[Federal Register Volume 68, Number 208 (Tuesday, October 28, 2003)]
[Proposed Rules]
[Pages 61374-61379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27131]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 68, No. 208 / Tuesday, October 28, 2003 /
Proposed Rules
[[Page 61374]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 9
[Docket No. PRM-9-2]
Ohio Citizens for Responsible Energy, Inc.; Denial of a Petition
for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Denial of a petition for rulemaking.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition
for rulemaking submitted by the Ohio Citizens for Responsible Energy,
Inc. (OCRE). The petition has been docketed by the Commission and
assigned Docket No. PRM-9-2. The Petitioner requested that NRC amend 10
CFR part 9, ``Public Records,'' by adding a subpart E entitled ``Public
Right of Access to Licensee-Held Information.'' This subpart would
provide for public access to licensee-held documents, subject to
limited exceptions, and include appeal procedures. The NRC is denying
the petition because the additional recordkeeping and reporting
proposed by the Petitioner is not necessary to protect the public
health and safety or to ensure effective public participation in NRC
adjudicatory hearings on licensing actions, and is contrary to
internally and externally-driven initiatives to reduce unnecessary
recordkeeping and reporting requirements.
ADDRESSES: Copies of the petition for rulemaking, the public comments
received, the Petitioner's response to these comments, the NRC's letter
of denial to the Petitioner, and the congressional letters may be
viewed electronically on the public computers located at the NRC's
Public Document Room (PDR), O1 F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland. The PDR reproduction contractor
will copy documents for a fee.
Publicly available documents created or received at the NRC after
November 1, 1999, are available electronically at the NRC's Electronic
Reading Room at http://www.nrc.gov/reading-rm/adams.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. If you do not have access to ADAMS or
if there are problems in accessing the documents located in ADAMS,
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: Maria E. Schwartz, Office of the
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001. Telephone: (301) 415-1888; or [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On February 10, 1994, OCRE, the petitioner, filed a petition for
rulemaking under 10 CFR 2.802 with the NRC. The Petitioner subsequently
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 that specializes in research and advocacy on nuclear
safety issues. The Petitioner also supports the right of meaningful
public participation in the regulation of nuclear facilities.
The Petitioner requests that the NRC amend 10 CFR part 9, ``Public
Records,'' which addresses the public's right of access to information
held by NRC. The Petitioner proposes an additional subpart E to part 9
entitled ``Public Right of Access to Licensee-Held Information,'' which
would provide for public access to licensee-held documents including
draft documents, subject to exceptions necessary to protect certain
sensitive information such as personal information, proprietary
information, safeguard information, identity of confidential sources,
and classified information. The proposed rule would include appeal
procedures if a requester was not satisfied with a licensee's response
to a request for information. Under the Petitioner's proposed appeal
process, the requester could appeal the matter to an Administrative
Judge (AJ) on the Atomic Safety and Licensing Board Panel. The AJ's
decision would be final and not further appealable.
The petition was docketed as PRM-9-2. NRC published a notice that
announced the receipt of the petition and requested public comments on
the suggested amendments in the Federal Register on June 13, 1994 (59
FR 30308). NRC received 27 comment letters and an additional letter
responding to those comments from OCRE. Of the 27 responses, three
endorsed the petition. These commenters included a public interest
group and members of the public. Twenty-four commenters opposed the
petition. These commenters were primarily utilities or representatives
of utilities.
A response to the petition was delayed a number of times to
consider the petition in light of the Commission's ongoing public
information initiatives and legislative and executive branch directives
on reducing unnecessary reporting and recordkeeping. For example, there
was a significant delay associated with developing and implementing
ADAMS, the Commission's electronic document library system. During the
review period the staff contacted the petitioner to provide updates on
the status of the agency's review. Nevertheless, the Commission finds
this delay to be unacceptable. The Commission is committed to a more
rigorous review of action on pending rulemaking petitions in order to
prevent a recurrence of an unnecessary delay of this length and to
assure timely response.
