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.

Proposed Rules Federal Register

77956

Vol. 69, No. 249

Wednesday, December 29, 2004

NUCLEAR WASTE TECHNICAL 

REVIEW BOARD 

10 CFR Part 1303

Rule Implementing the Freedom of 

Information Act

AGENCY: U.S. Nuclear Waste Technical 

Review Board.

ACTION: Proposed rule.

SUMMARY: The U.S. Nuclear Waste 

Technical Review Board (Board) is 

proposing to implement a set of 

procedural regulations under the 

Freedom of Information act (FOIA) in 

accordance with 5 U.S.C. 552, the 

Freedom of Information Act, and Public 

Law 104–231, the Electronic Freedom of 

Information Act Amendments of 1996. 

These proposed regulations have been 

written to conform to the statutory 

provisions in the Acts, to expedite the 

processing of FOIA requests received by 

the Board, and to ensure the proper 

dissemination of information to the 

public.

DATES: Comments on the proposed rule 

should be submitted no later than 

February 11, 2005.

ADDRESSES: Comments on this proposed 

rule may be submitted: 

By Mail or Hand Delivery: Joyce M. 

Dory, Director of Administration, U.S. 

Nuclear Waste Technical Review Board, 

2300 Clarendon Blvd., Suite 1300, 

Arlington, VA 22201; 

By Fax: 703–235–4495; 

To the Federal eRulemaking Portal: 

http://www.regulations.gov; or 

By E-mail to the Board. 

foia@nwtrb.gov.

All comments on this proposed FOIA 

rule should be clearly identified as 

such.

FOR FURTHER INFORMATION CONTACT:

Victoria Reich, 703–235–4473.

SUPPLEMENTARY INFORMATION: This 

proposed rule is intended to set forth 

the procedures for members of the 

public to request records from the U.S. 

Nuclear Waste Technical Review Board 

under both the Freedom of Information 

Act and the Electronic Freedom of 

Information Act amendments of 1996. 

The rule also sets forth the procedures 

that the Board will use when 

responding to such requests. It sets up 

the time frames for responses and the 

current fee schedule for any applicable 

charges for information. The rule also 

supplies information about Board 

materials available to the public through 

both the Board’s reading room and its 

Web site. 

Executive Order No. 12866

These proposed regulations do not 

meet the criteria for a significant 

regulatory action under Executive Order 

12866. Thus, review by the Office of 

Management and Budget is not required. 

Regulatory Flexibility Act 

These proposed regulations will not 

have a significant economic impact on 

a substantial number of small entities. 

Therefore, a regulatory flexibility 

analysis as provided by the Regulatory 

Flexibility Act, as amended, is not 

required. 

Paperwork Reduction Act 

These proposed regulations impose 

no additional reporting and 

recordkeeping requirements. Therefore, 

clearance by the Office of Management 

and Budget is not required.

List of Subjects in 10 CFR Part 1303

Administrative practice and 

procedure; Freedom of Information; 

Reporting and recordkeeping 

requirements.

Therefore, the Board proposes to add 

part 1303 to Title 10 of the Code of 

Federal Regulations, to read as follows:

PART 1303—PUBLIC INFORMATION 

AND REQUESTS

Sec. 

1303.101 Scope. 

1303.102 Definitions. 

1303.103 Public reading area. 

1303.104 Board records exempt from public 

disclosure. 

1303.105 Requests for Board records. 

1303.106 Responsibility, form, and content 

of responses. 

1303.107 Time of responses to requests. 

1303.108 Fees. 

1303.109 Restrictions on charging fees. 

1303.110 Notice of anticipated fees. 

1303.111 Requirements for waiver or 

reduction of fees. 

1303.112 Denials. 

1303.113 Business information. 

1303.114 Appeals. 

1303.115 Preservation of records. 

1303.116 Other rights and services.

Authority: 5 U.S.C. 301, 5 U.S.C. 552 as 

amended; Executive Order 12600, 3 CFR, 

1988 Comp., p. 235.

§ 1303.101 Scope. 

This part sets forth the policies and 

procedures of the U.S. Nuclear Waste 

Technical Review Board (Board) 

regarding public access to documents 

under the Freedom of Information Act 

(FOIA), 5 U.S.C. 552. The provisions in 

the Act shall take precedence over any 

part of the Board’s regulations in 

conflict with the Act. This part gives the 

procedures the public may use to 

inspect and obtain copies of Board 

records under the FOIA, including 

administrative procedures which must 

be exhausted before a requestor invokes 

the jurisdiction of an appropriate United 

States District Court for the Board’s 

failure to respond to a proper request 

within the statutory time limits, for a 

denial of Board records or challenges to 

the adequacy of a search, or for denial 

of fee waiver.

