subpart.
9.13 Definitions.
9.15 Availability of records.
9.17 Agency records exempt from public disclosure.
9.19 Segregation of exempt information and deletion of identifying
details.
9.21 Publicly-available records.
9.23 Requests for records.
9.25 Initial disclosure determination.
9.27 Form and content of responses.
9.29 Appeal from initial determination.
9.31 Extension of time for response.
9.33 Search, review, and special service fees.
9.34 Assessment of interest and debt collection.
9.35 Duplication fees.
9.37 Fees for search and review of agency records by NRC personnel.
9.39 Search and duplication provided without charge.
9.40 Assessment of fees.
9.41 Requests for waiver or reduction of fees.
9.43 Processing requests for a waiver or reduction of fees.
9.45 Annual report to Congress.
Subpart A--Freedom of Information Act Regulations
Sec. 9.11 Scope of subpart.
This subpart prescribes procedures for making NRC records available
to the public for inspection and copying pursuant to the provisions of
the Freedom of Information Act (5 U.S.C. 552) and provides notice of
procedures for obtaining NRC records otherwise publicly available. This
subpart does not affect the dissemination or distribution of NRC-
originated, or NRC contractor-originated, information to the
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public under any other NRC public, technical, or other information
program or policy.
Sec. 9.13 Definitions.
Agency record means a record in the possession and control of the
NRC that is associated with Government business. Agency record does not
include records such as--
(1) Publicly-available books, periodicals, or other publications
that are owned or copyrighted by non-Federal sources
(2) Records solely in the possession and control of NRC
contractors;
(3) Personal records in possession of NRC personnel that have not
been circulated, were not required to be created or retained by the
NRC, and can be retained or discarded at the author's sole discretion,
or records of a personal nature that are not associated with any
Government business; or
(4) Non-substantive information in logs or schedule books of the
Chairman or Commissioners, uncirculated except for typing or recording
purposes.
Commercial-use request means a request made under Sec. 9.23(b) for
a use or purpose that furthers the commercial, trade, or profit
interests of the requester or the person on whose behalf the request is
made.
Direct costs mean the expenditures that an agency incurs in
searching for and duplicating agency records. For a commercial-use
request, direct costs include the expenditures involved in reviewing
records to respond to the request. Direct costs include the salary of
the employee category performing the work based on that basic rate of
pay plus 16 percent of that rate to cover fringe benefits and the cost
of operating duplicating machinery.
Duplication means the process of making a copy of a record
necessary to respond to a request made under Sec. 9.23. Copies may take
the form of paper copy, microform, audio-visual materials, disk,
magnetic tape, or machine readable documentation, among others.
Educational institution means an institution that operates a
program or programs of scholarly research. Educational institution
refers to a preschool, a public or private elementary or secondary
school, an institution of graduate higher education, an institution of
undergraduate higher education, an institution of professional
education, or an institution of vocational education.
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 Privacy Act as
specifically designated under this regulation.
Noncommercial scientific institution means an institution that is
not operated on a commercial basis, as the term ``commercial'' is
referred to in the definition of ``commercial-use request,'' and is
operated solely for the purpose of conducting scientific research, the
results of which are not intended to promote any particular product or
industry.
Office, unless otherwise indicated, means all offices, boards,
panels, and advisory committees of the NRC.
Record means any information that would be an agency record subject
to the requirements of the Freedom of Information Act when maintained
by the NRC in any format, including an electronic format. Record also
includes a book, paper, map, drawing, diagram, photograph, brochure,
punch card, magnetic tape, paper tape, sound recording, pamphlet,
slide, motion picture, or other documentary material regardless of form
or characteristics. Record does not include an object or article such
as a structure, furniture, a tangible exhibit or model, a vehicle, or
piece of equipment.
Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that
is about current events or that would be of current interest to the
public. Examples of news media entities include television or radio
stations broadcasting to the public at large, and publishers of
periodicals (but only in those instances when they can qualify as
disseminators of ``news'') who make their products available for
purchase or subscriptions by the general public.
Review time means the period devoted to examining records retrieved
in response to a request to determine if they are in fact responsive,
and to determine whether they are exempt from disclosure in whole or in
part. Also, review time includes the period devoted to examining
records to determine which Freedom of Information Act exemptions are
applicable and identifying records or portions thereof to be disclosed.
Search time means the period devoted to reviewing, manually or by
automated means, agency records for the purpose of locating those
records which are responsive to a request. This includes a page-by-page
or line-by-line identification of responsive information within the
records.