II. Discussion
The Petitioner's primary concern is that licensee-held documents
are not accessible by members of the public and may contain information
that the public would find useful in participating in NRC proceedings.
The Petitioner asserts that rulemakings in the 1993-94 time frame as
well as NRC bulletins and generic letters issued over the period 1988-
94, instruct licensees to send conclusory statements to NRC while
retaining documentation and analyses at licensees' facilities. Such
information retained onsite by licensees for NRC inspection purposes is
not retained by NRC in docket files, nor is it placed in NRC's Public
Document Room (PDR) unless it is included in an NRC inspection report.
In these
[[Page 61375]]
circumstances, the information cannot be obtained under the Freedom of
Information Act (FOIA) (Pub.L. 108-23) because it does not constitute
``agency records'' as defined in the Paperwork Reduction Act of 1995
(PRA) (Pub.L. 104-13). The Petitioner asserts that this trend in the
NRC's regulatory practice reduces the amount of information to which
the public has access. The Petitioner believes that when NRC proposes
to reduce the number of licensee reports required to be submitted to
NRC or retained by licensees, NRC should take into consideration that
while NRC may have access to these reports or information based on its
status as the regulator of the licensee, the public does not because
these reports and information will not be placed in the PDR. As a
result, the Petitioner contends the public will not be able to
participate fully in the regulatory process since the public will not
be able to evaluate potential health and safety problems contained in
these documents. The Petitioner is concerned that this result will
undermine the public's effective participation in NRC's regulatory
process. The Petitioner is also concerned that this will restrict the
public's effective participation in the NRC's hearing process as
provided for under the Atomic Energy Act of 1954, as amended (AEA). In
addition, the Petitioner argues that this result will promote an
atmosphere where public distrust of nuclear energy will grow, eroding
the public's confidence in NRC's regulatory program and fostering a
perception of coziness with the regulated industry.
The Petitioner acknowledged that the primary reason for this
petition for rulemaking is not directly to protect or enhance the
public health and safety; rather, it has been designed to ensure
effective public participation by extending public access to
information in the possession of licensees. To accomplish this, the
Petitioner proposes to amend 10 CFR part 9 to require licensees to
provide ``any record relevant to NRC-licensed or regulated activities''
subject to exemptions necessary to protect certain sensitive
information such as personal information, proprietary information,
safeguards information, identity of confidential sources, and
classified information.
Legislative and Executive Branch directives, e.g., the PRA
(revising and strengthening earlier requirements) and the Clinton
Administration's 1993 National Partnership for Reinventing Government
(NPR), were initiated at approximately the same time that OCRE
submitted its petition to NRC for consideration. These initiatives
required federal agencies, including NRC, to move toward a less
expensive and more efficient Federal Government. Phase 2 of NPR
included a directive requiring agencies to focus on core mission
competencies and service requirements and to review their current
programs to identify areas that could be eliminated, including, among
other things, areas that are particularly relevant to OCRE's petition,
i.e., deleting obsolete regulations and improving government management
of communications technology which included a review of the need for,
and use of, various information collections. The objectives of the PRA
include reducing Government-required recordkeeping and reporting
requirements, a greater use of electronic technology for operational
efficiency and information dissemination, and a concerted effort, using
information technology, to improve government management of information
collections.\1\
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\1\ This initiative has more recently evolved into the
development of E-GOV which uses improved internet-based technology
to make it easy for citizens and business to interact with the
government, saving the taxpayer dollars while streamlining citizen-
to-government communications. In 1998, the Government Paperwork
Elimination Act (GPEA) (Pub. L. 105-277) was enacted to, among other
things, help citizens gain one-stop access to existing Government
information and services and increase Government accountability to
citizens.