§ 1303.102 Definitions. 

For words used in this document, 

unless the context indicates otherwise, 

singular includes the plural, plural 

includes the singular, present tense 

includes the future tense, and words of 

one gender include the other gender. 

(a)(1) Agency records—Include 

materials that are in the control of the 

Board and associated with Board 

business, as follows: 

(i) Materials produced by the Board. 

(ii) Materials produced by a 

consultant for the Board. 

(iii) Materials distributed by 

presenters at a Board meeting. 

(2) All references to records, include 

both the entire record, or any part of the 

record. 

(b) Board—The U.S. Nuclear Waste 

Technical review Board. 

(c) Chairman—The Chairman of the 

Board as designated by the President. 

(d) Designated FOIA Officer—The 

person named by the Board to 

administer the Board’s activities in 

regard to the regulations in this part. 

The FOIA Officer also shall be: 

(1) The Board officer having custody 

of, or responsibility for, agency records 

in the possession of the Board. 

(2) The Board officer having 

responsibility for authorizing or denying 

Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / Proposed Rules 77957

production of records from requests 

filed under the Freedom of Information 

Act. 

(e) Executive Director—The chief 

operating officer of the Board. 

(f) Member—An individual appointed 

to serve on the Board by the President 

of the United States. 

(g) Days—Standard working days, 

excluding weekends and Federal 

holidays.

§ 1303.103 Public reading area. 

(a) A public reading area is available 

at the Board office located at 2300 

Clarendon Blvd., Suite 1300, Arlington, 

Virginia 22201. To use the reading area, 

contact the Director of Administration 

by: 

(1) Letter to the address in this 

paragraph (a); 

(2) Telephone: 703–235–4473; 

(3) A request at the Board’s Web site 

at http://www.nwtrb.gov; or. 

(4) Fax: 703–532–4495. 

(b) Documents also may be requested 

through the Board’s Web site or by letter 

or fax. Please ensure that the records 

sought are clearly described. Materials 

produced by the Board are in the public 

domain unless otherwise noted. 

(c) Many Board records are available 

electronically at the Board’s Web site 

(http://www.nwtrb.gov). 

(d) Records of the Board available for 

inspection and copying include: 

(1) The rules and regulations of the 

Board. 

(2) Statements of policy adopted by 

the Board. 

(3) Board reports to the U.S. Congress 

and the U.S. Secretary of Energy. 

(4) Board correspondence with 

Congress and the Department of Energy 

(DOE). 

(5) Transcripts of Board meetings. 

(6) Biographical information about 

current Board members. 

(7) Copies of records released in 

response to FOIA requests. 

(e) The cost of copying information 

available in the Board office shall be 

imposed in accordance with the 

provisions of § 1303.108.

§ 1303.104 Board records exempt from 

public disclosure. 

5 U.S.C. 552 provides that the 

requirements of the FOIA do not apply 

to matters that are: 

(a) Specifically authorized under the 

criteria established by an executive 

order to be kept secret in the interest of 

national defense or foreign policy and in 

fact are properly classified pursuant to 

such an executive order. 

(b) Related solely to the internal 

personnel rules and practices of the 

Board. 

(c) Specifically exempted from 

disclosure by another Federal statute, 

provided that such statute: 

(1) Requires that records withheld 

from the public in such a manner that 

leaves no discretion on the issue; or 

(2) Establishes criteria for withholding 

or refers to particular types of matters to 

be withheld. 

(d) Trade secrets, and commercial or 

financial information obtained from a 

person and privileged or confidential. 

(e) Interagency or intra-agency 

memoranda or letters that would not be 

available by law to a party other than an 

agency in litigation with the Board. 

(f) Personnel, medical, or similar files 

that disclosing would constitute a 

clearly unwarranted invasion of 

personal privacy. 

(g) Records or information complied 

for law enforcement purposes. But only 

to extent that the production of such 

law enforcement records of information: 

(1) Could reasonably be expected to 

interfere with enforcement proceedings; 

(2) Would deprive a person of a right 

to a fair trial or an impartial 

adjudication; 

(3) Could reasonably be expected to 

constitute an unwarranted invasion of 

personal privacy; 

(4) Could reasonably be expected to 

disclose the identity of any confidential 

source, including a State, local, or 

foreign agency or authority, or any 

private institution which furnished 

information on a confidential basis, and 

in the case of a record or information 

complied by a criminal law enforcement 

agency in the course of a criminal 

investigation or by an agency 

conducting a lawful security 

intelligence investigation, information 

furnished by a confidential source; 

(5) Would disclose techniques and 

procedures for law enforcement 

investigations or prosecutions, or would 

disclose guidelines for law enforcement 

investigations or prosecutions if such 

disclosure could reasonably be expected 

to risk circumvention of the law; or 

(6) Could reasonably be expected to 

endanger the life or physical safety of 

any individual. 

