60014 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

GENERAL SERVICES

ADMINISTRATION

41 CFR Part 105–60

RIN 3090–AG16

Public Availability of Agency Records

and Information Materials

AGENCY: Office of Management and

Workplace Programs, (GSA).

ACTION: Final rule.

SUMMARY: The General Services

Administration, GSA is revising its

regulations that implement the Freedom

of Information Act (FOIA), to

incorporate changes since publication in

1988 of GSA’s last final rule

implementing the FOIA. This rule also

issues instructions to current and former

GSA employees concerning the

response to subpoenas and other

demands in litigation before judicial

and administrative tribunals.

DATES: This rule is effective December 8,

1997.

FOR FURTHER INFORMATION CONTACT:

Mary Cunningham, GSA Freedom of

Information Act (FOIA) Officer (202–

501–3415); or Helen C. Maus, Office of

General Counsel (202–501–1460).

SUPPLEMENTARY INFORMATION: A

proposal to revise GSA’s regulations

that implement FOIA were published in

the Federal Register on March 25, 1997,

62 FR 14081. This rule was not

submitted to the Office of Management

and Budget pursuant to Executive Order

12866 of September 30, 1993,

Regulatory Planning and Review,

because it is not a significant regulatory

action as defined in Executive Order

12866. GSA has based all administrative

decisions underlying this rule on

adequate information concerning the

need for and the consequences of this

rule, particularly the subpart that

governs responses to subpoenas and

other judicially enforceable demands for

material or information. Specifically,

the increase in the number of subpoenas

and other demands to its employees in

judicial or administrative proceedings,

particularly in cases in which neither

GSA nor the United States is a party,

necessitates detailed and uniform

instructions to be followed by current

and former GSA employees.

The Paperwork Reduction Act does

not apply because the rule does not

impose information collection

requirements that require the approval

of the Office of Management and Budget

under 44 U.S.C. 3501, et seq.

The principles of Executive Order

12988 of February 5, 1996, Civil Justice

Reform, have been incorporated where

applicable.

The Administrator certifies that this

regulatory amendment will not have a

significant economic impact on a

substantial number of small entities as

they are defined in the Regulatory

Flexibility Act, 5 U.S.C. 601–612.

Pursuant to 5 U.S.C. 605(b) this rule is

therefore exempt from the initial and

final regulatory flexibility analyses

requirements of sections 603 and 604.

Interested persons have been afforded

an opportunity to participate in the

making of this rule. Due consideration

has been given to the comments

received.

Comprehensive Summary

I. Implementation of the FOIA

These regulations implement the

FOIA, which codified Pub. L. 89–487

and amended section 3 of the

Administrative Procedure Act, formerly

5 U.S.C. 1002 (1964 ed.). These

regulations also implement Pub. L. 93–

502, popularly known as the Freedom of

Information Act Amendments of 1974,

as amended by Pub. L. 99–570, the

Freedom of Information Reform Act of

1986; and Executive Order 12600,

Predisclosure Notification Procedures

for Confidential Commercial

Information, of June 23, 1987.

The revisions incorporate

predisclosure notification procedures

for confidential commercial

information. The revisions also:

(a) Update organizational reference;

(b) Clarify the definition of available

records to include electronic records;

(c) Revise fees for manual searches by

clerical staff from $9 to $13 per hour or

fraction of an hour and for manual

searches and review by professional

staff from $18 to $29 per hour or

fraction of an hour, to more accurately

reflect the full cost of searches and

document review.

(d) Clarify GSA policy with regard to:

(1) reconstructing records and providing

incomplete records; (2) explaining

compelling reasons for denial of access

to records; and (3) requiring assurance

of payment;

(e) Provide instructions on

submission of FOIA requests via Telefax

and fee payment by credit card;

(f) Extend the time limit for

administrative appeal within GSA from

30 to 120 days; and

(g) Clarify GSA policy with respect to

the availability of records from other

sources that have statutory authority to

provide information to the public at set

fees.

(h) Incorporate, as appropriate,

policies in Executive Order 12988 of

February 5, 1996 on Civil Justice

Reform.

II. Response to Demands in Judicial or

Administrative Proceedings

This rule also amends 41 CFR 105–

60.6, which pertains to production of

information pursuant to demands in

judicial or administrative proceedings.

41 CFR 105–60.6 is amended to

prescribe instructions and procedures to

be followed by current and former GSA

employees with respect to the

production and disclosure of material or

information acquired as a result of

performance of the person’s official

duties or because of the person’s official

status in response to judicially

enforceable subpoenas or demands in

judicial or administrative proceedings,

except demands from the Congress or in

Federal grand jury proceedings.

Included are detailed factors to be

considered by the appropriate authority

within the General Services

Administration in determining the

Agency’s response to a subpoena or

other judicially enforceable demand,

including widely acknowledged areas of

privilege that may render disclosure or

production inappropriate. Instructions

concerning the appropriate response by

employees and former employees to

courts and other authorities are

included.

The rules governing responses to

subpoenas and demands in judicial or

administrative proceedings provide

instructions and procedures for

employees and former employees

regarding the internal operations of GSA

and is not intended to be relied upon to

create any right or benefit, substantive

or procedural, enforceable at law by a

party against the General Services

Administration.

(a) GSA is amending this subpart to

set forth uniform prescribed instructions

and procedures to be complied with by

current and former GSA employees

concerning disclosure or production of

agency materials or information in

judicial or administrative proceedings

in response to a judicially enforceable

subpoena or demand. These instructions

establish policy, assign responsibilities

and prescribe procedures for responding

to demands for GSA materials or

testimony of current and former GSA

employees in judicial and

administrative proceedings. The

instructions in 41 CFR subpart 105–60.6

do not apply to requests unrelated to

litigation before judicial or

administrative tribunals, to requests
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60015

made pursuant to the FOIA or Privacy

Act, 5 U.S.C. 552 and 552a, respectively,

to demands from the Congress, or to

demands in Federal grand jury

proceedings.

(b) These instructions are intended

solely to provide an orderly means by

which current and former GSA

employees respond to demands for

material and information covered by

this rule, and to protect the interests of

the United States, including the

safeguarding of privileged or otherwise

sensitive information. This rule is

consistent with the decision in the

landmark case of United States ex rel.

Touhy v. Ragen, 340 U.S. 462 (1951) in

which the Supreme Court upheld the

ability of an agency head to issue

regulations for the preservation of

agency records, determined that an

agency employee, acting pursuant to

such instructions, could not be held in

contempt of court for declining to

produce records in response to a

subpoena duces tecum. Accordingly,

current and former GSA employees

shall respond to the party on whose

behalf the demand is issued only in

accordance with the instructions and

procedures required by 41 CFR subpart

105–60.6. Furthermore, the GSA can

refuse to disclose materials or make

information available based on the

factors set forth in 41 CFR 105–60.605.

These instructions and procedures are

not intended to preclude disclosures or

productions in compliance with court

orders except where disclosure would

be inappropriate even if required by a

court, e.g., where disclosure would be

legally prohibited or would be contrary

to a recognized privilege.

Summary of Comments

GSA received two comments in

response to its proposed rule. One

comment was from an internal agency

component and the other was external.

I. Comments on FOIA-Related Sections

of the Rule

Both commenters indicated that the

proposed rule does not address

amendments to the FOIA required by

the Electronic Freedom of Information

Act Amendments of 1996, Pub. L. 104–

231. The intent of the proposed rule was

to amend GSA’s current FOIA

regulations to address changes

occasioned by reorganizations within

GSA, to incorporate formally procedures

for notifying submitters of commercial

or financial information of a request,

entertain reasons for nondisclosure, and

to provide procedures, for responding to

subpoenas for GSA materials or

information. This rule is not intended to

address the recent amendments to the

FOIA. Changes required by the

amendments will be the subject of a

subsequent proposed rule.

The internal GSA comment raised a

number of issues—some

nonsubstantive/editorial comments

have been adopted. For the reasons

which follow, substantive internal and

external comments have or have not

been adopted.

Subsection. 105–60.103–1. It is

suggested that the FOIA does not

require that GSA perform ‘‘minor

reprogramming’’ when doing so is not

costly or burdensome. We have adopted

this suggestion and amended this

subsection to read that GSA ‘‘may

perform minor reprogramming’’ when

doing so is not costly or burdensome.

Subsection. 105–60.103–2. It is

recommended that the final rule modify

or eliminate the requirement that a

denial of information requested under

the FOIA cite the compelling reason for

denying access. The reason being that

the current FOIA statutory exemptions

already describe the basis for

nondisclosure.

