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.

Proposed Rules Federal Register

46922

Vol. 62, No. 172

Friday, September 5, 1997

NUCLEAR REGULATORY

COMMISSION

10 CFR Part 9

RIN 3150–AF78

Electronic Freedom of Information Act:

Implementation

AGENCY: Nuclear Regulatory

Commission.

ACTION: Proposed rule.

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
Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Proposed Rules 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 workingday 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
46924 Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Proposed Rules

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 tollfree 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
Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Proposed Rules 46925

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: CAG@nrc.gov.

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 § 9.8, paragraph (b) is revised to

read as follows:

§ 9.8 Information collection requirements:

OMB approval.

* * * * *

(b) The approved information

collection requirements contained in

this part appear in §§ 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

§ 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
46926 Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Proposed Rules

public under any other NRC public,

technical, or other information program

or policy.

§ 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 nonFederal 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 § 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 § 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.

§ 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

§ 9.21. Procedures and conditions

governing requests for records are set

forth in § 9.23.

§ 9.17 Agency records exempt from public

disclosure.

(a) The following types of agency

records are exempt from public

disclosure under § 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
Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Proposed Rules 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.

§ 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 § 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 § 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 § 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.

§ 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
46928 Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Proposed Rules

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/.

§ 9.23 Requests for records.

(a)(1) A person may request access to

records routinely made available by the

NRC under § 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

§ 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 § 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 § 9.39; and

(B) Search and duplication is not

provided without charge under § 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 § 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 § 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 § 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 § 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.

§ 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
Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Proposed Rules 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

§ 9.23(b) to determine whether the

agency records are exempt from

disclosure under § 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 § 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 § 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 § 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 § 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
46930 Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Proposed Rules

Director for Operations as provided in

§ 9.29(a) or sue in a district court as

noted in § 9.29(c).

§ 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 § 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 § 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.

§ 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

§ 9.25(e) (1) and (2) or § 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.

§ 9.31 Extension of time for response.

(a) In unusual circumstances defined

in § 9.13, the NRC may extend the time

limits prescribed in § 9.25 or § 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 §§ 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 § 9.25(c).

§ 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:
Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Proposed Rules 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.

§ 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 § 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.

§ 9.35 Duplication fees.

(a)(1) Charges for the duplication of

records made available under § 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, 81⁄2 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 81⁄2 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.

§ 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.

§ 9.39 Search and duplication provided

without charge.

(a) The NRC will search for agency

records requested under § 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 § 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 § 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.

§ 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
46932 Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Proposed Rules

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 § 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 § 9.41.

§ 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 § 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 § 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

§ 9.29.

§ 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 § 9.39(a) through (d) or

§ 9.41(c), the NRC will respond to the

request as provided in § 9.25.

(b) In making a request for a waiver

or reduction of fees, a requester shall

provide the information required by

§ 9.41(b).

(c) After receipt of a request for the

waiver or reduction of fees made in

accordance with § 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 § 9.41(b).

(d) As provided in § 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.

§ 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 § 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;
Federal Register / Vol. 62, No. 172 / Friday, September 5, 1997 / Proposed Rules 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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 917

[KY–215–FOR]

Kentucky Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment

period and opportunity for public

hearing.

SUMMARY: OSM is announcing receipt of

a proposed amendment to the Kentucky

regulatory program (hereinafter the

‘‘Kentucky program’’) under the Surface

Mining Control and Reclamation Act of

1977 (SMCRA). The proposed

amendment consists of revisions to the

Kentucky regulations pertaining to

subsidence, water replacement,

impoundments, definitions, subsidence

control, sedimentation ponds,

hydrology, and permits. The

amendment is intended to revise the

Kentucky program to be consistent with

the corresponding Federal regulations.

DATES: Written comments must be

received by 4 p.m., [E.D.T.], October 6,

1997. If requested, a public hearing on

the proposed amendment will be held

on September 30, 1997. Requests to

speak at the hearing must be received by

4 p.m., [E.D.T.], on September 22, 1997.

ADDRESSES: Written comments and

requests to speak at the hearing should

be mailed or hand delivered to William

J. Kovacic, Director, at the address listed

below.

