[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-14256] [[Page Unknown]] [Federal Register: June 13, 1994] VOL. 59, NO. 112 Monday, June 13, 1994 NUCLEAR REGULATORY COMMISSION 10 CFR Part 9 [Docket No. PRM-9-2] Ohio Citizens for Responsible Energy, Inc.; Receipt of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission. ACTION: Petition for rulemaking; notice of receipt. ----------------------------------------------------------------------- SUMMARY: The Nuclear Regulatory Commission (NRC) is publishing for public comment a notice of receipt of a petition for rulemaking dated February 10, 1994, which was filed with the Commission by Ohio Citizens for Responsible Energy, Inc. (OCRE). The petition was docketed by the NRC on February 15, 1994, and has been assigned Docket No. PRM-9-2. OCRE filed an amendment to the petition which was docketed by the NRC on April 11, 1994. The petitioner requests that the NRC amend its regulations to establish public right-to-know provisions that would ensure public access to licensee-held information. DATES: Submit comments by August 29, 1994. 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: Submit written comments to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch. Deliver comments to 11555 Rockville Pike, Rockville, Maryland, between 7:45 am and 4:15 pm on Federal workdays. For a copy of the petition, write the Rules Review and Directives Branch, Division of Freedom of Information and Publications Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555. The petition and copies of comments received may be inspected and copied for a fee at the NRC Public Document Room, 2120 L Street, NW. (Lower Level), Washington, DC. FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Chief, Rules Review Section, Rules Review and Directives Branch, Division of Freedom of Information and Publications Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone: 301- 415-7163 or Toll Free: 800-368-5642. SUPPLEMENTARY INFORMATION: Background The regulations specified in 10 CFR Part 9 address the public's right of access to information held by NRC. Subpart A prescribes procedures for making NRC agency records available to the public for inspection and copying under the Freedom of Information Act (FOIA) and provides notice of procedures for obtaining NRC records otherwise publicly available. Subpart B implements the provisions of the Privacy Act of 1974 with respect to the procedures by which individuals may determine the existence of, seek access to, and request correction of NRC records concerning themselves. Subpart B also covers the requirements applicable to NRC personnel with respect to the use and dissemination of such records. The Petitioner On February 10, 1994, OCRE filed a petition for rulemaking under 10 CFR 2.802 with the NRC. OCRE filed an amendment to the petition on April 11, 1994. The petitioner is a private, not-for-profit organization incorporated under the laws of the State of Ohio. OCRE specializes in research and advocacy on nuclear safety issues and supports the highest standards of safety and environmental protection. OCRE also supports the right of meaningful public participation in the regulation of nuclear facilities. The petitioner was an intervenor in the operating license proceeding for the Perry Nuclear Power Plant and has intervened in three operating license amendment cases regarding Perry. Reasons for the Petition According to the petitioner, the purpose of the petition is to request a change to the rules regarding public access to information as stated in 10 CFR part 9, particularly information that is held by licensees but is not submitted to the NRC. OCRE contends that it has observed a trend in the NRC's regulatory practice in the past several years that decreases the amount of information to which the public has access. The petitioner believes that this trend is apparent in NRC bulletins and generic letters issued over the past six years. OCRE states that these documents instruct licensees to send conclusory statements that they have completed the requested actions to the NRC instead of instructing licensees to send the NRC detailed documentation and analyses of their actions. The detailed records are kept at the plant site where they are accessible only to NRC inspectors. The petitioner is particularly concerned because if these materials are never sent to the NRC, they will not get into the Public Document Room and the public will never have access to them. OCRE further states that the materials will not even be obtainable under the FOIA unless an NRC inspector happens to make a copy of the requested documents and the documents are still in the agency's possession at the time the FOIA request is filed. OCRE refers to the Station Blackout rule in Sec. 50.63(a)(2), which states that ``the capability for coping with a station blackout of specified duration shall be determined by an appropriate coping analysis. Utilities are expected to have the baseline assumptions, analyses, and related information used in their coping evaluations available for NRC review.'' It is not apparent to the petitioner that this material is actually sent to the NRC and made publicly available. The petitioner believes that other regulatory trends are also decreasing public access to information. OCRE states that the Technical Specification Improvement Program encourages the removal of material from the plant technical specifications and the relocation of it to internal plant documents. The petitioner included a list of recent generic letters that enable licensees to relocate material from the plant technical specifications, a public