We have adopted this suggestion by

eliminating the ‘‘compelling reason’’

language because other provisions of the

rule encompass the intent. GSA’s

existing FOIA procedures state that the

reasons for withholding will be clearly

described in the letter to the requester,

and GSA will not invoke an exemption

if disclosure will cause no demonstrable

harm to any governmental or private

interest. 41 CFR 150–60.501(b), (c). We

consider a demonstrable harm to any

governmental or private interest to be a

compelling reason for invoking a FOIA

exemption. We have therefore

eliminated the ‘‘compelling reason’’

language and substituted language

stating that the harm to a Governmental

or private interest will be specifically

described in the denial letter to the

requester.

Subsection. 105–60.305–1(d). As

proposed, this subsection stated that

GSA ‘‘will’’ provide a copy of the

material in a form usable by the

requester unless administratively

burdensome to do so. It is recommended

that this language be changed to read

that to the extent ‘‘practicable’’ GSA

will provide a copy of the material in

the form specified by the requester. We

have adopted this suggestion because

the phrase ‘‘to the extent practicable’’ is

deemed to encompass the concept of

‘‘administratively burdensome.’’

Subsection. 105–60.305–4(b). This

subsection, as proposed, includes a

provision that GSA will make copies of

voluminous records available to a

requester as quickly as possible and

provide a number of ‘‘additional’’ copies

of requested material when commercial

reproduction services are not available

to a requester. It is suggested that the

first sentence of this provision be

deleted because it is inconsistent with a

provision in § 105–60.305–4(a) which

allows GSA discretion to provide a

requester the opportunity to receive

copies or to review originals for

inspection and copying. These

subsections were not intended to be

inconsistent or mutually exclusive. We

have therefore made the following

adjustments. Subsections 60.105–305–

4(a) and (b) are amended to provide that

GSA may offer a requester who seeks

voluminous records not subject to

exemption an option to review them at

a mutually agreeable place and time and

thereby avoid duplication fees for

records not desired by the requester.

II. Comments on Subpoena-Related

Section of the Proposed Rule

One commenter stated that so-called

‘‘Touhy’’ regulations of this kind are not

separate authority to withhold

information. It is not the intent of the

proposed rule to confer such authority.

Authority to withhold information in a

litigative context is typically predicated

on grounds and privileges recognized in

statute, judicial interpretation, rules

applicable to a particular forum or the

Common Law. We have therefore added

language to clarify that this regulation is

not an independent authority to

withhold information.

A commenter indicated that in cases

where the agency/U.S. Government is a

party a Touhy regulation cannot

interfere with the application of the

Federal Rules of Civil Procedure. It is

not the intent of these regulations to do

so. We have therefore added

introductory language that states that

where GSA is a party to a proceeding,

nothing in these regulations shall

operate or be interpreted to supersede or

circumvent rules of procedures

applicable to the forum in which the

matter is pending. We have also made

a conforming adjustment to the language

in § 105–60.605(b). We have not,

however, altered the language in § 105–

60.105(b) which provides that the

appropriate authority may, at the

request of the U.S. Department of

Justice, waive the requirements in this

rule where the United States is a party.

Because the U.S. Department of Justice

typically represents the United States

and its departments and agencies in

litigation, we believe the extent to

which a waiver in such cases is or is not

appropriate in a particular case should

be the result of a collaborative effort

between our agencies.
60016 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

Subsection 105–60.605(a). Both

commenters questioned GSA’s authority

and/or ability to control the testimony

of former employees. For reasons which

follow, we have not adopted any

suggestion that the regulations should

not apply to former employees. A

primary purpose behind the Touhy

regulations is the establishment of a

systematic means by which an agency

can evaluate requests for production of

official agency information and

determine the extent to which there are

legally defensible reasons for objection

to production. These legitimate agency

interests exist regardless of whether the

requested information is in the

possession for current or former agency

employees.

When GSA becomes aware of a

subpoena to a former employee for

production of official GSA information

through testimony or document

production, it intends to use legally

available means to ensure that agency

interests are protected.

Subsection 105–60.605(b). A

commenter suggested that an

appropriate basis for waiver of the

requirements in this rule are cases in

which the United States has an interest

in addition to cases in which the United

States is a party. The situation may arise

in so-called ‘‘qui tam’’ suits. We have

added language to this section that

recognizes this type of litigation which

may, in coordination with the U.S.

Department of Justice, be a situation in

which a waiver may be appropriate.

Subsection 105–60.605(e). A

commenter recommended that the list of

factors to be considered by the

appropriate authority in responding to

demands contain the language ‘‘include,

but are but are not limited to:.’’ The

factors in § 105–60.605(e) already

contemplate ‘‘[A]ny additional factors

unique to a particular demand for

proceeding.’’ Because this provision

already incorporates the commenter’s

suggestion it has not been adopted.

List of Subjects in 41 Part 105–60

Freedom of information.

For the reasons set out in the

preamble, 41 CFR part 105–60 is revised

to read as follows:

PART 105–60—PUBLIC AVAILABILITY

OF AGENCY RECORDS AND

INFORMATIONAL MATERIALS

Sec.

105–60.000 Scope of part.

Subpart 105.60.1—General Provisions

105–60.101 Purpose.

105–60.102 Application.

105–60.103 Policy.

105–60.103–1 Availability of records.

105–60.103–2 Applying exemptions.

105–60.104 Records of other agencies.

Subpart 105–60.2—Publication of General

Agency Information and Rules in the

Federal Register

105–60.201 Published information and

rules.

105–60.202 Published materials available

for sale to the public.

Subpart 105–60.3—Availability of Opinions,

Orders, Policies, Interpretations, Manuals,

and Instructions

105–60.301 General.

105–60.302 Available materials.

105–60.303 Rules for public inspection and

copying.

105–60.304 Index.

105–60.305 Fees.

105–60.305–1 Definitions.

105–60.305–2 Scope of this subpart.

105–60.305–3 GSA records available

without charge.

105–60.305–4 GSA records available at a

fee.

105–60.305–5 Searches.

105–60.305–6 Reviews.

105–60.305–7 Assurance of payment.

105–60.305–8 Prepayment of fees.

105–60.305–9 Form of payment.

105–60.305–10 Fee schedule.

105–60.305–11 Fees for authenticated and

attested copies.

105–60.305–12 Administrative actions to

improve assessment and collection of

fees.

105–60.305–13 Waiver of fee.

Subaprt 105–60.4—Described Records

105–60.401 General.

105–60.402 Procedures for making records

available.

105–60.402–1 Submission of requests.

105–60.402–2 Response to initial requests.

105–60.403 Appeal within GSA.

105–60.404 Extension of time limits.

105–60.405 Processing requests for

confidential commercial information.

Subpart 105–60.5—Exemptions

105–60.501 Categories of records exempt

from disclosure under the FOIA.

Subpart 105–60.6—Production or

Disclosure by Present or Former General

Services Administration Employees in

Response to Subpoenas or Similar

Demands in Judicial or Administrative

Proceedings.

105–60.601 Purpose and scope of subpart.

105–60.602 Definitions.

105–60.603 Acceptance of service of a

subpoena duces tecum or other legal

demand on behalf of the General

Services Administration.

105–60.604 Production or disclosure

prohibited unless approved by the

Appropriate Authority.

105–60.605 Procedure in the event of a

demand for production or disclosure.

105–60.606 Procedure where response to

demand is required prior to receiving

instructions.

105–60.607 Procedure in the event of an

adverse ruling.

105–60.608 Fees, expenses, and costs.

Authority: 5 U.S.C. 301 and 552; 40 U.S.C.

486(c).

§ 105–60.000 Scope of part.

(a) This part sets forth policies and

procedures of the General Services

Administration (GSA) regarding public

access to records documenting:

(1) Agency organization, functions,

decisionmaking channels, and rules and

regulations of general applicability;

(2) Agency final opinions and orders,

including policy statements and staff

manuals;

(3) Operational and other appropriate

agency records; and

(4) Agency proceedings.

(b) This part also covers exemptions

from disclosure of these records,

procedures for the public to inspect or

obtain copies of GSA records, and

instructions to current and former GSA

employees on the response to a

subpoena or other legal demand for

material or information received or

generated in the performance of official

duty or because of the person’s official

status.

(c) Any policies and procedures in

any GSA internal or external directive

inconsistent with the policies and

procedures set forth in this part are

superseded to the extent of that

inconsistency.

Subpart 105–60.1—General Provisions

§ 105–60.101 Purpose.

This part 105–60 implements the

provisions of the Freedom of

Information Act (FOIA), as amended, 5

U.S.C. 552. The regulations in this part

also implement Executive Order 12600,

Predisclosure Notification Procedures

for Confidential Commercial

Information, of June 23, 1987 (3 CFR,

1987 Comp., p. 235). This part

prescribes procedures by which the

public may inspect and obtain copies of

GSA records under the FOIA, including

administrative procedures that must be

exhausted before a requester invokes the

jurisdiction of an appropriate United

States District Court for GSA’s failure to

respond to a proper request within the

statutory time limits, for a denial of

agency records or challenge to the

adequacy of a search, or for a denial of

a fee waiver.