Unusual circumstances mean--
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(3) The need for consultation, which will be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
NRC having substantial subject-matter interest therein.
Sec. 9.15 Availability of records.
The NRC will make available for public inspection and copying any
reasonably described agency record in the possession and control of the
NRC under the provisions of this subpart, and upon request by any
person. Records will be made available in any form or format requested
by a person if the record is readily reproducible by NRC in that form
or format. NRC will make reasonable efforts to maintain its records in
forms or formats that are reproducible. NRC will make reasonable
efforts to search for records in electronic form or format when
requested, except when these efforts would significantly interfere with
the operation of any of the NRC's automated information systems.
Records that the NRC routinely makes publicly available are described
in Sec. 9.21. Procedures and conditions governing requests for records
are set forth in Sec. 9.23.
Sec. 9.17 Agency records exempt from public disclosure.
(a) The following types of agency records are exempt from public
disclosure under Sec. 9.15:
(1) Records--
(i) That are specifically authorized under criteria established by
an Executive order to be kept secret in the interest of national
defense or foreign policy, and
(ii) That are in fact properly classified pursuant to such
Executive order
(2) Records related solely to the internal personnel rules and
practices of the agency
(3) Records specifically exempted from disclosure by statute (other
than 5 U.S.C. 552b), provided that the statute--
(i) Requires that the matters be withheld from the public in a
manner that leaves no discretion on the issue; or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld
[[Page 46927]]
(4) Trade secrets and commercial or financial information obtained
from a person that are privileged or confidential
(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
(6) Personnel and medical files and similar files, the disclosure
of which would constitute a clearly unwarranted invasion of personal
privacy
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of these law enforcement
records or information--
(i) Could reasonably be expected to interfere with enforcement
proceedings
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority, or any private institution which furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if the disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Matters contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of any
agency responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(b) Nothing in this subpart authorizes withholding of information
or limiting the availability of records to the public except as
specifically provided in this part, nor is this subpart authority to
withhold information from Congress.
(c) Whenever a request is made that involves access to agency
records described in paragraph (a)(7) of this section, the NRC may,
during only the time as that circumstance continues, treat the records
as not subject to the requirements of this subpart when--
(1) The investigation or proceeding involves a possible violation
of criminal law; and
(2) There is reason to believe that--
(i) The subject of the investigation or proceeding is not aware of
its pendency; and
(ii) Disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings.
Sec. 9.19 Segregation of exempt information and deletion of
identifying details.
(a) For records required to be made available under 5 U.S.C.
552(a)(2), the NRC shall delete information that is exempt under one or
more of the exemptions cited in Sec. 9.17. The amount of information
deleted will be indicated on the released portion of the record, unless
providing this indication would harm an interest protected by the
exemption(s) under which the matter has been withheld.
(b) In responding to a request for information submitted under
Sec. 9.23, in which it has been determined to withhold exempt
information, the NRC shall segregate--
(1) Information that is exempt from public disclosure under
Sec. 9.17(a) from nonexempt information; and
(2) Factual information from advice, opinions, and recommendations
in predecisional records unless the information is inextricably
intertwined, or is contained in drafts, legal work products, and
records covered by the lawyer-client privilege, or is otherwise exempt
from disclosure.
(c) In denying a request for records, in whole or in part, NRC will
make a reasonable effort to estimate the volume of any information
requested that is denied and provide the estimate to the person making
the request, unless providing the estimate would harm an interest
protected by the exemption(s) under which the information has been
denied.
(d) When entire records or portions thereof are denied and
deletions are made from parts of the record by computer, the amount of
information deleted will be indicated on the released portion of the
record, unless providing this indication would harm an interest
protected by the exemption(s) under which the matter has been denied.
Sec. 9.21 Publicly-available records.
(a) Publicly-available records of NRC activities described in
paragraphs (c) and (d) of this section are available through the
National Technical Information Service. Subscriptions to these records
are available on 48x microfiche and may be ordered from the National
Technical Information Service, 5285 Port Royal Road, Springfield, VA
22161. Single copies of NRC publications in the NUREG series, NRC
Regulatory Guides, and Standard Review Plans are also available from
the National Technical Information Service.
(b) For the convenience of persons who may wish to inspect without
charge or purchase copies of a record or a limited category of records
for a fee, publicly available records of the NRC's activities described
in paragraph (c) of this section are also made available at the NRC
Public Document Room. The NRC Public Document Room is located at 2120 L
Street, NW., Washington, DC, and is open between 7:45 a.m. and 4:15
p.m. on Monday through Friday, except Federal holidays.
