[Federal Register Volume 65, Number 193 (Wednesday, October 4, 2000)]
[Proposed Rules]
[Pages 59155-59162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25300]


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CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

40 CFR Part 1601


Freedom of Information Act Program

AGENCY: Chemical Safety and Hazard Investigation Board.

ACTION: Proposed rule.

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SUMMARY: The Chemical Safety and Hazard Investigation Board proposes to 
adopt regulations for requesting and disclosing records under the 
Freedom of Information Act (FOIA). The FOIA requires Federal agencies 
to create regulations establishing procedures for its implementation. 
These regulations will ensure the proper handling of agency records and 
requests for those records under the FOIA.

DATES: Submit comments on or before November 3, 2000.

ADDRESSES: Address all comments concerning this proposed rule to Ray 
Porfiri, United States Chemical Safety and Hazard Investigation Board, 
2175 K Street, NW., Suite 400, Washington, DC 20037-1809.

FOR FURTHER INFORMATION CONTACT: Ray Porfiri, 202-261-7629.

SUPPLEMENTARY INFORMATION: These proposed regulations implement the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended by the 
Electronic Freedom of Information Act Amendments of 1996, Public Law 
104-231, 110 Stat. 3048. The Board proposes the following set of 
regulations to discharge its responsibilities under the FOIA. The FOIA 
establishes: basic procedures for public access to agency records and 
guidelines for waiver or reduction of fees the agency would otherwise 
assess for the response to the records request; categories of records 
that are exempt for various reasons from public disclosure; and basic 
requirements for Federal agencies regarding their processing of and 
response to requests for agency records. The Board invites comments 
from interested groups and members of the public on these proposed 
regulations.

Regulatory Flexibility Act

    The Board, in accordance with the Regulatory Flexibility Act, 5 
U.S.C. 605(b), has reviewed this proposed regulation and by approving 
it certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. Under the FOIA, 
agencies may recover only the direct costs of searching for, reviewing, 
and duplicating the records processed for requesters. Thus, fees 
assessed by the Board will be nominal. Further, the ``small entities'' 
that make FOIA requests, as compared with individual requesters and 
other requesters, are relatively few in number.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, we did not deem any 
action necessary under the provisions of the Unfunded Mandates Reform 
Act of 1995, Pub. L. 104-4, 109 Stat. 48.

List of Subjects in 40 CFR Part 1601

    Administrative practice and procedure, Archives and records, 
Freedom of information.
    For the reasons set forth in the preamble, the Chemical Safety and 
Hazard Investigation Board proposes to establish 40 CFR Chapter VI--
Chemical Safety and Hazard Investigation Board, consisting of parts 
1600 through 1699, and add part 1601 to read as follows:

PART 1601---PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM 
OF INFORMATION ACT

Subpart A--PURPOSE, SCOPE, AND APPLICABILITY
Sec.
1601.1   Purpose and scope.
1601.2   Applicability.
1601.3   Definitions.

[[Page 59156]]

Subpart B--Administration
1601.10   Protection of records.
1601.11   Preservation of records pertaining to requests under this 
part.
1601.12   Public reading room.
Subpart C--Procedures for Requesting and Disclosing Records
1601.20   Requests for records.
1601.21   Response to requests.
1601.22   Form and content of responses.
1601.23   Appeals of denials.
1601.24   Timing of responses to requests.
1601.25   Disclosure of requested records.
1601.26   Special procedures for confidential business information.
Subpart D--Fees
1601.30   Fees to be charged---general.
1601.31   Fees to be charged---categories of requesters.
1601.32   Limitations on charging fees.
1601.33   Miscellaneous fee provisions.

    Authority: 5 U.S.C. 552, 553; 42 U.S.C. 7412 et seq.

Subpart A--Purpose, Scope, and Applicability


Sec. 1601.1  Purpose and scope.

    This part contains the regulations of the Chemical Safety and 
Hazard Investigation Board (``CSB'' or ``Board'' or ``agency'') 
implementing the Freedom of Information Act (``FOIA''). These 
regulations provide procedures by which members of the public may 
obtain access to records compiled, created, and maintained by the CSB, 
along with procedures it must follow in response to such requests for 
records.


Sec. 1601.2  Applicability.

    (a) General. The FOIA and the regulations in this part apply to all 
CSB documents and information. However, if another law sets specific 
procedures for disclosure, the CSB will process a request in accordance 
with the procedures that apply to those specific documents. If a 
request is received for disclosure of a document to the public which is 
not required to be released under those provisions, the CSB will 
consider the request under the FOIA and the regulations in this part.
    (b) Records available through routine distribution procedures. When 
the record requested includes material published and offered for sale, 
e.g., by the Superintendent of Documents of the Government Printing 
Office, or by an authorized private distributor, the CSB will first 
refer the requester to those sources. Nevertheless, if the requester is 
not satisfied with the alternative sources, the CSB will process the 
request under the FOIA.


Sec. 1601.3  Definitions.