§ 105–60.102 Application.

This part applies to all records and

informational materials generated,

maintained, and controlled by GSA that

come within the scope of 5 U.S.C. 552.

§ 105–60.103 Policy.

§ 105–60.103–1 Availability of records.

The policies of GSA with regard to the

availability of records to the public are:
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60017

(a) GSA records are available to the

greatest extent possible in keeping with

the spirit and intent of the FOIA. GSA

will disclose information in any existing

GSA record, with noted exceptions,

regardless of the form or format of the

record. For example, records maintained

in an electronic form, as part of a data

base, will be provided on request using

existing programming. GSA will provide

the record in the form or format

requested if the record is readily

reproducible by the agency in that form

or format. GSA will make reasonable

efforts to maintain its records in forms

or formats that are reproducible for

purposes of this section.

(b) the person making the request

does not need to demonstrate an interest

in the records or justify the request.

(c) The FOIA does not give the public

the right to demand that GSA compile

a record that does not already exist. For

example, FOIA does not require GSA to

collect and compile information from

multiple sources to create a new record

or to develop a new computer program

to extract requested records. GSA may

compile records or perform minor

reprogramming when doing so will not

significantly interfere with the operation

of the automated system already in

existence.

(d) Similarly, FOIA does not require

GSA to reconstruct records that have

been destroyed in compliance with

disposition schedules approved by the

Archivist of the United States. However,

GSA will not destroy records after a

member of the public has requested

access to them and will process the

request even if destruction has already

been scheduled.

(e) If the record requested is not

complete at the time of the request, GSA

may, at its discretion, inform the

requester that the complete record will

be provided when it is available, with

no additional request required, if the

record is not exempt from disclosure.

(f) Requests must be addressed to the

office identified in § 105–60.402–1.

(g) Fee for locating and duplicating

records are listed in § 105–60.305–10.

§ 108–60.103–2 Applying exemptions.

GSA may deny a request for a GSA

record if it falls within an exemption

under the FOIA outlined in subpart

105–60.5 of this part. Except when a

record is classified or when disclosure

would violate any Federal statute, the

authority to withhold a record from

disclosure will likely cause harm to a

Governmental or private interest. GSA

will explain the harm to requesters

when a record is denied under FOIA.

§ 105–60.104 Records of other agencies.

If GSA receives a request for access to

records that are known to be the

primary responsibility of another

agency, GSA will refer the request to the

agency concerned for appropriate

action. For example, GSA will refer

requests to the appropriate agency in

cases in which GSA does not have

sufficient knowledge of the action or

matter that is the subject of the

requested records to determine whether

the records must be released or may be

withheld under one of the exemptions

listed in § 105–60.5. If GSA does not

have the requested records, the agency

will attempt to determine whether the

requested records exist at another

agency and, if possible, will forward the

request to that agency. GSA will inform

the requester that GSA has forwarded

the request to another agency.

Subpart 105–60.2—Publication of

General Agency Information and Rules

in the Federal Register

§ 105–60.201 Published information and

rules.

In accordance with 5 U.S.C. 552(a)(1),

GSA publishes in the Federal Register,

for the guidance of the public, the

following general information

concerning GSA:

(a) Description of the organization of

the Central Office and regional offices

and the established places at which, the

employees from whom, and the

methods whereby, the public may

obtain information, make submittals or

requests, or obtain decisions;

(b) Statements of the general course

and method by which its functions are

channeled and determined, including

the nature and requirements of all

formal and informal procedures

available;

(c) Rules of procedure, descriptions of

forms available or the places where

forms may be obtained, and instructions

on the scope and contents of all papers,

reports, or examinations;

(d) Substantive rules of general

applicability adopted as authorized by

law, and statements of general policy or

interpretations of general applicability

formulated and adopted by GSA; and

(e) Each amendment, revision, or

repeal of the materials described in this

section.

§ 105–60.202 Published materials available

for sale to the public.

(a) Substantive rules of general

applicability adopted by GSA as

authorized by law which this agency

publishes in the Federal Register and

which are available for sale to the public

by the Superintendent of Documents at

pre-established prices are: The General

Services Administration Acquisition

Regulation (48 CFR Ch. 5), the Federal

Acquisition Regulation (48 CFR Ch. 1),

the Federal Property Management

Regulations (41 CFR Ch. 101), and the

Federal Travel Regulation (41 CFR Ch.

301–304).

(b) GSA also provides technical

information, including manuals and

handbooks, to other Federal entities,

e.g., the National Technical Information

Service, with separate statutory

authority to make information available

to the public at pre-established fees.

(c) Requests for information available

through the sources in paragraphs (a)

and (b) of this section will be referred

to those sources.

Subpart 105–60.3—Availability of

Opinions, Orders, Policies,

Interpretations, Manuals, and

Instructions

§ 105–60.301 General.

GSA makes available to the public the

materials described under 5 U.S.C.

552(a)(2), which are listed in § 105–

60.302, at the locations listed in § 105–

60.303. An Index of those materials as

described in § 105–60.304 is available at

GSA’s Central Office in Washington,

DC. Reasonable copying services are

provided at the fees specified in § 105–

60.305.

§ 105–60.302 Available materials.

GSA materials available under this

subpart 105–60.3 are as follows:

(a) Final opinions, including

concurring and dissenting opinions and

orders, made in the adjudication of

cases.

(b) Those statements of policy and

interpretations that have been adopted

by GSA and are not published in the

Federal Register.

(c) Administrative staff manuals and

instructions to staff affecting a member

of the public unless these materials are

promptly published and copies offered

for sale.

§ 105–60.303 Rules for public inspection

and copying.

(a) Locations. Selected areas

containing the materials available for

public inspection and copying,

described in § 105–60.302, are located

in the following places:

Central Office (GSA Headquarters)

General Services Administration,

Washington, DC, Telephone: 202–501–

2262 or 202–501–1659, FAX: 202–501–

2727, 1800 F Street, NW. (CAI),

Washington, DC 20405
60018 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

Office of the Inspector General

FOIA Officer, Office of Inspector General (J),

General Services Administration, 1800 F

Street NW., Room 5324, Washington, DC

20405

New England Region

General Services Administration (1AB)

(Comprised of the States of Connecticut,

Maine, Massachusetts, New Hampshire,

Rhode Island, and Vermont), Thomas P.

O’Neill, Jr., Federal Building, 10 Causeway

Street, Boston, MA 02222, Telephone: 617–

565–8100, FAX: 617–565–8101

Northeast and Caribbean Region

(Comprised of the States of New Jersey, New

York, the Commonwealth of Puerto Rico,

and the Virgin Islands), General Services

Administration (2AR), 26 Federal Plaza,

New York, NY 10278, Telephone: 212–

264–1234, FAX: 212–264–2760.

Mid-Atlantic Region

(Comprised of the States of Delaware,

Maryland, Pennsylvania, Virginia, and

West Virginia, excluding the Washington,

D.C. metropolitan area), General Services

Administration (3ADS), 100 Penn Square

East, Philadelphia, PA 19107, Telephone:

215–656–5530, FAX: 215–656–5590

Southeast Sunbelt Region

(Comprised of the States of Alabama, Florida,

Georgia, Kentucky, Mississippi, North

Carolina, South Carolina, and Tennessee),

General Services Administration (4E), 401

West Peachtree Street, Atlanta, GA, 30365,

Telephone: 404–331–5103, FAX: 404–331–

1813

Great Lakes Region

(Comprised of the States of Illinois, Indiana,

Ohio, Minnesota, Michigan, and

Wisconsin), General Services

Administration (5ADB), 230 South

Dearborn Street, Chicago, IL 60604,

Telephone: 312–353–5383, FAX: 312–886–

9893

Heartland Region

(Comprised of the States of Iowa, Kansas,

Missouri, and Nebraska), General Services

Administration (6ADB), 1500 East

Bannister Road, Kansas City, MO 64131,

Telephone: 816–926–7203, FAX: 816–823–

1167

Greater Southwest Region

(Comprised of the States of Arkansas,

Louisiana, New Mexico, Texas, and

Oklahoma), General Services

Administration (7CPA), 819 Taylor Street,

Fort Worth, TX 76102, Telephone: 817–

978–3902, FAX: 817–978–4867

Rocky Mountain Region

(Comprised of the States of Colorado, North

Dakota, South Dakota, Montana, Utah, and

Wyoming), Business Service Center,

General Services Administration (8PB–B),

Building 41, Denver Federal Center,

Denver, CO 80225, Telephone: 303–236–

7408, FAX: 303–236–7403

Pacific Rim Region

(Comprised of the States of Hawaii,

California, Nevada, Arizona, Guam, and

Trust Territory of the Pacific), Business

Service Center, General Services

Administration (9ADB), 525 Market Street,

San Francisco, CA 94105, Telephone: 415–

522–2715, FAX: 415–522–2705

Northwest/Arctic Region

(Comprised of the States of Alaska, Idaho,

Oregon, and Washington), General Services

Administration (10L), GSA Center, 15th

and C Streets, SW, Auburn, WA 98002,

Telephone: 206–931–7007, FAX: 206–931–

7195

National Capital Region

(Comprised of the District of Columbia and

the surrounding metropolitan area),

General Services Administration, (WPFA–

L), 7th and D Streets SW., Washington, DC

20407, Telephone: 202–708–5854, FAX:

202–205–2478

(b) Time. The reading rooms or

selected areas will be open to the public

during the business hours of the GSA

office where they are located.