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In addition to these external initiatives, there were ongoing
internal agency initiatives such as the establishment of NRC's
Regulatory Review Group which, in 1993, provided a report to the
Commission focusing on key areas in which changes in the way the NRC
conducted business could significantly reduce stakeholder and NRC costs
without adversely affecting the level of safety at operating nuclear
power plants. The report recommended moving toward more performance-
based requirements and proposed efficiencies in the area of reporting
requirements. Based on those recommendations, NRC assessed reporting
and recording requirements in order to identify those requirements
which could be reduced in scope or eliminated without impacting NRC's
ability to fulfill its mission regarding the protection of the public
health and safety.
In cases where NRC has made a determination to reduce or eliminate
a requirement, NRC first considered the impact on public health and
safety. If there would be no direct impact on public health and safety,
NRC next considered the reduced administrative burden on licensees and
the extent to which the proposed elimination will deprive the public of
health and safety information. In all cases, an existing requirement
cannot be reduced or eliminated arbitrarily. Before regulations
containing reporting requirements which NRC determines to be obsolete,
unnecessarily burdensome, too prescriptive or to overlap or duplicate
other regulations, can be removed, NRC must follow the administrative
process for rulemaking which provides an opportunity for comment by
members of the public. In this way, NRC seeks to maintain a balance
between elimination of recordkeeping and reporting requirements which
are burdensome and do not substantially contribute to providing a basis
for its licensing and regulatory actions, and making the basis for its
decisions transparent to stakeholders.
The PRA requires federal agencies to, among other things, ensure
that information technology is acquired, used, and managed to improve
performance of agency missions, including the reduction of information
collection burdens on the public. This includes evaluating whether
proposed collections of information are necessary for the proper
performance of the functions of the agency, including whether the
information has practical utility. Recently, in conformance with the
objectives of this Act, NRC amended its ``Reporting Requirements for
Nuclear Power Reactors and Independent Spent Fuel Storage Installations
at Power Reactor Sites,'' (65 FR 63769 (October 25, 2000)), to better
align the reporting requirements with NRC's needs for information to
carry out its safety mission (e.g., extending the required initial
reporting times for some events, consistent with the time at which the
reports are needed for NRC action) and to reduce unnecessary reporting
burden, consistent with NRC's needs (e.g., eliminating the reporting
design and analysis defects and deviations with little or no risk or
safety significance (65 FR 63778-9)).
Subject to the need to protect safeguards and national security-
related information, commercial nuclear facility licensing and
regulation should be transacted publicly. In that regard, the NRC had
made available substantial amounts of information for public review on
its website, which since 2000 and the development of its Agency-wide
Document Access and Management System (ADAMS) has provided this
information in a more searchable form at NRC's Public Electronic
Reading Room, i.e., http://www.nrc.gov/reading-rm.html. These
documents, which include substantial amounts of
[[Page 61376]]
information relevant to licensing decisions, e.g., the license
application, as well as changes thereto, correspondence between the
licensee and NRC,\2\ and inspection reports, are available in ADAMS and
continue also to be available in the PDR. NRC also has a comprehensive
set of reporting requirements which have had the benefit of public
comment and have been promulgated in accordance with the Administrative
Procedure Act after careful consideration as to whether NRC needs to
obtain licensees' records and information to carry out NRC's public
health and safety responsibilities. The Petitioner has apparently
discounted the process by which NRC determined that many of the
documents which are the subject of the petition for rulemaking are
unnecessary for NRC to possess in order to make regulatory decisions
that protect the public health and safety, or has determined may be
kept onsite at licensees' facilities for NRC inspection purposes but
are not required to be submitted to NRC. In addition, much of the
information which is of interest to the Petitioner and being retained
onsite by licensees may also be available to members of the public
because it is contained in, or has been relocated to, other documents
that have been submitted (as part of applications or in response to
requests for additional information) and are placed in NRC's Public
Electronic Reading Room and/or the PDR.
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\2\ Although the terrorist attacks of September 11, 2001, led to
the NRC's decision to remove material from its website, the agency,
after conducting a deliberate and systematic review of that
material, has now restored most of the material to the Web site.