(c) The following records of NRC activities are publicly available
at the NRC Public Document Room for public inspection and copying:
(1) Final opinions including concurring and dissenting opinions as
well as orders of the NRC issued as a result of adjudication of cases;
(2) Statements of policy and interpretations that have been adopted
by the NRC and have not been published in the Federal Register;
(3) Nuclear Regulatory Commission rules and regulations;
(4) Nuclear Regulatory Commission Manuals and instructions to NRC
personnel that affect any member of the public;
(5) Copies of records that have been released to a person under the
Freedom of Information Act 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.
(6) A general index of the records released under the FOIA.
(d) Current indexes to records that are made publicly available are
listed in NUREG-0540, ``Title of List of Documents Made Publicly
Available,'' which is published monthly. The records required to be
made available under 5 U.S.C. 552(a)(2) are included in this listing.
(e) Records made publicly available under paragraphs (c) (1), and
(2) of this section are also available for purchase through the
National Technical Information Service.
(f) By November 1, 1997, NRC will begin making records identified
in paragraph (c) of this section that were created after November 1,
1996, available by electronic means, including computer
telecommunications to the extent NRC has implemented its
[[Page 46928]]
telecommunications capability, unless the records have been promptly
published and copies offered for sale. Telecommunications access can be
obtained via the Internet by accessing the NRC Home Page on the
Internet at:http//www.nrc.gov/.
Sec. 9.23 Requests for records.
(a)(1) A person may request access to records routinely made
available by the NRC under Sec. 9.21 in person or in writing at the NRC
Public Document Room, 2120 L Street, NW., Washington, DC 20555.
(i) Each record requested must be described in sufficient detail to
enable the Public Document Room to locate the record. If the
description of the record is not sufficient to allow the Public
Document Room staff to identify the record, the Public Document Room
will advise the requester to select the record from the indexes
published under Sec. 9.21(c)(6).
(ii) In order to obtain copies of records expeditiously, a person
may open an account at the Public Document Room with the private
contracting firm that is responsible for duplicating NRC records.
(2) A person may also order records routinely made available by the
NRC under Sec. 9.21 from the National Technical Information Service,
5285 Port Royal Road, Springfield, Virginia, 22161.
(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, Office of Chief Information Officer, U.S. Nuclear
Regulatory Commission, Washington, DC 20555. 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 it has been received and logged in by the
office of the Freedom of Information Act and Privacy Act Officer.
(1) A Freedom of Information Act request covers only agency records
that are in existence on the date the Freedom of Information Act and
Privacy Act Officer receives the request. A request does not cover
agency records destroyed or discarded before receipt of a request or
which are created after the date of the request.
(2) All Freedom of Information Act requests for copies of agency
records must reasonably describe the agency records sought in
sufficient detail to permit the NRC to identify the requested agency
records. Where possible, the requester should provide specific
information regarding dates, titles, docket numbers, file designations,
and other information which may help identify the agency records. If a
requested agency record is not described in sufficient detail to permit
its identification, the Freedom of Information Act and Privacy Act
Officer will contact the requester within 10 working days after receipt
of the request and inform the requester of the additional information
or clarification needed to process the request.
(3) Upon receipt of a request made under paragraph (b) of this
section, the NRC will provide written notification to the requester
that indicates the request has been received, the name and telephone
number of the NRC point of contact to find out the status of the
request, and other pertinent matters regarding the processing of the
request.
(4)(i) The NRC shall advise a requester that fees will be assessed
if--
(A) A request involves anticipated costs in excess of the minimum
specified in Sec. 9.39; and
(B) Search and duplication is not provided without charge under
Sec. 9.39; or
(C) The requester does not specifically state that the cost
involved is acceptable or acceptable up to a specified limit.
(ii) The NRC has discretion to discontinue processing a request
made under this paragraph (b) until--
(A) A required advance payment has been received;
(B) The requester has agreed to bear the estimated costs;
(C) A determination has been made on a request for waiver or
reduction of fees; or
(D) The requester meets the requirements of Sec. 9.39.
(c) If a requested agency record that has been reasonably described
is located at a place other than the NRC Public Document Room or NRC
headquarters, the NRC may, at its discretion, make the record available
for inspection and copying at the other location.
(d) Except as provided in Sec. 9.39--
(1) If the record requested under paragraph (b) of this section is
a record available through the National Technical Information Service,
the NRC shall refer the requester to the National Technical Information
Service; and
(2) If the requested record has been placed in the NRC Public
Document Room under Sec. 9.21, the NRC will inform the requester that
the record is in the Public Document Room and that the record may be
obtained in accordance with the procedures set forth in paragraph (a)
of this section or, if applicable, is available on line electronically.
