[Federal Register Volume 66, Number 201 (Wednesday, October 17, 2001)]
[Proposed Rules]
[Pages 52721-52730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26114]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 2
RIN 3150-AC07
Availability of Official Records
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend
its regulations on availability of official records in three areas. The
proposed rule would require those who submit documents claimed to
contain proprietary or other confidential information to mark the
information as specified to decrease the chances of inadvertent public
release of the information by the NRC, codify NRC's current practices
delineating the circumstances under which the agency will not return
confidential documents that have been submitted to the NRC, and clarify
that the NRC will make as many copies of copyrighted material submitted
to the agency as it needs to perform its mission. The proposed rule is
necessary to conform the NRC's regulations regarding the availability
of official records to existing case law and agency practice.
DATES: The comment period expires December 31, 2001. Comments received
after this date will be considered if it is practical to do so, but the
Commission is able to ensure consideration only for comments received
on or before this date.
ADDRESSES: Mail written comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and
Adjudications Staff. Deliver comments to: 11555 Rockville Pike,
Rockville, Maryland, between 7:30 am and 4:15 pm on Federal workdays.
Comments also may be submitted via the NRC's interactive rulemaking
Website (http://ruleforum.llnl.gov). This site provides the ability to
upload comments as files (any format) if your Web browser supports that
function. For information about the interactive rulemaking Website,
contact Ms. Carol Gallagher, 301-415-5905 (e-mail [email protected]).
Comments received also may be viewed and downloaded electronically via
this interactive rulemaking Website.
Except for restricted information, documents created or received at
the NRC after November 1, 1999, also are available electronically at
the NRC's Public Electronic Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html. From this site, the public can gain
entry into the NRC's Agencywide Document Access and Management System
(ADAMS), which provides text and image files of NRC's public documents.
For more information, contact the NRC Public Document Room (PDR)
Reference staff at 1-800-397-4209, 301-415-4737 or by email to
[email protected].
FOR FURTHER INFORMATION CONTACT: Catherine M. Holzle, Senior Attorney,
Office of the General Counsel, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, telephone (301) 415-1560, email [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Public Comments
III. Discussion
IV. Plain Language
V. Voluntary Consensus Standards
VI. Environmental Impact: Categorical Exclusion
VII. Paperwork Reduction Act Statement
VIII. Regulatory Analysis
IX. Regulatory Flexibility Certification
X. Backfit Analysis
I. Background
The NRC first published 10 CFR 2.790 on March 22, 1976 (41 FR
11810). This regulation established procedures governing the submission
of proprietary information to the NRC. The regulation provided that
material determined to be proprietary generally would be protected by
the NRC and would not be released to the public. The agency then
[[Page 52722]]
set forth the procedures that submitters could use to challenge an NRC
determination that material was not proprietary, or a decision by the
agency to release proprietary information to the public. As part of
this procedure, the regulation addressed the circumstances under which
the agency would (or would not) return a document containing
proprietary information to the submitter. The regulation did not
address the right of the NRC to make copies of copyrighted material
submitted to it.
On December 23, 1992 (57 FR 61013), the Commission published
proposed amendments to Sec. 2.790 which would have: standardized the
markings on proprietary documents submitted to the NRC; expanded the
circumstances under which the NRC would not return proprietary
information to the submitter; and made clear that the agency will make
copies of copyrighted material submitted to it, as necessary to carry
out its mission. These changes were proposed in an effort to update the
regulations to reflect judicial decisions on public availability of
information, as well as agency practice, to facilitate document
handling, and to reflect the status of international copyright law. The
proposed changes were not directed toward modification of agency policy
or practice regarding the public disclosure of proprietary or other
confidential information submitted to the NRC.
The NRC received six comments in response to the request for
comments. It became apparent that the commenters' central concern was
the potential for increased public disclosure of proprietary
submittals, because of the linking in the regulation of the withdrawal
procedures with the proprietary determination procedures. The proposed
rule has been revised to clarify the separation between these
procedures and make the regulation easier to understand. In view of the
passage of time since the rule change was proposed in 1992, as well as
the need for additional changes and clarifications, we are again
seeking public comment before promulgating a final rule. We also are
taking this opportunity to propose additional changes to 10 CFR 2.790,
which we describe below.
II. Public Comments
The comments received on the 1992 proposed rule were from a public
interest organization, a law firm (on behalf of its nuclear power plant
clients), a nuclear industry association, and three NRC licensees. One
commenter supported the proposed amendments in toto. Another commenter
did not address the proposed amendments, but raised a general concern
regarding the potential for disclosure of proprietary information under
Sec. 2.790. The other four commenters were supportive in part, but also
raised various concerns regarding the need for, and the appropriateness
of, the changes in the proposed regulations, and in some cases
suggested alternatives. Most commenters suggested that no change was
necessary to the ``long-standing and effectively operating Commission
regime governing the submission, review and protection of proprietary
information.''
The Commission grouped the comments into 13 general issue areas.
For each area, a summary of the comments received and their proposed
resolution has been included. Most of the commenters regarded the
document marking procedures as cumbersome and unnecessary but
considered the copyright procedures reasonable. Some commenters
recommended certain fundamental changes to the existing regulation,
most notably, the adoption of presubmission procedures for
determination of whether documents could be considered to contain
proprietary or other confidential information. Some commenters urged
determination review deadlines and introduction of an absolute right of
document return. Some of the commenters challenged old (preexisting)
portions of the regulation, e.g., suggesting elimination of the
requirement that proprietary material that forms the basis of a
rulemaking cannot be withheld from the public.
The common concern throughout the comments appeared to be, not with
document return per se, but with the document disclosure aspect of the
rule and the perceived likelihood that the proposed changes would
whittle away the protection for proprietary information currently
available under Sec. 2.790. This is understandable, in that both the
current version of Sec. 2.790(c), and the one proposed in 1992, connect
the procedure for requesting document return to an agency denial of a
request to withhold a document from public disclosure. Neither version
addressed a situation involving a document return request outside these
circumstances, wherein the agency might retain a document to satisfy
some aspect of its official responsibilities but not necessarily
release it to the public.
Therefore, the Commission is reframing the proposed rule to
differentiate between the two discrete determinations of document
withholding and document return. The proposed rule would add a new and
separate paragraph (d) for the document return request procedure that
detaches it from the procedure on document withholding. This new
paragraph incorporates the additional ``exceptions'' to the document
return rule. No changes are proposed to document withholding criteria.
