[Federal Register Volume 63, Number 116 (Wednesday, June 17, 1998)]
[Proposed Rules]
[Pages 33023-33033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15948]


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GENERAL SERVICES ADMINISTRATION

41 CFR Part 105-60

RIN 3090-AG16


Public Availability of Agency Records and Informational Materials

AGENCY: Office of Management and Workplace Programs, GSA.

ACTION: Proposed rule.

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SUMMARY: The General Services Administration (GSA) proposes to revise 
its regulations which implement the Freedom of Information Act (FOIA), 
to incorporate the requirements of the Electronic Freedom of 
Information Act Amendments of 1996, 5 U.S.C. 552, as amended by Public 
Law 104-231.

DATES: Comments must be received by July 17, 1998.

ADDRESSES: Comments should be submitted to the Freedom of Information 
Officer (CAI), General Services Administration, 1800 F Street, NW., 
Washington, DC 20405.

FOR FURTHER INFORMATION CONTACT: Mary Cunningham, GSA Freedom of 
Information Act (FOIA) Officer (202-501-3415); or Helen C. Maus, Office 
of General Counsel (202-501-1460).


[[Page 33024]]


SUPPLEMENTARY INFORMATION: This rule was not submitted to the Office of 
Management and Budget pursuant to Executive Order 12866 of September 
30, 1993, Regulatory Planning and Review, because it is not a 
significant regulatory action as defined in Executive Order 12866. The 
Paperwork Reduction Act does not apply because the rule does not impose 
information collection requirements that require the approval of the 
Office of Management and Budget under 44 U.S.C. Sec. 3501, et seq.
    The principles of Executive Order 12988 of February 5, 1996, Civil 
Justice Reform, have been incorporated where applicable.
    The Administrator certifies that this regulatory amendment will not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. Sec. Sec. 601-612. Pursuant to 5 U.S.C. Sec. 605(b), this rule 
is therefore exempt from the initial and final regulatory flexibility 
analyses requirements of sections 603 and 604.

Comprehensive Summary

    I. Implementation of the FOIA. These regulations implement the FOIA 
which codified Pub. L. 89-487 and amended section 3 of the 
Administrative Procedure Act, formerly 5 U.S.C. 1002 (1964 ed.). These 
regulations also implement Pub. L. 93-502, popularly known as the 
Freedom of Information Act Amendments of 1974, as amended by Pub. L. 
99-570, the Freedom of Information Reform Act of 1986; the Electronic 
Freedom of Information Act Amendments of 1996, 5 U.S.C. 552, as amended 
by Public Law 104-213; and Executive Order 12600, Predisclosure 
Notification Procedures for Confidential Commercial Information, of 
June 23, 1987.
    The revisions also update organizational references.
    For the reasons set out in the preamble, 41 CFR Part 105-60 is 
proposed to be revised to read as follows:

PART 105-60--PUBLIC AVAILABILITY OF AGENCY RECORDS AND 
INFORMATIONAL MATERIALS

Sec.
105-60.000  Scope of part.

Subpart 105-60.1--General Provisions

105-60.101  Purpose
105-60.102  Application.
105-60.103  Policy.
105-60.103-1  Availability of records.
105-60.103-2  Applying exemptions.
105-60.104  Records of other agencies.
Subpart 105-60.2--Publication of General Agency Information and Rules 
in the Federal Register
105-60.201  Published information and rules.
105-60.202  Published materials available for sale to the public.
Subpart 105-60.3--Availability of Opinions, Orders, Policies, 
Interpretations, Manuals, and Instructions
105-60.301  General.
105-60.302  Available materials.
105-60.303  Rules for public inspection and copying.
105-60.304  Public Information Handbook and Index.
105-60.305  Fees.
105-60.305-1  Definitions.
105-60.305-2  Scope of subpart.
105-60.305-3  GSA records available without charge.
105-60.305-4  GSA records available at a fee.
105-60.305-5  Searches.
105-60.305-6  Reviews.
105-60.305-7  Assurance of payment.
105-60.305-8  Prepayment of fees.
105-60.305-9  Form of payment.
105-60.305-10  Fee schedule.
105-60.305-11  Fees for authenticated and attested copies.
105-60.305-12  Administrative actions to improve assessment and 
collection of fees.
105-60.305-13  Waiver of fee.

Subpart 105-60.4--Described Records

105-60.401  General
105-60.402  Procedures for making records available.
105-60.402-1  Submission of requests.
105-60.402-2  Response to initial requests.
105-60.403  Appeal within GSA.
105-60.404  Extension of time limits.
105-60.405  Processing requests for confidential commercial 
information.

Subpart 105-60.5--Exemptions

105-60.501  Categories of records exempt from disclosure under the 
FOIA.
Subpart 105-60.6--Production or Disclosure by Present or Former General 
Services Administration Employees in Response to Subpoenas or Similar 
Demands in Judicial or Administrative Proceedings
105-60.601  Purpose of scope of subpart.
105-60.602  Definitions.
105-60.603  Acceptance of service of a subpoena duces tecum or other 
legal demand on behalf of the General Services Administration.
105-60.604  Production or disclosure prohibited unless approved by 
the Appropriate Authority.
105-60.605  Procedure in the event of a demand for production or 
disclosure.
105-60.606  Procedure where response to demand is required prior to 
receiving instructions.
105-60.607  Procedure in the event of an adverse ruling.
105-60.608  Fees, expenses, and costs.

    Authority: 5 U.S.C. 301 and 552; 40 U.S.C. 486(c).


Sec. 105-60.000  Scope of part.

    (a) This part sets forth policies and procedures of the General 
Services Administration (GSA) regarding public access to records 
documenting:
    (1) Agency organization, functions, decisionmaking channels, and 
rules and regulations of general applicability;
    (2) Agency final options and orders, including policy statements 
and staff manuals;
    (3) Operational and other appropriate agency records; and
    (4) Agency proceedings.
    (b) This part also covers exemptions from disclosure of these 
records; procedures for the public to inspect or obtain copies of GSA 
records; and instructions to current and former GSA employees on the 
response to a subpoena or other legal demand for material or 
information received or generated in the performance of official duty 
or because of the person's official status.
    (c) Any policies and procedures in any GSA internal or external 
directive inconsistent with the policies and procedures set forth in 
this part are superseded to the extent of that inconsistency.

Subpart 105-60.1--General Provisions


Sec. 105-60.101  Purpose.

    This part 105-60 implements the provisions of the Freedom of 
Information Act (FOIA), as amended, 5 U.S.C. 552. The regulations in 
this part also implement Executive Order 12600, Predisclosure 
Notification Procedures for Confidential Commercial Information, of 
June 23, 1987 (3 CFR, 1987 Comp., p. 235). This part prescribes 
procedures by which the public may inspect and obtain copies of GSA 
records under the FOIA, including administrative procedures which must 
be exhausted before a requester invokes the jurisdiction of an 
appropriate United States District Court for GSA's failure to respond 
to a proper request within the statutory time limits, for a denial of 
agency records or challenge to the adequacy of a search, or for a 
denial of a fee waiver.


Sec. 105-60.102  Application.

    This part applies to all records and informational materials 
generated, maintained, and controlled by GSA that come within the scope 
of 5 U.S.C. 552.


Sec. 105-60.103  Policy.


Sec. 105-60.103-1  Availability of records.

