ML082460249

UNITED STATES 

NUCLEAR REGULATORY COMMISSION 

OFFICE OF NUCLEAR REACTOR REGULATION 

OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS 

OFFICE OF FEDERAL AND STATE MATERIALS AND 

ENVIRONMENTAL MANAGEMENT PROGRAMS 

OFFICE OF NEW REACTORS 

WASHINGTON, DC 20555-0001 

March 30, 2009 

NRC INFORMATION NOTICE 2009-07: WITHHOLDING OF PROPRIETARY 

INFORMATION FROM PUBLIC DISCLOSURE 

ADDRESSEES 

All current holders of and potential applicants for licenses, certificates of compliance, permits, or 

standard design certifications, as well as any other persons submitting a request that 

information be withheld from public disclosure under the provisions of Title 10 of the Code of 

Federal Regulations (10 CFR) Section 2.390, “Public inspections, exemptions, requests for 

withholding.” 

PURPOSE 

The U.S. Nuclear Regulatory Commission (NRC) is issuing this information notice (IN) to inform 

addressees of recent problems with licensee submittals that request withholding proprietary 

information under 10 CFR 2.390. The NRC expects that recipients will review the information 

for applicability to their facilities and consider actions, as appropriate, to avoid similar problems. 

Suggestions contained in this IN are not NRC requirements; therefore, no specific action or 

written response is required. 

DESCRIPTION OF CIRCUMSTANCES 

Over the last year, NRC staff has received several licensee requests for withholding of 

proprietary information under 10 CFR 2.390 that were too broad in that most of the information 

that the licensee requested be withheld from public disclosure did not satisfy the conditions of 

10 CFR 2.390. Rather than limiting the request to the specific information in a document where 

release to the public could harm private commercial interests, much of material that licensees 

requested be withheld had no bearing on proprietary information. This resulted in agency 

discussions and correspondence with the licensees to obtain revised 10 CFR 2.390 submittals. 

DISCUSSION 

The above describes problems with licensee 10 CFR 2.390 submittals in which most of the 

information that the licensee requested be withheld from public disclosure did not satisfy the 

conditions of 10 CFR 2.390. This resulted in delays and expenditure of resources to obtain 

revised 10 CFR 2.390 submittals from these licensees. The following information describes 
IN 2009-07 

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existing NRC requirements, policies, and practices regarding 10 CFR 2.390 submittals related 

to the problems discussed in this IN. 

NRC Review. 10 CFR 2.390(b)(2) states that a person who submits commercial or financial 

information believed to be privileged or confidential or a trade secret shall be on notice that it is 

the policy of the Commission to achieve an effective balance between legitimate concerns for 

protection of competitive positions and the right of the public to be fully apprised as to the basis 

for and effects of licensing or rulemaking actions, and that it is within the discretion of the 

Commission to withhold such information from public disclosure. The NRC is required by 

10 CFR 2.390(b)(3) to determine whether information sought to be withheld from public 

disclosure is a trade secret or confidential or privileged commercial or financial information and, 

if so, whether it should be withheld. The NRC staff reviews all proprietary submittals that 

require NRC approval to ensure that the basis for withholding is supportable in accordance with 

10 CFR 2.390(b)(4) and that submittals comply with the affidavit and marking requirements. 

The staff must then, pursuant to 10 CFR 2.390(b)(5), determine (1) whether the right of the 

public to be fully apprised of the proposed action outweighs the demonstrated concern for 

protection of a competitive position, and (2) whether the information should be withheld. 

Requirements for Submittals. 10 CFR 2.390(b)(1) states that the submitter shall request 

withholding at the time the document is submitted and shall comply with the document marking 

and affidavit requirements set forth in 10 CFR 2.390(b)(1). 

(1) Affidavit. 10 CFR 2.390(b)(1) states the affidavit must identify the document or part 

sought to be withheld and must address the factors set out in 10 CFR 2.390(b)(4), 

including the owner=s specific reasons as to why the document is considered to contain 

proprietary information, the release of which would cause harm to the competitive 

position of the owner of the information. 10 CFR 2.390(b)(1)(ii) and (iii) specifies that the 

request for withholding and the affidavit must be submitted at the same time as the 

proprietary information sought to be withheld and that the affidavit must— 

 (a) Identify the document or part sought to be withheld. 

(b) Identify the official position of the person making the affidavit. If the 

affidavit has been submitted by a company, this person shall be an officer 

or upper level management official who has been specifically delegated 

the function of reviewing the information sought to be withheld and 

authorized to apply for its withholding on behalf of the company. Further, 

the affidavit shall be executed by the owner of the information, even if the 

information is submitted to the Commission by another person. 

(c) Declare the basis for proposing the information be withheld, including the 

considerations set forth in 10 CFR 2.390(a). 

(d) Contain a specific statement of the harm that would result if the 

information sought to be withheld is disclosed to the public. 