(c) Reading room and selected area

rules.—(1) Handling of materials. The

removal or mutilation of materials is

forbidden by law and is punishable by

fine or imprisonment or both. When

requested by a reading room or selected

area attendant, a person inspecting

materials must present for examination

any briefcase, handbag, notebook,

package, envelope, book or other article

that could contain GSA informational

materials.

(2) Reproduction services. The GSA

Central Office or the Regional Business

Service Centers will furnish reasonable

copying and reproduction services for

available materials at the fees specified

in § 105–60.305.

§ 105–60.304 Index.

GSA will make available to any

member of the public who requests it a

current index identifying information

for the public regarding any matter

described in § 105–60.302.

§ 105–60.305 Fees.

§ 105–60.305–1 Definitions.

For the purpose of this part:

(a) A statute specifically providing for

setting the level of fees for particular

types of records (5 U.S.C.

552(a)(4)(A)(vii)) means any statute that

specifically requires a Government

agency to set the level of fees for

particular types of records, as opposed

to a statute that generally discusses such

fees. Fees are required by statute to:

(1) Make Government information

conveniently available to the public and

to private sector organizations;

(2) Ensure that groups and individuals

pay the cost of publications and other

services that are for their special use so

that these costs are not borne by the

general taxpaying public;

(3) Operate an information

dissemination activity on self-sustaining

basis to the maximum extent possible;

or

(4) Return revenue to the Treasury for

defraying, wholly or in part,

appropriated funds used to pay the cost

of disseminating Government

information.

(b) The term direct costs means those

expenditures that GSA actually incurs

in searching for and duplicating (and in

the case of commercial requesters,

reviewing and redacting) documents to

respond to a FOIA request. Direct costs

include, for example, the salary of the

employee performing the work (the

basic rate of pay for the employee plus

16 percent of that rate to cover benefits),

and the cost of operating duplicating

machinery. Overhead expenses such as

costs of space, and heating or lighting

the facility where the records are stored

are not included in direct costs.

(c) The term search includes all time

spent looking for material that is

responsive to a request, including lineby-line identification of material within

documents. Searches will be performed

in the most efficient and least expensive

manner so as to minimize costs for both

the agency and the requester. Line-byline searchers will not be undertaken

when it would be more efficient to

duplicate the entire document. ‘‘Search’’

for responsive material is not the same

as ‘‘review’’ of a record to determine

whether it is exempt from disclosure in

whole or in part (see paragraph (e) of

this section). Searches may be done

manually or by computer using existing

programming.

(d) The term duplication means the

process of making a copy of a document

in response to a FOIA request. Copies

can take the form of paper, microfilm,

audiovisual materials, or magnetic tapes

or disks. To the extent practicable, GSA

will provide a copy of the material in

the form specified by the requester.

(e) The term review means the process

of examining documents located in

response to a request to determine if any

portion of that document is permitted to

be withheld and processing any

documents for disclosure. See § 105–

60.305–6.

(f) The term commercial-use request

means a request from or on behalf of one

who seeks information for a use or

purpose that furthers the commercial,

trade, or profit interests of the requester

or person on whose behalf the request

is made. GSA will determine whether a

requester properly belongs in this
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60019

category by determining how the

requester will use the documents.

(g) The term educational institution

means a preschool, a public or private

elementary or secondary school, an

institution of graduate higher education,

an institution of undergraduate higher

education, an institution of professional

education, or an institution of

vocational education that operates a

program or programs of scholarly

research.

(h) The term noncommercial scientific

institution means an institution that is

not operated on a ‘‘commercial’’ basis as

that term is used in paragraph (f) of this

section and which is operated solely for

the purpose of conducting scientific

research the results of which are not

intended to promote any particular

product or industry.

(i) The term representative of the

news media means any person actively

gathering news for an entity that is

organized and operated to publish or

broadcast news to the public. The term

‘‘news’’ means information that is about

current events or that would be of

current interest to the public. Examples

of news media include television or

radio stations broadcasting to the public

at large, and publishers of periodicals

(but only in those instances when they

can qualify as disseminators of ‘‘news’’)

who make their products available for

purchase or subscription by the general

public. ‘‘Freelance’’ journalists will be

regarded as working for a news

organization if they can demonstrate a

solid basis for expecting publication

through that organization even though

they are not actually employed by it.

§ 105–60.305–2 Scope of this subpart.

This subpart sets forth policies and

procedures to be followed in the

assessment and collection of fees from

a requester for the search, review, and

reproduction of GSA records.

§ 105–60.305–3 GSA records available

without charge.

GSA records available to the public

are displayed in the Business Service

Center for each GSA region. The address

and phone number of the Business

Service Centers are listed in § 105–

60.303. Certain material related to bids

(excluding construction plans and

specifications) and any material

displayed are available without charge

upon request.

§ 105–60.305–4 GSA records available at a

fee.

(a) GSA will make a record not subject

to exemption available at a time and

place mutually agreed upon by GSA and

the requester at fees shown in § 105–

60.305–10. Waivers of these fees are

available under the conditions

described in § 105–60.305–13. GSA will

agree to:

(1) Show the originals to the

requester; or

(2) Make one copy available at a fee;

or

(3) A combination of these

alternatives.

(b) GSA will make copies of

voluminous records as quickly as

possible. GSA may, in its discretion,

make a reasonable number of additional

copies for a fee when commercial

reproduction services are not available

to the requester.

§ 105–60.305–5 Searches.

(a) GSA may charge for the time spent

in the following activities in

determining ‘‘search time’’ subject to

applicable fees as provided in § 105–

60.305–10:

(1) Time spent in trying to locate GSA

records that come within the scope of

the request;

(2) Time spent in either transporting

a necessary agency searcher to a place

of record storage, or in transporting

records to the locations of a necessary

agency searcher; and

(3) Direct costs of the use of computer

time to locate and extract requested

records.

(b) GSA will not charge for the time

spent in monitoring a requester’s

inspection of disclosed agency records.

(c) GSA may assess fees for search

time even if the search proves

unsuccessful or if the records located

are exempt from disclosure.

§ 105–60.305–6 Reviews.

(a) GSA will charge only commercialuse requesters for review time.

(b) GSA will charge for the time spent

in the following activities in

determining ‘‘review time’’ subject to

applicable fees as provided in § 105–

60.305–10:

(1) Time spent in examining a

requested record to determine whether

any or all of the record is exempt from

disclosure, including time spent

consulting with submitters of requested

information; and

(2) Time spent in deleting exempt

matter being withheld from records

otherwise made available.

(c) GSA will not charge for:

(1) Time spent in resolving issues of

law or policy regarding the application

of exemptions; or

(2) Review at the administrative

appeal level of an exemption already

applied. However, records or portions of

records withheld in full under an

exemption that is subsequently

determined not to apply may be

reviewed again to determine the

applicability of other exemptions not

previously considered. GSA will charge

for such subsequent review.

§ 105–60.305–7 Assurance of payment.

If fees for search, review, and

reproduction will exceed $25 but will

be less than $250, the requester must

provide written assurance of payment

before GSA will process the request. If

this assurance is not included in the

initial request, GSA will notify the

requester that assurance of payment is

required before the request is processed.

GSA will offer requesters an

opportunity to modify the request to

reduce the fee.

§ 105–60.305–8 Prepayment of fees.

(a) Fees over $250. GSA will require

prepayment of fees for search, review,

and reproduction that are likely to

exceed $250. When the anticipated total

fee exceeds $250, the requester will

receive notice to prepay and at the time

will be given an opportunity to modify

his or her request to reduce the fee.

When it is anticipated that fees will

exceed $250, GSA will notify the

requester that it will not start processing

a request until payment is received.

(b) Delinquent payments. As noted in

§ 105–60.305–12(d), requesters who are

delinquent in paying for previous

requests will be required to repay the

old debt and to prepay for any

subsequent request. GSA will inform the

requester that it will process no

additional requests until all fees are

paid.

§ 105–60.305–9 Form of payment.

Requesters should pay fees by check

or money order made out to the General

Services Administration and addressed

to the official named by GSA in its

correspondence. Payment may also be

made by means of Mastercard or Visa.