    The policies of GSA with regard to the availability of records to 
the public are:
    (a) GSA records are available to the greatest extent possible in 
keeping with

[[Page 33025]]

the spirit and intent of the FOIA. GSA will disclose information in any 
existing GSA record, with noted exceptions, regardless of the form or 
format of the record. GSA will provide the record in the form or format 
requested if the record is reproducible by the agency in that form or 
format without significant expenditure of resources. GSA will make 
reasonable efforts to maintain its records in forms or formats that are 
reproducible for purposes of this section.
    (d) The person making the request does not need to demonstrate an 
interest in the records or justify the request.
    (c) The FOIA does not give the public the right to demand that GSA 
compile a record that does not already exist. For example, FOIA does 
not require GSA to collect and compile information from multiple 
sources to create a new record. GSA may compile records or perform 
minor reprogramming to extract records from a database or system when 
doing so will not significantly interfere with the operation of the 
automated system in question or involve a significant expenditure of 
resources.
    (b) Similarly, FOIA does not require GSA to reconstruct records 
that have been destroyed in compliance with disposition schedules 
approved by the Archivist of the United States. However, GSA will not 
destroy records after a member of the public has requested access to 
them and will process the request even if destruction would otherwise 
be authorized.
    (e) If the record requested is not complete at the time of the 
request, GSA may, at its discretion, inform the requester that the 
complete record will be provided when it is available, with no 
additional request required, if the record is not exempt from 
disclosure.
    (f) Requests must be addressed to the office identified in 
Sec. 105-60.402-1.
    (g) Fees for locating and duplicating records are listed in 
Sec. 105-60.305-10.


Sec. 105-60.103-2  Applying exemptions.

    GSA may deny a request for a GSA record if it falls within an 
exemption under the FOIA outlined in subpart 105-60.5 of this part. 
Except when a record is classified or when disclosure would violate any 
Federal statute, the authority to withhold a record from disclosure is 
permissive rather than mandatory. GSA will not withhold a record unless 
there is a compelling reason to do so; i.e., disclosure will likely 
cause harm to a Governmental or private interest. In the absence of a 
compelling reason, GSA will disclose a record even if it otherwise is 
subject to exemption. GSA will cite the compelling reason(s) to 
requesters when any record is denied under FOIA.


Sec. 105-60.104  Records of other agencies.

    If GSA receives a request for access to records that are known to 
be the primary responsibility of another agency, GSA will refer the 
request to the agency concerned for appropriate action. For example, 
GSA will refer requests to the appropriate agency in cases in which GSA 
does not have sufficient knowledge of the action or matter that is the 
subject of the requested records to determine whether the records must 
be released or may be withheld under one of the exemptions listed in 
subpart 105-60.5. If GSA does not have the requested records, the 
agency will attempt to determine whether the requested records exist at 
another agency and, if possible, will forward the request to that 
agency. GSA will inform the requester that GSA has forwarded the 
request to another agency.

Subpart 105-60.2--Publication of General Agency Information and 
Rules in the Federal Register


Sec. 105-60.201  Published information and rules.

    In accordance with 5 U.S.C. 552(a)(1), GSA publishes in the Federal 
Register, for the guidance of the public, the following general 
information concerning GSA:
    (a) Description of the organization of the Central Office and 
regional offices and the established places at which, the employees 
from whom, and the methods whereby, the public may obtain information, 
make submittals or requests, or obtain decisions;
    (b) Statements of the general course and method by which its 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available;
    (c) Rules of procedure, descriptions of forms available or the 
places where forms may be obtained, and instructions on the scope and 
contents of all papers, reports, or examinations;
    (d) Substantive rules of general applicability adopted as 
authorized by law, and statements of general policy or interpretations 
of general applicability formulated and adopted by GSA; and
    (e) Each amendment, revision, or repeal of the materials described 
in this section.


Sec. 105-60.202  Published materials available for sale to the public.

    (a) Substantive rules of general applicability adopted by GSA as 
authorized by law that this agency publishes in the Federal Register 
and which are available for sale to the public by the Superintendent of 
Documents at pre-established prices are: The General Services 
Administration Acquisition Regulation (48 CFR Ch. 5), the Federal 
Acquisition Regulation (48 CFR Ch. 1), the Federal Property Management 
Regulations (41 CFR Ch. 101), and The Federal Travel Regulation (41 CFR 
Ch. 301-304).
    (b) GSA also provides technical information, including manuals and 
handbooks, to other Federal entities, e.g., the National Technical 
Information Service, with separate statutory authority to make 
information available to the public at pre-established fees.
    (c) Requests for information available through the sources in 
paragraph (a) and (b) of this section will be referred to those 
sources.

Subpart 105-60.3--Availability of Opinions, Orders, Policies, 
Interpretations, Manuals, and Instructions


Sec. 105-60.301   General.

    GSA makes available to the public the materials described under 5 
U.S.C. 552(a)(2), which are listed in Sec. 105-60.302 through an 
extensive electronic home page, http://www.gsa.gov/. A public handbook 
listing those materials as described in Sec. 105-60.304 is available at 
GSA's Central Office in Washington, DC, and at the website at <a href="http://
www.gsa.gov/staff/c/ca/publ.htm">http://
www.gsa.gov/staff/c/ca/publ.htm</a>. Members of the public who do not have 
the means to access this information electronically, and who are not 
located in the Washington, DC area, may contact the Freedom of 
Information Act office in any of the regional offices listed in this 
regulation. These offices will make arrangements for members of the 
public to access the information at a computer located at the FOIA 
office. Reasonable copying services are provided at the fees specified 
in Sec. 105-60.305.


Sec. 105-60.302   Available materials.

    GSA materials available under this subpart 105-60.3 are as follows:
    (a) Final opinions, including concurring and dissenting opinions 
and orders, made in the adjudication of cases.
    (b) Those statements and policy and interpretations that have been 
adopted by GSA and are not published in the Federal Register.
    (c) Administrative staff manuals and instructions to staff 
affecting a member of the public unless these materials are promptly 
published and copies offered for sale.

[[Page 33026]]

Sec. 105-60.303   Rules for public inspection and copying.

    (a) Locations. Selected areas containing the materials available 
for public inspection and copying, described in this section 105-
60.302, are located in the following places:

Central Office (GSA Headquarters)
    General Services Administration, Washington, DC, Telephone: 202-
501-2262, FAX: 202-501-2727, Email: <a href="/cdn-cgi/l/email-protection#315642501f575e5850715642501f565e47"><span class="__cf_email__" data-cfemail="365145571850595f577651455718515940">[email protected]</span></a>, 1800 F Street, 
NW (CAI), Washington, DC 20405
Office of the Inspector General
    FOIA Officer, Office of Inspector General (J), General Services 
Administration, 1800 F Street NW., Room 5324, Washington, DC 20405
New England Region
    General Services Administration (1AB) (Comprised of the States 
of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, 
and Vermont), Thomas P. O'Neill, Jr., Federal Building, 10 Causeway 
Street, Boston, MA 02222, Telephone: 617-565-8100, FAX: 617-565-8101
Northeast and Caribbean Region
    (Comprised of the States of New Jersey, New York, the 
Commonwealth of Puerto Rico, and the Virgin Islands), General 
Services Administration (2AR), 26 Federal Plaza, New York, NY 10278, 
Telephone: 212-264-1234, FAX: 212-264-2760
Mid-Atlantic Region
    (Comprised of the States of Delaware, Maryland, Pennsylvania, 
Virginia, and West Virginia, excluding the Washington, DC 
metropolitan area)
    General Services Administration (3ADS), 100 Penn Square East, 
Philadelphia, PA 19107, Telephone: 215-656-5530, FAX: 215-656-5590
Southeast Sunbelt Region
    (Comprised of the States of Alabama, Florida, Georgia, Kentucky, 
Mississippi, North Carolina, South Carolina, and Tennessee)
    General Services Administration (4E), 401 West Peachtree Street, 
Atlanta, GA 30365, Telephone: 404-331-5103, FAX: 404-331-1813
Great Lakes Region
    (Comprised of the States of Illinois, Indiana, Ohio, Minnesota, 
Michigan, and Wisconsin)
    General Services Administration (5ADB), 230 South Dearborn 
Street, Chicago, IL 60604, Telephone: 312-353-5383, FAX: 312-353-
5385
Heartland Region
    (Comprised of the States of Iowa, Kansas, Missouri, and 
Nebraska)
    General Services Administration (6ADB), 1500 East Bannister 
Road, Kansas City, MO 64131, Telephone: 816-926-7203, FAX: 816-823-
1167
Greater Southwest Region
    (Comprised of the States of Arkansas, Louisiana, New Mexico, 
Texas, and Oklahoma)
    General Services Administration (7ADQ), 819 Taylor Street, Fort 
Worth, TX 76102, Telephone: 817-978-3902, FAX: 817-978-4867
Rock Mountain Region
    (Comprised of the States of Colorado, North Dakota, South 
Dakota, Montana, Utah, and Wyoming)
    Business Service Center, General Services Administration (8PB-
B), Building 41, Denver Federal Center, Denver, CO 80225, Telephone: 
303-236-7408, FAX: 303-236-7403
Pacific Rim Region
    (Comprised of the States of Hawaii, California, Nevada, Arizona, 
Guam, and Trust Territory of the Pacific)
    Business Service Center, General Services Administration (9ADB), 
525 Market Street, San Francisco, CA 94105, Telephone: 415-522-2715, 
FAX: 415-522-2705
Northwest/Arctic Region
    (Comprised of the States of Alaska, Idaho, Oregon, and 
Washington)
    General Services Administration (10L), GSA Center, 15th and C 
Streets, SW., Auburn, WA 98002, Telephone: 206-931-7007, FAX: 206-
931-7195
National Capital Region
    (Comprised of the District of Columbia and the surrounding 
metropolitan area)
    General Services Administration (WPFA-L), 7th and D Streets SW., 
Washington, DC 20407, Telephone: 202-708-5854, FAX: 202-708-4655

    (b) Time. The offices listed in paragraph (a) of this section will 
be open to the public during the business hours of the GSA office where 
they are located.
    (c) Reproduction services and fees. The GSA Central Office or the 
Regional Business Service Centers will furnish reasonable copying and 
reproduction services for available materials at the fees specified in 
Sec. 105-60.305.


Sec. 105-60.304  Public Information Handbook and Index.

    GSA publishes a handbook for the public that identifies information 
regarding any matter described in Sec. 105-60.302. This handbook also 
lists published information available from GSA and describes the 
procedures the public may use to obtain information using the Freedom 
of Information Act (FOIA). This handbook may be obtained without charge 
from any of the GSA FOIA offices listed in Sec. 105-60.303(a), or at 
the GSA Internet Homepage (<a href="http://www.gsa.gov/staff/c/ca/cai/
foiabk.htm">http://www.gsa.gov/staff/c/ca/cai/
foiabk.htm</a>).


Sec. 105-60.305  Fees.


Sec. 105-60.305-1  Definitions.

    For the purpose of this part:
    (a) A statute specifically providing for setting the level of fees 
for particular types of records (5 U.S.C. 552(a)(4)(A)(vii)) means any 
statute that specifically requires a Government agency to set the level 
of fees for particular types of records, as opposed to a statute that 
generally discusses such fees. Fees are required by statute to:
    (1) Make Government information conveniently available to the 
public and to private sector organizations;
    (2) Ensure that groups and individuals pay the cost of publications 
and other services which are for their special use so that these costs 
are not borne by the general taxpaying public;
    (3) Operate an information dissemination activity on self-
sustaining basis to the maximum extent possible; or
    (4) Return revenue to the Treasury for defraying, wholly or in 
part, appropriated funds used to pay the cost of disseminating 
Government information.
    (b) The term direct costs means those expenditures which GSA 
actually incurs in searching for and duplicating (and in the case of 
commercial requesters, reviewing and redacting) documents to respond to 
a FOIA request. Direct costs include, for example, the salary of the 
employee performing the work (the basic rate of pay for the employee 
plus 16 percent of that rate to cover benefits), and the cost of 
operating duplicating machinery. Overhead expenses such as costs of 
space, and heating or lighting the facility where the records are 
stored are not included in direct costs.
    (c) The term search includes all time spent looking for material 
that is responsive to a request, including line-by-line identification 
of material within documents. Searches will be performed in the most 
efficient and least expensive manner so as to minimize costs for both 
the agency and the requester. Line-by-line searches will not be 
undertaken when it would be more efficient to duplicate the entire 
document. ``Search'' for responsive material is not the same as 
``review'' of a record to determine whether it is exempt from 
disclosure in whole or in part (see paragraph c of this section). 
Searches may be done manually or by computer using existing programming 
or are programming when this would not significantly interfere with the 
operation of the automated system in question.
    (d) The term duplication means the process of making a copy of a 
document in response to a FOIA request. Copies can take the form of 
paper, microform, audiovisual materials, or magnetic tapes or disks. To 
the extent practicable, GSA will provide a copy of the material in the 
form specified by the requester.
    (e) The term review means the process of examining documents 
located in response to a request to determine if any portion of that 
document is permitted to be withheld and processing any

[[Page 33027]]

documents for disclosure. See Sec. 015-60.305-6.
    (f) The term commercial-use request means a request from or on 
behalf of one who seeks information for a use or purpose that furthers 
the commercial, trade, or profit interests of the requester or person 
on whose behalf the request is made. GSA will determine whether a 
requester properly belongs in this category by determining how the 
requester will use the documents.
    (g) The term educational institution means a preschool, a public or 
private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education which operates a program or programs of scholarly research.
    (h) The term noncommercial scientific institution means an 
institution that is not operated on a ``commercial'' basis as that 
terms is used in paragraph (f) of this section and which is operated 
solely for the purpose of conducting scientific research the results of 
which are not intended to promote any particular product or industry.
    (i) The term representative of the news media means any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media include television or 
radio stations broadcasting to the public at large, and publishers of 
periodicals (but only in those instances when they can qualify as 
disseminators of ``news'') who make their products available for 
purchase or subscription by the general public. ``Freelance'' 
journalists will be regarded as working for a news organization if they 
can demonstrate a solid basis for expecting publication through that 
organization even though they are not actually employed by it.


Sec. 105-60.305-2  Scope of this subpart.

    This subpart sets forth policies and procedures to be followed in 
the assessment and collection of fees from a requester for the search, 
review, and reproduction of GSA records.


Sec. 105-60.305-3  GSA records available without charge.