(e) The Freedom of Information Act and Privacy Act Officer will
promptly forward a Freedom of Information Act request made under
Sec. 9.23(b) for an agency record to the head of the office(s)
primarily concerned with the records requested, as appropriate. The
responsible office will conduct a search for the agency records
responsive to the request and compile those agency records to be
reviewed for initial disclosure determination and/or identify those
that have already been made publicly available in the Public Document
Room and Local Public Document Rooms.
Sec. 9.25 Initial disclosure determination.
(a) Time for initial disclosure determination. The NRC will notify
a requester within 20 working days of its determination. If the NRC
cannot act upon the request within this period, the NRC will provide
the requester with the reasons for the delay and provide a projected
response date.
(b) Extension of time limit in unusual circumstances. In unusual
circumstances, the NRC may extend the time limit prescribed in
paragraph (a) of this section by not more than 10 working days. The
extension may be made by written or telephonic notice to the person
making the request to explain the reasons for the extension and
indicate the date on which a determination is expected to be made.
``Unusual circumstances'' is limited to one or more of the following
reasons for delay:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(3) The need for consultation, which will be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
NRC having substantial subject-matter interest therein.
(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. For purposes of this paragraph, the term
``exceptional
[[Page 46929]]
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.
(d) Multiple-Track processing. To ensure the most equitable
treatment possible of all requesters, the NRC will process requests on
a first-in, first-out basis, using multiple tracking systems based upon
the estimated time it will take to process the request.
(1) NRC uses a three-track system.
(i) The first track is for requests of simple to moderate
complexity that are expected to be completed within 20 working days.
(ii) The second track is for requests involving unusual
circumstances that are expected to take between 21-30 working days to
complete (e.g. requests involving possible records from two or three
offices and/or various types of files of moderate volume, of which,
some are expected to be exempt)
(iii) The third track is for requests that, because of their
unusual volume or other complexity, are expected to take more than 30
working days to complete (e.g. requests involving several offices,
regional offices, another agency's records, classified records
requiring declassification review, records from businesses that are
required to be referred to the submitter for their proprietary review
prior to disclosure, records in large volumes which require detailed
review because of the sensitive nature of the records such as
investigative records or legal opinions and recordings of internal
deliberations of agency staff).
(2) Upon receipt of requests, NRC will notify requesters of the
track in which the request has been placed for processing and the
estimated time for completion. Should subsequent information
substantially change the estimated time to process a request, the
requester will be notified telephonically or in writing. A requester
may modify the request to allow it to be processed faster or to reduce
the cost of processing. Partial responses may be sent to requesters as
documents are obtained by the FOIA office from the supplying offices.
(e) Expedited processing. (1) NRC may place a person's request at
the front of the queue for the appropriate track for that request upon
receipt of a written request that clearly demonstrates a compelling
need for expedited processing. For purposes of determining whether to
grant expedited processing, the term compelling need means--
(i) That a failure to obtain requested records on an expedited
basis could reasonably be expected to pose an imminent threat to the
life or physical safety of an individual; or
(ii) With respect to a request made by a person primarily engaged
in disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity.
(2) A person requesting expedited processing must include a
statement certifying the compelling need given to be true and correct
to the best of his or her knowledge and belief.
(3) The Freedom of Information Act and Privacy Act Officer will
make the initial determination whether to grant or deny a request for
expedited processing and will notify a requester within 10 calendar
days after the request has been received whether expedited processing
will be granted.
(f) Disclosure Review. The head of the responsible office shall
review agency records located in a search under Sec. 9.23(b) to
determine whether the agency records are exempt from disclosure under
Sec. 9.17(a). If the head of the office determines that, although
exempt, the disclosure of the agency records will not be contrary to
the public interest and will not affect the rights of any person, the
head of the office may authorize disclosure of the agency records. If
the head of the office authorizes disclosure of the agency records, the
head of the office will furnish the agency records 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.
(g) Initial disclosure determinations on requests for records
located in offices under the Executive Director for Operations, the
office of the Chief Financial Officer, and the office of the Chief
Information Officer. Except as provided in paragraph (h) of this
section, if, as a result of the review specified in paragraph (f) of
this section, the head of the responsible office finds that agency
records 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.