The Commission is providing responses to the comments received on the
1992 proposed rule, even though the NRC is issuing a new proposed rule
for comment, since some of the revisions to the proposed rule resulted
from consideration of the comments. The Commission's responses to these
comments should provide additional insight into the bases for the
revised proposed rule. A discussion of the comments received follows.
III. Discussion
Currently, 10 CFR 2.790 grants a limited right of withdrawal for
proprietary documents submitted to the NRC, provided the information
was not submitted in a rulemaking proceeding and did not subsequently
form the basis for a final rule. One of the proposed changes to this
regulation would modify the regulation to provide specific guidance for
marking information the submitter seeks to have withheld from public
disclosure on the basis of proprietary content or other confidential
information, e.g., to protect personal privacy. This would reduce the
Commission's burden in identifying portions of document submittals
asserted to be confidential. Also, the use of standardized document
marking procedures is expected to decrease the potential for
inadvertent release of confidential information that could be caused by
oversight, mistake, or confusion about alternative markings.
The Commission's regulations need to be updated to reflect more
accurately legal restrictions on the NRC's ability to permit document
withdrawal for documents that it must retain to properly conduct its
official responsibilities. Part of this responsibility is to maintain
the necessary records to document the NRC's actions. For example,
during the course of an investigation, the NRC Office of Investigations
may obtain documentary evidence, submitted voluntarily or through
compelled process, for consideration by NRC and Department of Justice
decision makers, which information cannot be returned. Thus, the second
proposed change would revise the regulations to clarify the fact that
document withdrawal will not be available when the information
contained in it forms part of the basis of
[[Page 52723]]
any official agency decision, including but not limited to, a
rulemaking proceeding or licensing activity, and to reflect the
addition of four more exceptions to the submitter's right to withdraw
such information, reflecting existing case law and agency practice.
These exceptions are when information:
(1) Is contained in documents made available to or prepared for an
NRC advisory committee;
(2) Has been revealed or relied upon at an open Commission meeting
held in accordance with 10 CFR part 9, subpart C;
(3) Is subject to a request under the Freedom of Information Act
(FOIA); or
(4) Has been obtained during the course of an investigation by
NRC's Office of Investigations.
The refusal to return documents under Sec. 2.790 does not
necessarily mean the information will be disclosed to the public;
application of these exceptions would be separate from a disclosure
determination on the underlying information. However, it remains that
the Commission may balance the public interest in access to the
information against the demonstrated concern for protecting legitimate
private interests. In some cases, disclosure may be appropriate.
Nonetheless, release is not made under this section without affording
the submitter notice and an opportunity to object. While the proposed
changes do not affect agency standards for withholding information from
public disclosure, the proposed rule has been revised to reduce
confusion between withdrawal and withholding procedures. The withdrawal
procedure has been separated from the other material and placed into a
new paragraph (d).
Finally, the third proposed change addresses the NRC reproducing
copyrighted material contained in submittals to the Commission. The
Commission has received increasing numbers of copyrighted submittals in
recent years. Most of the agency's concerns in this area have been
handled through ad hoc copyright license agreements, or under fair use
exceptions to Federal copyright law. However, handling copyrighted
material on a case-by-case basis is inefficient because the NRC
routinely needs to reproduce copyrighted material to conduct its
business. Thus, this proposed change would explicitly state the
authority of the NRC to reproduce copyright material, rather than
address this authority on a case-by-case basis.
Document Marking
1. Comment. On the proposed document marking changes, two
commenters stated that the wording proposed for marking submitted
material is unnecessarily prescriptive. The main complaint was that
this requirement would result in wasted time and effort. These
commenters considered it unnecessary to prescribe explicit document
marking language because submitters will have an affirmative interest
in making sure proprietary information is clearly marked. One commenter
observed that the Commission's goal could be accomplished by using more
general language, and noted that other agencies offer alternatives in
their regulations regarding document marking. It was suggested that the
NRC adopt marking requirements similar to those used by other agencies
and allow for variation in the marking language.
Response. The Commission does not believe that requiring
standardized language will result in any particular hardship on
submitters, especially since it intends to use standardized marking
language as a processing tool and not as a means of limiting access to
the withholding request procedure. The NRC's intent in prescribing
document marking language was to remove the guesswork for employees
handling document intake, processing and distribution, primarily at the
NRC Document Control Desk. This is expected to reduce the risk of
processing errors by administrative personnel who may not recognize
unfamiliar markings and consequently, might fail to accord materials
the proprietary treatment desired.
This requirement would be established for the protection of the
submitter and also to ease the administrative burden on the agency that
would result from the necessity of individually interpreting an
assortment of legends that might otherwise be received. Moreover,
without the prescriptive language, there may be ambiguity about whether
a submitter intended to request proprietary treatment. Unnecessary
delays can result from the need to refer documents for examination or
inquiry to determine the precise intent of the submitter and
appropriate handling. Potential burdens associated with applying
standardized language are considered to be worth the mutual effort to
reduce the risk of inadvertent disclosure.
2. Comment. For the proposed document marking changes, two
commenters noted that the proposed rule did not specify the
consequences of failing to use the exact wording in the regulation when
marking documents containing proprietary information. These commenters
claimed that forfeiture of proprietary status for not using the exact
words prescribed in the regulation would be overly harsh.
Response. The NRC would not impose a penalty for failure to use the
precise wording prescribed. In the preamble of the earlier proposed
rule, the Commission did state that it ``would not be accountable for
the public release of a document that is not marked in accordance with
the Commission's regulations.'' This does not imply forfeiture of
proprietary status, nor impose any other penalty for failure to follow
the precise format. It is meant only to convey notice that the
Commission does not assume responsibility for any unintended
consequences resulting from a submitter's failure to comply with the
regulatory standards. Naturally, the NRC would not intentionally
release such documents, but there is a heightened possibility of
potential inadvertent disclosure for proprietary information that is
not adequately identified. Language substantially similar to that
prescribed would be equally acceptable. The point is not to enforce a
standard rigidly for its own sake, but to afford appropriate protection
to submitters' confidential information, as economically and
efficiently as possible. The NRC would work with submitters, as it
always has, to resolve any discrepancies of which it was aware within a
particular request.