    Appeals Officer means the person designated by the Chairperson to 
process appeals of denials of requests for CSB records under the FOIA.
    Business submitter means any person or entity which provides 
confidential business information, directly or indirectly, to the CSB 
and who has a proprietary interest in the information.
    Chairperson means the Chairperson of the CSB (including, in the 
absence of a Chairperson, the Board Member supervising personnel 
matters) or his or her designee.
    Commercial-use requester means requesters seeking information for a 
use or purpose that furthers the commercial, trade, or profit interests 
of the requester or the person on whose behalf the request is made. In 
determining whether a requester properly belongs in this category, the 
CSB shall determine, whenever reasonably possible, the use to which a 
requester will put the documents requested. Where the CSB has 
reasonable cause to doubt the use to which a requester will put the 
records sought, or where that use is not clear from the request itself, 
the CSB shall seek additional clarification before assigning the 
request to a specific category.
    Confidential business information means records provided to the 
government by a submitter that arguably contain material exempt from 
disclosure under Exemption 4 of the FOIA, because disclosure could 
reasonably be expected to cause substantial competitive harm.
    Direct costs means those expenditures by the CSB actually incurred 
in searching for and duplicating records to respond to a FOIA request. 
Direct costs include the salary of the employee or employees performing 
the work (the basic rate of pay for the employee plus a percentage of 
that rate to cover benefits) and the cost of operating duplicating 
machinery. Direct costs do not include overhead expenses, such as the 
cost of space and heating or lighting of the facility in which the 
records are stored.
    Duplication refers to the process of making a copy of a document 
necessary to fulfill a FOIA request. Such copies can take the form of, 
among other things, paper copy, microform, audio-visual materials, or 
machine-readable documentation. The copies provided shall be in a form 
that is reasonably usable by requesters.
    Educational institution refers to a preschool, a public or private 
elementary or high school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, and an institution of vocational education, 
which operates a program of scholarly research.
    FOIA Officer means the person designated to process requests for 
CSB documents under the FOIA.
    Non-commercial scientific institution refers to an institution that 
is not operated on a commercial basis as that term is used above in 
defining commercial-use requester, 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.
    Record includes any writing, drawing, map, recording, tape, film, 
photo, or other documentary material by which information is preserved.
    Representative of the news media refers to 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. For freelance journalists to be regarded as working for a news 
organization, they must demonstrate a solid basis for expecting 
publication through that organization. A publication contract would be 
the clearest proof, but components shall also look to the past 
publication record of a requester in making this determination.
    Requester means any person, including an individual, Indian tribe, 
partnership, corporation, association, or public or private 
organization other than a Federal agency, that requests access to 
records in the possession of the CSB.
    Review refers to the process of examining a record, in response to 
a FOIA request, to determine whether any portion of that record may be 
withheld under one or more of the FOIA exemptions. It also includes the 
processing of any record for disclosure; for example, redacting 
information that is exempt from disclosure under the FOIA. Review does 
not include time spent resolving general legal or policy issues 
regarding the use of FOIA exemptions.
    Search refers to the time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within a document. The CSB shall ensure that 
searches are conducted in the most efficient and least expensive manner 
reasonably possible.
    Submitter means any person or entity who provides information 
directly or indirectly to the CSB. The term includes, but is not 
limited to, corporations, Indian tribal governments, state governments, 
and foreign governments.

[[Page 59157]]

    Working day means a Federal workday that does not include 
Saturdays, Sundays, or Federal holidays.

Subpart B--Administration


Sec. 1601.10  Protection of records.

    (a) Except as authorized by this part or as otherwise necessary in 
performing official duties, no employee shall in any manner disclose or 
permit disclosure of any document or information in the possession of 
the CSB that is confidential or otherwise of a nonpublic nature, 
including that regarding the CSB, the Environmental Protection Agency 
or the Occupational Safety and Health Administration.
    (b) No person may, without permission, remove from the place where 
it is made available any record made available to him for inspection or 
copying. Stealing, altering, mutilating, obliterating, or destroying, 
in whole or in part, such a record shall be deemed a crime.


Sec. 1601.11  Preservation of records pertaining to requests under this 
part.

    The CSB will preserve all correspondence pertaining to the requests 
that it receives under this part, as well as copies of all requested 
records, until disposition or destruction is authorized by Title 44 of 
the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the FOIA.


Sec. 1601.12  Public reading room.

    (a) The CSB maintains a public reading room that contains the 
records that the FOIA requires to be made regularly available for 
public inspection and copying as well as a current subject-matter index 
of its reading room records.
    (b) Because of the lack of requests to date for material required 
to be indexed, the CSB has determined that it is unnecessary and 
impracticable to publish quarterly, or more frequently, and distribute 
(by sale or otherwise) copies of each index and supplements thereto, as 
provided in 5 U.S.C. 552(a)(2). However, the CSB will provide a copy of 
such indexes to a member of the public upon request, at a cost not to 
exceed the direct cost of duplication and mailing, if sending records 
by other than ordinary mail.
    (c) The CSB maintains a public reading room at its headquarters: 
2175 K Street, NW., Suite 400, Washington, DC 20037-1809.
    (d) Copying. The cost of copying information available in the 
offices of the CSB shall be imposed on a requester in accordance with 
the provisions of Secs. 1601.30 through 1601.33.
    (e) The CSB also makes reading room records available 
electronically through the agency's World Wide Web site (which can be 
found at http://www.csb.gov). This includes the index of its reading 
room records, indicating which records are available electronically.