(h) Initial disclosure determinations on requests for records
located in offices other than offices under the Executive Director for
Operations. For agency records located in the office of a Commissioner
or in the Office of the Secretary of the Commission, the Assistant
Secretary of the Commission will make the initial determination to deny
agency records in whole or in part under Sec. 9.17(a) instead of the
Freedom of Information Act and Privacy Act Officer. For agency records
located in the Office of the General Counsel, the General Counsel will
make the initial determination to deny agency records in whole or in
part instead of the Freedom of Information Act and Privacy Act Officer.
For agency records located in the Office of the Inspector General, the
Assistant Inspector General for Investigations will make the initial
determination to deny agency records in whole or in part instead of the
Freedom of Information Act and Privacy Act Officer. If the Assistant
Secretary of the Commission, the General Counsel, or the Assistant
Inspector General for Investigations determines that the agency records
sought are exempt from disclosure and that their disclosure is contrary
to the public interest and will adversely affect the rights of any
person, the Assistant Secretary of the Commission, the General Counsel,
or the Assistant Inspector General for Investigations will furnish that
determination 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
(i) Records and information originated by another Federal agency.
If a requested record is located that was originated or contains
information originated by another Federal Government agency, or deals
with subject matter over which an agency other than the NRC has
exclusive or primary responsibility, the NRC will promptly refer the
record to that Federal Government agency for disposition or for
guidance regarding disposition.
(j) If the NRC does not respond to a request within the 20 working-
day period, or within the extended periods described in paragraph (e)
of this section, the requester may treat that delay as a denial of the
request and immediately appeal to the Executive
[[Page 46930]]
Director for Operations as provided in Sec. 9.29(a) or sue in a
district court as noted in Sec. 9.29(c).
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. 9.35. The NRC will routinely place
copies of non-sensitive agency records disclosed in response to Freedom
of Information Act requests in the NRC Public Document Room and on
microfiche in Local Public Document Rooms. Records will not be
routinely placed in the NRC Public Document Room and Local Public
Document Rooms that contain information personal to the requester,
matters that are not likely to be of public interest to anyone other
than the requester; or, that contain privileged or proprietary
information that should only be disclosed to the requester.
(b) When the NRC denies access to a requested agency record or
denies a request for expedited processing or for a waiver or reduction
of fees, the Freedom of Information Act and Privacy Act Officer will
notify the requester in writing. The denial will include as
appropriate--
(1) The reason for the denial;
(2) A reference to the specific exemption under the Freedom of
Information Act, or other appropriate reason, and the Commission's
regulations authorizing the denial;
(3) The name and title or position of each person responsible for
the denial of the request, including the head of the office
recommending denial of the record;
(4) A statement stating why the request does not meet the
requirements of Sec. 9.41 if the request is for a waiver or reduction
of fees; and
(5) A statement that the denial may be appealed within 30 calendar
days from the date of the denial to the Executive Director for
Operations, to the Secretary of the Commission, or to the Inspector
General, as appropriate.
(c) The Freedom of Information Act and Privacy Act Officer will
maintain a copy of each letter granting or denying requested agency
records, denying a request for expedited processing, or denying a
request for a waiver or reduction of fees in accordance with the NRC
Comprehensive Records Disposition Schedule.
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. For agency records denied by an Office
Director reporting to the Executive Director for Operations, the appeal
must be in writing and addressed to the Executive Director for
Operations, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
For agency records denied by an Office Director reporting to the
Commission, the Assistant Secretary of the Commission, or the Advisory
Committee Management Officer and for a denial of a request for a waiver
or reduction of fees, or denial of a request for expedited processing,
the appeal must be in writing and addressed to the Secretary of the
Commission. For agency records denied by the Assistant Inspector
General for Investigations, the appeal must be in writing and addressed
to the Inspector General. 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 that is not marked as
indicated in this paragraph as received until it is actually received
by the Executive Director for Operations, Secretary of the Commission,
or the Inspector General.
(b) The NRC will make a determination on any appeal made under this
section within 20 working days after the receipt of the appeal, except
an appeal of the denial of a request for expedited processing will be
determined within 10 working days after receipt of the appeal.
(c) (1) If the appeal is denied in whole or in part, the Executive
Director for Operations or a Deputy Director, the Secretary of the
Commission, or the Inspector General, as appropriate, will notify the
requester of the denial, explaining the exemptions relied upon and how
the exemptions apply to the agency records withheld.
(2) If, on appeal, the denial of a request for expedited processing
or for a waiver or reduction of fees for locating and reproducing
agency records is upheld in whole or in part, the Secretary of the
Commission 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) or
Sec. 9.41.
(3) The Executive Director for Operations, or a Deputy Executive
Director, or the Secretary of the Commission, or the Inspector General
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) The Executive Director for Operations, or a Deputy Executive
Director, or 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.
