Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70499

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[FR Doc. 00–30004 Filed 11–22–00; 8:45 am]

BILLING CODE 6560–50–P

CHEMICAL SAFETY AND HAZARD

INVESTIGATION BOARD

40 CFR Part 1601

Freedom of Information Act Program

AGENCY: Chemical Safety and Hazard

Investigation Board

ACTION: Final rule.

SUMMARY: The Chemical Safety and

Hazard Investigation Board adopts

regulations establishing policies and

procedures 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: This rule is effective December

26, 2000.

FOR FURTHER INFORMATION CONTACT: Ray

Porfiri, 202–261–7629.

SUPPLEMENTARY INFORMATION: In the

Federal Register of October 4, 2000 (65

FR 59155), the Chemical Safety and

Hazard Investigation Board published a

proposed rule setting forth its proposed

procedures for disclosure of records

under the Freedom of Information Act

(FOIA). The proposed rule provided for

a 30-day comment period. No comments

were received in response to the

proposed rule and invitation for

comments. This final rule is unchanged

from the proposed rule.

These regulations implement the

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 adopts

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.

Regulatory Flexibility Act

The Board, in accordance with the

Regulatory Flexibility Act, 5 U.S.C.

605(b), has reviewed this regulation and

by adopting 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, Public Law 104–4,

109 Stat. 48.

List of Subjects in 40 CFR Part 1601

Administrative practice and

procedure, Archives and records,

Freedom of information.

Chapter VI—Chemical Safety and Hazard

Investigation Board

For the reasons set forth in the

preamble, the Chemical Safety and

Hazard Investigation Board establishes

40 CFR Chapter VI—Chemical Safety

and Hazard Investigation Board,

consisting of parts 1600 through 1699,

reserves parts 1600 and 1602 through

1699, and adds part 1601 to read as

follows:

PART 1600 [RESERVED]

PART 1601—PROCEDURES FOR

DISCLOSURE OF RECORDS UNDER

THE FREEDOM OF INFORMATION ACT

PART 1602–1699 [RESERVED]

Subpart A—Purpose, Scope, and

Applicability

Sec.

1601.1 Purpose and scope.

1601.2 Applicability.

1601.3 Definitions.

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.

PART 1600 [RESERVED]

PART 1601—PROCEDURES FOR

DISCLOSURE OF RECORDS UNDER

THE FREEDOM OF INFORMATION ACT

PART 1602–1699 [RESERVED]

Subpart A—Purpose, Scope, and

Applicability

§ 1601.1 Purpose and scope.

This part contains the regulations of

the United States 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.

§ 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.

§ 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.

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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, audiovisual 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.

Working day means a Federal

workday that does not include

Saturdays, Sundays, or Federal

holidays.

Subpart B—Administration

§ 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.

§ 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.

§ 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 subjectmatter 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

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in accordance with the provisions of

§§ 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

§ 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, United States 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 § 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

§§ 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.

§ 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.

§ 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

of the CSB. The response letter will also

inform the requester of any fees to be

charged in accordance with the

provisions of §§ 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 § 1601.23 and a

description of the requirements of that

section.

§ 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, United States

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 § 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).

70502 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

§ 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 § 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

(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.

§ 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. 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

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70503

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 § 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.

§ 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

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

§ 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

§ 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.

70504 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

(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 § 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.

§ 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 § 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 § 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

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 § 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 81⁄2 × 11 inches or 11 × 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.

§ 1601.32 Limitations on charging fees.

(a) In general. Except for requesters

seeking records for a commercial use as

described in § 1601.31(b), the CSB will

provide, without charge, the first 100

Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations 70505

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.

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

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 § 1601.23.

§ 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

70506 Federal Register / Vol. 65, No. 227 / Friday, November 24, 2000 / Rules and Regulations

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: November 16, 2000.

Christopher W. Warner,

General Counsel.

[FR Doc. 00–29973 Filed 11–22–00; 8:45 am]

BILLING CODE 6350–01–U

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Office of the Secretary

Office of Inspector General

45 CFR Part 61

RIN 0906–AA46

Health Care Fraud and Abuse Data

Collection Program: Reporting of Final

Adverse Actions; Correction

AGENCY: Office of Inspector General

(OIG), HHS.

ACTION: Final rule; correction

amendment.

SUMMARY: This document contains a

correction to the final regulations which

were published in the Federal Register

on October 26, 1999 (64 FR 57740).

These regulations established a national

health care fraud and abuse data

collection program for the reporting and

disclosing of certain adverse actions

taken against health care providers,

suppliers and practitioners, and for

maintaining a data base of final adverse

actions taken against health care

providers, suppliers and practitioners.

An inadvertent error appeared in the

text of the regulations concerning the

definition of the term ‘‘health plan.’’ As

a result, we are making a correction to

45 CFR 61.3, Definitions, to assure the

technical correctness of these

regulations.

EFFECTIVE DATE: November 24, 2000.

FOR FURTHER INFORMATION CONTACT: Joel

Schaer, OIG Regulations Officer, (202)

619–0089.

SUPPLEMENTARY INFORMATION: The HHS

Office of Inspector General (OIG) issued

final regulations on October 26, 1999

(64 FR 57740) that established a

national health care fraud and abuse

data collection program—the Healthcare

Integrity and Protection Data Bank

(HIPDB)—for the reporting and

disclosing of certain final adverse

actions taken against health care

providers, suppliers and practitioners,

and for maintaining a data base of final

adverse actions taken against health care

providers, suppliers and practitioners.

The final rule established a new 45 CFR

part 61 to implement the requirements

for reporting of specific data elements

to, and procedures for obtaining

information from, the HIPDB. In that

final rule, an inadvertent error appeared

in § 61.3—the definitions section of the

regulations—and is now being

corrected.

Section 61.3 expanded on previous

regulatory definitions and provided

additional examples of the scope of

various terms set fort in the statute. In

the preamble of the final rule, we

reiterated that the statutory intent of the

definition for the term ‘‘health plan’’

was not meant to be exclusive or

exhaustive, and interpreted

congressional use of the word

‘‘includes’’ in the statutory definition of

this term as an indication that

additional entities may be recognized as

‘‘health plans’’ if they meet the basic

definition of providing health benefits.

The preamble of the final rule stated

that the statutory language indicated

that Congress intended that guarantors

of payment for health care items and

services—including ‘‘self insured

employers’’ who are often the subjects

of health care fraud—have access to

HIPDB information. As a result, in order

to make the term more inclusive, we

indicated our intention of modifying the

fourth element defining this term to

include, but not be limited to, a plan,

program, agreement or other mechanism

established, maintained or made

available by a self insured employer or

group of self insured employers. This

clarifying language, however, was not

properly reflected in the regulatory text

that appeared in the October 26, 1999

final regulations.

To be consistent with the intent of the

final rule’s preamble, we are correcting

the inadvertent error that appeared in

§ 61.3 that failed to accurately reflect the

definition of the term ‘‘health plan.’’

List of Subjects in 45 CFR Part 61

Billing and transportation services,

Durable medical equipment suppliers

and manufacturers, Health care insurers,

Health maintenance organizations,

Health professions, Home health care

agencies, Hospitals, Penalties,

Pharmaceutical suppliers and

manufacturers, Privacy, Reporting and

recordkeeping requirements, Skilled

nursing facilities.

Accordingly, 45 CFR part 61 is

corrected by making the following

correcting amendment.