Subpart C--Procedures for Requesting and Disclosing Records


Sec. 1601.20  Requests for records.

    (a) Addressing requests. Requests for records in the possession of 
the CSB shall be made in writing. The envelope and the request both 
should be clearly marked FOIA Request and addressed to: FOIA Officer, 
Chemical Safety and Hazard Investigation Board, 2175 K Street, NW., 
Suite 400, Washington, DC 20037-1809. A request improperly addressed 
will be deemed not to have been received for the purposes of 
Sec. 1601.24(a) until it is received, or would have been received with 
the exercise of due diligence, by the FOIA Officer. Records requested 
in conformance with this section and which are not withholdable records 
may be obtained in person or by mail as specified in the request. 
Records to be obtained in person will be available for inspection or 
copying during business hours on a regular business day in the office 
of the CSB.
    (b) Description of records. Each request must reasonably describe 
the desired records in sufficient detail to enable CSB personnel to 
locate the records with a reasonable amount of effort. A request for a 
specific category of records will be regarded as fulfilling this 
requirement if it enables responsive records to be identified by a 
technique or process that is not unreasonably burdensome or disruptive 
of CSB operations.
    (1) Whenever possible, a request should include specific 
information about each record sought, such as the date, title or name, 
author, recipient, and subject matter of the record.
    (2) If the FOIA Officer determines that a request does not 
reasonably describe the records sought, he or she will either advise 
the requester what additional information is needed to locate the 
record or otherwise state why the request is insufficient. The FOIA 
Officer will also extend to the requester an opportunity to confer with 
CSB personnel with the objective of reformulating the request in a 
manner which will meet the requirements of this section.
    (c) Agreement to pay fees. A FOIA request shall be considered an 
agreement by the requester to pay all applicable fees charged under 
Secs. 1601.30 through 1601.33 up to $25, unless the requester seeks a 
waiver of fees. The CSB ordinarily will confirm this agreement in an 
acknowledgement letter. When making a request, you may specify a 
willingness to pay a greater or lesser amount.
    (d) Types of records not available. The FOIA does not require the 
CSB 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 future time; or
    (3) Restore records destroyed or otherwise disposed of, except that 
the FOIA Officer must notify the requester that the requested records 
have been destroyed or otherwise disposed of.


Sec. 1601.21  Responses to requests.

    (a) Response to initial request. The FOIA Officer is authorized to 
grant or deny any request for a record and to determine appropriate 
fees.
    (b) Referral to another agency. When a requester seeks records that 
originated in another Federal government agency, the CSB will refer the 
request to the other agency for response. If the CSB refers the request 
to another agency, it will notify the requester of the referral. A 
request for any records classified by some other agency will be 
referred to that agency for response.
    (c) Creating records. If a person seeks information from the CSB in 
a format that does not currently exist, the CSB will make reasonable 
efforts to provide the information in the format requested. The CSB 
will not create a new record of information to satisfy a request.
    (d) No responsive record. If no records are responsive to the 
request, the FOIA Officer will so notify the requester in writing.


Sec. 1601.22  Form and content of responses.

    (a) Form of notice granting a request. After the FOIA Officer has 
granted a request in whole or in part, the requester will be notified 
in writing. The notice shall describe the manner in which the record 
will be disclosed, whether by providing a copy of the record with the 
response or at a later date, or by making a copy of the record 
available to the requester for inspection at a reasonable time and 
place. The procedure for such an inspection may not unreasonably 
disrupt the operation

[[Page 59158]]

of the CSB. The response letter will also inform the requester of any 
fees to be charged in accordance with the provisions of Secs. 1601.30 
through 1601.33.
    (b) Form of notice denying a request. When the FOIA Officer denies 
a request in whole or in part, he or she will so notify the requester 
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 reason or reasons for the denial, 
including the FOIA exemption or exemptions which the FOIA Officer has 
relied upon in denying the request; and
    (3) A statement that the denial may be appealed under Sec. 1601.23 
and a description of the requirements of that section.


Sec. 1601.23  Appeals of denials.