Sec. 9.31 Extension of time for response.
(a) In unusual circumstances defined in Sec. 9.13, the NRC may
extend the time limits prescribed in Sec. 9.25 or Sec. 9.29 by not more
than 10 working days. The extension may be made by written notice to
the person making the request to explain the reasons for the extension
and indicate the date on which a determination is expected to be
dispatched.
(b) An extension of the time limits prescribed in Secs. 9.25 and
9.29 may not exceed a combined total of 10 working days per request,
unless a requester has agreed to an alternative time frame as described
in Sec. 9.25(c).
Sec. 9.33 Search, review, and special service fees.
(a) The NRC charges fees for--
(1) Search, duplication, and review, when agency records are
requested for commercial use;
(2) Duplication of agency records provided in excess of 100 pages
when agency records are not sought for commercial use and the request
is made by an educational or noncommercial scientific institution, or a
representative of the news media;
(3) Search and duplication of agency records in excess of 100 pages
for any request not described in paragraphs (a) (1) and (2) of this
section;
(4) The direct costs of searching for agency records. The NRC will
assess fees even when no agency records are located as a result of the
search or when agency records that are located as a result of the
search are not disclosed; and
(5) Computer searches which includes the cost of operating the
Central Processing Unit for the portion of operating time that is
directly attributable to searching for agency records plus the
operator/programmer salary apportionable to the search.
(b) The NRC may charge requesters who request the following
services for the direct costs of the service:
[[Page 46931]]
(1) Certifying that records are true copies; or
(2) Sending records by special methods, such as express mail,
package delivery service, courier, and other means other than ordinary
mail.
(3) Producing or converting records to formats specified by a
requester other than ordinary copying processes that are readily
available in NRC.
Sec. 9.34 Assessment of interest and debt collection.
(a) The NRC will assess interest on the fee amount billed starting
on the 31st day following the day on which the billing was sent in
accordance with NRC's regulations set out in Sec. 15.37 of this
chapter. The rate of interest is prescribed in 31 U.S.C. 3717.
(b) The NRC will use its debt collection procedures under part 15
of this chapter for any overdue fees.
Sec. 9.35 Duplication fees.
(a)(1) Charges for the duplication of records made available under
Sec. 9.21 at the NRC Public Document Room (PDR), 2120 L Street, NW.
(Lower Level), Washington, DC., by the duplicating service contractor
are as follows:
(i) Paper to paper reproduction is $0.08 per page standard size (up
to and including 11 x 17 inches reduced). Pages 11 x 17 inches are
$0.15 each. Pages larger than 11 x 17 inches, including drawings, are
$1.50 each. Pages greater than legal size, 8\1/2\ x 14 inches, and
smaller than or equal to 11 x 17 inches will be reduced to legal size
and reproduced for $0.08 per page, unless the order specifically
requests full size reproduction.
(ii) Microfiche to paper reproduction is $0.08 per page. Aperture
card blowbacks are $3.00 each (reduced size) or $5.00 (full size).
(iii) Microfiche or aperture card duplications are $0.75 each.
(iv) Rush processing is offered for standard size paper to paper
reproduction and blowbacks, excluding standing order documents and
pages reproduced from bound volumes. The charge is $0.15 per page.
(v) Facsimile charges are: $0.30 per page--local calls; $0.50 per
page--U.S. long distance; and $1.50 per page--foreign long distance.
(2) Self-service duplicating machines are available at the Public
Document Room for the use of the public. Paper to paper copy is $0.08
per page. Microfiche to paper is $0.10 per page on the reader printers.
(3) A requester may submit mail-order requests for contractor
duplication of NRC records made by writing to the NRC Public Document
Room. The charges for mail-order duplication of records are the same as
those set out in paragraph (a)(1) of this section, plus mailing or
shipping charges.
(4) A requester may open an account with the duplicating service
contractor. A requester may obtain the name and address and billing
policy of the contractor from the NRC Public Document Room.
(5) Any change in the costs specified in this section will become
effective immediately pending completion of the final rulemaking that
amends this section to reflect the new charges. The Commission will
post the charges that will be in effect for the interim period in the
Public Document Room. The Commission will publish a final rule in the
Federal Register that includes the new charges within 15 working days
from the beginning of the interim period.
(b) The NRC will assess the following charges for copies of records
to be duplicated by the NRC at locations other than the NRC Public
Document Room located in Washington, DC or at local Public Document
Rooms:
(1) Sizes up to 8\1/2\ x 14 inches made on office copying
machines-- $0.20 per page of copy; and
(2) The charge for duplicating records other than those specified
in paragraphs (a) and (b) of this section is computed on the basis of
NRC's direct costs.
