38366 Federal Register / Vol. 74, No. 147 / Monday, August 3, 2009 / Proposed Rules 

prevent unauthorized disclosure or 

destruction of manual and automated 

records systems. These security 

safeguards shall apply to all systems of 

records in which identifiable personal 

data are processed or maintained, 

including all reports and output from 

such systems of records that contain 

identifiable personal information. Such 

safeguards must be sufficient to prevent 

negligent, accidental, or unintentional 

disclosure, modification, or destruction 

of any personal records or data; must 

minimize, to the extent practicable, the 

risk that skilled technicians or 

knowledgeable persons could 

improperly obtain access to modify or 

destroy such records or data; and shall 

further ensure against such casual entry 

by unskilled persons without official 

reasons for access to such records or 

data. 

(a) Manual systems. (1) Records 

contained in a system of records as 

defined in this part may be used, held, 

or stored only where facilities are 

adequate to prevent unauthorized access 

by persons within or outside the Board. 

(2) Access to and use of a system of 

records shall be permitted only to 

persons whose duties require such 

access to the information for routine 

uses or for such other uses as may be 

provided in this part. 

(3) Other than for access by 

employees or agents of the Board, access 

to records within a system of records 

shall be permitted only to the individual 

to whom the record pertains or upon his 

or her written request. 

(4) The Board shall ensure that all 

persons whose duties require access to 

and use of records contained in a system 

of records are adequately trained to 

protect the security and privacy of such 

records. 

(5) The disposal and destruction of 

identifiable personal data records shall 

be done by shredding and in accordance 

with rules promulgated by the Archivist 

of the United States. 

(b) Automated systems. (1) 

Identifiable personal information may 

be processed, stored, or maintained by 

automated data systems only where 

facilities or conditions are adequate to 

prevent unauthorized access to such 

systems in any form. 

(2) Access to and use of identifiable 

personal data associated with automated 

data systems shall be limited to those 

persons whose duties require such 

access. Proper control of personal data 

in any form associated with automated 

data systems shall be maintained at all 

times, including maintenance of 

accountability records showing 

disposition of input and output 

documents. 

(3) All persons whose duties require 

access to processing and maintenance of 

identifiable personal data and 

automated systems shall be adequately 

trained in the security and privacy of 

personal data. 

(4) The disposal and disposition of 

identifiable personal data and 

automated systems shall be done by 

shredding, burning, or, in the case of 

electronic records, by degaussing or by 

overwriting with the appropriate 

security software, in accordance with 

regulations of the Archivist of the 

United States or other appropriate 

authority. 

§ 200.15 Systems of records covered by 

exemptions. 

The Board currently has no exempt 

systems of records. 

§ 200.16 Mailing lists. 

The Board shall not sell or rent an 

individual’s name and/or address unless 

such action is specifically authorized by 

law. This section shall not be construed 

to require the withholding of names and 

addresses otherwise permitted to be 

made public. 

Ivan J. Flores, 

Paralegal Specialist, Recovery Accountability 

and Transparency Board. 

[FR Doc. E9–18352 Filed 7–31–09; 8:45 am] 

BILLING CODE 6820–GA–P 

RECOVERY ACCOUNTABILITY AND 

TRANSPARENCY BOARD 

4 CFR Part 201 

RIN 0430–AA01 

Rule Implementing the Freedom of 

Information Act 

AGENCY: Recovery Accountability and 

Transparency Board. 

ACTION: Proposed rule. 

SUMMARY: The Recovery Accountability 

and Transparency 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, 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 

October 2, 2009. 

ADDRESSES: Comments on this proposed 

rule may be submitted: 

By Mail or Hand Delivery: Office of 

General Counsel, Recovery 

Accountability and Transparency Board, 

1717 Pennsylvania Avenue, NW., Suite 

700, Washington, DC 20006; 

By Fax: (202) 254–7970; or 

By E-mail to the Board: 

comments@ratb.gov. 

All comments on this proposed FOIA 

rule should be clearly identified as 

such. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Dure, General Counsel, (202) 

254–7900. 

SUPPLEMENTARY INFORMATION: This 

proposed rule is intended to set forth 

the procedures for members of the 

public to request records from the Board 

under both the FOIA 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 the Board’s 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 4 CFR Part 201 

Administrative practice and 

procedure; Freedom of Information; 

Reporting and recordkeeping 

requirements. 

Therefore, the Board proposes to 

amend Chapter II of Title 4 of the Code 

of Federal Regulations, as proposed 

elsewhere in this issue of the Federal 

Register, by adding part 201 to read as 

follows: 


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PART 201—PUBLIC INFORMATION 

AND REQUESTS 

Sec. 

201.1 Scope. 

201.2 Definitions. 

201.3 Electronic reading room. 

201.4 Board records exempt from public 

disclosure. 

201.5 Requests for Board records. 

201.6 Responsibility, form, and content of 

responses. 