    (a) Right of appeal. If a request has been denied in whole or in 
part, the requester may appeal the denial to: FOIA Appeals Officer, 
Chemical Safety and Hazard Investigation Board, 2175 K Street, NW, 
Suite 400, Washington, DC 20037-1809.
    (b) Letter of appeal. The appeal must be in writing and must be 
sent within 30 days of receipt of the denial letter. An appeal should 
include a copy of the initial request, a copy of the letter denying the 
request in whole or in part, and a statement of the circumstances, 
reasons, or arguments advanced in support of disclosure of the 
requested record. Both the envelope and the letter of appeal must be 
clearly marked FOIA Appeal. An appeal improperly addressed shall be 
deemed not to have been received for purposes of the 20-day time period 
set forth in Sec. 1601.24(e) until it is received, or would have been 
received with the exercise of due diligence, by the Appeals Officer.
    (c) Action on appeal. The disposition of an appeal will be in 
writing and will constitute the final action of the CSB on a request. A 
decision affirming in whole or in part the denial of a request will 
include a brief statement of the reason or reasons for affirmance, 
including each FOIA exemption relied on. If the denial of a request is 
reversed in whole or in part on appeal, the request will be processed 
promptly in accordance with the decision on appeal.
    (d) Judicial review. If the denial of the request for records is 
upheld in whole or in part, or if a determination on the appeal has not 
been mailed at the end of the 20-day period or the last extension 
thereof, the requester is deemed to have exhausted his or her 
administrative remedies, giving rise to a right of judicial review 
under 5 U.S.C. 552(a)(4).


Sec. 1601.24  Timing of responses to requests.

    (a) In general. The CSB ordinarily shall respond to requests 
according to their order of receipt.
    (b) Multitrack processing. (1) The CSB may use two processing 
tracks by distinguishing between simple and more complex requests based 
on the amount of work and/or time needed to process the request, 
including according to limits based on the number of pages involved. If 
the agency does so, it shall advise requesters assigned to its slower 
track of the eligibility limits for its faster track.
    (2) The agency may provide requesters in its slower track with an 
opportunity to limit the scope of their requests in order to qualify 
for faster processing within the specified limits of the agency's 
faster track. If it does so, the agency will contact the requester 
either by telephone or by letter, whichever is most efficient in each 
case.
    (c) Unusual circumstances. (1) Where the time limits for processing 
a request cannot be met because of unusual circumstances and the CSB 
determines to extend the time limits on that basis, the agency shall as 
soon as practicable notify the requester in writing of the unusual 
circumstances and of the date by which processing of the request can be 
expected to be completed. Where the extension is for more than ten 
working days, the CSB shall provide the requester with an opportunity 
either to modify the request so that it may be processed within the 
time limits or to arrange an alternative time period for processing the 
request or a modified request.
    (2) Where the CSB reasonably believes that multiple requests 
submitted by a requester, or by a group of requesters acting in 
concert, constitute a single request that would otherwise involve 
unusual circumstances, and the requests involve clearly related 
matters, they may be aggregated. Multiple requests involving unrelated 
matters will not be aggregated.
    (d) Expedited processing. (1) Requests and appeals will be taken 
out of order and given expedited treatment whenever it is determined 
that they involve:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal government activity, if made by a person primarily engaged in 
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exists possible questions about the government's integrity which 
affect public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that 
person's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. For example, a requester within the 
category in paragraph (d)(1)(ii) of this section, if not a full-time 
member of the news media, must establish that he or she is a person 
whose main professional activity or occupation is information 
dissemination, though it need not be his or her sole occupation. A 
requester within the category in paragraph (d)(1)(ii) of this section 
also must establish a particular urgency to inform the public about the 
government activity involved in the request, beyond the public's right 
to know about government activity generally. The formality of 
certification may be waived as a matter of administrative discretion.
    (4) Within ten calendar days of its receipt of a request for 
expedited processing, the CSB shall decide whether to grant it and 
shall notify the requester of the decision. If a request for expedited 
treatment is granted, the request shall be given priority and shall be 
processed as soon as practicable. If a request for expedited processing 
is denied, any appeal of that decision shall be acted on expeditiously.
    (e) Appeals. A written determination on an appeal submitted in 
accordance with Sec. 1601.23 will be issued within 20 working days 
after receipt of the appeal. This time limit may be extended in unusual 
circumstances up to a total of 10 working days after written notice to 
the requester setting forth the reasons for the extension and the date 
on which a determination is expected to be made. As used in this 
paragraph, unusual circumstances means that there is a need to:
    (1) Search for and collect the requested records from facilities 
that are separate from the office processing the request;
    (2) Search for, collect, and appropriately examine a voluminous 
amount of separate and distinct records which are demanded in a single 
request; or

[[Page 59159]]

    (3) Consult with another agency having a substantial interest in 
the determination of the request, or consult with various offices 
within the CSB that have a substantial interest in the records 
requested.
    (f) When a determination cannot be mailed within the applicable 
time limit, the appeal will nevertheless be processed. In such case, 
upon the expiration of the time limit, the requester will be informed 
of the reason for the delay, of the date on which a determination may 
be expected to be mailed, and of that person's right to seek judicial 
review. The requester may be asked to forego judicial review until 
determination of the appeal.


Sec. 1601.25  Disclosure of requested records.