(h) Contained in or related to 

examination, operating, or condition 

reports, prepared by, on behalf of, or for 

the use of an agency responsible for the 

regulation or supervision of financial 

institutions. 

(i) Geological and geophysical 

information and data, including maps, 

concerning wells.

§ 1303.105 Requests for Board records. 

(a) A written FOIA request must be 

submitted. You may: 

(1) Write: NWTRB Designated FOIA 

Officer, 2300 Clarendon Boulevard, 

Suite 1300, Arlington, VA 22201; 

(2) Send a request via the Board’s Web 

site at http://www.nwtrb.gov; or 

(3) Fax: 703–235–4495.

(b) When making a request for records 

about a person, Privacy Act regulations 

also may apply. Please check the 

regulations for additional requirements 

before submitting a request. When 

making a request for records about 

someone other than yourself, you must 

include either: 

(1) Written authorization signed by 

the person permitting you to see the 

records; or 

(2) Proof that the individual is 

deceased (e.g., a death certificate or an 

obituary). 

(c) A request will be considered 

received for purposes of § 1303.107 on 

the date that it is received by the 

Board’s FOIA office. For prompt 

handling, write ‘‘Freedom of 

Information Act Request’’ on the letter 

and envelope or in the subject line of 

the Web request or fax. 

(d) Each request must clearly describe 

the desired records in sufficient detail to 

enable Board personnel to locate them 

with reasonable effort. Response to 

requests may be delayed if the records 

are not clearly described. 

(e) Whenever possible, requests 

should include specific information 

about each record sought, such as date, 

title or name, author, recipient, and 

subject. 

(f) If the FOIA Officer determines that 

the request does not clearly describe the 

records sought, he or she will either 

advise you of the additional information 

needed to locate the record or otherwise 

state why the request is insufficient. The 

requestor will then be given the 

opportunity to provide additional 

information or to modify their request. 

(g) Submitting a FOIA request shall be 

considered a commitment by the 

requestor to pay applicable fees required 

under § 1303.108 unless the requestor 

seeks a waiver of fees. When making a 

request, you may specify a willingness 

to pay fees up to a specific amount. 

(h) The FOIA does not require the 

Board to: 

(1) Compile or create records solely 

for the purpose of satisfying a request 

for records. 

(2) Provide records not yet in 

existence, even if such records may be 

expected to come into existence at some 

time in the future. 

(3) Restore records destroyed or 

otherwise disposed of, except that the 

FOIA Officer must notify the requestor 

that the records have been destroyed or 

otherwise disposed of.

77958 Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / Proposed Rules 

§ 1303.106 Responsibility, form, and 

content of responses. 

The Board’s Executive Director or his/

her designated FOIA Officer is 

authorized to grant or deny any request 

for a record and determine appropriate 

fees. When determining which records 

are responsive to a request, the Board 

will include only records in its 

possession as of the date of the request. 

(a) If no records are responsive to the 

request, the FOIA Officer will notify the 

requestor in writing. 

(b) When a FOIA Officer denies a 

request in whole or in part he/she will 

notify the requestor in writing. The 

response will be signed by the FOIA 

Officer and will include: 

(1) The name and title or position of 

the person making the denial; 

(2) A brief statement of the reasons for 

the denial, including the FOIA 

exemption(s) that the FOIA Officer has 

relied on in denying the request; and 

(3) A statement that the denial may be 

appealed under § 1303.114 and a 

description of the requirements of that 

section. 

(c) Consultations and referrals. When 

a request for a record not produced by 

the Board is received, the Board shall 

refer the requestor to the issuing agency 

in writing. 

(d) Notice of referral. When the Board 

refers all or part of a request to another 

agency, it shall give the requestor the 

address of the agency contact and the 

section(s) referred. 

(e) Timing of responses to requests 

sent to other agencies. The Board shall 

provide, within the FOIA deadline, 

responses only to those parts of the 

request not referred. Requests will be 

referred to other agencies and the 

requestor notified as soon as it is 

determined that a referral is appropriate. 

(f) Agreements on consultations and 

referrals. The Board may make 

agreements with other agencies to 

eliminate the need for consultations or 

referrals for particular types of records.

§ 1303.107 Timing of responses to 

requests. 

(a) General. The Board shall normally 

respond to requests in the order of their 

receipt. 

(b) Acknowledgment of requests. On 

receipt of a request, the Board shall send 

an acknowledgement letter or an e-mail 

confirming the requestor’s agreement to 

pay fees under § 1303.108 and providing 

a request number for further reference. 