(e) Indicate the location(s) in the document of all information sought to be 

withheld. 
IN 2009-07 

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(f) Contain a full statement of the reason for claiming the information should 

be withheld from public disclosure. The statement shall address, with 

specificity, the considerations listed in 10 CFR 2.390(b)(4). 

(2) Marking of Information Sought To Be Withheld. 10 CFR 2.390(b)(1)(i) requires that the 

submitter ensure that the document containing information sought to be withheld is 

marked as specified in 10 CFR 2.390(b)(1)(i)(A) and (B). This includes marking the top 

of the first page of the document and the top of each page containing such information 

as "proprietary" to indicate it contains information the submitter seeks to have withheld 

and must indicate, adjacent to the information, or at the top if the entire page is affected, 

the basis (i.e., trade secret, etc.) for proposing that the information be withheld from 

public disclosure. 

While 10 CFR 2.390 specifies that the information that the NRC determines is not exempt from 

disclosure will be made public, the regulations do not describe how this is accomplished when 

only a portion of the document is exempt. Although not explicitly required, the Commission’s 

expectation1

 (which many licensees have adopted in their administrative procedure) is that the 

submitter of the proprietary information should provide a nonproprietary version with brackets 

showing where the proprietary information has been deleted. In instances in which a 

nonproprietary version would be of no value to the public because of the extent of the 

proprietary information, the agency does not expect a nonproprietary version to be submitted. 

 

1

 See NRC Management Directive 3.4, “Release of Information to the Public,” which can be found on the 

NRC’s public Web site in the Agencywide Documents Access and Management System (ADAMS), under 

Accession No. ML080250350. 
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CONTACT 

This information notice requires no specific actions or written response. If you have any 

questions about the information in this notice, please contact the technical contact listed below 

or the appropriate regional office. 

/RA/ /RA/ 

Daniel H. Dorman, Director Robert J. Lewis, Director 

Division of Fuel Cycle Safety Division of Materials Safety 

 and Safeguards and State Agreements 

Office of Nuclear Materials Safety Office of Federal and State Materials and 

 and Safeguards Environmental Management Programs 

Theodore R. Quay for /RA/ 

Timothy J. McGinty, Director Barbara K. Gusack, Director 

Division of Policy and Rulemaking Division of Program Management, 

Office of Nuclear Reactor Regulation Policy Development and Analysis 

 Office of New Reactors 

Technical Contact: T.D. Naquin, NMSS 

 (301) 492-3187 

 E-mail: Tyrone.Naquin@nrc.gov

Note: NRC generic communications may be found on the NRC public Web site, 

http://www.nrc.gov, under Electronic Reading Room/Document Collections. 
IN 2009-07 

Page 4 of 4 

CONTACT 

This information notice requires no specific actions or written response. If you have any 

questions about the information in this notice, please contact the technical contact listed below 

or the appropriate regional office. 

/RA/ /RA/ 

Daniel H. Dorman, Director Robert J. Lewis, Director 

Division of Fuel Cycle Safety Division of Materials Safety 

 and Safeguards and State Agreements 

Office of Nuclear Materials Safety Office of Federal and State Materials and 

 and Safeguards Environmental Management Programs 

Theodore R. Quay for /RA/ 

Timothy J. McGinty, Director Barbara K. Gusack, Director 

Division of Policy and Rulemaking Division of Program Management, 

Office of Nuclear Reactor Regulation Policy Development and Analysis 

 Office of New Reactors 

Technical Contact: T.D. Naquin, NMSS 

 (301) 492-3187 

 E-mail: Tyrone.Naquin@nrc.gov

Note: NRC generic communications may be found on the NRC public Web site, 

http://www.nrc.gov, under Electronic Reading Room/Document Collections. 

DISTIBUTION:

NBaker MBartlett RRodriguez MAdams TJohnson 

KRamsey NRivera SEchols MRaddatz PHabighorst 

TLiu DTiktinsky JDowns BReilly 

ADAMS Accession Number: ML082460249 

OFFICE UEB UEB Tech Editor OE OIS OGC(CRA) 

NAME TNaquin VWilliams KAzariah-Kribbs SMagruder GTrussel CHolzle 

DATE 9/29/08 9/30/08 10/03/08 e-mail 10/03/08 10/17/08 10/24/08 

OFFICE OGC (NLO) UEB FCSS NMSS FFLD FCSS 

NAME CHolzle BSmith JSmith AWong MTschiltz DDorman 

DATE 10/24/08 2/11/2009 2/13/2009 2/13/2009 2/13/2009 2/23/2009 

OFFICE D:MSSA D:PMDA PGCB:DPR PGCB:DPR BC:PGCB:DPR D:DPR 

NAME RLewis BGusack DBeaulieu CHawes MMurphy TMcGinty 

DATE 2/26/2009 3/26/09 3/13/09 03/30/09 04/06/09 04/06/09 

OFFICIAL RECORD COPY