(c) In compliance with the Federal Advisory Committee Act, a
requester may purchase copies of transcripts of testimony in NRC
Advisory Committee proceedings, which are transcribed by a reporting
firm under contract with the NRC directly from the reporting firm at
the cost of reproduction as provided for in the contract with the
reporting firm. A requester may also purchase transcripts from the NRC
at the cost of reproduction as set out in paragraphs (a) and (b) of
this section.
(d) Copyrighted material may not be reproduced in violation of the
copyright laws. As such, requesters will be given the citation to any
copyrighted documents and a copy of the material will be placed in the
Public Document Room where it may be viewed by requesters.
(e) The cost for duplicating NRC records located in NRC Local
Public Document Rooms are established by the institutions maintaining
the NRC Local Public Document Room collections.
Sec. 9.37 Fees for search and review of agency records by NRC
personnel.
The NRC will charge the following hourly rates for search and
review of agency records by NRC personnel:
(a) Clerical search, review, and duplication at a salary rate that
is equivalent to a GG-7/step 5, plus 16 percent fringe benefits;
(b) Professional/managerial search, review, and duplication at a
salary rate that is equivalent to a GG-13/step 5, plus 16 percent
fringe benefits; and
(c) Senior executive or Commissioner search, review, and
duplication at a salary rate that is equivalent to an ES-3, plus 16
percent fringe benefits.
Sec. 9.39 Search and duplication provided without charge.
(a) The NRC will search for agency records requested under
Sec. 9.23(b), without charges when agency records are not sought for
commercial use and the records are requested by an educational or
noncommercial scientific institution, or a representative of the news
media.
(b) The NRC will search for agency records requested under
Sec. 9.23(b) without charges for the first two hours of search for any
request not sought for commercial use and not covered in paragraph (a)
of this section.
(c) The NRC will duplicate agency records requested under
Sec. 9.23(b) without charge for the first 100 pages of standard paper
copies, or the equivalent cost of 100 pages of standard paper copies
when providing the requester copies in microfiche or electronic form
such as computer disks, if the requester is not a commercial use
requester.
(d) The NRC may not bill any requester for fees if the cost of
collecting the fee would be equal to or greater than the fee itself.
(e) The NRC may aggregate requests in determining search and
duplication to be provided without charge as provided in paragraphs (a)
and (b) of this section, if the NRC finds a requester or group of
requesters acting in concert, have filed multiple requests that
actually constitute a single request, and that the requests involve
clearly-related matters.
Sec. 9.40 Assessment of fees.
(a) If the request is expected to require the NRC to assess fees in
excess of $25 for search and/or duplication, the NRC will notify the
requester that fees will be assessed unless the requester has indicated
in advance his or her willingness to pay fees as high as estimated.
(b) In the notification, the NRC will include the estimated cost of
search fees and the nature of the search required and estimated cost of
duplicating fees.
(c) The NRC will encourage requesters to discuss with the NRC the
possibility of narrowing the scope of the request with the goal of
reducing the cost while
[[Page 46932]]
retaining the requester's original objective.
(d) If the fee is determined to be in excess of $250, the NRC will
require an advance payment.
(e) Unless a requester has agreed to pay the estimated fees or, as
provided for in paragraph (d) of this section, the requester has paid
an estimated fee in excess of $250, the NRC may not begin to process
the request.
(f) If the NRC receives a new request and determines that the
requester has failed to pay a fee charged 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.
(g) Within 10 working days of the receipt of NRC's notice that fees
will be assessed, the requester will provide advance payment if
required, notify the NRC in writing that the requester agrees to bear
the estimated costs, or submit a request for a waiver or reduction of
fees pursuant to Sec. 9.41.
Sec. 9.41 Requests for waiver or reduction of fees.
(a)(1) The NRC will collect fees for searching for, reviewing, and
duplicating agency records, except as provided in Sec. 9.39, unless a
requester submits a request in writing for a waiver or reduction of
fees. To ensure that there will be no delay in the processing of
Freedom of Information Act requests, the request for a waiver or
reduction of fees should be included in the initial Freedom of
Information Act request letter.
(2) Each request for a waiver or reduction of fees must be
addressed to the Freedom of Information Act and Privacy Act Officer,
Office of Chief Information Officer, U.S. Nuclear Regulatory
Commission, Washington, DC 20555.