(c) Granting requests. The Board shall 

have 20 business days from when a 

request is received to determine 

whether to grant or deny it. Once the 

Board determines whether it can grant 

a request entirely or in part, it shall 

notify the requestor in writing. The 

Board shall advise the requestor of any 

fees to be charged under § 1303.108 and 

shall disclose records promptly on 

payment of the fees. Records disclosed 

in part shall be marked or annotated to 

show the amount of information deleted 

unless doing so would harm an interest 

protected by an applicable exemption. 

The location of the information deleted 

also shall be indicated on the record 

when technically feasible. 

(d) Unusual circumstances. (1) If the 

statutory time limits for processing a 

request cannot be met because of 

‘‘unusual circumstances’’ as defined in 

the FOIA, the Board shall promptly 

notify the requestor in writing, 

explaining the circumstances and giving 

the date by which the request can be 

completed or if the Board cannot 

complete the request. If the extension is 

for more than 10 working days, the 

Board shall provide the requestor with 

an opportunity either to: 

(i) Modify the request so that it can be 

processed within the time limits; or 

(ii) Arrange an alternative time period 

for processing the original request. 

(2) If the Board believes that multiple 

requests submitted by a requestor or by 

requestors acting in concert constitute a 

single request that would otherwise 

involve unusual circumstances, and if 

the requests involve clearly related 

matters, they may be aggregated. 

Multiple requests involving unrelated 

matters will not be aggregated. 

(e) Expedited processing. (1) Requests 

and appeals shall be taken out of order 

and given expedited processing 

whenever it is determined that they 

involve: 

(i) Circumstances that could 

reasonably be expected to pose an 

imminent threat to the life or physical 

safety of an individual; or

(ii) An urgency to inform the public 

about an actual or alleged activity if 

made by a person primarily engaged in 

disseminating information. 

(2) Requests for expedited processing 

may be made either at the time of the 

initial request or at a later time. 

(3) Requests for expedited processing 

must include a statement explaining in 

detail the basis for requesting expedited 

processing. For example, a requestor 

under § 1303.108 must establish that 

his/her professional activity is news 

reporting, although it need not be their 

sole occupation. The requester also 

must establish a particular urgency to 

inform the public about government 

activity involved in the request, beyond 

the public’s right to know about 

government activity generally. 

(4) Within 10 calendar days of receipt 

of a request for expedited processing, 

the Board shall decide whether to grant 

the request and notify the requestor of 

its decision. If a request for expedited 

treatment is granted, the request shall be 

processed as soon as practicable. If a 

request for expedited processing is 

denied, an appeal of that decision shall 

be acted on expeditiously.

§ 1303.108 Fees. 

(a) General. The Board shall charge 

for processing requests under the FOIA 

in accordance with paragraph (c) of this 

section, except where fees are limited 

under § 1303.109 or where a waiver or 

reduction of fees is granted under 

§ 1303.111. Fees must be paid before the 

copies of records are sent. Fees may be 

paid by check or money order payable 

to the Treasury of the United States. 

(b) Definitions for this section. (1) 

Commercial use request—A request 

from, or on behalf of, a person who 

seeks information for a purpose that 

furthers their commercial, trade, or 

profit interests including furthering 

those interests through litigation. The 

Board shall try to determine the use to 

which a record will be put. When the 

Board believes that a request is for 

commercial use either because of the 

nature of the request or because the 

Board has cause to doubt the stated use, 

the Board shall ask the requestor for 

clarification. 

(2) Direct costs—Expenses that the 

Board incurs in searching for, 

duplicating, and, for some requests, 

reviewing records in response to a 

FOIA. Direct costs include the full 

salary of the employee performing the 

work and the cost of duplication of the 

records. Overhead expenses, such as the 

costs of space, heating, and lighting, are 

not included. 

(3) Duplication—Making a copy of a 

record or the information in the record, 

to respond to a FOIA. Copies can be in 

paper, microform, electronic, or other 

format. The Board shall honor a 

requestor’s preference for format if the 

record is readily reproducible in that 

format at a reasonable cost. 

(4) Educational institution—A public 

or private school, an undergraduate, 

graduate, professional or vocational 

school, that has a program of scholarly 

research. For a request to be in this 

category, a requestor must show that 

request is authorized by and made 

under the auspices of the qualifying 

institution and that the records will be 

used for scholarly research. 

(5) Noncommercial scientific 

institution—An institution that is not 

operated on a commercial basis, as 

defined in paragraph (b)(1) of this 

section and is operated solely for 

conducting scientific research that does 

Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / Proposed Rules 77959

not promote any particular product or 

industry. For a request to be in this 

category, the requestor must show that 

the request is authorized and made 

under the auspices of the qualifying 

institution and that the records will be 

used to further scientific research. 