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III. Summary of the Public Comments
The notice of receipt of the petition for rulemaking invited
interested parties to submit written comments concerning the petition.
The NRC received 27 comment letters and an additional letter responding
to those comments from OCRE. Of these, three letters from private
citizens and the Clean Water Fund of North Carolina, an environmental
group, favored granting the petition. Twenty-four letters opposing the
petition were sent primarily by utilities or representatives of
utilities such as Nuclear Energy Institute (NEI) and Nuclear Utility
Backfitting and Reform Group (NUBARG). Many of the letters contained
comments that were similar in nature. The following section summarizes,
by issue, the public comments received and provides responses to those
comments.
Comment 1. Licensee-Held Information Should Not Be Withheld From the
Public
Of those responding in favor of granting the petition, one private
citizen contended that the petition is justified because it is illegal
and unfair that the public does not have access to licensee-held
information. Another private citizen agreed with that position but
pointed out that the petition, as written, is too general with respect
to the scope of records covered by the proposal and suggested that the
scope be limited to the records used by the licensee to support a
docketed submittal (i.e., those records which could have been included
with the submittal). That commenter also noted that any proposed change
to 10 CFR part 9 must not interfere with the handling of licensee-
prepared records as proprietary information. The Clean Water Fund of
North Carolina supported the Petitioner's view that limiting public
access to information increases public cynicism regarding the
regulation of nuclear energy.
NRC Response
Applicants for an NRC license and licensees provide information to
NRC under the agency's requirements, See, e.g., 10 CFR 30.6, 30.32 and
10 CFR 50.4, 50.33, 50.34, 50.90, which set out certain NRC license
application requirements; 10 CFR 50.72 and 50.73, which require nuclear
power reactor licensees immediately to notify NRC when certain
conditions arise, followed by written event reports; and, licensee
reports sent in response to NRC requests for additional information as
part of a specific licensing or regulatory action. This information is
submitted on the docket for the particular licensee and, except when it
contains safeguards, personal information or other information that may
be protected from public disclosure under 10 CFR 2.790, is placed in
the PDR where it is available for public inspection and copying \3\
and, in most instances, is available in electronic form through NRC's
Public Electronic Reading Room, discussed above. In this way, the
public has access to very large amounts of relevant licensee
information. In addition, NRC allows licensees to retain specified
records onsite for inspection purposes. Although NRC has the right to
access these records or obtain them permanently, NRC has determined
that it is not necessary, under most circumstances, for licensees to
submit this information to NRC. To require the submission of
information and documents beyond those that NRC determines it needs to
have submitted for its regulatory function would be contrary to the
objectives of the PRA. Finally, general information held by a licensee
but not required to be retained or submitted for NRC's regulatory
purposes is the property of the licensee. Absent an NRC determination
that such information must be submitted to NRC in order for NRC to
carry out its statutory and regulatory obligations, the AEA does not
provide NRC with the authority to require that licensees provide such
information to a third party.
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\3\ NRC has restored access to a large volume of licensing and
regulatory materials that were removed from its website and PDR for
review and screening following the September 11, 2001 terrorist
attacks on the World Trade Center and the Pentagon.
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Comment 2. The Petition Would, in Effect, Modify the FOIA Without
Congressional Action
Several of the commenters endorsed NEI's comment that the proposed
petition for rulemaking would expand the NRC's current requirements for
granting public access to licensee documents. They believe that the
proposed rulemaking, without Congressional action, would modify the
FOIA by making the statute applicable to entities other than government
agencies and to records other than those within a government agency's
control. In addition, most commenters believe that the petition
challenges the Congressional delegation of authority to the NRC by
giving access to almost all of a licensee's internal documents,
including those which the NRC has determined can be retained onsite, as
well as those which NRC believes are unnecessary for it to possess or
obtain access to in order to protect the public health and safety.