    (a) The FOIA Officer shall make requested records available to the 
public to the greatest extent possible in keeping with the FOIA, except 
that the following records are exempt from the disclosure requirements:
    (1) Records specifically authorized under criteria established by 
an Executive Order to be kept secret in the interest of national 
defense or foreign policy and which are, in fact, properly classified 
pursuant to such Executive Order;
    (2) Records related solely to the internal personnel rules and 
practices of the CSB;
    (3) Records specifically exempted from disclosure by statute (other 
than 5 U.S.C. Sec. 552(b)) provided that such statute requires that the 
matters be withheld from the public in such a manner as to leave no 
discretion on the issue or that the statute establishes particular 
criteria for withholding information or refers to particular types of 
matters to be withheld;
    (4) Records containing trade secrets and commercial or financial 
information obtained from a person and privileged or confidential;
    (5) Interagency or intra-agency memoranda or letters which would 
not be available by law to a party other than an agency in litigation 
with the CSB;
    (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 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 which furnished information on a 
confidential basis, and in the case of a record or information compiled 
by criminal law enforcement authority in the course of a criminal 
investigation or by an agency conducting a lawful national 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) Records contained in or related to examination, operating, or 
condition reports prepared by, or on behalf of, or for the use of an 
agency responsible for the regulation or supervision of financial 
institutions;
    (9) Geological or geophysical information and data, including maps, 
concerning wells.
    (b) If a requested record contains exempted material along with 
nonexempted material, all reasonably segregable nonexempt material 
shall be disclosed.
    (c) Even if an exemption described in paragraph (a) of this section 
may be reasonably applicable to a requested record, or portion thereof, 
the CSB may elect under the circumstances of any particular request not 
to apply the exemption to such requested record, or portion thereof, 
subject to the provisions in Sec. 1601.26 for confidential business 
information. The fact that the exemption is not applied by the CSB to 
any requested record, or portion thereof, has no precedential 
significance as to the application or non-application of the exemption 
to any other requested record, or portion thereof, no matter when the 
request is received.


Sec. 1601.26  Special procedures for confidential business information.

    (a) In general. Confidential business information provided to the 
CSB by a business submitter shall not be disclosed pursuant to a FOIA 
request except in accordance with this section.
    (b) Designation of business information. Business submitters should 
use good-faith efforts to designate, by appropriate markings, either at 
the time of submission or at a reasonable time thereafter, those 
portions of their submissions which they deem to be protected under 
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Any such designation will 
expire 10 years after the records were submitted to the government, 
unless the submitter requests, and provides reasonable justification 
for, a designation period of longer duration.
    (c) Predisclosure notification. (1) Except as is provided for in 
paragraph (h) of this section, the FOIA Officer shall, to the extent 
permitted by law, provide a submitter with prompt written notice of a 
FOIA request or administrative appeal encompassing its confidential 
business information whenever required under paragraph (d) of this 
section. Such notice shall either describe the exact nature of the 
business information requested or provide copies of the records or 
portions thereof containing the business information.
    (2) Whenever the FOIA Officer provides a business submitter with 
the notice set forth in this paragraph, the FOIA Officer shall notify 
the requester that the request includes information that may arguably 
be exempt from disclosure under Exemption 4 of the FOIA and that the 
person or entity who submitted the information to the CSB has been 
given the opportunity to comment on the proposed disclosure of 
information.
    (d) When notice is required. The CSB shall provide a business 
submitter with notice of a request whenever:
    (1) The business submitter has in good faith designated the 
information as business information deemed protected from disclosure 
under 5 U.S.C. 552(b)(4); or
    (2) The CSB has reason to believe that the request seeks business 
information the disclosure of which may result in substantial 
commercial or financial injury to the business submitter.
    (e) Opportunity to object to disclosure. Through the notice 
described in paragraph (c) of this section, the CSB shall, to the 
extent permitted by law, afford a business submitter at least 10 
working days within which it can provide the CSB with a detailed 
written statement of any objection to disclosure. Such statement shall 
demonstrate why the information is contended to be a trade secret or 
commercial or financial information that is privileged or confidential 
and why disclosure would cause competitive harm. Whenever possible, the 
business submitter's claim of confidentiality should be supported by a 
statement or certification by an officer or authorized representative 
of the business submitter. Information

[[Page 59160]]

provided by a submitter pursuant to this paragraph may itself be 
subject to disclosure under the FOIA.
    (f) Notice of intent to disclose. (1) The FOIA Officer shall 
consider carefully a business submitter's objections and specific 
grounds for nondisclosure prior to determining whether to disclose 
confidential commercial business information. Whenever the FOIA Officer 
decides to disclose such information over the objection of a business 
submitter, the FOIA Officer shall forward to the business submitter a 
written notice at least 10 working days before the date of disclosure 
containing:
    (i) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained,
    (ii) A description of the confidential commercial information to be 
disclosed, and
    (iii) A specified disclosure date.
    (2) Such notice of intent to disclose likewise shall be forwarded 
to the requester at least 10 working days prior to the specified 
disclosure date.
    (g) Notice of FOIA lawsuit. Whenever a requester brings suit 
seeking to compel disclosure of confidential business information, the 
FOIA Officer shall promptly notify the business submitter of such 
action.
    (h) Exceptions to predisclosure notification. The requirements of 
this section shall not apply if:
    (1) The FOIA Officer determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The designation made by the submitter in accordance with 
paragraph (b) of this section appears obviously frivolous; except that, 
in such a case, the FOIA Officer will provide the submitter with 
written notice of any final decision to disclose confidential business 
information within a reasonable number of days prior to a specified 
disclosure date.