201.7 Time of responses to requests. 

201.8 Fees. 

201.9 Restrictions on charging fees. 

201.10 Notice of anticipated fees. 

201.11 Requirements for waiver or 

reduction of fees. 

201.12 Denials. 

201.13 Business information. 

201.14 Appeals. 

201.15 Preservation of records. 

201.16 Other rights and services. 

201.17 How to track a FOIA request. 

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

amended; Executive Order 12600, 3 CFR, 

1987 Comp., p. 235. 

§ 201.1 Scope. 

This part sets forth the policies and 

procedures of the Recovery 

Accountability and Transparency Board 

(Board) regarding public access to 

documents under the Freedom of 

Information Act (FOIA or the Act), 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. 

§ 201.2 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 staff for the 

Board. 

(iii) Materials distributed by 

presenters at a Board meeting or Board 

Committee meeting. 

(2) All references to records include 

the entire record and/or any part of the 

record. 

(b) Board—The Recovery 

Accountability and Transparency Board. 

(c) Chairman—The Chairman of the 

Board is designated or appointed by the 

President. 

(d) Designated FOIA Officer—The 

person designated to administer the 

Board’s activities in regard to the 

regulations in this part. The FOIA 

Officer 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 

production of records from requests 

filed under the FOIA. 

(e) Executive Director—The chief 

operating officer of the Board. 

(f) Member—An individual appointed 

to serve on the Board pursuant to Title 

XV, Subtitle B of the American 

Recovery and Reinvestment Act of 2009 

(Pub. L. 111–5). 

(g) Days—Standard working days, 

excluding weekends and Federal 

holidays. 

§ 201.3 Publicly available documents and 

electronic reading room. 

(a) Many Board records are available 

electronically at the Board’s Web site 

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

(b) Records available electronically on 

the Board’s Web site include: 

(1) The rules and regulations of the 

Board. 

(2) Statements of policy adopted by 

the Board. 

(3) Board reports to the President and 

Congress, including the Committees on 

Appropriations of the Senate and House 

of Representatives. 

(4) Congressional Testimony of the 

Chairman of the Board. 

(5) Biographical information about the 

Chairman and other Board members. 

(6) Copies of records repeatedly 

released in response to FOIA requests. 

(c) The cost of copying information 

available in the Board office shall be 

imposed in accordance with the 

provisions of § 201.8. 

§ 201.4 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 

are in fact 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 are 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 compiled 

for law enforcement purposes, but only 

to the 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 

compiled 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. 

§ 201.5 Requests for Board records. 

(a) To request Board records, you 

may: 

(1) Write: FOIA Officer, Recovery 

Accountability and Transparency Board, 


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1717 Pennsylvania Avenue, NW., Suite 

700, Washington, DC 20006; 

(2) Send a request via e-mail at 

FOIA@ratb.gov; or 

(3) Fax: (202) 254–7970. 

(b) When requesting records under 

this section you must state, in writing: 

(1) Your full name, 

(2) Address, 

(3) Telephone number and, 

(4) At your option, electronic mail 

address. 

(c) 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 

obituary). 

(d) A request will be considered 

received for purposes of § 201.7 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 e-mail request or fax. 

(e) 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. 

(f) Whenever possible, requests 

should include specific information 

about each record sought, such as date, 

title or name, author, recipient, and 

subject. 

(g) 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. 

You will then be given the opportunity 

to provide additional information or to 

modify your request. 

(h) Submitting a FOIA request shall be 

considered a commitment by the 

requestor to pay applicable fees required 

under § 201.8 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. 

(i) 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. 

§ 201.6 Responsibility, form, and content 

of response. 

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 the 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 § 201.14 and a 

description of the requirements of that 

section. 

(c) Referrals. When a request for a 

record not created by the Board is 

received, the Board shall refer the 

requestor to the issuing agency in 

writing, providing the address of the 

agency contact and the section(s) 

referred. 

(d) 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. 

(e) Agreements on referrals. The 

Board may make agreements with other 

agencies to eliminate the need for 

referrals for particular types of records. 

§ 201.7 Timing of responses to requests. 

(a) General. The Board shall normally 

respond to requests in the order of their 

receipt. 

(b) Acknowledgement 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 § 201.8 and providing a 

request number for future reference. 

(c) Time limits for responding to FOIA 

requests. The Board shall make an 

initial determination to grant or deny a 

request for records within 20 days 

(excluding Saturday, Sunday and 

holidays) after the date of receipt of the 

request, as described in § 201.5(d), 

except as stated in paragraph (f) of this 

section. 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 § 201.8 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 (5 U.S.C. 552(6)(B)(iii)), 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 to: 

(i) Modify the request so that it can be 

processed within the time limit; 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 § 201.8 must establish that his/ 

her professional activity is news 

reporting, although it need not be his/ 

her sole occupation. The requestor also 

must establish a particular urgency to 

inform the public about government 

activity involved in the request, beyond 


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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. 