For information concerning payment by

credit cards, call 816–926–7551.

§ 105–60.305–10 Fee schedule.

(a) When GSA is aware that

documents responsive to a request are

maintained for distribution by an

agency operating a statutory fee based

program, GSA will inform the requester

of the procedures for obtaining records

from those sources.

(b) GSA will consider only the

following costs in fees charged to

requesters of GSA records:

(1) Review and search fees.

Manual searches by clerical staff: $13 per

hour or fraction of an hour.

Manual searches and reviews by

professional staff in cases in which clerical
60020 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

staff would be unable to locate the requested

records: $29 per hour or fraction of an hour.

Computer searches: Direct cost to GSA.

Transporation or special handling of

records: Direct cost to GSA.

(2) Reproduction fees.

Pages no larger than 81⁄2 by 14 inches,

when reproduced by routine electrostatic

copying: $0.10 per page.

Pages over 81⁄2 by 14 inches: Direct cost of

reproduction to GSA.

Pages requiring reduction, enlargement, or

other special services: Direct cost of

reproduction to GSA.

Reproduction by other than routine

electrostatic copying:

Direct cost of reproduction to GSA.

(c) Any fees not provided for under

paragraph (b) of this section, shall be

calculated as direct costs, in accordance

with § 105–60.305–1(b).

(d) GSA will assess fees based on the

category of the requester as defined in

§ 105–60.305–1(f)–(i); i.e., commercialuse, educational and noncommercial

scientific institutions, news media, and

all other. The fees listed in paragraph (b)

of this section apply with the following

exceptions:

(1) GSA will not charge the requested

if the fee is $25 or less as the cost of

collection would be greater than the fee.

(2) Educational and noncommercial

scientific institutions and the news

media will be charged for the cost of

reproduction alone. These requesters are

entitled to the first 100 pages (paper

copies) of duplication at no cost. The

following are examples of how these

fees are calculated:

(i) A request that results in 150 pages

of material. No fee would be assessed

for duplication of 150 pages. The reason

is that these requesters are entitled to

the first 100 pages at no charge. The

charge for the remaining 50 pages would

be $7.50. This amount would not be

billed under the preceding section.

(ii) A request that results in 450 pages

of material. The requester in this case

would be charged $35. The reason is

that the requester is entitled to the first

100 pages at no charge. The charge for

the remaining 350 pages would be $35.

(3) Noncommercial requesters who

are not included under paragraph (d)(2)

of this section will be entitled to the

first 100 pages (paper copies) of

duplication at no cost and two hours of

search without charge. The term ‘‘search

time’’ generally refers to manual search.

To apply this term to searchers made by

computer, GSA will determine the

hourly cost of operating the central

processing unit and the operator’s

hourly salary plus 16 percent. When the

cost of search (including the operator

time and the cost of operating the

computer to process a request) equals

the equivalent dollar amount of two

hours of the salary of the person

performing a manual search, GSA will

begin assessing charges for computer

search.

(4) GSA will charge commercial-use

requesters fees which recover the full

direct costs of searching for, reviewing

for release, and duplicating the records

sought. Commercial-use requester are

not entitled to two hours of free search

time.

(e) Determining the category of a

requester. GSA may ask any requester to

provide additional information at any

time to determine his or her fee

category.

§ 105–60.305–11 Fees for authenticated

and attested copies.

The fees set forth in § 105–60.305–10

apply to requests for authenticated and

attested copies of GSA records.

§ 105–60.305–12 Administrative actions to

improve assessment and collection of fees.

(a) Charging interest. GSA may charge

requesters who fail to pay fees interest

on the amount billed starting on the 31st

day following the month on which the

billing was sent. Interest will be at the

rate prescribed in 31 U.S.C. 3717.

(b) Effect of the Debt Collection Act of

1982. GSA will take any action

authorized by the Debt Collection Act of

1982 (Pub. L. 97–365, 96 Stat. 1749),

including disclosure to consumer

reporting agencies, use of collection

agencies, and assessment of penalties

and administrative costs, where

appropriate, to encourage payment.

(c) Aggregating requests. When the

GSA reasonably believes that a

requester, or group of requesters acting

in concert, is attempting to break down

a request into a series of requests related

to the same subject for the purpose of

evading the assessment of fees, GSA

will combine any such requests and

charges accordingly, including fees for

previous requests where charges were

not assessed. GSA will presume that

multiple requests of this type within a

30-day period are made to avoid fees.

(d) Advance payments. Whenever a

requester is delinquent in paying the fee

for a previous request (i.e., within 30

days of the date of the billing), GSA will

require the requester to pay the full

amount owed plus any applicable

interest penalties and administrative

costs as provided in paragraph (a) of this

section or to demonstrate that he or she

has, in fact, paid the fee. In such cases,

GSA will also require advance payment

of the full amount of the estimated fee

before the agency begins to process a

new request or a pending request from

that requester. When advance payment

is required under this section, the

administrative time limits in subsection

(a)(6) of the FOIA (i.e., 10 working days

from receipt of appeals from initial

denial plus permissible time extensions)

will begin only after GSA has received

the fee payments described in § 105–

60.305–8.

§ 105–60.305–13 Waiver of fee.

(a) Any request for waiver or

reduction of a fee should be included in

the initial letter requesting access to

GSA records under § 105–60.402–1. The

waiver request should explain how

disclosure of the information would

contribute significantly to public

understanding of the operations or

activities of the Government and would

not be primarily in the commercial

interest of the requester. In responding

to a request, GSA will consider the

following factors:

(1) Whether the subject of the

requested records concerns ‘‘the

operations or activities of the

Government.’’ The subject matter of the

requested records must specifically

concern identifiable operations or

activities of the Federal Government.

The connection between the records and

the operations or activities must be

direct and clear, not remote or

attenuated.

(2) Whether the disclosure is ‘‘likely

to contribute’’ to an understanding of

Government operations or activities. In

this connection, GSA will consider

whether the requested information is

already in the public domain. If it is,

then disclosure of the information

would not be likely to contribute to an

understanding of Government

operations or activities, as nothing new

would be added to the public record.

(3) Whether disclosure of the

requested information will contribute to

‘‘public understanding.’’ The focus here

must be on the contribution to public

understanding rather than personal

benefit to be derived by the requester.

For purposes of this analysis, the

identity and qualifications of the

requester should be considered, to

determine whether the requester is in a

position to contribute to public

understanding through the requested

disclosure.

(4) Whether the requester has a

commercial interest that would be

furthered by the requested disclosure;

and if so: whether the magnitude of the

identified commercial interest of the

requester is sufficiently large, in

comparison with the public interest in

disclosure, that disclosure is ‘‘primarily

in the commercial interest of the

requester.’’
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60021

(b) GSA will ask the requester to

furnish additional information if the

initial request is insufficient to evaluate

the merits of the request. GSA will not

start processing a request until the fee

waiver issue has been resolved unless

the requester has provided written

assurance of payment in full if the fee

waiver is denied by the agency.

Subpart 105–60.4—Described Records

§ 105–60.401 General.

(a) Except for records made available

in accordance with subparts 105–60.2

and 105–60.3 of this part, GSA will

make records available to a requester

promptly when the request reasonably

describes the records unless GSA

invokes an exemption in accordance

with Subpart 105–60.5 of this part.

Although the burden of reasonable

description of the records rests with the

requester, whenever practical GSA will

assist requesters to describe records

more specifically.

(b) Whenever a request does not

reasonably describe the records

requested, GSA may contact the

requester to seek a more specific

description. The 10-workday time limit

set forth in § 105–60.402–2 will not start

until the official identified in § 105–

60.402–1 or other responding official

receives a request reasonably describing

the records.

§ 105–60.402 Procedures for making

records available.

This subpart sets forth initial

procedures for making records available

when they are requested, including

administrative procedures to be

exhausted prior to seeking judicial

review by an appropriate United States

District Court.

§ 105–60.402–1 Submission of requests.

For records located in the GSA

Central Office, the requester must

submit a request in writing to the GSA

FOIA Officer, General Services

Administration (CAIR), Washington, DC

20405. Requesters may FAX requests to

(202) 501–2727, or submit a request by

e-mail to gsa.foi@gsa.gov. For records

located in the Office of Inspector

General, the requester must submit a

request to the FOIA Officer, Office of

Inspector General, General Services

Administration, 1800 F Street NW.,

Room 5324, Washington, DC 20405. For

records located in the GSA regional

offices, the requester must submit a

request to the FOIA Officer for the

relevant region, at the address listed in

§ 105–60.303(a). Requests should

include the words ‘‘Freedom of

Information Act Request’’ prominently

marked on both the face of the request

letter and the envelop. The 10-workday

time limit for agency decisions set forth

in § 105–60.402–2 begins with receipt of

a request in the office of the official

identified in this section, unless the

provisions under §§ 105–60.305–8 and

105–60.305–12(d) apply. Failure to

include the words ‘‘Freedom of

Information Act Request’’ or to submit

a request to the official identified in this

section will result in processing delays.