Subpart D--Fees


Sec. 1601.30  Fees to be charged---general.

    (a) Policy. Generally, the fees charged for requests for records 
pursuant to 5 U.S.C. 552 shall cover the full allowable direct costs of 
searching for, reproducing, and reviewing records that are responsive 
to a request for information. Fees shall be assessed according to the 
schedule contained in paragraph (b) of this section and the category of 
requesters described in Sec. 1601.31 for services rendered by the CSB 
staff in responding to, and processing requests for, records under this 
part. Fees assessed will be paid by check or money order payable to the 
United States Treasury.
    (b) Types of charges. The types of charges that may be assessed in 
connection with the production of records in response to a FOIA request 
are as follows:
    (1) Searches.
    (i) Manual searches for records. For each quarter hour spent in 
searching for and/or reviewing a requested record, the fees will be: 
$4.00 for clerical personnel; $8.00 for professional personnel; and 
$11.00 for managerial personnel.
    (ii) Computer searches for records. Requesters will be charged at 
the actual direct costs of conducting a search using existing 
programming. These direct costs will include the cost of operating the 
central processing unit for that portion of operating time that is 
directly attributable to searching for records and the operator/
programmer salary, i.e., basic pay plus 16 percent, apportionable to 
the search. A charge shall also be made for any substantial amounts of 
special supplies or materials used to contain, present, or make 
available the output of computers, based upon the prevailing levels of 
costs to the CSB for the type and amount of such supplies or materials 
that are used. Nothing in this paragraph shall be construed to entitle 
any person or entity, as of right, to any services in connection with 
computerized records, other than services to which such person or 
entity may be entitled under the provisions of this section or 
Sec. 1601.32. The CSB will not alter or develop programming to conduct 
a search.
    (iii) Unproductive searches. The CSB will charge search fees even 
if no records are found which are responsive to the request or if the 
records found are exempt from disclosure.
    (2) Duplication. Records will be reproduced at a rate of $0.25 per 
page. For copies prepared by computer, such as tapes or printouts, the 
requester shall be charged the actual cost, including operator time, of 
production of the tape or printout. For other methods of reproduction, 
the actual direct costs of reproducing the record(s) shall be charged.
    (3) Review. Only commercial-use requesters may be charged for time 
spent reviewing records to determine whether they are exempt from 
mandatory disclosure. Charges may be assessed only for initial review, 
i.e., the review undertaken the first time the CSB analyzes the 
applicability of a specific exemption to a particular record or portion 
of a record. 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. The costs for such a subsequent review are properly 
assessable.
    (4) Other services and materials. Where the CSB elects, as a matter 
of administrative discretion, to comply with a request for a special 
service or materials, such as certifying that records are true copies 
or sending records by special methods, the actual direct costs of 
providing the service or materials will be charged.


Sec. 1601.31  Fees to be charged--categories of requesters.

    (a) Fees for various requester categories. Paragraphs (b) through 
(e) of this section state, for each category of requester, the types of 
fees generally charged by the CSB. However, for each of these 
categories, the fees may be limited, waived or reduced in accordance 
with the provisions set forth in Sec. 1601.32(c). If the CSB has 
reasonable cause to doubt the purpose specified in the request for 
which a requester will use the records sought, or where the purpose is 
not clear from the request itself, the CSB will seek clarification 
before assigning the request a specific category.
    (b) Commercial use requester. The CSB shall charge fees for records 
requested by persons or entities making a commercial use request in an 
amount that equals the full direct costs for searching for, reviewing 
for release, and reproducing the records sought. Commercial use 
requesters are not entitled to 2 hours of free search time nor 100 free 
pages of reproduction of records. In accordance with Sec. 1601.30, 
commercial use requesters may be charged the costs of searching for and 
reviewing records even if there is ultimately no disclosure of records.
    (c) Educational and noncommercial scientific institutions. The CSB 
shall charge fees for records requested by, or on behalf of, 
educational institutions and noncommercial scientific institutions in 
an amount which equals the cost of reproducing the records responsive 
to the request, excluding the cost of reproducing the first 100 pages. 
No search fee shall be charged with respect to requests by educational 
and noncommercial scientific institutions. For a request to be included 
in this category, requesters must show that the request being made is 
authorized by and under the auspices of a qualifying institution, and 
that the records are not