(6) Representative of the new media—

Any person actively reporting for an 

entity that provides news to the public. 

The term ‘‘news’’ means information 

about current events or of current 

interest to the public. Examples include: 

television and radio stations 

broadcasting to the public; and 

publishers of periodicals who make 

their news products available to the 

general public. For freelance journalists 

to be regarded as working for a news 

organization, they must demonstrate a 

solid basis for expecting publication 

through that organization. The Board 

may use a publication contract or past 

publication records to make this 

determination. The requestor must not 

be seeking records for a commercial use; 

however, a request solely supporting the 

news-dissemination function is not 

considered a commercial use. 

(7) Review—Examining a record to 

determine whether any part of it is 

exempt from disclosure, and processing 

a record for disclosure. Review costs are 

recoverable even if a record is not 

disclosed. Review time includes time 

spent considering any formal objection 

to disclosure made by a business 

submitter under paragraph (c)(3) of this 

section but does not include time spent 

resolving general legal or policy issues 

regarding the application of exemptions. 

(8) Search—The process of looking for 

and retrieving records, including pageby-page or line-by-line identification of 

information within records and 

reasonable efforts to locate and retrieve 

information from records maintained in 

electronic form. The Board shall ensure 

that searches are done in the most 

efficient and least expensive way that is 

reasonably possible. 

(c) Fees. In responding to FOIA 

requests, the Board shall charge the 

following fees unless a waiver or a 

reduction of fees has been granted under 

§ 1303.111: 

(1) Search. (i) Search fees shall be 

charged for all requests subject to the 

limitations of § 1303.109. The Board 

may charge for time spent searching 

even if no responsive record is located, 

or if the record(s) located are withheld 

as exempt from disclosure. 

(ii) For each quarter hour spent by 

clerical personnel in searching for and 

retrieving a requested record, the fee 

will be $5. If a search and retrieval 

requires the use of professional 

personnel the fee will be $8 for each 

quarter hour. If the time of managerial 

personnel is required, the fee will be 

$10 for each quarter hour. 

(iii) For computer searches of records, 

requestors will be charged the direct 

costs of conducting the search, although 

certain requestors (see § 1303.109(a)) 

will be charged no search fee and 

certain other requestors (see

§ 1303.109(b)) will be entitled to two 

hours of manual search time without 

charge. Direct costs include the cost of 

operating a computer for the search time 

for requested records and the operator 

salary for the search. 

(2) Duplication. Duplication fees for 

paper copies of a record will be 10 cents 

per page for black and white and 20 

cents per page for color. For all other 

forms of duplication, the Board shall 

charge the direct costs of producing the 

copy. All charges are subject to the 

limitations of §§ 1303.109 and 1303.111.

(3) Review. When a commercial-use 

request is made, review fees shall be 

charged as stated in paragraph (c)(1) of 

this section. These fees apply only to 

the initial record review, when the 

Board determines whether an 

exemption applies to a particular 

record. Charges shall not be imposed for 

review at the administrative appeal 

level if an exemption is applied. 

However, records withheld under an 

exemption that is subsequently 

determined not to apply may be 

reviewed again to determine whether 

any other exemption not previously 

considered applies. The costs of that 

review shall be charged. All review fees 

shall be charged at the same rates as 

those charged in paragraph (c)(1) of this 

section.

§ 1303.109 Restrictions on charging fees. 

(a) When determining search or 

review fees: 

(1) No search fee shall be charged for 

requests by educational institutions, 

noncommercial scientific institutions, 

and representatives of the news media. 

(2) The Board shall provide without 

charge, to all but commercial users: 

(i) The first 100 pages of black and 

white duplication (or the cost 

equivalent); and 

(ii) The first two hours of search by a 

clerical staff member (or the cost 

equivalent). 

(3) When the total fee for a request 

will be $14.00 or less for any request, no 

fee shall be charged. 

(b) The provisions of paragraphs (a)(2) 

and (a)(3) of this section work together. 

All requestors seeking records for a noncommercial use shall not be charged 

unless the total cost for the request 

exceeds by more than $14.00, the cost 

of a two hour clerical search, plus the 

cost of duplication over the 100 page 

exemption.

§ 1303.110 Notice of anticipated fees. 

(a) General. The Board shall advise 

the requestor in writing of any 

applicable fees. If only a part of the fee 

can be estimated readily, the Board shall 

advise the requestor that this may be 

only a part of the total fee. After the 

requestor has been sent a fee estimate, 

the request shall not be considered 

received until the requestor makes a 

firm commitment to pay the anticipiated 

total fee. Any such agreement must be 

made by the requestor in writing and 

must be received within 60 days of the 

Board’s notice. If the requestor does not 

provide a firm commitment to pay the 

anticipiated fee within 60 days of the 

notice, the request shall be closed. The 

requestor may be given an opportunity 

to work with the Board to change the 

request and lower the cost. 