    GSA records available to the public are displayed in the Business 
Service Center for each GSA region. The address and phone number of the 
Business Service Centers are listed in Sec. 105-60.303. Certain 
material related to bids (excluding construction plans and 
specifications) and any material displayed are available without charge 
upon request.


Sec. 105-60.305-4  GSA records available at a fee.

    (a) GSA will make a record not subject to exemption available at a 
time and place mutually agreed upon by GSA and the requester at fees 
shown in Sec. 105-60.305-10. Waivers of these fees are available under 
the conditions described in Sec. 105-60.305.13. GSA will agree to:
    (1) Show the originals to the requester;
    (2) Make one copy available at a fee; or
    (3) A combination of these alternatives.
    (b) GSA will make copies of voluminous records as quickly as 
possible. GSA may, in its discretion, make a reasonable number of 
additional copies for a fee when commercial reproduction services are 
not available to the requester.


Sec. 105-60.305-5  Searches.

    (a) GSA may charge for the time spent in the following activities 
in determining ``search time'' subject to applicable fees as provided 
in Sec. 105-60.305-10:
    (1) Time spent in trying to locate GSA records which come within 
the scope of the request;
    (2) Time spent in either transporting a necessary agency searcher 
to a place of record storage, or in transporting records to the 
locations of a necessary agency searcher; and
    (3) Direct costs of the use of computer time to locate and extract 
requested records.
    (b) GSA will not charge for the time spent in monitoring a 
requester's inspection of disclosed agency records.
    (c) GSA may assess fees for search time even if the search proves 
unsuccessful or if the records located are exempt from disclosure.


Sec. 105-60.305-6  Reviews.

    (a) GSA will charge only commercial-use requesters for review time.
    (b) GSA will charge for the time spent in the following activities 
in determining ``review time'' subject to applicable fees as provided 
in Sec. 105-60.305-10:
    (1) Time spent in examining a requested record to determine whether 
any or all of the record is exempt from disclosure, including time 
spent consulting with submitters of requested information; and
    (2) Time spent in deleting exempt matter being withheld from 
records otherwise made available.
    (c) GSA will not charge for:
    (1) Time spent in resolving issues of law or policy regarding the 
application of exemptions; or
    (2) Review at the administrative appeal level of an exemption 
already applied. However, records or portions of records withheld in 
full under an exemption which is subsequently determined not to apply 
may be reviewed again to determine the applicability of other 
exemptions not previously considered. GSA will charge for such 
subsequent review.


Sec. 105-60.305-7  Assurance of payment.

    If fees for search, review, and reproduction will exceed $25 but 
will be less than $250, the requester must provide written assurance of 
payment before GSA will process the request. If this assurance is not 
included in the initial request, GSA will notify the requester that 
assurance of payment is required before the request is processed. GSA 
will offer requesters an opportunity to modify the request to reduce 
the fee.


Sec. 105-60.305-8  Prepayment of fees.

    (a) Fees over $250. GSA will require prepayment of fees for search, 
review, and reproduction which are likely to exceed $250. When the 
anticipated total fee exceeds $250, the requester will receive notice 
to prepay and at the same time will be given an opportunity to modify 
his or her request to reduce the fee. When fees will exceed $250, GSA 
will notify the requester that it will not start processing a request 
until payment is received.
    (b) Delinquent payments. As noted in Sec. 105-60.305-12(d), 
requesters who are delinquent in paying for previous requests will be 
required to repay the old debt and to prepay for any subsequent 
request. GSA will inform the requester that it will process no 
additional requests until all fees are paid.


Sec. 105-60.305-9  Form of payment.

    Requesters should pay fees by check or money order made out to the 
General Services Administration and addressed to the official named by 
GSA in its correspondence. Payment may also be made by means of 
Mastercard or Visa. For information concerning payment by credit cards, 
call 816-926-7551.


Sec. 105-60.305-10  Fee schedule.

    (a) When GSA is aware that documents responsive to a request are 
maintained for distribution by an agency operating a statutory fee 
based program, GSA will inform the requester of the procedures for 
obtaining records from those sources.

[[Page 33028]]

    (b) GSA will consider only the following costs in fees charged to 
requesters of GSA records:
    (1) Review and search fees.

    Manual searches by clerical staff: $13 per hour or fraction of 
an hour.
    Manual searches and reviews by professional staff in cases in 
which clerical staff would be unable to locate the requested 
records: $29 per hour or fraction of an hour.
    Computer searches: Direct cost to GSA.
    Transportation or special handling of records: Direct cost to 
GSA.

    (2) Reproduction fees. 

    Pages no larger than 8\1/2\ by 14 inches, when reproduced by 
routine electrostatic copying: 10 cents per page.
    Pages over 8\1/2\ by 14 inches: Direct cost of reproduction to 
GSA.
    Pages requiring reduction, enlargement, or other special 
services: Direct cost of reproduction to GSA.
    Reproduction by other than routine electrostatic copying: Direct 
cost of reproduction to GSA.

    (c) Any fees not provided for under paragraph (b) of this section, 
shall be calculated as direct costs, in accordance with Sec. 105-
60.305-1(b).
    (d) GSA will assess fees based on the category of the requester as 
defined in Sec. 105-60.305-1(f) through (i); i.e., commercial-use, 
educational and noncommercial scientific institutions, news media, and 
all other. The fees listed in paragraph (b) of this section apply with 
the following exceptions:
    (1) GSA will not charge the requester if the fee is $25 or less as 
the cost of collection is greater than the fee.
    (2) Educational noncommercial scientific institutions and the news 
media will be charged for the cost of reproduction alone. These 
requesters are entitled to the first 100 pages (paper copies) of 
duplication at no cost. The following are examples of how these fees 
are calculated:
    (i) A request that results in 150 pages of material. No fee would 
be assessed for duplication of 150 pages. The reason is that these 
requesters are entitled to the first 100 pages at no charge. The charge 
for the remaining 50 pages would be $5.00. This amount would not be 
billed under the preceding section.
    (ii) A request that results in 450 pages of material. The requester 
in this case would be charged $35.00. The reason is that the requester 
is entitled to the first 100 pages at no charge. The charge for the 
remaining 350 pages would be $35.
    (3) Noncommercial requesters who are not included under paragraph 
(d)(2) of this section will be entitled to the first 100 pages (paper 
copies) of duplication at no cost and two hours of search without 
charge. The term ``search time'' generally refers to manual search. To 
apply this term to searches made by computer, GSA will determine the 
hourly cost of operating the central processing unit and the operator's 
hourly salary plus 16 percent. When the cost of search (including the 
operator time and the cost of operating the computer to process a 
request) reaches the equivalent dollar amount of two hours of the 
salary of the person performing a manual search, i.e., the operator, 
GSA will begin assessing charges for computer search.
    (4) GSA will charge commercial-use requesters fees which recover 
the full direct costs of searching for, reviewing for release, and 
duplicating the records sought. Commercial-use requesters are not 
entitled to two hours of free search time.
    (e) Determining category of requester. GSA may ask any requester to 
provide additional information at any time to determine what fee 
category he or she falls under.


Sec. 105-60.305-11  Fees for authenticated and attested copies.

    The fees set forth in Sec. 105-60.30510 to apply to requests for 
authenticated and attested copies of GSA records.


Sec. 105-60.305-12  Administrative actions to improve assessment and 
collection of fees.