A requester with questions concerning a

FOIA request should contact the GSA

FOIA Office, General Services

Administration (CAI), 1800 F Street,

NW, Washington, DC 20405, (202) 501–

2262 or (202) 501–1659.

§ 105–60.402–2 Response to initial

requests.

GSA will respond to an initial FOIA

request which reasonably describes

requested records, including a fee

waiver request, within 10 workdays

(that is, excluding Saturdays, Sundays,

and legal holidays) after receipt of a

request by the office of the appropriate

official specified in § 105–60.402–1.

This letter will provide the agency’s

decision with respect to disclosure or

nondisclosure of the requested records,

or, if appropriate, a decision on a

request for a fee waiver. If the records

to be disclosed are not provided with

the initial letter, the records will be sent

as soon as possible thereafter. In

unusual circumstances, as described in

§ 105–60.404, GSA will inform the

requester of the agency’s need to take an

extension of time, not to exceed and

additional 10 workdays.

§ 105–60.403 Appeal within GSA.

(a) A requester who receives a denial

of a request, in whole or in part, or a

denial of a fee waiver request, may

appeal that decision within GSA. A

requester may also appeal the adequacy

of the search if GSA determines that it

has searched for but has no requested

records. The requester must send the

appeal to the GSA FOIA Officer, General

Services Administration (CAI), 1800 F

Street NW, Washington, DC 20405,

regardless of whether the denial being

appealed was made in the Central Office

or in a regional office. For denials that

originate in the Office of Inspector

General, the requester must send the

appeal to the Inspector General, General

Services Administration, 1800 F Street

NW., Washington, DC 20405.

(b) The GSA FOIA Officer must

receive an appeal no later than 120

calendar days after receipt by the

requester of the initial denial of access

or fee waiver.

(c) An appeal must be in writing,

include a brief statement of the reasons

the requester thinks GSA should release

the records, and enclose copies of the

initial request and denial.

The appeal letter must include the

words ‘‘Freedom of Information Act

Appeal’’ on both the face of the appeal

letter and on the envelope. Failure to

follow these procedures will delay

processing of the appeal. GSA has 20

workdays after receipt of a proper

appeal to issue a determination of the

appeal. The 20-workday time limit shall

not begin until the GSA FOIA Officer

receives the appeal. As noted in § 105–

60.404, the GSA FOIA Officer may

extend this time limit in unusual

circumstances.

(d) A requester who receives a denial

of an appeal, or who has not received

a response to an appeal or initial request

within the statutory timeframe may seek

judicial review in the United States

District Court in the district in which

the requester resides or has a principal

place of business, or where the records

are situated, or in the United States

District Court for the District of

Columbia.

§ 105–60.404 Extension of time limits.

(a) In unusual circumstances, the GSA

Central Office FOIA Officer or the

regional FOIA Officer may extend the

time limits prescribed in §§ 105–60.402

and 105–60.403. For purposes of this

section, the term unusual circumstances

means:

(1) The need to search for and collect

the requested records from field

facilities or other establishments that are

separate from the office processing the

request;

(2) The need to search for, collect, and

appropriately examine a voluminous

amount of separate and distinct records

that are described in a single request;

(3) The need for consultation, which

shall be conducted with all practicable

speed, with another agency having a

substantial interest in the determination

of the request or among two or more

components of GSA having substantial

subject-matter interest therein; or

(4) The need to consult with the

submitter of the requested information.

(b) If necessary, GSA may take more

than one extension of time. However,

the total extension of time to respond to

any single request shall not exceed 10

workdays. The extension may be

divided between the initial and appeal

stages or within a single stage. GSA will

provide written notice to the requester

of any extension of time limits.

§ 105–60.405 Processing requests for

confidential commercial information.

(a) General. The following additional

procedures apply when processing
60022 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

requests for confidential commercial

information.

(b) Definitions. For the purposes of

this section, the following definitions

apply:

(1) Confidential commercial

information means records provided to

the government by a submitter that

contain material arguably exempt from

release under 5 U.S.C. 552(b)(4),

because disclosure could reasonably be

expected to cause substantial

competitive harm.

(2) Submitter means a person or entity

that provides to the Government

information that may constitute

confidential commercial information.

The term ‘‘submitter’’ includes, but is

not limited to, individuals,

partnerships, corporations, State

governments, and foreign governments.

(c) Designating confidential

commercial information. Since January

1, 1988, submitters must designate

confidential commercial information as

such when it is submitted to GSA or at

a reasonable time thereafter. For

information submitted in connection

with negotiated procurements, the

requirements of Federal Acquisition

Regulation 48 CFR 15.407(c)(8) and

52.215–12 also apply.

(d) Procedural requirements—

consultation with the submitter. (1) If

GSA receives a FOIA request for

potentially confidential commercial

information, it will notify the submitter

immediately by telephone and invite an

opinion whether disclosure will or will

not cause substantial competitive harm.

(2) GSA will follow up the telephonic

notice promptly in writing before

releasing any records unless paragraph

(f) of this section applies.

(3) If the submitter indicates an

objection to disclosure, GSA will give

the submitter seven workdays from

receipt of the letter to provide GSA with

a detailed written explanation of how

disclosure of any specified portion of

the records would be competitively

harmful.

(4) If the submitter verbally states that

there is no objection to disclosure, GSA

will confirm this fact in writing before

disclosing any records.

(5) At the same time GSA notifies the

submitter, it will also advise the

requester that there will be a delay in

responding to the request due to the

need to consult with the submitter.

(6) GSA will review the reasons for

nondisclosure before independently

deciding whether the information must

be released or should be withheld. If

GSA decides to release the requested

information, it will provide the

submitter with a written statement

explaining why his or her objections are

not sustained. The letter to the

submitter will contain a copy of the

material to be disclosed or will offer the

submitter an opportunity to review the

material in one of GSA’s offices. If GSA

decides not to release the material, it

will notify the submitter orally or in

writing.

(7) If GSA determines to disclose

information over a submitter’s

objections, it will inform the submitter

that GSA will delay disclosure for five

workdays from the estimated date the

submitter receives GSA’s decision

before it releases the information. The

decision letter to the requester shall

state that GSA delay disclosure of

material it has determined to disclose to

allow for the notification of the

submitter.

(e) When notice is required. (1) For

confidential commercial information

submitted prior to January 1, 1988, GSA

will notify a submitter whenever it

receives a FOIA request for such

information:

(i) If the records are less than 10 years

old and the information has been

designated by the submitter as

confidential commercial information; or

(ii) If GSA has reason to believe that

disclosure of the information could

reasonably be expected to cause

substantial competitive harm.

(2) For confidential commercial

information submitted on or after

January 1, 1988, GSA will notify a

submitter whenever it determines that

the agency may be required to disclose

records:

(i) That the submitter has previously

designated as privileged or confidential;

or

(ii) That GSA believes could

reasonably be expected to cause

substantial competitive harm if

disclosed.

(3) GSA will provide notice to a

submitter for a period of up to 10 years

after the date of submission.

(f) When notice is not required. The

notice requirements of this section will

not apply if:

(1) GSA determines that the

information should not be disclosed;

(2) The information has been

published or has been officially made

available to the public;

(3) Disclosure of the information is

required by a law other than the FIOA;

(4) Disclosure is required by an

agency rule that—

(i) Was adopted pursuant to notice

and public comment;

(ii) Specifies narrow classes of records

submitted to the agency that are to be

released under FIOA; and

(iii) Provides in exceptional

circumstances for notice when the

submitter provides written justification,

at the time the information is submitted

or a reasonable time thereafter, that

disclosure of the information could

reasonably be expected to cause

substantial competitive harm;

(5) The information is not designated

by the submitter as exempt from

disclosure under paragraph (c) of this

section, unless GSA has substantial

reason to believe that the disclosure of

the information would be competitively

harmful; or

(6) The designation made by the

submitter in accordance with paragraph

(c) of this section appears obviously

frivolous; except that, in such cases, the

agency must provide the submitter with

written notice of any final

administrative decision five workdays

prior to disclosing the information.

(g) Lawsuits. If a FIOA requester sues

the agency to compel disclosure of

confidential commercial information,

GSA will notify the submitter as soon as

possible. If the submitter sues GSA to

enjoin disclosure of the records, GSA

will notify the requester.

Subpart 105–60.5—Exemptions

§ 105–60.501 Categories of records

exempt from disclosure under the FIOA.