(b) Charges for other services. When 

the Board chooses as a matter of 

administrative discretion to provide a 

special service, such as certifying that 

records are true copies or sending them 

by other than ordinary mail, the Board 

shall pay the costs of providing the 

service unless previous arrangements 

have been made with the requestor. 

(c) Charging interest. The Board may 

charge interest on any unpaid bill 

starting on the 31st day following the 

date of billing. Interest charges shall be 

assessed as the rate provided in 31 

U.S.C. 3717 and shall accrue from the 

date of the billing until payment is 

received by the Board. The Board shall 

follow the provisions of the Debt 

Collection Act of 1982 (Pub. L. 97–365, 

96 Stat. 1749), as amended. 

(d) Aggregating requests. If the Board 

reasonably believes that a requestor or a 

group of requestors acting together is 

trying to divide a request into a series 

of smaller requests for the purpose of 

avoiding fees, the Board may aggregate 

the requests and charge accordingly. 

The Board shall assume that multiple 

requests of the same type made within 

a 30-day period have been made in 

order to avoid fees. If requests are 

separated by a longer period, the Board 

shall aggregate them only if there is a 

solid basis for determining that 

aggregation is warranted. Multiple 

requests involving unrelated matters 

shall not be aggregated. 

(e) Advance payments. When a 

requestor has previously failed to pay 

promptly a properly charged FOIA fee 

to the Board or another agency, the 

Board shall require proof that full 

payment has been made to that agency 

before it begins to process that 

requestor’s FOIA. The Board shall also 

77960 Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / Proposed Rules 

require advance payment of the full 

amount of the anticipated fee. When 

advance payment is required, the 

request is not considered received until 

payment has been made.

§ 1303.111 Requirements for waiver or 

reduction of fees. 

(a) Records shall be furnished without 

charge or at a reduced charge if the 

Board determines that: 

(1) Disclosure is in the public interest 

and the information is likely to 

contribute significantly to public 

understanding of the activities of the 

government; and 

(2) Disclosure is not primarily in the 

commercial interest of the requestor. 

(b) In determining whether the first 

requirement is met, the Board shall 

consider: 

(1) Subject: Do the requested records 

concern identifiable activities of the 

federal government? 

(2) Informative value: Will the 

disclosure contribute to an 

understanding of government activities? 

Do records contain information on 

activities ‘‘likely to contribute’’ to an 

increased public understanding? If the 

information or similar information is 

already in the public domain, the 

record(s) would not increase the 

public’s understanding. 

(3) Would the disclosure contribute to 

the understanding of a reasonably broad 

audience, as opposed to the individual 

understanding of the requestor? A 

requestor’s expertise in the subject and 

intention to convey information to the 

public shall be considered. Being a valid 

representative of the news media shall 

satisfy this consideration. 

(4) Is the disclosure likely to 

contribute significantly to public 

understanding of government activities? 

The level of understanding after the 

disclosure versus that before the 

disclosure must be enhanced to a 

significant extent. However, the Board 

shall not make value judgments about 

whether information contributing to 

public understanding of government 

activities is important enough to release. 

(c) In determining whether the second 

requirement is met, the Board shall 

consider: 

(1) The existence and extent of the 

commercial interest: Would a 

commercial interest be substantially 

furthered by the disclosure? The Board 

shall consider the commercial interest 

(see paragraph (a)(2) of this section) of 

either the requestor or of any person on 

whose behalf they may be acting that 

would be furthered by the disclosure. 

During the administrative process, 

requestors shall be given an opportunity 

to provide additional information about 

this concern. 

(2) The primary interest for 

disclosure: Whether the commercial 

interest of the requestor is sufficiently 

large in comparison to the public 

interest, that disclosure is ‘‘primarily in 

the commercial interest of the 

requestor.’’ A fee waiver is justified if 

the public interest standard under 

paragraph (b) of this section is satisfied 

and if that public interest is greater than 

any commercial interest. The Board 

shall presume that when news media 

requestors satisfy this standard, 

primarily the public interest is served.

(d) If only some of the records to be 

released satisfy the requirements for a 

waiver of fees, a waiver shall be granted 

only for those records. 

(e) Requests for a waiver or a 

reduction of fees must address the 

factors listed in paragraphs (a) and (b) 

of this section only as they apply to 

each request. The Board also shall 

consider their administrative resources 

when responding to requests and may 

negotiate with the requestor to find the 

best way to optimize their resources in 

responding to the request when 

deciding whether to grant waivers or 

reductions of fees.