[[Page 59161]]

sought for commercial use but are sought in furtherance of scholarly 
research (if the request is from an educational institution) or 
scientific research (if the request is from a noncommercial scientific 
institution).
    (d) News media. The CSB shall charge fees for records requested by 
representatives of the news media in an amount which equals the cost of 
reproducing the records responsive to the request, excluding the costs 
of reproducing the first 100 pages. No search fee shall be charged with 
respect to requests by representatives of the news media. For a request 
to be included in this category, the requester must qualify as a 
representative of the news media and the request must not be made for a 
commercial use. A request for records supporting the news dissemination 
function of the requester shall not be considered to be a request that 
is for commercial use.
    (e) All other requesters. The CSB shall charge fees for records 
requested by persons or entities that are not classified in any of the 
categories listed in paragraphs (b), (c), or (d) of this section in an 
amount that equals the full reasonable direct cost of searching for and 
reproducing records that are responsive to the request, excluding the 
first 2 hours of search time and the cost of reproducing the first 100 
pages of records. In accordance with Sec. 1601.30, requesters in this 
category may be charged the cost of searching for records even if there 
is ultimately no disclosure of records, excluding the first 2 hours of 
search time.
    (f) For purposes of the exceptions contained in this section on 
assessment of fees, the word pages refers to paper copies of 8\1/2\  x  
11 inches or 11  x  14 inches. Thus, requesters are not entitled to 100 
microfiche or 100 computer disks, for example. A microfiche containing 
the equivalent of 100 pages or a computer disk containing the 
equivalent of 100 pages of computer printout meets the terms of the 
exception.
    (g) For purposes of paragraph (e) of this section, the term search 
time has as its basis, manual search. To apply this term to searches 
made by computer, the CSB will determine the hourly cost of operating 
the central processing unit and the operator's hourly salary plus 16 
percent. When the cost of the search (including the operator time and 
the cost of operating the computer to process a request) equals the 
equivalent dollar amount of 2 hours of the salary plus 16 percent of 
the person performing the search, i.e., the operator, the CSB will 
begin assessing charges for the computer.


Sec. 1601.32  Limitations on charging fees.

    (a) In general. Except for requesters seeking records for a 
commercial use as described in Sec. 1601.31(b), the CSB will provide, 
without charge, the first 100 pages of duplication and the first 2 
hours of search time, or their cost equivalent.
    (b) No fee charged. The CSB will not charge fees to any requester, 
including commercial use requesters, if the cost of collecting a fee 
would be equal to or greater than the fee itself. The elements to be 
considered in determining the cost of collecting a fee are the 
administrative costs of receiving and recording a requester's 
remittance and of processing the fee.
    (c) Waiver or reduction of fees. The CSB may grant a waiver or 
reduction of fees if the CSB determines that the disclosure of the 
information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the Federal government, and the disclosure of the 
information is not primarily in the commercial interest of the 
requester. Requests for a waiver or reduction of fees will be 
considered on a case-by-case basis.
    (1) The following factors will be considered by the CSB in 
determining whether a waiver or reduction of fees is in the public 
interest:
    (i) The subject of the request. Whether the subject of the 
requested records concerns the operations or activities of the 
government. The subject matter of the requested records, in the context 
of the request, must specifically concern identifiable operations or 
activities of the Federal government with a connection that is direct 
and clear, not remote or attenuated. Furthermore, the records must be 
sought for their informative value with respect to those government 
operations or activities; a request for access to records for their 
intrinsic informational content alone will not satisfy this threshold 
consideration.
    (ii) The informative value of the information to be disclosed. 
Whether the disclosure is likely to contribute to an understanding of 
government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative on specific 
government operations or activities in order to hold potential for 
contributing to increased public understanding of those operations and 
activities. The disclosure of information that is already in the public 
domain, in either a duplicative or substantially identical form, would 
not be likely to contribute to such understanding, as nothing new would 
be added to the public record.
    (iii) The contribution to an understanding of the subject by the 
general public. Whether disclosure of the requested information will 
contribute to the public understanding. The disclosure must contribute 
to the understanding of the public at large, as opposed to the 
individual understanding of the requester or a narrow segment of 
interested persons. A requester's identity and qualifications, e.g., 
expertise in the subject area and ability and intention to convey 
information to the general public, will be considered.
    (iv) The significance of the contribution in public understanding. 
Whether the disclosure is likely to significantly enhance the public 
understanding of government operations or activities. The public's 
understanding of the subject matter in question, as compared to the 
level of public understanding existing prior to the disclosure, must be 
likely to be enhanced by the disclosure to a significant extent. The 
FOIA Officer shall not make a separate value judgment as to whether 
information, even though it in fact would contribute significantly to 
public understanding of the operations or activities of the government, 
is ``important'' enough to be made public.
    (2) In order to determine whether the second fee waiver requirement 
is met, i.e., that disclosure of the requested information is not 
primarily in the commercial interest of the requester, the CSB shall 
consider the following two factors in sequence:
    (i) The existence and magnitude of a commercial interest. Whether 
the requester, or any person on whose behalf the requester may be 
acting, has a commercial interest that would be furthered by the 
requested disclosure. In assessing the magnitude of identified 
commercial interests, consideration will be given to the effect that 
the information disclosed would have on those commercial interests, as 
well as to the extent to which FOIA disclosures serve those interests 
overall. Requesters shall be given a reasonable opportunity in the 
administrative process to provide information bearing upon this 
consideration.
    (ii) The primary interest in disclosure. 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. A 
fee waiver or reduction is warranted only where, once the public 
interest standard set out in paragraph (c)(1) of this section is 
satisfied, that public

