[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.

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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]
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