Document Return
3. Comment. The one comment that was virtually universal concerned
the proposed additional exceptions limiting document withdrawal because
the existing rule and the original proposed rule seemed to associate
document retention directly with document disclosure. Commenters were
overwhelmingly concerned with the potential negative impact of document
disclosure on affected parties' competitive positions within the
nuclear power industry, domestic and international. Specifically, the
thrust of comments in this category was that the proposed revision
would reduce the protections against the release of proprietary
information, increasing the risk that proprietary information would be
disclosed. Commenters objected that this would undermine important
public policy interests expressed in some of the underlying statutory
authority for 10 CFR 2.790.
Some commenters asserted that the proposed changes would have the
effect of limiting the availability of technical information to the NRC
and thereby impair the Commission's review process. In addition, these
commenters
[[Page 52724]]
contended that the proposed changes would discourage private research
and development and hinder voluntary reporting to the Commission. Some
of these commenters mentioned concern over a potential adverse effect
on the national security interest underlying technology transfer
constraints in 10 CFR part 810, issued by the Department of Energy.
Response. The additional proposed exceptions to the right of
withdrawal will not result in reduced protection for proprietary
information. The proposed rule does not narrow the criteria for
qualifying information as proprietary, which is the threshold for
withholding information from public disclosure under applicable law.
Information that currently qualifies as proprietary still would qualify
as proprietary after the rule is revised and would face no greater risk
of disclosure than it did before. If anything, the advent of broader
criteria for proprietary information, under the ``voluntary'' submittal
standard of Critical Mass, may mean that increasing amounts of
information might be afforded protection from disclosure. Critical Mass
Energy Project v. NRC, 975 F. 2d 871 (D.C. Cir. 1992), cert. denied,
507 U.S. 984 (1993).
The NRC recognizes the competing public policy tensions inherent in
balancing the economic interests of private businesses against the
public's right to be informed of the basis for official government
actions. Qualifying information will continue to receive protection,
except, as has always been the case, where the Commission makes a
determination that the right of the public to be ``fully apprised as to
the bases for and effects of a proposed action outweighs the
demonstrated concern for protection of a competitive position'' (10 CFR
2.790(b)(5)(i)). It is noted, however, that based on past history, the
Commission has rarely disclosed information over the objection of a
submitter. The NRC is confident that the additional proposed exceptions
to the return of submitted documents will neither result in a reduction
in the quantity and quality of technical information it receives from
outside, nor impact private research and development, since the
exceptions do not affect the proprietary determination process.
Consequently, the Commission would not expect its review process to be
impaired, nor does it believe implementation of the additional
exceptions will hinder voluntary reporting. Indeed, the Commission's
support of voluntary reporting in the Critical Mass case has ensured
the continued vitality of that practice.
Regarding the observation about a potential adverse effect on the
national security interest underlying technology transfer constraints
in 10 CFR 810.10, this provision relates to the production of special
nuclear material by ``all persons subject to the jurisdiction of the
United States who engage directly or indirectly in the production of
special nuclear material outside the United States.'' By its own terms,
the Department of Energy rule, 10 CFR 810.2(d), does not apply to
exports licensed by the NRC. Although 10 CFR 810.10(b) provides for
consultation with the NRC, among others, on the question of approving
an application for specific authorization under Part 810, the
determination is made by the Secretary of Energy. Thus, the issue of
potential adverse affect on the national security interest underlying
the technology transfer constraints of 10 CFR Part 810 is neither
within the purview of 10 CFR 2.790, nor the jurisdiction of the NRC,
and is not relevant to this rulemaking. We note, however, that the
proposed changes will not affect our ability to engage in a free
exchange of views with DOE or other agencies.
4. Comment. Some of the commenters declared that the proposed
exceptions exceed governing law, are not based on corresponding changes
in statutory language, and are not reflected in other agencies'
regulations. Two commenters stated that the ``FOIA capture'' exception
expressed in the proposed rule should not be adopted because the
proposed exception was not mandated by the FOIA statute. These
commenters contended that the law in this area was ambiguous, and that
the Commission's reliance upon General Electric Co. v. NRC, 750 F. 2d
1394 (7th Cir. 1984), was therefore misplaced. Finally, these
commenters asserted that the NRC itself argued opposite positions
regarding a submitter's right to withdrawal of proprietary information
in General Electric and in Westinghouse Electric Corp. v. NRC, 555 F.
2d 82 (3d Cir. 1977).
Response. This comment suggests that the Commission may not limit
return of documents without an explicit statutory mandate. But it is
appropriate to consider relevant case law when promulgating regulations
bearing on the administrative functioning of the agency. We emphasize
that the agency must retain possession of documents under certain
circumstances, such as when they are subject to an FOIA request. The
Supreme Court articulated the legal principle that a document
constitutes an agency record subject to the FOIA when it meets a two-
part test: (1) the document is created or obtained by the agency; and
(2) it is under agency control at the time of the FOIA request. U.S.
Department of Justice v. Tax Analysts, 492 U.S. 136 (1989).
Accordingly, the second part of this test (the timing of receipt of the
request) is critical to determining the status of the document as an
agency record that must be handled in accordance with statutory
requirements. When read together with the Spannaus decision, which sets
forth the statute of limitations for appealing the denial of
information requested under FOIA, these decisions obligate the
Commission to preserve and retain the records for the duration of that
period in the event of legal action. Spannaus v. Department of Justice,
643 F. Supp. 698 (D.D.C. 1986), aff'd, 824 F. 2d 52 (D.C. Cir. 1987).
The effect of this proposed rule change is to give clearer notice to
persons contemplating submittals to the NRC of the potential
limitations on the agency's ability to honor certain requests for
return of documents.
The Commission disagrees with the commenters' characterization of
the agency's position in General Electric and Westinghouse Electric
Corp and with the suggestion that the two cases created ambiguity in
the law. In fact, the cases decided different issues. The General
Electric case concerned the issue of document return when the document
had been captured by an FOIA request, whereas the Westinghouse case
involved the issue of proprietary information disclosure. In General
Electric, the NRC argued that the right of withdrawal by the submitter
was inapplicable in the face of an FOIA request for the document. This
position, that the right to document return is inapplicable once an
FOIA request is received, was upheld by the court in General Electric
Co., 750 F. 2d 1394, 1399 (7th Cir. 1984). Therefore, contrary to the
commenter's assertion, the Commission's reliance on General Electric
Co. v. NRC is well-placed, in that the General Electric opinion is
squarely on point with the Commission's action in limiting the right of
withdrawal when a document is subject to an FOIA request.