document, into other plant documents that may not be available to the public. According to the petitioner, about 36 percent of current technical specification material will be relocated to internal plant documents under this program. The petitioner states that NRC's revised rules of practice place an even greater burden on public petitioners to provide as much documentation and factual basis for contentions as early as possible while the access of petitioners to detailed information is diminishing. The petitioner further states that if detailed information is never submitted to the NRC, and thus never becomes accessible to the public, participants in proceedings will never be able to supply a basis sufficient to support admission of contentions under the new rules of practice. OCRE believes that lack of public access to information on nuclear regulation undermines public confidence in the NRC's regulatory program and is contrary to the public's statutory right to participate in the NRC regulatory process. The petitioner also states that members of the public cannot fulfill the role of participating in the NRC regulatory process, which Congress has bestowed upon them, without access to the detailed information that current NRC policies are placing beyond the public's reach. In the amendment to the petition, OCRE cited two additional examples of the lack of public access to licensee-held information. The first example is NRC's proposed rule entitled ``Codes and Standards for Nuclear Power Plants; Subsection IWE and Subsection IWL'' (59 FR 979, January 7, 1994), which states that ``In order to further reduce the burden on licensees and NRC staff, the Subsection IWE and IWL portions of the ISI plan will not have to be submitted to the NRC for approval. Licensees may simply retain their initial Subsection IWE and Subsection IWL plans at the site for audit.'' The second example is NRC's final rule entitled ``Storage of Spent Fuel in NRC-Approved Storage Casks at Power Reactor Sites'' (55 FR 29161, July 18, 1990) which does not appear to require nuclear power plant users of the approved storage casks to submit their site-specific evaluations, as required by Sec. 72.212(b)(2), to the NRC. This section states that ``A copy of this record must be retained until spent fuel is no longer stored under the general license issued under Sec. 72.210.'' The petitioner further states that Sec. 72.212(b)(10) only requires that general licensees make records available to the NRC for inspection. In the amendment to the petition, the petitioner amended the language in its suggested Sec. 9.301(b) to include persons required by the proposed rule entitled ``Certification of Gaseous Diffusion Plants,'' published on February 11, 1994 (59 FR 6792), to obtain NRC certification of gaseous diffusion plants under proposed Part 76 in the definition of ``possessor.'' OCRE requests that the NRC clarify that this proposed definition would include entities authorized to dispose of radioactive materials. The petitioner recommends a change to Part 9 to establish the public's right-to-know and to provide the public access to copies of internal plant documents, subject to the exceptions necessary to protect sensitive information. The suggested amendment would not require that licensees generate information that does not already exist in response to a request. The petitioner believes that its suggested amendment would strike a proper balance between the public's right to know and the rights of the licensees. The petitioner's suggested amendment would include appeal procedures. If a requester is not satisfied with a licensee's response to a request for information, the requester could appeal the matter to an Administrative Law Judge on the Atomic Safety and Licensing Board Panel. According to the petitioner, this option is the most appropriate and efficient one for appeals. OCRE believes that its suggested amendment to Part 9 would impose a minimal burden on licensees and that this minor burden would be justified by the substantial increase in meaningful public participation. According to the petitioner, the proposed amendment to Part 9 would also enhance the public's confidence in the NRC's regulatory program. The Suggested Amendments The petitioner requests that the NRC amend 10 CFR Part 9 by adding subpart E to read as follows: Subpart E--Public Right of Access to Licensee-Held Information Section 9.300 Scope of Subpart This subpart establishes the public's right of access to licensee- held information, subject to certain exceptions. This subpart sets forth the procedures to be followed by persons requesting documents held by NRC licensees or applicants and by the licensees or applicants in responding to requests for documents. This subpart also establishes procedures for appealing adverse licensee responses to public requests for records. Section 9.301 Definitions As used in this subpart, (a) ``Person'' has the meaning given in 10 CFR 2.4. (b) ``Possessor'' means any holder of or applicant for any license to possess, use, dispose of, and/or transfer source material, byproduct material, special nuclear material, and/or spent fuel, or to construct, manufacture, possess, own, operate, and/or transfer any production or utilization facility or independent spent fuel storage installation, or any holder of or applicant for any construction permit, or any holder of or applicant for an early site permit under subpart A of 10 CFR part 52, or any holder of or applicant for a standard design certification under subpart B of part 52, or any holder of or applicant for a certificate of compliance or approved compliance plan under