    (a) Charging interest. GSA may charge requesters who fail to pay 
fees interest on the amount billed starting on the 31st day following 
the day on which the billing was sent. Interest will be at the rate 
prescribed in 31 U.S.C. 3717.
    (b) Effect of the Debt Collection Act of 1982. GSA will take any 
action authorized by the Debt Collection Act of 1982 (Pub. L. 97-365, 
96 Stat. 1749), including disclosure to consumer reporting agencies, 
use of collection agencies, and assessment of penalties and 
administrative costs, where appropriate, to encourage payment.
    (c) Aggregating requests. When GSA reasonably believes that a 
requester, or group of requesters acting in concert, is attempting to 
break a down a request into a series of requests related to the same 
subject for the purpose of evading the assessment of fees, GSA will 
combine any such requests and charge accordingly, including fees for 
previous requests where charges were not assessed. GSA will presume 
that multiple requests of this type within a 30-day period are made to 
avoid fees.
    (d) Advance payments. Whenever a requester is delinquent in paying 
the fee for a previous request (i.e., within 30 days of the date of 
billing), GSA will require the requester to pay the full amount owed 
plus any applicable interest penalties and administrative costs as 
provided in paragraph (a) of this section or to demonstrate that he or 
she has, in fact, paid the fee. In such cases, GSA will also require 
advance payment of the full amount of the estimated fee before the 
agency begins to process a new request or a pending request from that 
requester. When advance payment is required under this section, the 
administrative time limits in subsection (a)(6) of the FOIA (i.e., 10 
working days from receipt of appeals from initial denial plus 
permissible time extensions) will begin only after GSA has received the 
fee payments described in Sec. 105-60.305-8.


Sec. 105-60.305-13  Waiver of fee.

    (a) Any request for a waiver or the reduction of a fee should be 
included in the initial letter requesting access to GSA records under 
Sec. 105-60.402-1. The waiver request should explain how disclosure of 
the information would request should explain how disclosure of the 
information would contribute significantly to public's understanding of 
the operations or activities of the Government and would not be 
primarily in the commercial interest of the requester. In responding to 
a request, GSA will consider the following factors:
    (1) Whether the subject of the requested records concerns ``the 
operations or activities of the Government.'' The subject matter of the 
requested records must specifically concern identifiable operations or 
activities of the Federal Government. The connection between the 
records and the operations or activities must be direct and clear, not 
remote or attenuated.
    (2) Whether the disclosure is ``likely to contribute'' to an 
understanding of Government operations or activities. In this 
connection, GSA will consider whether the requested information is 
already in the public domain. If it is, then disclosure of the 
information in the public domain. If it is, then disclosure of the 
information would not be likely to contribute to an understanding of 
Government operations or activities, as nothing new would be added to 
the public record.
    (3) Whether disclosure of the requested information will contribute 
to ``public's understanding.'' The focus here must be on the 
contribution to public's understanding rather than personal benefit to 
be derived by the requester. For purposes of this analysis, the 
identity and qualifications of the requester should be considered to 
determine whether the requester is in a position to contribute to 
public's understanding through the requested disclosure.

[[Page 33029]]

    (4) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and if so: whether the magnitude 
of the identified commercial interest of the requester is sufficiently 
large, in comparison with the public's interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the 
requester.''
    (b) GSA will ask the requester to furnish additional information if 
the initial request is insufficient to evaluate the merits of the 
request. GSA will not start processing a request until the fee waiver 
issue has been resolved unless the requester has provided written 
assurance of payment in full if the fee waiver is denied by the agency.

Subpart 105-60.4--Described Records


Sec. 105-60.401   General.

    (a) Except for records made available in accordance with subparts 
105-60.2 and 105-60.3 of this part, GSA will make records available to 
a requester promptly when the request reasonably describes the records 
unless GSA invokes an exemption in accordance with subpart 105-60.5 of 
this part. Although the burden of reasonable description of the records 
rests with the requester, whenever practical GSA will assist requesters 
to describe records more specifically.
    (b) Whenever a request does not reasonably describe the records 
requested, GSA may contact the requester to seek a more specific 
description. The 20-workday time limit set forth in Sec. 105-60.402-2 
will not start until the official identified in Sec. 105-60.402-1 or 
other responding official receives a request reasonably describing the 
records.


Sec. 105-60.402   Procedures for making records available.

    This subpart sets forth initial procedures for making records 
available when they are requested, including administrative procedures 
to be exhausted prior to seeking judicial review by an appropriate 
United States District Court.


Sec. 105-60.402-1   Submission of requests.

    For records located in the GSA Central Office, the requester must 
submit a request in writing to the GSA FOIA Officer, General Services 
Administration (GSA), Washington, DC 20405. Requesters may FAX requests 
to (202) 501-2727, or submit a request by electronic mail to 
<a href="/cdn-cgi/l/email-protection#87e0f4e6a9e1e8eec7e0f4e6a9e0e8f1"><span class="__cf_email__" data-cfemail="cfa8bcaee1a9a0a68fa8bcaee1a8a0b9">[email protected]</span></a>. For records located in the Office of Inspector 
General, the requester must submit a request to the FOIA Officer, 
Office of Inspector General, General Services Administration, 1800 F 
Street NW., Room 5324, Washington, DC 20405. For records located in the 
GSA regional offices, the requester must submit a request to the FOIA 
Officer for the relevant region, at the address listed in Sec. 105-
60.303(a). Requests should include the words ``Freedom of Information 
Act Request'' prominently marked on both the face of the request letter 
and the envelope. The 20-workday time limit for agency decisions set 
forth in Sec. 105-60.402-2 begins with receipt of a request in the 
office of the official identified in this section, unless the 
provisions under Secs. 105-60.305-8 and 105-60.305-12(d) apply. Failure 
to include the words ``Freedom of Information Act Request'' or to 
submit a request to the official identified in this section will result 
in processing delays. A requester with questions concerning a FOIA 
request should contact the GSA FOIA Office, General Services 
Administration (GSA), 18th and F Streets, NW., Washington, DC 20405, 
(202) 501-2262.


Sec. 105-60.402-2   Response to initial requests.

    (a) GSA will respond to an initial FOIA request that reasonably 
describes requested records, including a fee waiver request, within 20 
workdays (that is, excluding Saturdays, Sundays, and legal holidays) 
after receipt of a request by the office of the appropriate official 
specified in Sec. 105-60.402-1. This letter will provide the agency's 
decision with respect to disclosure or nondisclosure of the requested 
records, or, if appropriate, a decision on a request for a fee waiver. 
If the record to be disclosed are not provided with the initial letter, 
the records will be sent as soon as possible thereafter.
    (b) In unusual circumstances, as described in Sec. 105-60.404, GSA 
will inform the requester of the agency's need to take an extension of 
time, not to exceed an additional 10 workdays. This notice will afford 
requesters an opportunity to limit the scope of the request so that it 
may be processed within prescribed time limits or an opportunity to 
arrange an alternative time frame for processing the request or a 
modified request. Such mutually agreed time frames will supersede the 
10 day limit for extensions.
    (c) GSA will consider requests for expedited processing from 
requesters who submit a statement describing a compelling need and 
certifying that this need is true and correct to the best of such 
person's knowledge and belief. A compelling need means:
    (1) Failure to obtain the records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (2) The information is urgently needed by an individual primarily 
engaged in disseminating information in order to inform the public 
concerning actual or alleged Federal Government activity. An individual 
primarily engaged in disseminating information means a person whose 
primary activity involves publishing or otherwise disseminating 
information to the public. ``Urgently needed'' information has a 
particular value that will be lost if not disseminated quickly, such as 
a breaking news story or general public interest. Information of 
historical interest only, or information sought for litigation or 
commercial activities would not qualify, nor would a news media 
publication or broadcast deadline unrelated to the newsbreaking nature 
of the information.
    (d) GSA will decide whether to grant expedited processing within 
five working days of receipt of the request. If the request is granted, 
GSA will process the request ahead of non-expedited requests, as soon 
as practicable. If the request is not granted, GSA will give 
expeditious consideration to administrative appeals of this denial.
    (e) GSA may, at its discretion, establish three processing queues 
based on whether any request have been granted expedited status and on 
the difficulty and complexity of preparing a response. Within each 
queue, responses will be prepared on a ``first in, first out'' basis. 
One queue will be made up of expedited requests; the second, of simple 
responses that clearly can be prepared without requesting an extension 
of time; the third, of responses that will require an extension of 
time.