[[Page 59162]]

interest can fairly be regarded as greater in magnitude than that of 
the requester's commercial interest in disclosure. The CSB will 
ordinarily presume that, where a news media requester has satisfied the 
public interest standard, the public interest will be serviced 
primarily by disclosure to that requester. Disclosure to requesters who 
compile and market Federal government information for direct economic 
gain will not be presumed to primarily serve the public interest.
    (3) Where only a portion of the requested record satisfies the 
requirements for a waiver or reduction of fees under this paragraph, a 
waiver or reduction shall be granted only as to that portion.
    (4) A request for a waiver or reduction of fees must accompany the 
request for disclosure of records and should include:
    (i) A clear statement of the requester's interest in the records;
    (ii) The proposed use of the records and whether the requester will 
derive income or other benefit from such use;
    (iii) A statement of how the public will benefit from release of 
the requested records; and
    (iv) If specialized use of the documents is contemplated, a 
statement of the requester's qualifications that are relevant to the 
specialized use.
    (5) A requester may appeal the denial of a request for a waiver or 
reduction of fees in accordance with the provisions of Sec. 1601.23.


Sec. 1601.33  Miscellaneous fee provisions.

    (a) Notice of anticipated fees in excess of $25. Where the CSB 
determines or estimates that the fees chargeable will amount to more 
than $25, the CSB shall promptly notify the requester of the actual or 
estimated amount of fees or such portion thereof that can be readily 
estimated, unless the requester has indicated his or her willingness to 
pay fees as high as those anticipated. Where a requester has been 
notified that the actual or estimated fees may exceed $25, the request 
will be deemed not to have been received until the requester has agreed 
to pay the anticipated total fee. A notice to the requester pursuant to 
this paragraph will include the opportunity to confer with CSB 
personnel in order to reformulate the request to meet the requester's 
needs at a lower cost.
    (b) Aggregating requests. A requester may not file multiple 
requests at the same time, each seeking portions of a record or 
records, solely in order to avoid the payment of fees. When the CSB 
reasonably believes that a requester, or a group of requesters acting 
in concert, is attempting to break a request into a series of requests 
for the purpose of evading the assessment of fees, the CSB may 
aggregate such requests and charge accordingly. One element to be 
considered in determining whether a belief would be reasonable is the 
time period over which the requests have occurred. The CSB will presume 
that multiple requests of this type made within a 30-day period have 
been made in order to evade fees. Where requests are separated by a 
longer period, the CSB shall aggregate them only where there exists a 
solid basis for determining that such aggregation is warranted, e.g., 
where the requests involve clearly related matters. Multiple requests 
regarding unrelated matters will not be aggregated.
    (c) Advance payment of fees. (1) The CSB does not require an 
advance payment before work is commenced or continued, unless:
    (i) The CSB estimates or determines that the fees are likely to 
exceed $250. If it appears that the fees will exceed $250, the CSB will 
notify the requester of the likely cost and obtain satisfactory 
assurance of full payment where the requester has a history of prompt 
payment of FOIA fees. In the case of requesters with no history of 
payment, the CSB may require an advance payment of fees in an amount up 
to the full estimated charge that will be incurred; or
    (ii) The requester has previously failed to pay a fee in a timely 
fashion, i.e., within 30 days of the date of a billing. In such cases, 
the CSB may require the requester to pay the full amount owed plus any 
applicable interest, as provided in paragraph (d) of this section, or 
demonstrate that the fee owed has been paid, prior to processing any 
further record request. Under these circumstances, the CSB may require 
the requester to make an advance payment of the full amount of the fees 
anticipated before processing a new request or finishing processing of 
a pending request from that requester.
    (2) A request for an advance deposit shall ordinarily include an 
offer to the requester to confer with identified CSB personnel to 
attempt to reformulate the request in a manner which will meet the 
needs of the requester at a lower cost.
    (3) When the CSB requests an advance payment of fees, the 
administrative time limits described in 5 U.S.C. 552(a)(6) begin only 
after the CSB has received the advance payment.
    (d) Interest. The CSB may assess interest charges on an unpaid bill 
starting on the 31st day following the day on which the bill was sent. 
Once a fee payment has been received by the CSB, even if not processed, 
the accrual of interest shall be stayed. Interest charges shall be 
assessed at the rate prescribed in 31 U.S.C. 3717 and shall accrue from 
the date of the billing.
    (e) Whenever a total fee calculated under paragraph (d) of this 
section is $14.00 or less for any request, no fee will be charged.

    Dated: September 26, 2000.
Christopher W. Warner,
General Counsel
[FR Doc. 00-25300 Filed 10-3-00; 8:45 am]
BILLING CODE 6350-01-U