NRC Response
NRC believes the requested amendment is overly broad and, if
granted, would allow access to almost all of a licensee's internal
documents including drafts and other documents without a showing of
need. The petition requests access to ``any record relevant to NRC
licensed or regulated activities held by a possessor.'' In the context
of NRC regulation, a very broad range of licensees' records may
arguably be ``relevant'' to NRC activities. OCRE's petition relies
heavily on NRC's authority under the AEA to access and, if it chooses,
obtain permanent custody of such records. Section 161o. of the AEA, for
example, provides NRC with the authority to require reports and
recordkeeping, and to require licensees
[[Page 61377]]
to maintain these documents for inspection purposes, for specified
activities and studies, and activities under licenses issued pursuant
to the AEA, ``as may be necessary to effectuate the purposes of'' the
AEA.
When in the possession and control of NRC, documents become
``agency records,'' and, in accordance with FOIA and the agency's
regulations, such documents are available for public inspection and
copying upon request by any person. The petition, if granted, would
arguably amount to an unprecedented and legally questionable extension
of the FOIA by granting access to private documents of regulated
entities that are not ``agency records'' (as defined in the PRA) and
are not required for NRC regulation and licensing. The FOIA applies to
every record which an agency has, in fact, obtained; and not to
documents which merely could have been obtained. The United States
Supreme Court considered this issue in Forsham v. Harris, 445 U.S. 169
(1980), and concluded that Congress could not have intended FOIA to
embrace documents that the Federal Government has the right of access
to, as this would include an extraordinarily large amount of private
documents.
Comment 3. There Are Many Administrative Costs Associated With
Information Requests
Commenters stated that there are many administrative costs
associated with information requests. Most commenters believe that
since the subject of a request does not have to be well defined, nor is
a stated purpose for the search required, it is likely that many
licensees would have to create or recreate their filing systems at a
substantial cost to accommodate broad requests. This cost would, in
turn, be passed on to consumers. One commenter, the Mayo Clinic, stated
that ``the petition would result in increased licensee efforts and
costs with no benefit nor increase in safety for society. These
additional costs would need to be passed on to customers who would gain
nothing. In particular, medical licensees would be forced to pass these
costs onto patients while at the same time reacting to federal health
care initiatives to reduce costs.'' One licensee (Commonwealth Edison)
estimated that any one request costs anywhere from $1,500 to $3,000,
and would clearly require dedicated resources to this proposed effort.
NRC Response
NRC agrees with the general comments and assertions that the
requirements proposed by the Petitioner would result in some, possibly
substantial, administrative costs for licensees to respond to requests
for documents. A licensee's process would likely include provisions
for: (1) Receipt, acknowledgment, and tracking of the request; (2)
evaluation of the request to determine if it will require a document
search effort, and, if so, the nature and scope of the search; (3)
conducting a search including interactions with document custodians;
(4) reviewing collected materials and screening for ``relevance'' or
other bases for non-disclosure such as trade secrets or privileged
information; and (5) reproduction and transmittal of responsive
documents. Since the documents which can be requested are ``any
record,'' there are likely to be significant administrative burdens and
costs for locating and compiling the requested information for
reproduction. The cost could include dedicating personnel to this task.
In addition, unlike the FOIA, the petitioner's proposal does not
provide for the recovery of the costs associated with searching and
reviewing documents.
Granting the petition could adversely impact the effectiveness of
NRC by increasing the burden on the Commission's adjudicatory
activities without a corresponding enhancement of safety. The appeal
process provided by this petition would require AJs to be called upon
to determine if a record can be the subject of a request, if
reproduction fees are reasonable, and if the licensees' responses are
timely. The proposal would strain the existing resources of the Atomic
Safety and Licensing Board Panel. It might also necessitate seeking
additional resources for NRC which might be difficult to obtain in the
absence of a safety justification. The petition does not provide for
effective Commission oversight of the AJs that is afforded for other
adjudicatory matters; indeed, the Petitioner's proposal that the AJs'
decisions would be final and would not be appealable or subject to
review by the Commission, undermines the Commission's ability to
effectively monitor and administer its adjudicatory processes. The
Commission's regulations require licensees to provide full disclosure
of information that NRC has determined is necessary for it to fulfill
its mission to protect the public health and safety. OCRE's petition
does not explain how its proposed document access and appeal process
would enhance NRC's ability to accomplish that mission.
