This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

2873

Vol. 63, No. 12

Tuesday, January 20, 1998

NUCLEAR REGULATORY

COMMISSION

10 CFR Part 9

RIN 3150–AF78

Electronic Freedom of Information Act:

Implementation

AGENCY: Nuclear Regulatory

Commission.

ACTION: Final rule.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is amending 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 electronic

age by clarifying that FOIA applies to

records maintained in hardcopy or

electronic format. The rule implements

statutory provisions of the law that

broaden public access to government

information by placing more records online. The rule implements 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 with (FOIA)

requesters ways of tailoring requests to

improve responsiveness. The rule

amends 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.

EFFECTIVE DATE: February 19, 1998.

FOR FURTHER INFORMATION CONTACT:

Russell A. Powell, Chief, Freedom of

Information/Local Public Document

Room Branch, Office of the 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), Pub. L. 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.’’

This final rule revises the NRC’s FOIA

regulations, 10 CFR part 9, to comply

with EFOIA. The NRC published a

proposed rule on September 5, 1997 (62

FR 46922). In response, the NRC

received two comments from the public.

The Reporters Committee for Freedom

of the Press commented that the NRC

regulations should allow for the waiver

of the certification requirement for

requests for expedited processing. The

EFOIA allows agencies to require

requesters seeking an expedited review

to certify that the reasons provided for

expedited processing are true and

correct. The requested waiver would

avoid delays in processing a FOIA

request that would result from an

exchange of correspondence with a

requester to obtain this certification.

Although the proposed regulations

tracked the language of the EFOIA

amendments, the agency agrees with the

comment that it has the flexibility to

waive the certification requirement.

Therefore, the NRC has revised the

wording of the regulation to allow the

waiver of the certification as a matter of

agency discretion.

Commonwealth Edison Company

(ComEd) commented on what appeared

to be the establishment of a new title,

Freedom of Information Act and Privacy

Act Officer (FOIA/PA Officer). ComEd

was concerned that the NRC was

creating an additional staff position and

that the creation of additional staffing

could directly affect the cost of

administration. The NRC is not

establishing a new position, but only

using the title for the person designated

to administer the agency’s Freedom of

Information Act and Privacy Act

responsibilities. The FOIA/PA Officer

will be designated by the Chief

Information Officer and the designated

person will use the FOIA/PA Officer

title in actions involving the FOIA and

Privacy Act. The regulation has been

modified to more clearly reflect that this

is only a designated title for the

responsible official to use in the

performance of his/her responsibilities

connected with the FOIA and Privacy

Act.

ComEd was also concerned that the

establishment of an electronic reading

room for certain records created after

November 1, 1996, ‘‘may prove to be

prohibitively expensive.’’ The NRC has

a previously established website. Most

of the documents that are required to be

posted in an electronic reading room

were already posted on the website or

are available electronically through the

NRC Public Document Room’s on-line

Bibliographic Retrieval System (BRS).

Therefore, the additional cost to add the

few remaining documents to the NRC

website is minimal and does not have

any significant economic impact on the

NRC or the public.

The final rule also includes several

non-substantive editorial corrections.

The definition of the term ‘‘Review

time’’ at § 9.13 has been revised to

remove the phrase ‘‘to determine if they

are in fact responsive’’ because that is

search time, not review time. The

definition of the term ‘‘Search time’’ has

been revised in § 9.13 by substituting

the term ‘‘reviewing * * * agency

records’’ with ‘‘looking for * * * agency

records’’ to avoid confusion since the

term ‘‘reviewing’’ has its own definition.

In addition, paragraphs (d)(2), (3), and

(4) of § 9.41 have been combined to

eliminate redundancies. Section

9.41(d)(2), (3), and (4) have been

combined in a single paragraph at

§ 9.41(d)(2). Paragraphs (d)(5) and (6) of

§ 9.41 have been combined in a single

paragraph at § 9.41(d)(3).
2874 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Rules and Regulations

New Provisions

A. New and Revised Definitions

The rule establishes a new title,

Freedom of Information Act and Privacy

Act Officer, to be designated by the

Chief Information Officer as the

designated official responsible for

administering the FOIA and Privacy

Act. This new title is being used in lieu

of using the organizational title of the

responsible individual because the

organizational title may not be

indicative of the specific responsibilities

under these Acts. A new definition is

added to 10 CFR 9.13 to reflect this new

title.

The definition of record is amended

to add ‘‘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 electronic format’’ and to read

‘‘Record also includes a book, * * *

drawing, diagram, * * *’’.

The definition of review time is

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.’’ Therefore, section

552(f) clarifies that the term ‘‘agency

record’’ includes information stored in

any computer readable format as well as

traditional paper documents. The final

rule amends 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 looking for 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

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, are now

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 is

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 is included in 10 CFR 9.15.