The Westinghouse case dealt with the agency's authority to amend
its rules of practice under 10 CFR 2.790 setting forth tests for
discretionary disclosure of proprietary information. The court upheld
the NRC's establishment of these disclosure criteria. That judicial
decision did not address the ``FOIA capture'' issue and thus is not
relevant to the resolution of these comments.
Finally, the Commission is not persuaded that its regulations need
to be based on the rules of other agencies, nor that it should act only
after other
[[Page 52725]]
agencies have promulgated similar rules. The Commission, as part of its
commitment to be a transparent regulator, will continue to provide
notice of its practices by modifying its regulations when appropriate.
5. Comment. One commenter charged that the proposed changes make no
distinction between documents that the Commission requires applicants,
licensees, or others to submit, which are subject to the disclosure
criteria set forth in National Parks. A suggestion was made that the
rule be revised to distinguish between voluntary and ``mandatory''
submittals to reflect the dichotomy in standards applied to the
proprietary determination for these documents.
Response. FOIA exemption 4 authorizes agencies to withhold from
public disclosure ``trade secrets and commercial or financial
information obtained from a person and privileged or confidential'' (5
U.S.C. 552(b)(4)). Until the Critical Mass case, the test for whether
information could be withheld as confidential under exemption 4 was
two-pronged: disclosure had to be likely either to impair the
Government's ability to obtain information in the future or to cause
substantial harm to the competitive position of the submitter. National
Parks & Conservation Association v. Morton, 498 F. 2d 765 (D.C. Cir.
1974). In Critical Mass, the court established a new and broader
standard of categorical protection for information voluntarily
submitted to an agency. For such information, the court found that
there is a governmental interest to be protected, namely that of
maintaining the continued and full availability of the information to
the agency. In addition, the court held that the exemption also
recognizes the submitter's interest in protecting information that
``for whatever reason, `would customarily not be released to the public
by the person from whom it was obtained'.'' Id. at 878 (citing Sterling
Drug, Inc. v. FTC, 450 F. 2d 698, 709 (D.C. Cir. 1971)). Thus, the
court found that there was broad protection for voluntarily submitted
information, provided it is not customarily disclosed to the public by
the submitter.
The Commission does not consider it necessary to incorporate a
specific standard for voluntarily submitted information because the
proposed changes do not purport to alter the standards for withholding
proprietary information. Moreover, the regulatory basis for withholding
is whether information is determined to be proprietary, by whatever
legal criteria that may be applicable. Section 2.790 is written in such
a way as to accommodate the applicable legal criteria. The fundamental
premise that proprietary information may be withheld from public
disclosure would remain valid under the proposed rule. The information
required of submitters requesting confidentiality, under affidavit,
addresses all matters the Commission must consider in making the
determination of whether information is entitled to proprietary status,
under the applicable legal standard, whether the submittal is voluntary
or mandatory. Any information provided by the submitter that adequately
supports a withholding request under the existing rule will easily
satisfy the ``voluntary'' standard, which is less demanding. All the
information required to be addressed in the affidavit is relevant to
the Commission's consideration of the withholding request.
Consequently, the Commission believes it is reasonable to have a rule
that does not connect itself excessively to particular criteria, as any
changes in the criteria would then necessitate further revisions to the
rule.
6. Comment. One commenter noted that the regulations should
incorporate the predisclosure notification procedures required by
Executive Order (E.O.) 12600.
Response. E.O. 12600 on Predisclosure Notification Procedures for
Confidential Commercial Information provides submitters certain
procedural rights in potential ``reverse'' FOIA situations, i.e., where
an individual seeks to prevent an agency from publicly disclosing
submitted information. E.O. 12600 requires Federal agencies to
establish certain predisclosure notification procedures, including
affording submitters an opportunity to object to disclosure of the
affected material. Again, the proposed changes do not purport to alter
the standards for withholding or disclosing information. Thus, this
issue is not pertinent to the proposed rule change. We note, however,
that the Commission has had such procedures in place for some time.
While the E.O. does not mandate incorporation of these procedures into
agencies' regulations, paragraph (c) of both the currently codified
requirements in 10 CFR 2.790 and this proposed rule incorporate notice
provisions and contemplate opportunity to object, as well as provide
for explanation of reasons for a Commission decision to deny a
withholding request.
In addition, the NRC includes ``special procedures for processing
records containing proprietary information'' in its FOIA Handbook under
NRC Management Directive 3.1, ``Freedom of Information Act.'' These
procedures require the NRC staff to notify submitters of proposed
disclosures and afford an opportunity to object, as well as provide a
written explanation of the Commission's decision, in the event of a
disagreement between submitters and the NRC. Thus, the Commission
implemented the notification provisions of E.O. 12600 by incorporating
such procedures into regulations and its internal guidance.
7. Comment. Some commenters objected to the potential for
disclosure of proprietary information based on an NRC balancing test.
The commenters claimed that balancing is not within the Commission's
authority once a determination is made that the submitted information
is proprietary and falls within exemption 4 of FOIA. Rather, the
commenters asserted, the balance has already been struck by Congress in
favor of the protection of proprietary information.
Response. The prerogative of balancing a proprietary interest
against the public's interest in understanding the Commission's actions
is a right already reserved to the Commission in Sec. 2.790(b)(5) of
the regulation. The Commission is not proposing any changes to this
section. Current regulations provide for this authority and it has not
been enhanced or expanded by the proposed changes. Thus, this is not at
issue in the proposed rule change. However, there is nothing in the
FOIA statute, FOIA case law, or the Trade Secrets Act, 18 U.S.C.
section 1905, that prohibits a balancing of this type.
Moreover, the proprietary determination decisionmaking process
provides several opportunities for the submitter to make a case for
withholding information from public disclosure. As a practical matter,
the final determination may be the outcome of a series of exchanges
between the agency and the submitter, usually resulting in protecting
the truly sensitive and confidential portions of the material, while
making available enough of the rest to inform the public adequately of
the vital details that the public needs to understand and inquire into
the Commission's actions. Ultimately, if submitters desire official
agency consideration of their voluntarily submitted material, they must
operate under rules that are applied consistently to all, including
information availability. Again, the Commission rarely has released
proprietary information over the objection of a submitter.
[[Page 52726]]
8. Comment. Two commenters urged that, to protect proprietary
information adequately, the NRC should implement presubmission review
procedures during which a document would not be considered an ``agency
record'' under the FOIA, the Federal Advisory Committee Act (FACA), or
the Sunshine Act. The purpose of the procedure would be to allow
submitters an absolute right to withdraw documents for which
proprietary protection is denied during the ``presubmission'' period.