Comment 4. OCRE Has Not Provided a Specific Purpose for the Information
Other Than Wanting Access to It
Several commenters stated that OCRE has not provided any specific
reason for needing to review the onsite information it is requesting
other than its belief that the public should have access to this
information. The Petitioner has pointed out that the requested access
is not directly for protection of the public health and safety. The
commenters' criticisms further questioned whether OCRE is not casting
public citizen groups into the role of providing oversight of NRC's
regulatory program.
NRC Response
NRC recognizes the important contribution the public makes to NRC's
regulatory process. To facilitate public involvement, NRC has developed
more effective and efficient methods of providing information to the
public in order that the public can be more fully informed on the
licensing and regulatory process and issues associated with these
activities. With the improvement of communication technology since the
submittal of OCRE's petition, NRC has developed ADAMS, as discussed
above, that provides access to documents relevant to its licensing
decisions, as well as the Web site with additional links containing
information regarding the regulation and management of nuclear
facilities and materials to facilitate public participation in the
regulatory process. A newly created ``Homepage'' and improved ``search
engines'' were added in 2000 and have been updated recently, making
``navigation'' of this information easier. NRC is satisfied that the
access to licensee-held documents envisioned by OCRE's petition is not
necessary to participate in the hearing process, given the voluminous
amounts of information available to the public regarding NRC's
licensing review and regulatory decisions. For example, subpart L of 10
CFR part 2, ``Informal Procedures for Adjudications in Materials and
Operator Licensing Proceedings,'' contains provisions that allow any
person whose interest may be affected by a proceeding for the grant,
renewal, or licensee-initiated amendment of a license subject to
subpart L, to file a request for a hearing. Subpart L also requires the
Secretary of the NRC to maintain a docket for each adjudication under
this subpart, commencing with the filing of a request for a hearing,
which includes the request for a hearing and other related documents,
as well as a hearing file
[[Page 61378]]
consisting of the application for a license or amendment, any NRC
environmental impact statement or assessment relating to the
application, and any NRC report and any correspondence between the
applicant and the NRC that is relevant to the application. The NRC
staff has a continuing duty to keep the hearing file up to date with
respect to these materials and to make them publicly available for
inspection and copying, as well as providing them to the appropriate
parties to the adjudication. To that end, the database for the Web-
based version of ADAMS is updated once daily, usually after midnight
East coast time. In the more formal NRC adjudications, additional
discovery tools are available and these can provide access to much of
the information and many of the documents in the licensee's sole
possession that the Petitioner seeks through its petition for
rulemaking. In view of the extensive provisions for access to relevant
information and documents in NRC's hearing procedures in 10 CFR part
2,\4\ NRC strongly disagrees with the Petitioner's assertion that
without the proposed rule, the public's effective participation in
NRC's hearing process will be restricted.
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\4\ The NRC has proposed changes to the adjudicatory process 66
FR 19610 (april 16, 2001). The proposed changes would not affect the
access to documents and information currently provided to the
public.
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Comment 5. The Petition Could Have a Negative Impact on the Public
Health and Safety
Several commenters pointed out that the petition for rulemaking
could actually have a negative effect on public health and safety by
producing a chilling effect on the development of utilities' self-
assessments (which have been promoted by NRC) because the utilities
fear that such documents could be used for purposes other than that for
which they were intended.
NRC Response
NRC agrees it is possible that granting the petition could
discourage licensee self-assessment. NRC agrees that providing access
to draft and other preliminary documents may have a chilling effect and
discourage employees of licensees from documenting information that may
be perceived as adverse to their employers, resulting in less candid
and frank self-assessments and ``lessons learned'' analysis. It should
be noted that NRC encourages self-assessments and licensee-initiated
corrective actions and NRC would not want to impose unnecessary
requirements that discourage these activities.