(a) 5 U.S.C. 552(b) provides that the

requirements of the FIOA do not apply

to matters that are:

(1) 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 Executive order;

(2) Related solely to the internal

personnel rules and practices of an

agency;

(3) Specifically exempted from

disclosure by statute (other than section

552b of this title), provided that such

statute:

(i) Requires that the matters be

withheld from the public in such a

manner as to leave no discretion on the

issue; or

(ii) Establishes particular criteria for

withholding or refers to particular types

of matters to be withheld;

(4) Trade secrets and commercial or

financial information obtained from a

person and privileged or confidential;

(5) Interagency or intra-agency

memorandums or letters that would not

be available by law to a party other than

an agency in litigation with the agency;

(6) Personnel and medical files and

similar files the disclosure of which

would constitute a clearly unwarranted

invasion of personal privacy;

(7) Records or information compiled

for law enforcement purposes, but only
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60023

to the extent that the production of such

law enforcement records or information:

(i) Could reasonably be expected to

interfere with enforcement proceedings;

(ii) Would deprive a person of a right

to a fair trial or an impartial

adjudication;

(iii) Could reasonably be expected to

constitute an unwarranted invasion of

personal privacy;

(iv) Could reasonably be expected to

disclose the identity of a confidential

source, including a State, local, or

foreign agency or authority or any

private institution that furnished

information on a confidential basis, and,

in the case of a record or information

compiled by a criminal law enforcement

authority in the course of a criminal

investigation or by an agency

conducting a lawful natural security

intelligence investigation, information

furnished by a confidential source;

(v) 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

(vi) Could reasonably be expected to

endanger the life or physical safety of

any individual;

(8) 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; or

(9) Geological and geophysical

information and data, including maps,

concerning wells.

(b) GSA will provide any reasonably

segregable portion of a record to a

requester after deletion of the portions

that are exempt under this section. If

GSA must delete information from a

record before disclosing it, this

information, and the reasons for

withholding it, will be clearly described

in the cover letter to the requester or in

an attachment.

(c) GSA will invoke no exemption

under this section to deny access to

records that would be available

pursuant to a request made under the

Privacy Act of 1974 (5 U.S.C. 522a) and

implementing regulations, 41 CFR part

105–64, or if disclosure would cause no

demonstrable harm to any governmental

or private interest.

(d) Whenever a request is made that

involves access to records described in

§ 105–60.501(a)(7)(i) and the

investigation or proceeding involves a

possible violation of criminal law, and

there is reason to believe that the subject

of the investigation or proceeding is not

aware of it, and disclosure of the

existence of the records could

reasonably be expected to interfere with

enforcement proceedings, the agency

may, during only such time as that

circumstance continues, treat the

records as not subject to the

requirements of this section.

(e) Whenever informant records

maintained by a criminal law

enforcement agency under an

informant’s name or personal identifier

are requested by a third party according

to the informant’s name or personal

identifier, the agency may treat the

records as not subject to the

requirements of this section unless the

informant’s status as an informant has

been officially confirmed.

(f) Whenever a request is made that

involves access to records maintained

by the Federal Bureau of Investigation

pertaining to foreign intelligence or

counterintelligence, or international

terrorism, and the existence of the

records is classified information as

provided in paragraph (a)(1) of this

section, the Bureau may, as long as the

existence of the records remains

classified information, treat the records

as not subject to the requirements of this

section.

Subpart 105–60.6—Production or

Disclosure by Present or Former

General Services Administration

Employees in Response to Subpoenas

or Similar Demands in Judicial or

Administrative Proceedings

§ 105–60.601 Purpose and scope of

subpart.

(a) By virtue of the authority vested in

the Administrator of General Services

by 5 U.S.C. 301 and 40 U.S.C. 486(c)

this subpart establishes instructions and

procedures to be followed by current

and former employees of the General

Services Administration in response to

subpoenas or similar demands issued in

judicial or administrative proceedings

for production or disclosure of material

or information obtained as part of the

performance of a person’s official duties

or because of the person’s official status.

Nothing in these instructions applies to

responses to subpoenas or demands

issued by the Congress or in Federal

grand jury proceedings.

(b) This subpart provides instructions

regarding the internal operations of GSA

and the conduct of its employees, and

is not intended and does not, and may

not, be relied upon to create any right

or benefit, substantive or procedural,

enforceable at law by a party against

GSA.

(c) These regulations provide for

procedures and a systematic means by

which GSA can evaluate whether it

should comply with a demand for

official GSA information or whether

applicable privileges or statutes provide

a legitimate basis for withholding the

demanded information. These

regulations do not provide independent

authority to withhold information. In

proceedings to which GSA is a party,

these regulations shall not be

interpreted or applied to supersede or

frustrate established rules of procedure

applicable to the forum in which the

matter is pending.

§ 105–60.602 Definitions.

For purposes of this subpart, the

following definitions apply:

(a) Material means any document,

record, file or data, regardless of the

physical form or the media by or

through that it is maintained or

recorded, that was generated or acquired

by a current or former GSA employee by

reason of the performance of that

person’s official duties or because of the

person’s official status, or any other

tangible item, e.g., personal property

possessed or controlled by GSA.

(b) Information means any knowledge

or facts contained in material, and any

knowledge or facts acquired by current

or former GSA employee as part of the

performance of that person’s official

duties or because of that person’s

official status.

(c) Demand means any subpoena,

order, or similar demand for the

production or disclosure of material,

information or testimony regarding such

material or information, issued by a

court or other authority in a judicial or

administrative proceeding, excluding

congressional subpoenas or demands in

Federal Grand Jury proceedings, and

served upon a present or former GSA

employee.

(d) Appropriate Authority means the

following officials who are delegated

authority to approve or deny responses

to demands for material, information or

testimony:

(1) The Counsel to the Inspector

General for material and information

that is the responsibility of the GSA

Office of Inspector General or testimony

of current or former employees of the

Office of the Inspector General;

(2) The Counsel to the GSA Board of

Contract Appeals for material and

information that is the responsibility of

the Board of Contract Appeals or

testimony of current or former Board of

Contract Appeals employees;

(3) The GSA General Counsel,

Associate General Counsel(s) or

Regional Counsel(s) for all material,

information, or testimony not covered

by paragraphs (d)(1) and (2) of this

section.
60024 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

§ 105–60.603 Acceptance of service of a

subpoena duces tecum or other legal

demand on behalf of the General Services

Administration.

(a) The Administrator of General

Services Administration and the

following officials are the only GSA

personnel authorized to accept service

of a subpoena or other legal demand on

behalf of GSA: The GSA General

Counsel and Associate General

Counsel(s) and, with respect to material

or information that is the responsibility

of a regional office, the Regional

Administrator and the Regional

Counsel. The Inspector General and

Counsel to the Inspector General, as

well as the Chairman and Vice

Chairman of the Board of Contract

Appeals, are authorized to accept

service for material or information

which is the responsibility of their

respective organizations.

(b) A present or former GSA employee

not authorized to accept service of a

subpoena or other demand for material,

information or testimony obtained in an

official capacity shall respectfully

inform the process serve that he or she

is not authorized to accept service on

behalf of GSA and refer the process

server to an appropriate official listed in

paragraph (a) of this section.

(c) A Regional Administrator or

Regional Counsel shall notify the

General Counsel of a demand that may

raise policy concerns or affect multiple

regions.

§ 105–60.604 Production or disclosure

prohibited unless approved by the

Appropriate Authority.

No current or former GSA employee

shall, in response to a demand, produce

any material or disclose, through

testimony or other means, any

information covered by this subpart,

without prior approval of the

Appropriate Authority.

§ 105–60.605 Procedure in the event of a

demand for production or disclosure.

(a) Whenever service of demand is

attempted in person or via mail upon a

current or former GSA employee for the

production of material or the disclosure

of information covered by this subpart,

the employee or former employee shall

immediately notify the Appropriate

Authority through his or her supervisor

or his or her former service, staff, or

regional office. The supervisor shall

notify the Appropriate Authority. For

current or former employees of the

Office of Inspector General located in

regional offices, Counsel to the

Inspector General shall be notified

through the immediate supervisor or

former employing field office.

(b) The Appropriate Authority shall

require that the party seeking material

or testimony provide the Appropriate

Authority with an affidavit, declaration,

statement, and/or a plan as described in

paragraphs (c)(1), (2) and (3) of this

section if not included with or

described in the demand. The

Appropriate Authority may in his or her

discretion waive this requirement for a

demand arising out of proceedings to

which GSA or the United States is a

party and in proceedings in which the

United States or GSA is not a party but

has an interest such as so-called Qui

Tam proceedings, or where the

Appropriate Authority has independent

knowledge of facts relevant to the matter

upon which an informed determination

can be made. Any waiver will be

coordinated with the United States

Department of Justice (DOJ) in

proceedings in which GSA, its current

or former employees, or the United

States are represented by DOJ.

(c)(1) Oral testimony. If oral testimony

is sought by a demand, the Appropriate

Authority shall require the party seeking

the testimony or the party’s attorney to

provide, by affidavit or other statement,

a detailed summary of the testimony

sought and its relevance to the

proceedings. Any authorization for the

testimony of a current or former GSA

employee shall be limited to the scope

of the demand as summarized in such

statement or affidavit.