These commenters noted that other agencies, namely the Environmental
Protection Agency (EPA) and the Food and Drug Administration (FDA),
allow for presubmission review of requests for confidential treatment
of proprietary information in their regulations and thus, provide
precedent for such a regime.
One commenter stated that the proposed changes accentuate a problem
on the timing of proprietary determinations by the Commission.
Specifically, the concern was that neither the existing regulation nor
the 1992 proposed version of the regulation contains a provision
requiring that proprietary determinations be made before the
information is circulated within the Commission. According to the
commenter, this lack of an explicit timing requirement is more
significant in the proposed changes, since the amendments will further
reduce the right of submitters to withdraw documents. This commenter
considers the lack of a timing requirement to expose the industry to
long periods of uncertainty regarding submitted proprietary
information, which could lead some parties to be more reluctant to
submit information voluntarily to the NRC. Therefore, this commenter
suggested that the NRC include definite time limits in its regulations
for proprietary determinations with the option for the submitter to
retrieve documents denied protection before they are circulated within
the Commission.
Response. These comments seek a period of delay before a submitted
document would have legal status as an agency record. The proposed
changes do not purport to alter the definition of ``agency record,'' so
this comment is outside the scope of the proposed changes. In the
Commission's view, however, the scheme suggested by the comments would
imply that documents may be tendered to the Commission on an informal
basis, and a decision deferred about whether to submit them for
official action pending the outcome of the proprietary review process,
including a Commission determination on whether to grant the
withholding request.
The Commission does not believe that implementing presubmission
review procedures would produce the commenters' desired legal effect of
forestalling a document becoming an agency record. The EPA and FDA
regulations referenced in these comments do not provide absolute
protection during the presubmission period. The EPA regulations
specifically provide for ``capture'' by an FOIA request. See 40 CFR
2.206(d). The FDA regulations suggest that, for qualifying voluntary
submittals, disclosure only will be made pursuant to court order, but
this rule implies that the document will remain in the hands of the
agency, in order to allow compliance with any applicable court order.
See 21 CFR 20.44. This corresponds to the requirement established by
FOIA case law that records within the physical custody and control of
the agency constitute ``agency records.'' Tax Analysts v. DOJ, 492 U.S.
136, 146 (1989); Wolfe v. HHS, 711 F. 2d, 1077, 1079-1082 (D.C. Cir.
1983). (This presumes that the document has not been withdrawn before
it is otherwise subject to the jurisdiction of the court, as when
official demand is made for the document, in which event it becomes the
subject of an FOIA request while in the agency's custody.) Even for
these agencies, the presubmission review procedures are limited to
voluntary submittals.
The proposition that the ``capture'' of documents as ``agency
records'' would be alleviated by adoption of presubmission procedures
also misses a point already tested in court: at least one court has
held that an agency may not exclude documents from the legal ambit of
the FOIA through presubmission procedures. Teich v. Food and Drug
Administration, 751 F. Supp. 243 (D.D.C. 1990). If presubmission
procedures were seen as an attempt to evade or circumvent FOIA, the
Commission would not expect them to survive judicial scrutiny. In fact,
the court discredited procedures similar to those proposed by the
commenter, stating that ``presubmission review is nothing more than an
attempt to get around the FOIA.'' Id. at 248. This alone would be
enough to reject this comment. Further, implementation of deliberate
obstacles to public information access would erode confidence in the
NRC.
Agency timeliness in reviewing submittals and the imposition of
time limits on the agency's proprietary determination process are not
within the scope of this rulemaking. Nonetheless, it is the
Commission's expectation that the staff will promptly address requests
for either withholding or return of proprietary documents. Moreover, if
proprietary protection is to be denied, the submitter will be so
informed before the document is made available to the public. Such
documents may be withdrawn in some circumstances, as provided in the
regulations. However, this does not extend to submitters any right to
withdraw documents whose return is restricted.
9. Comment. For the Commission meeting exception restricting return
of documents, two commenters stated that there is no need for the
exception because provisions of the Sunshine Act allow for meetings to
be closed, should proprietary information be discussed in the meeting.
Response. The Commission does not take issue with the fact that the
Sunshine Act permits closed meetings for discussion of proprietary
information and for appropriate protection of material exempted from
disclosure under the statute. Commission procedures acknowledge the
need to provide a confidential forum for the discussion of proprietary
information. (As noted in the Supplementary Information of the 1992
proposed rule,10 CFR 9.104 provides for meetings to be closed where
proprietary information is discussed.) The pertinent exception in the
proposed changes, however, addresses materials used for open meetings.
Presumably, if the meeting were open, the information in question (or
at least the fact of its existence) already will have been disclosed
there. This proposed change is merely to conform the regulations with
existing Commission practice, because, as with the FOIA and FACA
withdrawal exceptions, the agency is obligated to preserve the records
of its official transactions. Thus, it is not an issue of document
protection but of document retention. The Commission is not minimizing
the concerns manifested by the comments about the need to protect
proprietary information and Commission regulations do provide for
protection of proprietary information.
10. Comment. Some commenters stated that, for the proposed Advisory
Committee exception, the ``absolute bar'' to the return of documents
submitted to an Agency Advisory Committee is not required by the FACA,
in that the FACA recognizes the FOIA exemptions and procedures. One
commenter suggested that the regulations explicitly provide that
proprietary documents used by
[[Page 52727]]
Commission Advisory Committees will not be disclosed to the public.
Response. The FACA provides for meetings to be open to the public
and for the opportunity to appear before or file statements with the
committee, as well as for filing detailed records of each meeting,
including minutes, complete and accurate discussion of matters
discussed and conclusions reached, and copies of all reports received,
issued or approved. (5 U.S.C. App. 2, section 10.) By its own terms,
FACA sets up a requirement for public access to committee
deliberations, including the records of those meetings and documents
submitted for use in those meetings. Thus, the FACA clearly imposes an
obligation on the Commission for retention of committee records and for
public access to those documents not exempt from disclosure. Indeed,
the language supports the Commission's position that it may refuse to
return documents it considers itself bound to retain.