Comment 6. Some Information Now Being Retained by Licensees Is Still
Available to Members of the Public Through Reports to the NRC Which Are
Placed in the NRC's Public Document Room
One commenter, Westinghouse Electric Corporation, pointed out that
in each case provided by OCRE, ``there is voluminous information in the
possession of the NRC and hence publicly available * * *'' Westinghouse
took the examples provided by OCRE where documents are now being
retained onsite, and pointed out where the information that is being
retained onsite is still being provided in other records that are sent
to NRC and, thereafter, placed in the PDR.
Another commenter, BG&E, responded to OCRE's appraisal of the
current situation, by pointing out that approximately 90% of the
information that it will take out of its technical specifications will
be transferred to publicly available documents, such as the Updated
Final Safety Analysis Report and the Quality Assurance Plan, and the
remaining 10% will be transferred to more appropriate, publicly
available documents which are controlled by existing regulations.
NRC Response
NRC agrees with the commenters that information retained on site
often is provided in other records that are sent to NRC. Although some
of this material may have been removed from its Web site and PDR after
the terrorist attack of September 11, 2001, NRC has restored access to
a large volume of licensing and regulatory materials that were removed.
Comment 7. OCRE is Mischaracterizing the 1989 Rules of Practice and
Overstating the Effects of Not Having Access to the Records Sought
OCRE stated that ``without sufficient factual information to
support admission of contentions, petitioners will never become
interveners and will never have the right to discovery.'' However,
while the Rules of Practice will preclude a contention from being
admitted where an intervener has no facts to support its position and
NRC hearing practice does not permit discovery to frame contentions,
allowing access to ``any record relevant to NRC-licensed or regulated
activities held by a possessor,'' would allow, as several commenters
pointed out, ``litigation-type discovery against a licensee without
filing a lawsuit and thus, without the legal safeguards designed to
prevent ``fishing expeditions.'''
NRC Response
The NRC disagrees with the Petitioner's position that if this
petition is not granted, the public will not be able to fully
participate in the NRC hearing process which is provided for under the
AEA. The AEA, as implemented by the Commission's regulations, provides
the opportunity for a hearing to any person whose interests may be
affected by the granting, renewal, or licensee-initiated amendment of
an NRC license. The NRC staff makes available for public inspection and
copying, documents relevant to its licensing decisions electronically
at the NRC's Public Electronic Reading Room, discussed above, and/or in
the PDR. These documents include the application, and any amendment
thereto, any NRC environmental impact statement or assessment relating
to the application, and any NRC report and any correspondence between
the applicant and the NRC that is relevant to the application. These
documents provide the basis for the NRC's decision to grant, renew, or
amend, a license, and are sufficient to permit a member of the public
to make an informed decision as to whether the person desires to
participate in the hearing process and to formulate appropriate
contentions. See Rules of Practice for Domestic Licensing Proceedings--
Procedural Changes in the Hearing Process (54 FR 33168 (August 11,
1989)).
IV. Reasons for Denial
NRC recognizes the contribution the public makes to the regulatory
process and the importance of public confidence in that process.
However, based on the review of the amendment requested by OCRE and the
comments received on this petition, NRC concludes that there are
several legal and policy considerations associated with the petition
for rulemaking which warrant denial of the petition. The specific
reasons for denial are:
1. OCRE's request for access to licensee-held records is overly
broad and would allow access to documents that the NRC requires
licensees to maintain onsite for inspection purposes but generally does
not require licensees to submit, as well as almost all of a licensee's
internal documents including drafts and other documents which the NRC
does not require licensees to maintain and on which NRC does not rely
for NRC regulatory or licensing actions, even if they are, in some
respect, relevant to NRC activities.