§ 1303.112 Denials. 

(a) When denying a request in any 

respect, the Board shall notify the 

requestor of that determination in 

writing. The types of denials include: 

(1) Denials of requests, consisting of a 

determination: 

(i) To withhold any requested record 

in whole or in part; 

(ii) That a requested record does not 

exist or cannot be located; 

(iii) That a record is not readily 

reproducible in the form or format 

sought; 

(iv) That what has been requested is 

not a record subject to the FOIA; and 

(v) That the material requested is not 

a Board record (e.g., material produced 

by another agency or organization). 

(2) A determination on any disputed 

fee matter, including a denial of a 

request for a fee waiver. 

(3) A denial of a request for expedited 

processing. 

(b) The denial letter shall be signed by 

the Director of Administration, the 

Deputy Director, or their designee, and 

shall include all of the following: 

(1) The name and title of the person 

responsible for the denial. 

(2) A brief statement of the reason(s) 

for the denial, including any FOIA 

exemptions applied in denying the 

request. 

(3) An estimate of the volume of 

records withheld, in number of pages or 

in some other reasonable form of 

estimation. This estimate does not need 

to be provided if it would harm an 

interest protected by an applicable 

exemption. 

(4) A statement that the denial may be 

appealed under § 1303.114 and a 

description of the requirements of 

§ 1303.114.

§ 1303.113 Business information. 

(a) In general. Business information 

obtained by the Board from a submitter 

shall be disclosed under the FOIA only 

under this section. 

(b) Definitions. For purposes of this 

section: 

(1) Business information—commercial 

or financial records obtained by the 

Board that may be protected from 

disclosure under Exemption 4 of the 

Freedom of Information Act (FOIA). 

(2) Submitter—any person or entity 

from which the Board obtains business 

records, either directly or indirectly. 

The term includes, but is not limited to, 

corporations, and state, local, tribal, and 

foreign governments. 

(c) Designation of business 

information. Submitters of business 

information shall designate any part of 

the record considered to be protected 

from disclosure under Exemption 4 of 

the FOIA by appropriately marking the 

material. This may be done either at the 

time the record is submitted or at a 

reasonable time thereafter. This 

designation lasts for 10 years after 

submittal unless the submitter requests 

and provides justification for a longer 

period. 

(d) Notice to submitters. The Board 

shall provide a business submitter with 

prompt written notice of any FOIA 

request or appeal that seeks its business 

information under paragraph (e) of this 

section, except as provided in paragraph 

(h) of this section, to give the submitter 

an opportunity to object to that 

disclosure under paragraph (f) of this 

section. The notice shall either describe 

the records requested or include copies 

of the records. 

(e) Required notice. Notice shall be 

given to a submitter when: 

(1) The submitter has designated that 

the information is considered protected 

from disclosure under Exemption 4 of 

the FOIA; or 

(2) The Board has reason to believe 

that the information may be protected 

from disclosure under Exemption 4 of 

the FOIA. 

(f)(1) Objecting to disclosure. A 

submitter shall have 30 days to respond 

to the notice described in paragraph (d) 

of this section. If a submitter has an 

objection to disclosure, they are 

Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / Proposed Rules 77961

required to submit a detailed written 

statement including: 

(i) All grounds for withholding any of 

the information under any exemption of 

the FOIA, and 

(ii) In the case of Exemption 4, the 

reason why the information is a trade 

secret, commercial, or financial 

information that is privileged or 

confidential. 

(2) If a submitter fails to respond to 

the notice in paragraph (d) of the section 

within 30 days, the Board shall assume 

that the submitter has no objection to 

disclosure. The Board shall not consider 

information not received by the Board 

until after a disclosure decision has 

been made. Information provided by a 

submitter under this paragraph might 

itself be subject to disclosure under the 

FOIA. 

(g) Notice of intent to disclose. The 

Board shall consider a submitter’s 

objections and specific grounds for 

nondisclosure in deciding whether to 

disclose the business records. Whenever 

the Board decides to disclose business 

records over the objection of a 

submitter, it shall give the submitter 

written notice, that will include: 

(1) A statement of the reason(s) the 

submitter’s objections were not 

sustained; 

(2) A description of the business 

records to be disclosed; and 

(3) A specified disclosure date at a 

reasonable time subsequent to the 

notice. 

(h) Exceptions to notice requirements.