In addition, the FACA provides that all papers or materials ``made
available to or prepared for or by each advisory committee shall be
made available for public inspection and copying,'' subject to the FOIA
and the exemptions therein. (5 U.S.C. app. 2, section 10(b).) Hence,
the comment that FACA recognizes the FOIA certainly is correct;
however, it does not follow that application of FOIA exemptions to
withhold documents from public disclosure equates to the freedom to
return the documents at will. While the FOIA does not contain an
express prohibition against return of documents, fundamental FOIA
principles developed through case law do limit the agency's ability to
return documents subject to an FOIA request. This was explained in
response to an earlier comment, i.e., the situation when the Commission
is precluded from returning documents captured by an FOIA request.
Under the FOIA, the Commission is required to preserve records through
the potential period for administrative appeals, and court litigation,
should they arise. Spannaus v. Department of Justice, 643 F. Supp. 698
(D.D.C. 1986), aff'd, 824 F. 2d 52 (D.C. Cir. 1987). Ultimately, the
Commission must work within the legal framework of the statutes and
pertinent case law for the handling and treatment of agency records.
It should be stressed that this exception has no bearing on the
nature or quality of documents subject to ultimate protection from
public disclosure, only on the question of which documents are subject
to withdrawal. Even then, the demonstration (and acceptance by the
Commission) of the proprietary character of information carries heavy
weight in the Commission's decision whether to make information
publicly available. The Commission does not override proprietary
determinations lightly or without due deference to the private
interests at stake.
11. Comment. For the Commission meeting exception, two commenters
stated that the wording in the proposed changes was narrower than the
discussion of this exception in the Supplementary Information. The
commenters suggested that the description in the Supplementary
Information is too vague and confusing, in that it refers to documents
considered ``in connection with'' an open meeting versus the
information actually discussed at an open Commission meeting. Thus,
they sought clarification of the Commission's intent regarding this
exception.
Response. This comment highlights a discrepancy between the intent
expressed in the Supplementary Information and the actual text of the
earlier proposed changes. The text for the earlier version of this
exception adopted language directly from the Sunshine Act in an effort
to employ the standards set for information availability under that
statute, which provides basic rights of public observation in open
meetings and procedures for documentation of information withheld under
its exemptions. The statutory phrase ``considered in connection with
any [Commission] action,'' however, applies to the identification of
information withheld under Sunshine Act exemptions for documenting
closed Commission meetings. 5 U.S.C. section 552b (f)(1). Detailed
procedures for such documentation are found in the agency's regulations
at 10 CFR, Subpart C of Part 9 and are not within the scope of this
proposed revision.
The NRC's intent was to apply this withdrawal exception to
documents being actively addressed or made available in open Commission
meetings, subject to the same openness requirements as the meetings
themselves. Thus, borrowing the statutory phrase ``considered in
connection with'' for the Supplementary Information may have been
misleading, was, at the least, ambiguous, and did not capture the
Commission's true objective. The Commission's goal was to place
workable parameters on the retention requirement by establishing the
exception for documents whose contents were revealed in an open meeting
or upon which the Commission relied during an open meeting. Thus, the
new proposed exception eliminates the inconsistency of the earlier
version and reflects the actual intent of the Commission by adoption of
a standard that is not excessively broad but captures the requirement
for open meetings, since the availability of those documents must be
consistent with the statutory requirements of the Sunshine Act.
Material Subject to Copyright Protection
12. Comment. Those commenters who addressed the proposed addition
of a copyright provision supported its intent as explained in the
preamble of the proposed rule. However, two of the commenters observed
that the intent explained in the preamble was not reflected in the
actual wording of the proposed rule, particularly with respect to
subsequent reproduction of copyrighted documents outside the agency,
copyright permission notice on the face of documents, or limitation on
the number of copies distributed in response to a request. These
commenters stated that, unless modified to comport with the preamble
statements, the language of the proposed rule appeared to violate the
Federal Copyright Act. Finally, one of the commenters asserted that the
proposed rule was ambiguous and difficult to understand.
Response. The Commission acknowledges that copyright matters can be
complex. It has attempted to address the issue in a straightforward
manner and establish a comprehensible rule. Additionally, the
Commission acknowledges that the regulation is not directed toward each
and every matter mentioned in the preamble, but it does not find it
necessary to include this level of detail in the regulation. In
particular, the preamble portion of the proposed rule stated that:
[t]he proposed regulation authorizes only the NRC to copy and
distribute the document and does not extend these rights to other
persons receiving copies from NRC. The proposed rule provides that
if the document bears a copyright notice or is accompanied by an
explicit statement that the document is protected under the
copyright law, a notice would be placed on the document indicating
that the NRC has the authority to copy the document; however, all
copyright markings contained on the submitted document would be
retained. * * *
* * * [W]ith respect to the distribution of documents to the
public, only one copy per request will be made of documents bearing
a copyright notice or documents accompanied by an explicit statement
indicating that the document is protected under the copyright law.
[[Page 52728]]
The Commission deemed it important that the preamble set forth
certain matters of document processing handled under internal
administrative procedures, to explain its rationale for the underlying
regulation and to reassure submitters that it would not run roughshod
over the rights of copyright holders. However, while the preamble may
reflect additional details about the subject that are relevant to the
process, it does not amount to a legal requirement imposed by the
regulation. Moreover, the internal procedures have no effect on the
legal rights or responsibilities of any party outside the NRC. They
neither purport to expand or restrict the rights of non-NRC parties
vis-a-vis copyright holders.
These comments may reflect the mistaken impression that
incorporation in the regulation would somehow enhance copyright
enforceability or assist in the prosecution of infringement actions.
But, under copyright law, reproduction permission comes from the
copyright holder; the Commission cannot extend authority for subsequent
reproduction of copies without the express permission of the copyright
holder. The legal basis for this limitation is independent of the
Commission's statement in the preamble. Including this provision in the
regulation will make it no more nor less legally binding than it
already is by operation of law. (Under the Berne Convention
Implementation Act of 1988, P.L. 100-568, materials created after March
1, 1989, no longer require a copyright notice to be protected by
copyright law.) Thus, rather than contravening the Federal Copyright
Act, the language of the regulation is fully consistent with applicable
legal requirements.
13. Comment. One commenter who supported the proposed changes on
copyright observed that objections to these changes might signal a
desire to ``discourage public scrutiny and * * * public participation
in the design certification process.'' This commenter also thought the
NRC should consider declaring copyrighted materials used as exhibits in
NRC proceedings to be a ``fair use'' for copyright purposes.