(2) Production of material. When

information other than oral testimony is

sought by a demand, the Appropriate

Authority shall require the party seeking

production or the party’s attorney to

provide a detailed summary, by affidavit

or other statement, of the information

sought and its relevance to the

proceeding.

(3) The Appropriate Authority may

require a plan or other information from

the party seeking testimony or

production of material of all demands

reasonably foreseeable, including, but

not limited to, names of all current and

former GSA and employees from whom

testimony or production is or will likely

be sought, areas of inquiry, for current

employees the length of time away from

duty anticipated, and identification of

documents to be used in each

deposition or other testimony, where

appropriate.

(d) The Appropriate Authority will

notify the current or former employee,

the appropriate supervisor, and such

other persons as circumstances may

warrant, whether disclosure or

production is authorized, and of any

conditions or limitations to disclosure

or production.

(e) Factors to be considered by the

Appropriate Authority in responding to

demands:

(1) Whether disclosure or production

is appropriate under rules of procedure

governing the proceeding out of which

the demand arose;

(2) The relevance of the testimony or

documents to the proceedings;

(3) The impact of the relevant

substantive law concerning applicable

privileges recognized by statute,

common law; judicial interpretation or

similar authority;

(4) The information provided by the

issuer of the demand in response to

requests by the Appropriate Authority

pursuant to paragraphs (b) and (c) of

this section;

(5) The steps taken by the issuer of the

demand to minimize the burden of

disclosure or production on GSA,

including but not limited to willingness

to accept authenticated copies of

material in lieu of personal appearance

by GSA employees;

(6) The impact on pending or

potential litigation involving GSA or the

United States as a party;

(7) In consultation with the head of

the GSA organizational component

affected, the burden to GSA that

disclosure or production would entail;

and

(8) Any additional factors unique to a

particular demand or proceeding.

(f) Examples of situations in which

authority for production will likely be

denied by the Appropriate Authority are

those in which production would:

(1) Violate a statute or a specific

regulation;

(2) Reveal classified information,

unless appropriately declassified by the

originating agency;

(3) Reveal a confidential source or

informant, unless the investigative

agency and the source or informant

consent;

(4) Reveal records or information

compiled for law enforcement purposes

that would interfere with enforcement

proceedings or disclose investigative

techniques and procedures the

effectiveness of which would be

impaired;

(5) Reveal trade secrets or commercial

or financial information that is

privileged or confidential without prior

consultation with the person from

whom it was obtained; or

(6) Be contrary to a recognized

privilege.

(g) The Appropriate Authority’s

determination, including any reasons

for denial or limitations on disclosure or

production, shall be made as

expeditiously as possible and shall be

communicated in writing to the issuer
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60025

of the demand and appropriate current

or former GSA employee(s). In

proceedings in which GSA, its current

or former employees, or the United

States are represented by DOJ the

determination shall be coordinated with

DOJ, which may respond to the issuer

of the subpoenas or demand in lieu of

the Appropriate Authority.

§ 105–60.606 Procedure where response

to demand is required prior to receiving

instructions.

(a) If a response to a demand is

required before the Appropriate

Authority’s decision is issued, a GSA

attorney designated by the Appropriate

Authority for the purpose shall appear

with the employee or former employee

upon whom the demand has been made,

and shall furnish the judicial or other

authority with a copy of the instructions

contained in this subpart. The attorney

shall inform the court or other authority

that the demand has been or is being

referred for the prompt consideration by

the Appropriate Authority. The attonery

shall respectfully request the judicial or

administrative authority to stay the

demand pending receipt of the

requested instructions.

(b) The designated GSA attorney shall

coordinate GSA’s response with DOJ’s

Civil Division or the relevant Office of

the United States Attorney and may

request that a DOJ or Assistant United

States Attorney appear with the

employee in addition to or in lieu of a

designated GSA attorney.

(c) If an immediate demand for

production or disclosure is made in

circumstances which preclude the

appearance of a GSA or DOJ attorney on

the behalf of the employee or the former

employee, the employee or former

employee shall respectfully make a

request to the demanding authority for

sufficient time to obtain advice of

counsel.

§ 105–60.607 Procedure in the event of an

adverse ruling.

If the court or other authority declines

to stay the effect of the demand in

response to a request made in

accordance with § 105–60.606 pending

receipt of instructions, or if the court or

other authority rules that the demand

must be complied with irrespective of

instructions by the Appropriate

Authority not to produce the material or

disclosure the information sought, the

employee or former employee upon

whom the demand has been made shall

respectfully decline to comply, citing

these instructions and the decision of

the United States Supreme Court in

United States ex rel. Touhy v. Ragen,

340 U.S. 462 (1951).

§ 105–60.608 Fees, expenses, and costs.

(a) In consultation with the

Appropriate Authority, a current

employee who appears as a witness

pursuant to a demand shall ensure that

he or she receives all fees and expenses,

including travel expenses, to which

witnesses are entitled pursuant to rules

applicable to the judicial or

administrative proceedings out of which

the demand arose.

(b) Witness fees and reimbursement

for expenses received by a GSA

employee shall be disposed of in

accordance with rules applicable to

Federal employees in effect at the time.

(c) Reimbursement to the GSA for

costs associated with producing

material pursuant to a demand shall be

determined in accordance with rules

applicable to the proceedings out of

which the demand arose.

Dated: October 28, 1997.

David J. Barram,

Administrator.

[FR Doc. 97–29061 Filed 11–5–97; 8:45 am]

BILLING CODE 6820–34–M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 1, 21 and 74

[MM Docket No. 97–217; FCC 97–360]

MDS and ITFS Two-Way

Transmissions

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: In this Notice of Proposed

Rulemaking (‘‘NPRM’’), the Commission

seeks comment on the proposed

amendment of its rules to enable

Multipoint Distribution Service

(‘‘MDS’’) and Instructional Television

Fixed Service (‘‘ITFS’’) licensees to

engage in fixed two-way transmissions.

The Commission seeks comment on its

proposals to enhance the flexibility of

MDS and ITFS operations through

facilitated use of response stations, use

of booster stations with program

origination capability in a cellular

configuration, and use of variable

bandwidth (‘‘subchanneling’’ or

‘‘superchanneling’’). Comment is sought

regarding the technical, procedural and

economic effects of implementing the

proposed rule changes.

DATES: Comments must be filed on or

before December 9, 1997, and reply

comments on or before January 8, 1998.

Written comments by the public on the

Initial Regulatory Flexibility Analysis

are due December 9, 1997.

ADDRESSES: Office of the Secretary,

Federal Communications Commission,

1919 M Street, N.W., Washington, D.C.

20554.

FOR FURTHER INFORMATION CONTACT:

Michael J. Jacobs, (202) 418–7066 or

Dave Roberts, (202) 418–1600, Video

Services Division, Mass Media Bureau.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Notice of

Proposed Rulemaking, MM Docket No.

97–217, adopted October 7, 1997, and

released October 10, 1997. The full text

of this NPRM is available for inspection

and copying during normal business

hours in the FCC Reference Center

(Room 239), 1919 M Street, N.W.,

Washington, D.C., and also may be

purchased from the Commission’s copy

contractor, International Transcription

Services, Inc., (202) 857–3800, 1231

20th Street, N.W., Washington, D.C.

20036.

Synopsis of Notice of Proposed

Rulemaking on MDS and ITFS TwoWay Transmissions

1. This NPRM was issued in response

to a petition for rulemaking filed by a

group of 111 educators and participants

in the wireless cable industry

(collectively, ‘‘Petitioners’’), comprised

of MDS and ITFS licensees, wireless

cable operators, equipment

manufacturers, and industry consultants

and associations. In this proceeding,

Petitioners are asking that we

implement a series of technical rule

changes that would give MDS and ITFS

licensees the needed flexibility to fully

exploit digital technology in delivering

two-way communications services.

Currently, MDS and ITFS licensees are

authorized to use digital technology in

order to increase the number of usable

one-way channels available to them,

leased ITFS frequencies and MDS

channels may be used for asymmetrical

high speed digital data applications so

long as such usage complies with the

Commission’s technical rules and its

declaratory ruling on the use of digital

modulation by MDS and ITFS stations

(‘‘Digital Declaratory Ruling,’’ 11 FCC

Rcd 18839 (1996)), and MDS licensees

have been permitted to provide two-way

service on a limited basis. While 125

kHz response channels are currently

allocated for use in association with

most MDS and ITFS stations, Petitioners

anticipate that many MDS and ITFS

licensees and wireless cable operators

engaging in two-way transmissions will

require more capacity for return paths

than is available through such 125 kHz

channels. Moreover, because these 125

kHz response channels must be

individually licensed under the