Sec. 105-60.403  Appeal within GSA.

    (a) A requester who receives a denial of a request, in whole or in 
part, a denial of a request for expedited processing or of a fee waiver 
request may appeal that decision within GSA. A requester may also 
appeal the adequacy of the search if GSA determines that it has 
searched for but has no requested records. The requester must send the 
appeal to the GSA FOIA Officer, General Services Administration (CAI), 
Washington, DC 20405, regardless of whether the denial being appealed 
was made in the Central Office or in a regional office. For denials 
which originate in the Office of Inspector General, the requester must 
send the appeal to the Inspector General, General Services 
Administration, 1800 F Street NW., Washington, DC 20405.

[[Page 33030]]

    (b) The GSA FOIA Officer must receive an appeal no later than 120 
calendar days after receipt by the requester of the initial denial of 
access or fee waiver.
    (c) An appeal must be in writing and include a brief statement of 
the reasons he or she thinks GSA should release the records or provide 
expedited processing and enclose copies of the initial request and 
denial. The appeal letter must include the word ``Freedom of 
Information Act Appeal'' on both the face of the appeal letter and on 
the envelope. Failure to follow these procedures will delay processing 
of the appeal. GSA has 20 workdays after receipt of a proper appeal of 
denial of records to issue a determination with respect to the appeal. 
The 20-workday time limit shall not begin until the GSA FOIA Officer 
receives the appeal. As noted in Sec. 105-60.404, the GSA FOIA Officer 
may extend this time limit in unusual circumstances. GSA will process 
appeals of denials of expedited processing as soon as possible after 
receiving them.
    (d) A requester who receives a denial of an appeal, or who has not 
received a response to an appeal or initial request within the 
statutory time frame may seek judicial review in the United States 
District Court in the district in which the requester resides or has a 
principal place of business, or where the records are situated, or in 
the United States District Court for the District of Columbia.


Sec. 105-60.404  Extension of time limits.

    (a) In unusual circumstances, the GSA FOIA Officer or the regional 
FOIA Officer may extend the time limits prescribed in Secs. 105-60.402 
and 105-60-403. For purposes of this section, the term ``unusual 
circumstances'' means:
    (1) The need to search for an collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are described 
in a single request;
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of GSA 
having substantial subject-matter interest therein; or
    (4) The need to consult with the submitter of the requested 
information.
    (b) If necessary, GSA may take more than one extension of time. 
However, the total extension of time to respond to any single request 
shall not exceed 10 workdays. The extension may be divided between the 
initial and appeal stages or within a single stage. GSA will provide 
written notice to the requester of any extension of time limits.


Sec. 105-60.405  Processing requests for confidential commercial 
information.

    (a) General. The following additional procedures apply when 
processing requests for confidential commercial information.
    (b) Definitions. For the purposes of this section, the following 
definitions apply:
    (1) Confidential commercial information means records provided to 
the Government by a submitter that contain material arguably exempt 
from release under 5 U.S.C. 552(b)(4), because disclosure could 
reasonably be expected to cause substantial competitive harm.
    (2) Submitter means a person or entity which provides to the 
Government information which may constitute confidential commercial 
information. The term ``submitter'' includes, but is not limited to, 
individuals, partnerships, corporations, State governments, and foreign 
governments.
    (c) Designating confidential commercial information. Since January 
1, 1988, submitters have been required to designate confidential 
commercial information as such when it is submitted to GSA or at a 
reasonable time thereafter. For information submitted in connection 
with negotiated procurements, the requirements of Federal Acquisition 
Regulation 48 CFR 15.406(c)(8) and 52.215-12 also apply.
    (d) Procedural requirements--consultation with the submitter. (1) 
If GSA receives a FOIA request for potentially confidential commercial 
information, it will notify the submitter immediately by telephone and 
invite and opinion whether disclosure will or will not cause 
substantial competitive harm.
    (2) GSA will follow up the telephonic notice promptly in writing 
before releasing any records unless paragraph (f) of this section 
applies.
    (3) If the submitter indicates an objection to disclosure GSA will 
give the submitter seven workdays from receipt of the letter to provide 
GSA with a detailed written explanation of how disclosure of any 
specified portion of the records would be competitively harmful.
    (4) If the submitter verbally states that there is no objection to 
disclosure, GSA will confirm this fact in writing before disclosing any 
records.
    (5) At the same time GSA notifies the submitter, it will also 
advise the requester that there will be a delay in responding to the 
request due to the need to consult with the submitter.
    (6) GSA will review the reasons for nondisclosure before 
independently deciding whether the information must be released or 
should be withheld. If GSA decides to release the requested 
information, it will provide the submitter with a written statement 
explaining why his or her objections are not sustained. The letter to 
the submitter will contain a copy of the material to be disclosed or 
will offer the submitter an opportunity to review the material in one 
of GSA's offices. If GSA decides not to release the material, it will 
notify the submitter orally or in writing.
    (7) If GSA determines to disclose information over a submitter's 
objections, it will inform the submitter that GSA will delay disclosure 
for 5 workdays from the estimated date the submitter receives GSA's 
decision before it releases the information. The decision letter to the 
requester shall state that GSA will delay disclosure of material it has 
determined to disclose to allow for the notification of the submitter.
    (e) When notice is required. (1) For confidential commercial 
information submitted prior to January 1, 1988, GSA will notify a 
submitter whenever it receives a FOIA request for such information:
    (i) If the records are less than 10 years old and the information 
has been designated by the submitter as confidential commercial 
information; or
    (ii) If GSA has reason to believe that disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm.
    (2) For confidential commercial information submitted on or after 
January 1, 1988, GSA will notify a submitter whenever it determines 
that the agency may be required to disclose records:
    (i) That the submitter has previously designated as privileged or 
confidential; or
    (ii) That GSA believes could reasonably be expected to cause 
substantial competitive harm if disclosed.
    (3) GSA will provide notice to a submitter for a period of up to 10 
years after the date of submission.
    (f) When notice is not required. The notice requirements of this 
section will not apply if:
    (1) GSA determines that the information should not be disclosed;
    (2) The information has been published or has been officially made 
available to the public;

[[Page 33031]]

    (3) Disclosure of the information is required by law other than the 
FOIA;
    (4) Disclosure is required by an agency rule that:
    (i) Was adopted pursuant to notice and public comment;
    (ii) Species narrow classes of records submitted to the agency that 
are to be released under FOIA; and
    (iii) Provides in exceptional circumstances for notice when the 
submitter provides written justification, at the time the information 
is submitted or a reasonable time thereafter, that disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm;
    (5) The information is not designated by the submitter as exempt 
from disclosure under paragraph (c) of this section, unless GSA has 
substantial reason to believe that disclosure of the information would 
be competitively harmful; or
    (6) The designation made by the submitter in accordance with 
paragraph (c) of this section appears obviously frivolous; except that, 
in such cases, the agency must provide the submitter with written 
notice of any final administrative decision five workdays prior to 
disclosing the information.
    (g) Lawsuits. If a FOIA requester sues the agency to compel 
disclosure of confidential commercial information, GSA will notify the 
submitter as soon as possible. If the submitter sues GSA to enjoin 
disclosure of the records, GSA will notify the requester.