Second, 5 U.S.C. 552(a)(3)(C) makes it

clear that when a 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 requirement is included in

10 CFR 9.15. Finally, a ‘‘search’’ under

the amendments means to look for

agency records manually ‘‘or by

automated means’’ for the purpose of

locating those records which are

responsive to a request. This

requirement is 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 is 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 are categorized

based on the amount of agency effort

involved in processing the request. This

replaces 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 are incorporated in

NRC’s 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 will

notify the requester of the track in

which the request has been placed for

processing and the estimated time for

completion of action on the request.

Should subsequent information

substantially change the estimated time

to process the request, the requester will

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, by an additional 10 working

days in ‘‘unusual circumstances.’’

Agencies must provide the requester

with a written justification for the
Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Rules and Regulations 2875

extension that contains the date of the

expected agency response. The

amendments define ‘‘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; or 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 is

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 is 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

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 has

implemented 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 has been 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 has implemented

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
2876 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Rules and Regulations

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.

Environmental Impact—Categorical

Exclusion

The NRC has determined that this

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 rule.

Paperwork Reduction Act Statement

The final rule includes an information

collection requirement that persons

seeking expedited processing under 10

CFR 9.25(e)(2) should certify the reasons

justifying their request. The estimated

burden for this certification is one hour

per request, with approximately 20

requests expected annually. The NRC

does not consider this burden increase

of 20 hours to be significant enough to

trigger the requirements of the

Paperwork Reduction Act when

compared to the overall burden for this

10 CFR part 9 and when the amount of

staff effort required to comply with

requirements of the Paperwork

Reduction Act and seek OMB’s

implementing guidance is factored in.

Existing requirements were approved by

the Office of Management and Budget,

approval number 3150–0043.

Public Protection Notification

If an information collection does not

display a currently valid OMB control

number, the NRC may not conduct or

sponsor, and a person is not required to

respond to, the information collection.

Regulatory Analysis

This rule implements the EFOIA by

amending 10 CFR part 9, subpart

A—Freedom of Information Act

Regulations. This is an administrative

regulatory action that conforms NRC’s

regulations to the new provisions of the

EFOIA. The rule will not have any

adverse economic impact on any class

of licensee or the NRC; to the contrary,

the rule with its new provisions

allowing expedited and multitrack

processing may provide some new and

additional benefit to those who choose

to use these regulations to obtain access

to NRC records and information.

This constitutes the regulatory

analysis for this 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 rule.

Small Business Regulatory Enforcement

Fairness Act

In accordance with the Small

Business Regulatory Enforcement

Fairness Act of 1996 the NRC has

determined that this action is not a

major rule and has verified this

determination with the Office of

Information and Regulatory Affairs of

OMB.

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 adopting the following

amendments to 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 is 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 is 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

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 agency 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

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
Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Rules and Regulations 2877

(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 by the Chief

Information Officer to fulfill the

responsibilities for implementing and

administering the Freedom of

Information Act and the Privacy Act as

specifically designated under the

regulations in this part.

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

whether they are exempt from

disclosure in whole or in part. Review

time also includes the period devoted to

examining records to determine which

Freedom of Information Act

exemptions, if any, are applicable and

identifying records, or portions thereof,

to be disclosed.

Search time means the period devoted

to looking for agency records, either

manually or by automated means, for

the purpose of locating those records

that 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

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;

(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;
2878 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Rules and Regulations

(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, or

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) After 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

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
Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Rules and Regulations 2879

from the indexes published under

§ 9.21(d).

(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 the 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 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 may 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, that the record 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

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.
2880 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Rules and Regulations

(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. The

certification requirement may be waived

by the NRC as a matter of agency

discretion.

(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 (b) of this

section, the requester may treat that

delay as a denial of the request and

immediately appeal as provided in

§ 9.29(a) or sue in a Federal 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 and § 9.37. The NRC will

routinely place copies of non-sensitive

agency records disclosed in response to

Freedom of Information Act requests in
Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Rules and Regulations 2881

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, involve

matters that are not likely to be of public

interest to anyone other than the

requester or 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 time that exceeds two

hours and duplication of agency records

of more than 100 pages for requests from

all other categories of requesters not

described in paragraphs (a)(1) and (a)(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:

(1) Certifying that records are true

copies;

(2) Sending records by special

methods, such as express mail, package

delivery service, courier, and other

means other than first class mail; or

(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
2882 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Rules and Regulations

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 and review at a

salary rate that is equivalent to a GG–7/

step 7, plus 16 percent fringe benefits;

(b) Professional/managerial search

and review at a salary rate that is

equivalent to a GG–13/step 6, plus 16

percent fringe benefits; and

(c) Senior executive or Commissioner

search and review at a salary rate that

is equivalent to an ES–4, 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, has 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

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
Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Rules and Regulations 2883

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 the 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

significantly to public understanding of

Federal Government operations or

activities;

(3) The extent to which, the requester

has a commercial interest that would be

furthered by the disclosure of the

requested agency records; and whether

that commercial interest exceeds the

public interest in disclosure.

(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;

(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 31st day

of December, 1997.

For the Nuclear Regulatory Commission.

Lynn B. Scattolini,

Acting Chief Information Officer.

[FR Doc. 98–1212 Filed 1–16–98; 8:45 am]

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