(b) A person requesting the NRC to waive or reduce search, review,
or duplication fees will--
(1) Describe the purpose for which the requester intends to use the
requested information;
(2) Explain the extent to which the requester will extract and
analyze the substantive content of the agency record;
(3) Describe the nature of the specific activity or research in
which the agency records will be used and the specific qualifications
the requester possesses to utilize information for the intended use in
such a way that it will contribute to public understanding;
(4) Describe the likely impact on the public's understanding of the
subject as compared to the level of public understanding of the subject
before disclosure;
(5) Describe the size and nature of the public to whose
understanding a contribution will be made;
(6) Describe the intended means of dissemination to the general
public;
(7) Indicate if public access to information will be provided free
of charge or provided for an access fee or publication fee; and
(8) Describe any commercial or private interest the requester or
any other party has in the agency records sought.
(c) The NRC will waive or reduce fees, without further specific
information from the requester if, from information provided with the
request for agency records made under Sec. 9.23(b), it can determine
that disclosure of the information in the agency records is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the Federal
Government and is not primarily in the commercial interest of the
requester.
(d) In making a determination regarding a request for a waiver or
reduction of fees, the NRC will consider the following factors:
(1) How the subject of the requested agency records concerns the
operations or activities of the Federal Government;
(2) How the disclosure of the information is likely to contribute
to an understanding of Federal Government operations or activities;
(3) If disclosure of the requested information is likely to
contribute to public understanding;
(4) If disclosure is likely to contribute significantly to public
understanding of Federal Government operations or activities;
(5) If, and the extent to which, the requester has a commercial
interest that would be furthered by the disclosure of the requested
agency records; and
(6) If the magnitude of the identified commercial interest of the
requester is sufficiently large, in comparison with the public interest
in disclosure, that disclosure is primarily in the commercial interest
of the requester.
(e) The Freedom of Information Act and Privacy Act Officer will
make an initial determination whether a request for a waiver or
reduction of fees meets the requirements of this section. The Freedom
of Information Act and Privacy Act Officer will inform requesters
whenever their request for a waiver or reduction of fees is denied and
will inform them of their appeal rights under Sec. 9.29.
Sec. 9.43 Processing requests for a waiver or reduction of fees.
(a) Within 20 working days after receipt of a request for access to
agency records for which the NRC agrees to waive fees under
Sec. 9.39(a) through (d) or Sec. 9.41(c), the NRC will respond to the
request as provided in Sec. 9.25.
(b) In making a request for a waiver or reduction of fees, a
requester shall provide the information required by Sec. 9.41(b).
(c) After receipt of a request for the waiver or reduction of fees
made in accordance with Sec. 9.41, the NRC will either waive or reduce
the fees and notify the requester of the NRC's intent to provide the
agency records promptly or deny the request and provide a statement to
the requester explaining why the request does not meet the requirements
of Sec. 9.41(b).
(d) As provided in Sec. 9.29, a requester may appeal a denial of a
request to waive or reduce fees to the Secretary to the Commission. The
appeal must be submitted within 30 calendar days from the date of the
notice.
Sec. 9.45 Annual report to Congress.
(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 which shall include--
(1) The number of determinations made by the NRC to deny requests
for records made to the NRC under this part and the reasons for each
determination;
(2) The number of appeals made by persons under Sec. 9.29, the
results of the appeals, and the reason for the action taken on each
appeal that results in a denial of information;
(3) A complete list of all statutes that the NRC relied upon to
withhold information under subsection (b)(3) of 5 U.S.C. 552, a
description of whether a court has upheld the decision of the NRC to
withhold information under each such statute, and a concise description
of the scope of any information withheld;
(4) The number of requests for records pending before the NRC as of
September 30 of the preceding year, and the median number of days that
such requests had been pending before the agency as of that date;
(5) The number of requests for records received by the NRC and the
number of requests that the NRC processed;
(6) The median number of days taken to process different types of
requests;
(7) The total amount of fees collected by the NRC for processing
requests;
[[Page 46933]]
(8) The number of full-time staff of the NRC devoted to processing
requests under the FOIA and the total amount expended for processing
these requests.
(b) The NRC will make a copy of each report available to the public
on the NRC homepage on the Internet that can be accessed at:
http\\www.nrc.gov. A copy will also be available for public inspection
and copying in the NRC Public Document Room.
Dated at Rockville, Maryland, this 19th day of August, 1997.
For the Nuclear Regulatory Commission.
Arnold E. Levin
Arnold E. Levin, Acting Chief Information Officer.
[FR Doc. 97-23612 Filed 9-4-97; 8:45 am]
BILLING CODE 7590-01-P