The notice requirements in paragraphs 

(d) and (g) of this section shall not apply 

if: 

(1) The Board determines that the 

information should not be disclosed; 

(2) The information has been 

published legally or has been officially 

made available to the public; 

(3) Disclosure of the information is 

required by another statute or by a 

regulation issued in accordance with 

Executive Order 12600 (3 CFR, 1988 

Comp., p. 235); or 

(4) The objection made by the 

submitter under paragraph (f) of this 

section appears frivolous. In such a 

case, the Board shall promptly notify 

the submitter of its decision using the 

guidelines in paragraph (g) of this 

section. 

(i) Notice of FOIA lawsuit. When a 

requestor files a lawsuit seeking to 

compel the disclosure of business 

information, the Board shall promptly 

notify the submitter. 

(j) Corresponding notice to requestors.

When the Board provides a submitter 

with either notice and an opportunity to 

object to disclosure under paragraph (d) 

of this section or with its intent to 

disclose requested information under 

paragraph (g) of this section, the Board 

also shall notify the requestor(s). When 

a submitter files a lawsuit seeking to 

prevent the disclosure of business 

information, the Board shall notify the 

requestor(s).

§ 1303.114 Appeals. 

(a)(1) Appeals of adverse 

determinations. If you are dissatisfied 

with the Board’s response to your 

request, you may appeal to the Board’s 

Executive Director: 

(i) By mail to: U.S. Nuclear Waste 

Technical Review Board, 2300 

Clarendon Boulevard, Suite 1300, 

Arlington, VA 22201; 

(ii) By e-mail to: FOIA@nwtrb.gov; or 

(iii) By fax to: 703–235–4495. 

(2) The appeal must be in writing and 

must be received within 30 days of the 

date of the Board’s response. The appeal 

letter, e-mail, or fax may include as 

much or as little related information as 

you wish, as long as it clearly identifies 

the Board determination that you are 

appealing, including the assigned 

request number, if known. For prompt 

handling, please mark your appeal 

‘‘Freedom of Information Act Appeal.’’

(b) Responses to appeals. Requestors 

shall be notified in writing of the 

decision on the appeal. A decision 

affirming an adverse determination shall 

include a statement of the reason(s) for 

the affirmation, including any FOIA 

exemption(s) applied, and shall include 

the FOIA provisions for court review of 

the decision. If the adverse 

determination is reversed or modified 

on appeal, the request shall be 

reprocessed in accordance with that 

appeal decision. 

(c) When appeal is required. If a 

review by a court of any adverse 

determination is desired, the 

determination must first be appealed 

under this section. 

(d) Denial of appeal. An adverse 

determination by the Executive Director 

shall be the final action of the Board. 

(e) Unacceptable appeals. An appeal 

will not be acted on if the request 

becomes a matter of FOIA litigation.

§ 1303.115 Preservation of records. 

The Board shall preserve all 

correspondence pertaining to the 

requests that it receives under this 

subpart, as well as copies of all 

requested records, until disposition or 

destruction is authorized by title 44 of 

the United States Code or the National 

Archives and Records Administration’s 

General Records Schedule 14. Records 

will not be disposed of while they are 

the subject of a pending request, appeal, 

or lawsuit.

§ 1303.116 Other rights and services. 

Nothing in this part shall be 

construed to entitle any person, as a 

right, to any service or to the disclosure 

of any record to which such person is 

entitled under the FOIA.

Dated: December 21, 2004. 

William D. Barnard, 

Executive Director, U.S. Nuclear Waste 

Technical Review Board.

[FR Doc. 04–28342 Filed 12–28–04; 8:45 am] 

BILLING CODE 6820–AM–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

14 CFR Part 39

[Docket No. FAA–2004–19955; Directorate 

Identifier 2004–NE–17–AD] 

RIN 2120–AA64

Airworthiness Directives; Hartzell 

Propeller Inc. Propellers

AGENCY: Federal Aviation 

Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FAA proposes to adopt a 

new airworthiness directive (AD) for 

certain Hartzell Propeller Inc. 

propellers. This proposed AD would 

require inspecting the propeller blades 

and other critical propeller parts for 

corrosion and mechanical damage. This 

proposed AD results from two events 

where a ‘‘Z-shank’’ blade failed and 

separated and the results of teardown 

inspections that detected corrosion in 

the blade bore. We are proposing this 

AD to detect corrosion and mechanical 

damage that can cause failure of a 

propeller, which could result in loss of 

control of the airplane.

DATES: We must receive any comments 

on this proposed AD by February 28, 

2005.

ADDRESSES: Use one of the following 

addresses to submit comments on this 

proposed AD. 

• DOT Docket Web site: Go to

http://dms.dot.gov and follow the 

instructions for sending your comments 

electronically. 

• Government-wide rulemaking Web 

site: Go to http://www.regulations.gov

and follow the instructions for sending 

your comments electronically. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

001. 

• Fax: (202) 493–2251.