Subpart 105-60.5--Exemptions


Sec. 105-60.501  Categories of records exempt from disclosure under the 
FOIA.

    (a) 5 U.S.C. 552(b) provides that the requirements of the FOIA do 
not apply to matters that are:
    (1) Specifically authorized under the criteria established by an 
executive order to be kept secret in the interest of national defense 
or foreign policy and are in fact properly classified pursuant to such 
executive order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (other than 
section 552b of this title), provided that such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue; or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Interagency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records of 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 a 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) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial 
institutions; or
    (9) Geological and geophysical information and data, including 
maps, concerning wells.
    (b) GSA will provide any reasonably segregable portion of a record 
to a requester after deletion of the portions that are exempt under 
this section. If GSA must delete information from a record before 
disclosing it, this information, and the reasons for withholding it, 
will be clearly described in the cover letter to the requester or in an 
attachment. Unless indicating the extent of the deletion would harm an 
interest protected by an exemption, the amount of deleted information 
shall be indicated on the released portion of paper records by use of 
brackets or darkened areas indicating removal of information. In the 
case of electronic deletion, the amount of redacted information shall 
be indicated at the place in the record where such deletion was made, 
unless including the indication would harm an interest protected by the 
exemption under which the exemption was made.
    (c) GSA will invoke no exemption under this section to deny access 
to records that would be available pursuant to a request made under the 
Privacy Act of 1974 (5 U.S.C. 522a) and implementing regulations, 41 
CFR Part 105-64, or if disclosure would cause no demonstrable harm to 
any governmental or private interest.
    (d) Pursuant to National Defense Authorization Act for Fiscal Year 
1997, Pub. L. 104-201, section 821, 110 Stat. 2422, GSA will invoke 
Exemption 3 to deny access to any proposal submitted by a vendor in 
response to the requirements of a solicitation for a competitive 
proposal unless the proposal is set forth or incorporated by reference 
in a contract entered into between the agency and the contractor that 
submitted the proposal.
    (e) Whenever a request is made which involves access to records 
described in Sec. 105-60.501(a)(7)(i) and the investigation or 
proceeding involves a possible violation of criminal law, and there is 
reason to believe that the subject of the investigation or proceeding 
is not aware of it, and disclosure of the existence of the records 
could reasonably be expected to interfere with enforcement proceedings, 
the agency may, during only such time as that circumstance continues, 
treat the records as not subject to the requirements of this section.
    (f) Whenever informant records maintained by a criminal law 
enforcement agency under an informant's name or personal identifier are 
requested by a third party according to the informant's name or 
personal identifier, the agency may treat the records as not subject to 
the requirements of this section unless the informant's status as an 
informant has been officially confirmed.
    (g) Whenever a request is made that involves access to records 
maintained by the Federal Bureau of Investigation pertaining to foreign 
intelligence or counterintelligence, or international terrorism, and 
the existence of the records is classified information as provided in 
paragraph (a)(1) of this section, the Bureau may, as long as the 
existence of the records remains classified information, treat the 
records as not subject to the requirements of this section.

[[Page 33032]]

Subpart 105-60.6--Production or Disclosure by Present or Former 
General Services Administration Employees in Response to Subpoenas 
or Similar Demands in Judicial or Administrative Proceedings


Sec. 105-60.601   Purpose and scope of subpart.

    (a) By virtue of the authority vested in the Administrator of 
General Services by 5 U.S.C. 301 and 40 U.S.C. 486(c) this subpart 
establishes instructions and procedures to be followed by current and 
former employees of the General Services Administration in response to 
subpoenas or similar demands issued in judicial or administrative 
proceedings for production or disclosure of material or information 
obtained as part of the performance of a person's official duties or 
because of the person's official status. Nothing in these instructions 
applies to responses to subpoenas or demands issued by the Congress or 
in Federal grand jury proceedings.
    (b) This subpart provides instructions regarding the internal 
operations of GSA and the conduct of its employees, and is not intended 
and does not, and may not, be relied upon to create any right or 
benefit, substantive or procedural, enforceable at law by a party 
against GSA.


Sec. 105-60.602   Definitions.

    For purposes of this subpart, the following definitions apply:
    (a) Material means any document, record, file or data, regardless 
of the physical form or the media by or through which it is maintained 
or recorded, which was generated or acquired by a current or former GSA 
employee by reason of the performance of that person's official duties 
or because of the person's official status, or any other tangible item, 
e.g., personal property possessed or controlled by GSA.
    (b) Information means any knowledge or facts contained in material, 
and any knowledge or facts acquired by current or former GSA employee 
as part of the performance of that person's official duties or because 
of that person's official status.
    (c) Demand means any subpoena, order, or similar demand for the 
production or disclosure of material, information or testimony 
regarding such material or information, issued by a court or other 
authority in a judicial or administrative proceeding, excluding 
congressional subpoenas or demands in Federal grand jury proceedings, 
and served upon a present or former GSA employee.
    (d) Appropriate Authority means the following officials who are 
delegated authority to approve or deny responses to demands for 
material, information or testimony:
    (1) The Counsel to the Inspector General for material and 
information which is the responsibility of the GSA Office of Inspector 
General or testimony of current or former employees of the Office of 
the Inspector General;
    (2) The Counsel to the GSA Board of Contract Appeals for material 
and information which is the responsibility of the Board of Contract 
Appeals or testimony of current or former Board of Contract Appeals 
employees;
    (3) The GSA General Counsel, Associate General Counsel(s) or 
Regional Counsel for all material, information, or testimony not 
covered by paragraphs (d)(1) and (2) of this section.


Sec. 105-60.603  Acceptance of service of a subpoena duces tecum or 
other legal demand on behalf of the General Services Administration.

    (a) The Administrator of General Services and the following 
officials are the only GSA personnel authorized to accept service of a 
subpoena or other legal demand on behalf of GSA: the GSA General 
Counsel and Associate General Counsel(s) and, with respect to material 
or information which is the responsibility of a regional office, the 
Regional Administrator and Regional Counsel. The Inspector General and 
Counsel to the Inspector General, as well as the Chairman and Vice 
Chairman of the Board of Contract Appeals, are authorized to accept 
service for material or information which are the responsibility of 
their respective organizations.
    (b) A present or former GSA employee not authorized to accept 
service of a subpoena or other demand for material, information or 
testimony obtained in an official capacity shall respectfully inform 
the process server that he or she is not authorized to accept service 
on behalf of GSA and refer the process server to an appropriate 
official listed in paragraph (a) of this section.
    (c) A Regional Administrator or Regional Counsel shall notify the 
General Counsel of a demand which may raise policy concerns or affect 
multiple regions.