[[Page 61379]]
Neither the AEA or the FOIA, which applies to records which an agency
has, in fact, obtained, and not to records which merely could have been
obtained, provide the NRC with the authority to require licensees to
supply such documents to the public.
2. OCRE has not made a showing that supplementing the safety
information which underlies and supports Commission action and is
available to the public, would result in enhanced safety. In fact,
granting the petition may have an adverse impact on safety. Resources
that licensees would use to defend and explain matters would not be
available to address substantive safety issues. Granting the petition
may also have a chilling effect and discourage employees of licensees
from documenting information that may be perceived as adverse to their
employers resulting in less candid and frank self-assessments and
``lessons learned'' analysis. The access required by the petition could
discourage licensee self-assessments and self-identification of the
need for corrective action.
3. Without a corresponding enhancement of safety, the petition
would create a significant but unnecessary administrative and economic
burden on licensees without justification. Because the records which
could be requested are ``any record,'' such requests could
significantly impact licensees which would be required to bear the cost
of creating a system to assemble these documents as well as dedicating
the administrative personnel necessary to locate and compile the
requested information for reproduction. Unlike FOIA, which allows for
the recovery of the costs associated with searching and reviewing
documents, the only cost which the petition allows is the cost of
document production.
4. The petition is contrary to efficient regulatory oversight of
NRC facilities, as well as the legislative move to reduce unnecessary
recordkeeping and reporting requirements. NRC has been engaged in
activities to eliminate unnecessary requirements and to move toward
risk-informed requirements which focus on safety matters. These
internal agency initiatives have gone hand-in-hand with the objectives
and requirements of the PRA. The documents which are the subject of the
petition for rulemaking include documents that NRC has determined are
unnecessary for NRC to fulfill its mission regarding the protection of
the public health and safety and the common defense and security.
5. Granting the petition would adversely impact the effectiveness
of the NRC by increasing the burden on the Commission's adjudicatory
activities without a corresponding enhancement of safety. The appeal
process provided by this petition would require AJs to be called upon
to determine whether a record can be the subject of a request; whether
reproduction fees are reasonable; and, whether a licensee's response is
timely. This would increase the work load of NRC AJs which would affect
the amount of time available for other cases. The petition does not
provide for the Commission to review the decisions of its subordinate
judges which undermines the Commission's ability to effectively monitor
and administer its adjudicatory processes.
6. OCRE has not made a showing that without this amendment to 10
CFR part 9 the public will not be able to fully participate in the NRC
hearing process provided for under the AEA. The AEA, as implemented by
the Commission's regulations, provides the opportunity for a hearing to
any person whose interests may be affected by the granting, suspending,
revoking or amending of an NRC license or application to transfer
control. The documents which provide the basis for an application to
grant, renew, or amend, a license, are available in electronic form for
viewing or downloading at the NRC's Public Electronic Reading Room,
http://www.nrc.gov/reading-rm.html, or at the NRC's PDR for public
inspection and copying. These documents are sufficient for a member of
the public to make an informed decision as to whether the person
desires to participate in the hearing process and to formulate
appropriate contentions. The Commission is satisfied that, given the
information that the NRC ensures is available to the public, the access
to licensee-held documents that the petition requests is not necessary
for meaningful participation in the hearing process.
V. Conclusion
In sum, granting the petition could create a significant
administrative and economic burden on licensees and increased
administrative burden on the NRC without a corresponding enhancement of
safety. The potential but speculative benefits that might occur from
public access to licensee-held documents are outweighed by the burden
granting the petition would impose. Moreover, the Commission does not
have the authority to require a licensee to provide documents to
members of the public that NRC has determined are not necessary to be
kept as agency records to provide the basis for NRC's regulatory and
licensing actions. The petition for rulemaking filed by OCRE, PRM-9-2,
is denied.
Dated at Rockville, Maryland, this 22nd of October, 2003.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 03-27131 Filed 10-27-03; 8:45 am]
BILLING CODE 7590-01-P