Response. This comment demonstrates the basic tension between the
public's expectation of access to information in the hands of
government and the submitter's desire to control access to information
contained in the documents. The main purpose of this proposed change is
to reconcile the Commission's regulatory responsibilities, including
adequate public notice of the basis for its decisions, with the fact
that submittals to the Commission increasingly have been accompanied by
notice of copyright restrictions. However, there seems to be some
confusion about restricting access to information through copyright
authority. Copyright authority does not limit release or dissemination
of the material in question; essentially, it only restricts reproducing
the material. It is not an appropriate tool to attempt to shield
information from disclosure. That is the separate and independent
purpose of the withholding request procedure that occupies most of the
coverage of 10 CFR 2.790.
As to fair use: under copyright law, protection extends to various
items, including ``literary works,'' a term defined to include ``works
* * * expressed in words, numbers or other verbal or numerical symbols
* * * regardless of the * * * material objects * * * in which they are
embodied'' (17 U.S.C. section 101). Among other rights, the copyright
holder has the exclusive right to copy the work and the exclusive right
to display the work (17 U.S.C. section 106). However, the owner of a
lawful copy has the right to display the work to persons present where
the copy is located (17 U.S.C. section 109). There are a number of
other protections afforded to copyright holders and a large number of
other specific grants of authority to holders of copies of the
material, including, most notably, the ``fair use'' exception (17
U.S.C. section 107). The specific determination whether a particular
use constitutes ``fair use'' is very subjective; however, it may
include reproduction for purposes such as criticism, comment, news
reporting, teaching, scholarship, or research. ``Fair use'' is
determined by considering four statutory factors:
The purpose and character of the use, such as commercial
nature versus non-profit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used
compared to the copyrighted work as a whole; and
The effect upon the potential market for, or value of,
the copyrighted work.
The Commission's exercise of its responsibility to reproduce
sufficient copies of a document to carry out its regulatory mission and
public information obligations is a reasonable application of the
``fair use'' limitation on exclusive rights under Federal copyright
law. However, the Commission has no authority to establish the sort of
entitlement requested by the commenter to the detriment of copyright
holders. The sort of blanket authorization advocated by the commenter
would require a legislative amendment of Federal copyright law to
expand the borders of ``fair use,'' because fair use is established by
statute, as interpreted by case law. Only the Congress can make a
categorical exemption for a particular application and it has not done
this. That is not to say that the fair use doctrine would not be
available to support the application described for exhibits in NRC
proceedings, but this would need to be supported by its own facts on a
case-by-case basis and justified under applicable legal standards, as
in any other situation.
Document Release
The Commission proposes to change, in the revised subsection
2.790(c), the time period for release of documents whose request for
withholding was denied from not less than thirty days from notification
of denial of withholding to a ``reasonable time''. The Commission has
found through past experience that more flexibility in this area is
needed. In some instances, the public interest is best served by a more
expeditious release of documents. The Commission expects that it will
continue to provide a thirty-day waiting period for most documents, but
altering the rule will allow the Commission the flexibility to release
documents more expeditiously should, for example, the submitter consent
to an earlier release date or the Commission determine that an earlier
release date is needed to fulfill the Commission's public health and
safety mandate. In all cases the time period will be long enough to
allow a submitter to seek judicial relief.
IV. Plain Language
The Presidential Memorandum dated June 1, 1998, entitled, ``Plain
Language in Government Writing,'' directed that the Federal
government's writing be in plain language (63 FR 31883; June 10, 1998).
The NRC specifically requests comments on this proposed rule with
respect to the clarity and effectiveness of the language used. Such
comments may be sent to the NRC as indicated under the ADDRESSES
heading.
V. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995, Pub.
L. 104-113, requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
using such a standard is inconsistent with applicable law or otherwise
impractical. In the proposed rule the Commission is codifying its
practices regarding the treatment of proprietary
[[Page 52729]]
information and copyrighted material. This action does not constitute
the establishment of a standard that establishes generally applicable
requirements, and the use of a voluntary consensus standard is not
applicable.
VI. 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 impact assessment has been prepared for the proposed
regulation. By its very nature, this regulatory action does not affect
the environment, and therefore, no environmental justice issues are
raised.
VII. Paperwork Reduction Act Statement
This proposed rule contains no information collection requirements
and, therefore, is not subject to the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
VIII. Regulatory Analysis
This proposed rule seeks to bring NRC's regulations concerning the
availability of official records into conformance with existing case
law and current Commission practice. The current regulations provide
submitters of proprietary information the limited right to have
documents returned upon request. This proposed rule informs the public
of document marking requirements for submitted information, of four
additional exceptions to a submitter's limited right to withdraw
submitted information, and of current Commission practice concerning
the reproduction and distribution of submitted copyright material. The
proposed rule reflects current Commission administrative and procedural
practice and would have only minor impact on the benefits or costs
associated with the Commission's regulations. Some submitters currently
mark documents consistent with the requirements in this proposed rule.
For others, this proposed rule would shift some responsibility to the
submitter for ensuring that its confidential material is identified and
protected. It also codifies the Commission's practices regarding its
dissemination of copyrighted material.
IX. Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C.
605(b)), the Commission certifies that this proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. The proposed rule would advise of new document marking
requirements for submitted information, clarify the right of the
submitter of information to have certain information returned on
request, and provide notice of Commission practice concerning the
reproduction and distribution of copyrighted material. The proposed
rule does not impose any obligation or have any financial impact on
entities, including any regulated entities that may be ``small
entities,'' as defined by the Regulatory Flexibility Act (5 U.S.C.
601(3)), or under the Size Standards adopted by the NRC in 10 CFR
2.810.
X. Backfit Analysis
The NRC has determined that a backfit analysis is not required for
this proposed rule because these amendments do not include any
provisions that would impose backfits as defined in 10 CFR Chapter 1.
List of Subjects in 10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalties, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
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. 553, the NRC is proposing to
adopt the following amendments to 10 CFR Part 2.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND
ISSUANCE OF ORDERS
1. The authority citation for Part 2 continues to read as follows:
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104,
105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42
U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub.
L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)), sec. 102,
Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301,
88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105,
2.721 also issued under secs. 102, 103, 104, 105, 183i, 189, 68
Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133,
2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97-
415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also
issued under secs. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955,
83 Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236, 2282);
sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Section 2.205(j) also
issued under Pub. L. 101-410, 104 Stat. 90, as amended by section
3100(s), Pub. L. 104-134, 110 Stat. 1321-1373 (28 U.S.C. 2461 note).
Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 83
Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also
issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also
issued under 5 U.S.C. 557. Section 2.764 also issued under secs.
135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155,
10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as
amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808
also issued under 5 U.S.C. 553. Section 2.809 also issued under 5
U.S.C. 553 and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42
U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C.
10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239). Subpart M also issued under sec. 184 (42 U.S.C. 2234)
and sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued
under sec. 6, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C. 2135).
2. Section 2.790 is amended by revising the introductory text of
paragraph (a); adding introductory text to paragraph (b); revising
paragraphs (b)(1) and (c); redesignating paragraph (e) as paragraph
(f); and adding new paragraph (e), to read as follows:
Sec. 2.790 Public inspections, exemptions, requests for withholding.
(a) Subject to the provisions of paragraphs (b), (c), (d), (e), and
(f) of this section, final NRC records and documents, including but not
limited to correspondence to and from the NRC regarding the issuance,
denial, amendment, transfer, renewal, modification, suspension,
revocation, or violation of a license, permit, or order, or regarding a
rulemaking proceeding subject to this part shall not, in the absence of
a compelling reason for nondisclosure after a balancing of the
interests of the person or agency urging nondisclosure and the public
interest in disclosure, be exempt from disclosure and will be made
available for inspection and copying at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public Document Room, except for matters
that are:
* * * * *
(b) The procedures in this section must be followed by anyone
submitting a document to the NRC who seeks to have the document, or a
portion of it, withheld from public disclosure because it contains
trade secrets, privileged or confidential commercial or financial
information, or personal privacy information.
(1) The submitter shall request withholding at the time the
document is
[[Page 52730]]
submitted and shall comply with the document marking and affidavit
requirements set forth in this paragraph. The NRC has no obligation to
review documents not so marked to determine whether they contain
information eligible for withholding under paragraph (a) of this
section. Any documents not so marked may be made available to the
public at the NRC Website, http://www.nrc.gov.
(i) The submitter shall ensure that the document containing
information sought to be withheld is marked as follows:
(A) The top of the first page of the document and the top of each
page containing such information must be marked ``Confidential
Information Submitted Under 10 CFR 2.790,'' to indicate it contains
information the submitter seeks to have withheld.
(B) Each page containing information sought to be withheld from
public disclosure must indicate, adjacent to the information, or at the
top if the entire page is affected, the basis (i.e., trade secret,
personal privacy, etc.) for proposing that the information be withheld
from public disclosure under paragraph (a) of this section.
(ii) The request for withholding must be accompanied by an
affidavit that--
(A) Identifies the document or part sought to be withheld;
(B) Identifies the official position of the person making the
affidavit;
(C) Declares the basis for proposing the information be withheld,
encompassing considerations set forth in Sec. 2.790(a);
(D) Includes a specific statement of the harm that would result if
the information sought to be withheld is disclosed to the public; and
(E) Indicates the location(s) in the document of all information
sought to be withheld.
(iii) In addition, an affidavit accompanying a withholding request
based on paragraph (a)(4) of this section must contain a full statement
of the reason for claiming the information should be withheld from
public disclosure. Such statement shall address with specificity the
considerations listed in paragraph (b)(4) of this section. In the case
of an affidavit submitted by a company, the affidavit shall be executed
by an officer or upper-level management official who has been
specifically delegated the function of reviewing the information sought
to be withheld and authorized to apply for its withholding on behalf of
the company. The affidavit shall be executed by the owner of the
information, even though the information sought to be withheld is
submitted to the Commission by another person. The application and
affidavit shall be submitted at the time of filing the information
sought to be withheld. The information sought to be withheld shall be
incorporated, as far as possible, into a separate paper. The affiant
must designate with appropriate markings information submitted in the
affidavit as a trade secret, or confidential or privileged commercial
or financial information within the meaning of Sec. 9.17(a)(4) of this
chapter, or confidential information within the meaning of
Sec. 9.17(a)(6) of this chapter, and such information shall be subject
to disclosure only in accordance with the provisions of Sec. 9.19 of
this chapter.
* * * * *
(c) The Commission either may grant or deny a request for
withholding under this section.
(1) If the request is granted, the Commission will notify the
submitter of its determination to withhold the information from public
disclosure.
(2) If the Commission denies a request for withholding under this
section, it will provide the submitter with a statement of reasons for
that determination. This decision will specify the date, which will be
a reasonable time thereafter, when the document will be available at
the NRC Website, http://www.nrc.gov. The document will not be returned
to the submitter.
(3) Whenever a submitter desires to withdraw a document from
Commission consideration, it may request return of the document, and
the document will be returned unless the information--
(i) Forms part of the basis of an official agency decision,
including but not limited to, a rulemaking proceeding or licensing
activity;
(ii) Is contained in a document that was made available to or
prepared for an NRC advisory committee;
(iii) Was revealed, or relied upon, in an open Commission meeting
held in accordance with 10 CFR part 9, subpart C;
(iv) Has been requested in a Freedom of Information Act request; or
(v) Has been obtained during the course of an investigation
conducted by the NRC Office of Investigations.
* * * * *
(e) Submitting information to NRC for consideration in connection
with NRC licensing or regulatory activities shall be deemed to
constitute authority for the NRC to reproduce and to distribute
sufficient copies to carry out the Commission's official
responsibilities. The Commission may waive the requirements of this
paragraph on request, or on its own initiative, in circumstances the
Commission deems appropriate.
(1) Any person submitting information shall--
(i) Be deemed to represent to the NRC that he or she has legal
authority to submit the document and to permit NRC to reproduce and
distribute the document; and
(ii) Hold the Commission harmless from damages that result from the
Commission's reproduction or distribution of the documents.
(2) Documents will be returned to the submitter and will not be
considered by the Commission in the absence of a waiver of this
regulation in the following types of situations:
(i) A document bearing a copyright notice not accompanied by a
statement authorizing the Commission to make copies of the material in
accordance with this section;
(ii) A document containing or accompanied by a statement
restricting the copying of the material; or
(iii) A document that bears or is accompanied by a statement
representing that the submitter lacks authority to permit NRC to copy
and distribute the document.
* * * * *
Dated at Rockville, Maryland, this 11th day of October, 2001.
For the Nuclear Regulatory Commission.
Andrew L. Bates,
Acting Secretary of the Commission.
[FR Doc. 01-26114 Filed 10-16-01; 8:45 am]
BILLING CODE 7590-01-P