Copies of the Kentucky program, the

proposed amendment, a listing of any

scheduled public hearings, and all

written comments received in response

to this document will be available for

public review at the addresses listed

below during normal business hours,

Monday through Friday, excluding

holidays. Each requester may receive

one free copy of the proposed

amendment by contacting OSM’s

Lexington Field Office.

William J. Kovacic, Director, Lexington

Field Office, Office of Surface Mining

Reclamation and Enforcement, 2675

Regency Road, Lexington, Kentucky

40503, Telephone: (606) 233–2896.

Department of Surface Mining

Reclamation and Enforcement, 2

Hudson Hollow Complex, Frankfurt,

Kentucky 40601, Telephone: (502)

564–6940.

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Director, Lexington

Field Office, Telephone: (606) 233–

2896.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky

Program

On May 18, 1982, the Secretary of the

Interior conditionally approved the

Kentucky program. Background

information on the Kentucky program,

including the Secretary’s findings, the

disposition of comments, and the

conditions of approval can be found in

the May 18, 1982 Federal Register (47

FR 21404). Subsequent actions

concerning the conditions of approval

and program amendments can be found

at 30 CFR 917.11, 917.13, 917.15,

917.16, and 917.17.

II. Description of the Proposed

Amendment

By letter dated July 30, 1997

(Administrative Record No. KY–1410),

Kentucky submitted a proposed

amendment to its program revising

section 405 of the Kentucky

Administrative Regulations (KAR) at

8:001, 8:030, 8:040, 16:001, 16:060,

16:090, 16:100, 16:160, 18:001, 18:060,

18:090, 18:100, 18:160, and 18:210.

Specifically, Kentucky proposes to

make the following changes. At section

8:001—Definitions (405 KAR Chapter 8),

Kentucky is defining the following

terms:

Community of Institutional Building

means any structure, other than a public

building or occupied dwelling, which is

used primarily for meetings, gatherings,

or functions of local civic organizations

or other community groups; functions as

an educational, cultural, historic,

religious, scientific, correctional, mental

health or physical health care facility; or

is used for public services including,

but not limited to, water supply, power

generation, or sewage treatment.

Impounding Structure means a dam,

embankment, or other structure used to

impound water, slurry, or other liquid

or semi-liquid material.

Impoundment means a water,

sediment, slurry, or other liquid or

semi-liquid holding structure or

depression, either naturally formed or

artificially built.

Material Damage means (a) any

functional impairment of surface lands,

features, structures or facilities: (b) any

physical change that has a significant

adverse impact on the affected land’s

capability to support any current or

reasonably foreseeable uses of causes

significant loss in production or income;

or (c) any significant change in the

condition, appearance, or utility of any

structure or facility from its presubsidence condition.

Noncommercial Building means any

building, other than an occupied

residential dwelling, that at the time

subsidence occurs, is used on a regular

or temporary basis as a public building

or community or institutional building.

Any building used only for commercial,

agricultural, industrial, retail, or other

commercial enterprises is excluded.

Occupied Residential Dwelling and

Structures Related Thereto means any

building or other structure, that at the

time the subsidence occurs, is used

either temporarily, occasionally,

seasonally, or permanently for human

habitation. This term also includes any

building, structure, or facility installed

on, above or below, or a combination

thereof, the land surface if that building,

structure, or facility is adjunct to or

used in connection with an occupied

residential dwelling.

Previously Mined Area means land

that was affected by coal mining

operations conducted prior to August 3,

1977, that has not been reclaimed to

prescribed standards.

At section 8:030—Surface Coal

Mining Permits, Kentucky is making the

following changes. At subsection 16,

Kentucky is requiring that a permit

application identify and describe certain

alternative water supply information if

the determination of probable

hydrologic consequences results in

certain indications. At subsection

32(3)(e), Kentucky is requiring that a

determination of probable hydrologic

consequences include a finding on

whether the proposed surface mining

activities may proximately result in

contamination, diminution, or

interruption of an underground or

surface source of water that is used for

domestic, agricultural, industrial, or

other legitimate use within the permit