part 76. (c) ``Record'' means any document, writing, book, data, paper, brochure, photograph, punch card, magnetic tape or disk, paper tape, sound recording, pamphlet, slide, motion picture, map, drawing, graph, correspondence, contract, report, microfilm, microfiche, optical storage medium, or other documentary material, regardless of form or characteristics, made by, in the possession of, or under the control of a possessor. Section 9.302 Designation of Responsible Official Each possessor shall designate, by name or title, a responsible official to whom requests for records are to be sent. Each possessor shall report to the NRC the name and/or title of the responsible official so designated. Possessors shall promptly notify the NRC, in writing, of any changes to the name or title of the designated responsible official. The NRC will periodically publish a list of possessors and their designated responsible officials. Section 9.303 Procedure for Requesting Records Any person may request any record relevant to NRC-licensed or regulated activities held by a possessor. The request shall be made in writing and sent to the responsible official designated by the possessor. The requester should describe the records sought with reasonable specificity. Section 9.304 Response by Possessor (a) A possessor receiving a request for records shall respond to the request within thirty (30) days from the receipt of the request by the designated responsible official. (b) The possessor's response shall consist of one or more of the following options: (1) If the records requested do not exist or are not within the possession or control of the possessor, inform the requester of this fact. (2) If the records requested are publicly available, inform the requester of this fact and where the records may be obtained. (3) Place the records requested in the NRC's Public Document Room in Washington, DC, or in a Local Public Document Room near the possessor's facility or convenient to the requester, and inform the requester where the records may be obtained. (4) Provide the records directly to the requester. The possessor may require the requester to pay reasonable reproduction fees. (5) The possessor may refuse to disclose the requested records only if one or more of the following criteria are met: (i) The requested records have absolutely no relevance to any activity, facility, or material licensed or regulated by the NRC. (ii) The requested records contain personnel or medical files or similar personal information, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. However, records pertaining to the requester shall be disclosed directly to the requester or his or her designated legal representative. (iii) The requested records contain trade secrets or proprietary information or privileged or confidential commercial or financial information. (iv) The requested records contain safeguards information, as defined in 10 CFR part 73. (v) The requested records contain material that has been properly classified in the interests of national defense or foreign policy. (vi) The requested records contain information that would disclose the identity of a confidential source or reveal information furnished only by a confidential source, the disclosure of which would tend to reveal the source's identity. (c) Any reasonably segregable portion of a record shall be provided to the requester or placed in the Public Document Room after deletion of the portions that are exempt under paragraph (b)(5). (d) Unless disclosure of the record is prohibited by law, a possessor may disclose a record containing material exempt under paragraph (b)(5) directly to the requester upon the execution of an appropriate protective agreement. Section 9.305 Appeals (a) A requester may appeal a possessor's response for denial of access to the requested records, for charging excessive reproduction fees, or for lack of response by the possessor within the designated time limits. (b) Appeals shall be made by filing a notice of appeal with the Chairman of the Atomic Safety and Licensing Board Panel. The notice of appeal shall be filed within sixty (60) days of the possessor's final response and shall include: (i) A copy of the requester's original letter of request; (ii) a copy of the possessor's response(s), or a statement that the possessor has not responded to the request; (iii) an explanation of why the possessor's response is inadequate, erroneous, or otherwise unacceptable, or why the reproduction fees charged by the possessor are excessive. (c) Upon the receipt of a notice of appeal under this section, the Chairman of the Atomic Safety and Licensing Board Panel shall appoint an Administrative Law Judge to consider the appeal. The Administrative Law Judge shall utilize whatever informal procedures are deemed necessary to resolve the matter and may examine in camera the requested records to determine whether such records or any part thereof may be withheld under the exemptions specified in Sec. 9.304(b)(5). The burden of proof is upon the possessor to sustain its actions. (d) The decision of the Administrative Law Judge shall be binding on the possessor. Decisions of the Administrative Law Judge shall be final and are not subject to further administrative appeals or judicial review. Section 9.306 Penalties Refusal of a possessor to comply with an order of the Administrative Law Judge may be subject to enforcement action by the NRC. Dated at Rockville, Maryland, this 7th day of June, 1994. For the Nuclear Regulatory Commission. John C. Hoyle, Acting Secretary of the Commission. [FR Doc. 94-14256 Filed 6-10-94; 8:45 am] BILLING CODE 7590-01-P