(f) Tolling of time limits. (1) The 

Board may toll the 20-day time period 

to: 

(i) Make one request for additional 

information from the requester; or 

(ii) Clarify the applicability or amount 

of any fees, if necessary, with the 

requester. 

(2) The tolling period ends upon the 

Board’s receipt of information from the 

requester or resolution of the fee issue. 

§ 201.8 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 § 201.9 or where a waiver or 

reduction of fees is granted under 

§ 201.11. 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 his/her 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 reviewing records in 

response to a request. 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 cost 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 request. Copies can be 

in paper, 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 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 the 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 

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 for further scientific research. 

(6) Representative of the news 

media—Any person who, or entity that, 

gathers information of potential interest 

to a segment of the public, uses editorial 

skills to turn the raw materials into a 

distinct work, and distributes that work 

to an audience. A freelance journalist 

shall be regarded as working for a news 

media entity if the person can 

demonstrate a solid basis for expecting 

publication through that entity, whether 

or not the journalist is actually 

employed by that entity. A publication 

contract is one example of a basis for 

expecting publication that ordinarily 

would satisfy this standard. The Board 

may consider past publication records 

of the requester in determining whether 

he or she qualifies as a ‘‘representative 

of the news media.’’ 

(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 § 201.13 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 

§ 201.11. 

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

charged for all requests subject to the 

limitations of § 201.9. 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 for 

records, requestors will be charged the 

direct costs of conducting the search 

although certain requestors (see 

§ 201.9(a)) will be charged no search fee 

and certain other requestors (see 

§ 201.9(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 §§ 201.9 and 201.11. 

(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. 

§ 201.9 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, 

or 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 


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(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 Board will not assess search 

and/or duplication fees, as applicable, if 

it fails to respond to a requester’s FOIA 

request within the time limits specified 

under 4 CFR 201.7, and no ‘‘unusual’’ 

circumstances (as defined in 5 U.S.C. 

552(a)(6)(B) and 4 CFR 201.7(d)) or 

‘‘exceptional’’ circumstances (as defined 

in 5 U.S.C. 552(a)(6)(C)) apply to the 

processing of the request. 

§ 201.10 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 anticipated 

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 

anticipated 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 

services 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 at 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 request. The Board 

shall also 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. 

§ 201.11 Requirements for waiver or 

reduction of fees. 

(a) Fees for processing your request 

may be waived if you meet the criteria 

listed in paragraph (b) of this section. 

The burden is on you to justify 

entitlement to a fee waiver. Requests for 

fee waivers are decided on a case-bycase basis. The fact that you have 

received a fee waiver in the past does 

not mean you are automatically entitled 

to a fee waiver for every request you 

may submit, because the essential 

element of any fee waiver determination 

is whether the release of the particular 

documents sought in the request will 

likely contribute significantly to public 

understanding of the operations or 

activities of the government. The Board 

will rely on the fee waiver justification 

you have submitted in your request 

letter. If you do not submit sufficient 

justification, your fee waiver request 

will be denied. The Board may, at its 

discretion, communicate with you to 

request additional information if 

necessary. However, the Board must 

make a determination on the fee waiver 

request within the statutory time limit, 

even if the Board has not received such 

additional information. In certain 

circumstances, a partial fee waiver may 

be appropriate, if some, but not all, of 

the requested records are likely to 

contribute significantly to public 

understanding of the operations and 

activities of the government. 

(b) The Board will waive fees (in 

whole or part) if disclosure of all or part 

of the information is in the public 

interest because of its release: 

(1) Is likely to contribute significantly 

to public understanding of the 

operations or activities of the 

government; and 

(2) Is not primarily in the commercial 

interest of the requester. 

§ 201.12 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, including 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 FOIA Officer or 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 § 201.14 and a 

description of the requirements of 

§ 201.14. 

§ 201.13 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 

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 


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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. The Board shall 

give notice of a FOIA request seeking 

business information 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, it is 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 this 

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, 1987 

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). 

§ 201.14 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: Recovery 

Accountability and Transparency Board, 

1717 Pennsylvania Avenue, NW., Suite 

700, Washington, DC 20006; 

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

(iii) By fax to: 202–254–7970. 

(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. 

§ 201.15 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 of 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. 

§ 201.16 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. 

§ 201.17 How to track a FOIA request. 

(a) Tracking number. The Board will 

issue a tracking number to all FOIA 

requesters within 5 days of the receipt 

of the request (as described in 

§ 201.7(b)). The tracking number will be 

sent via electronic mail if the requester 

has provided an electronic mail address. 

Otherwise, the Board will mail the 

tracking number to the requester’s 

physical address, as provided in the 

FOIA request. 

(b) Status of request. FOIA requesters 

may check the status of their FOIA 

request(s) by contacting the FOIA 

Officer at FOIA@ratb.gov or (202) 254– 

7900. 

Ivan J. Flores, 

Paralegal Specialist, Recovery Accountability 

and Transparency Board. 

[FR Doc. E9–18353 Filed 7–31–09; 8:45 am] 

BILLING CODE 6820–GA–P 


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