Sec. 105.60.604  Production or disclosure prohibited unless approved by 
the Appropriate Authority.

    No current or former GSA employee shall, in response to a demand, 
produce any material or disclose, through testimony or other means, any 
information covered by this subpart, without prior approval of the 
Appropriate Authority.


Sec. 105.-60.605  Procedure in the event of a demand for production or 
disclosure.

    (a) Whenever service of a demand is attempted in person or via mail 
upon a current or former GSA employee for the production of material or 
the disclosure of information covered by this subpart, the employee or 
former employee shall immediately notify the Appropriate Authority 
through his or her supervisor or his or her former service, staff 
office, or regional office. The supervisor shall notify the Appropriate 
Authority. For current or former employees of the Office of Inspector 
General located in regional offices, Counsel to the Inspector General 
shall be notified through the immediate supervisor or former employing 
field office.
    (b) The Appropriate Authority shall require that the party seeking 
material or testimony provide the Appropriate Authority with an 
affidavit, declaration, statement, and/or a plan as described in 
paragraphs (c)(1), (2), and (3) of this section if not included with or 
described in the demand. The Appropriate Authority may waive this 
requirement for a demand arising out of proceedings to which GSA or the 
United States is a party. Any waiver will be coordinated with the 
United States Department of Justice (DOJ) in proceedings in which GSA, 
its current or former employees, or the United States are represented 
by DOJ.
    (c)(1) Oral testimony. If oral testimony is sought by a demand, the 
Appropriate Authority shall require the party seeking the testimony or 
the party's attorney to provide, by affidavit or other statement, a 
detailed summary of the testimony sought and its relevance to the 
proceedings. Any authorization for the testimony of a current or former 
GSA employee shall be limited to the scope of the demand as summarized 
in such statement or affidavit.
    (2) Production of material. When information other than oral 
testimony is sought by a demand, the Appropriate Authority shall 
require the party seeking production or the party's attorney to provide 
a detailed summary, by affidavit or other statement, of the information 
sought and its relevance to the proceeding.
    (3) The Appropriate Authority may require a plan or other 
information from the party seeking testimony or production of material 
of all demands reasonably foreseeable, including, but not limited to, 
names of all current and former GSA employees from whom testimony or 
production is or will likely be sought, areas of inquiry, for current

[[Page 33033]]

employees the length of time away from duty anticipated, and 
identification of documents to be used in each deposition or other 
testimony, where appropriate.
    (d) The Appropriate Authority will notify the current or former 
employee, the appropriate supervisor, and such other persons as 
circumstances may warrant, whether disclosure or production is 
authorized, and of any conditions or limitations to disclosure or 
production.
    (e) Factors to be considered by the Appropriate Authority in 
responding to demands:
    (1) Whether disclosure or production is appropriate under rules or 
procedure governing the proceeding out of which the demand arose;
    (2) The relevance of the testimony or documents to the proceedings;
    (3) The impact of the relevant substantive law concerning 
applicable privileges recognized by statute, common law, judicial 
interpretation or similar authority;
    (4) The information provided by the issuer of the demand in 
response to requests by the Appropriate Authority pursuant to 
paragraphs (b) and (c) of this section;
    (5) The steps taken by the issuer of the demand to minimize the 
burden of disclosure or production on GSA, including but not limited to 
willingness to accept authenticated copies of material in lieu of 
personal appearance by GSA employees;
    (6) The impact on pending or potential litigation involving GSA or 
the United States as a party;
    (7) In consultation with the head of the GSA organizational 
component affected, the burden on GSA which disclosure or production 
would entail; and
    (8) Any additional factors unique to a particular demand or 
proceeding.
    (f) The Appropriate Authority shall not approve a disclosure or 
production which would:
    (1) Violate a statute or a specific regulation;
    (2) Reveal classified information, unless appropriately 
declassified by the originating agency;
    (3) Reveal a confidential source or informant, unless the 
investigative agency and the source or informant consent;
    (4) Reveal records or information compiled for law enforcement 
purposes which would interfere with enforcement proceedings or disclose 
investigative techniques and procedures the effectiveness of which 
would be impaired;
    (5) Reveal trade secrets or commercial or financial information 
which is privileged or confidential without prior consultation with the 
person from whom it was obtained; or
    (6) Be contrary to a recognized privilege.
    (g) The Appropriate Authority's determination, including any 
reasons for denial or limitations on disclosure or production, shall be 
made as expeditiously as possible and shall be communicated in writing 
to the issuer of the demand and appropriate current or former GSA 
employee(s). In proceedings in which GSA, its current or former 
employees, or the United States are represented by DOJ, the 
determination shall be coordinated with DOJ which may respond to the 
issuer of the subpoenas or demand in lieu of the Appropriate Authority.


Sec. 105-60.606  Procedure where response to demand is required prior 
to receiving instructions.

    (a) If a response to a demand is required before the Appropriate 
Authority's decision is issued, a GSA attorney designated by the 
Appropriate Authority for the purpose shall appear with the employee or 
former employee upon whom the demand has been made, and shall furnish 
the judicial or other authority with a copy of the instructions 
contained in this subpart. The attorney shall inform the court or other 
authority that the demand has been or is being referred for the prompt 
consideration by the Appropriate Authority. The attorney shall 
respectfully request the judicial or administrative authority to stay 
the demand pending receipt of the requested instructions.
    (b) The designated GSA attorney shall coordinate GSA's response 
with DOJ's Civil Division or the relevant Office of the United States 
Attorney and may request that a DOJ or Assistant United States Attorney 
appear with the employee in addition to or in lieu of a designated GSA 
attorney.
    (c) If an immediate demand for production or disclosure is made in 
circumstances which preclude the appearance of a GSA or DOJ attorney on 
the behalf of the employee or the former employee, the employee or 
former employee shall respectfully make a request to the demanding 
authority for sufficient time to obtain advice of counsel.


Sec. 105-60.607  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec. 105-60.606 
pending receipt of instructions, or if the court or other authority 
rules that the demand must be compiled with irrespective of 
instructions by the Appropriate Authority not to produce the material 
or disclose the information sought, the employee or former employee 
upon whom the demand has been made shall respectfully decline to 
comply, citing these instructions and the decision of the United States 
Supreme Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951).


Sec. 105-60.608  Fees, expenses, and costs.

    (a) In consultation with the Appropriate Authority, a current 
employee who appears as a witness pursuant to a demand shall ensure 
that he or she receives all fees and expenses, including travel 
expenses, to which witnesses are entitled pursuant to rules applicable 
to the judicial or administrative proceedings out of which the demand 
arose.
    (b) Witness fees and reimbursement for expenses received by a GSA 
employee shall be disposed of in accordance with rules applicable to 
Federal employees in effect at the time.
    (c) Reimbursement to the GSA for costs associated with producing 
material pursuant to a demand shall be determined in accordance with 
rules applicable to the proceedings out of which the demand arose.

    Dated: June 9, 1998.
Joseph R. Rodriquez,
Acting Associate Administrator for Management and Workplace Programs.
[FR Doc. 98-15948 Filed 6-16-98; 8:45 am]
BILLING CODE 6820-34-M


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