[Title 40 CFR 1601]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 40 - PROTECTION OF ENVIRONMENT]
[Chapter Vi - CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD]
[Part 1601 - PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT]
[From the U.S. Government Printing Office]
40PROTECTION OF ENVIRONMENT282002-07-012002-07-01falsePROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT1601PART 1601PROTECTION OF ENVIRONMENTCHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD
PART 1601--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT--Table of Contents
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 Responses 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.
Source: 65 FR 70499, Nov. 24, 2000, unless otherwise noted.
Subpart A--Purpose, Scope, and Applicability
Sec. 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.
Sec. 1601.2 Applicability.
(a) General. The FOIA and the regulations in this part apply to all
CSB documents and information. However, if another law sets specific
procedures for disclosure, the CSB will process a request in accordance
with the procedures that apply to those specific documents. If a request
is received for disclosure of a document to the public which is not
required to be released under those provisions, the CSB will consider
the request under the FOIA and the regulations in this part.
(b) Records available through routine distribution procedures. When
the record requested includes material published and offered for sale,
e.g., by the Superintendent of Documents of the Government Printing
Office, or by an authorized private distributor, the CSB will first
refer the requester to those sources. Nevertheless, if the requester is
not satisfied with the alternative sources, the CSB will process the
request under the FOIA.
Sec. 1601.3 Definitions.
Appeals Officer means the person designated by the Chairperson to
process appeals of denials of requests for CSB records under the FOIA.
Business submitter means any person or entity which provides
confidential business information, directly or indirectly, to the CSB
and who has a proprietary interest in the information.
Chairperson means the Chairperson of the CSB (including, in the
absence of a Chairperson, the Board Member supervising personnel
matters) or his or her designee.
Commercial-use requester means requesters seeking information for a
use or purpose that furthers the commercial, trade, or profit interests
of the requester or the person on whose behalf the request is made. In
determining whether a requester properly belongs in this category, the
CSB shall determine, whenever reasonably possible, the use to which a
requester will put the documents requested. Where the CSB has reasonable
cause to doubt the use to which a requester will put the records sought,
or where that use is not clear from the request itself, the CSB
[[Page 510]]
shall seek additional clarification before assigning the request to a
specific category.
Confidential business information means records provided to the
government by a submitter that arguably contain material exempt from
disclosure under Exemption 4 of the FOIA, because disclosure could
reasonably be expected to cause substantial competitive harm.
Direct costs means those expenditures by the CSB actually incurred
in searching for and duplicating records to respond to a FOIA request.
Direct costs include the salary of the employee or employees performing
the work (the basic rate of pay for the employee plus a percentage of
that rate to cover benefits) and the cost of operating duplicating
machinery. Direct costs do not include overhead expenses, such as the
cost of space and heating or lighting of the facility in which the
records are stored.
Duplication refers to the process of making a copy of a document
necessary to fulfill a FOIA request. Such copies can take the form of,
among other things, paper copy, microform, audio-visual materials, or
machine-readable documentation. The copies provided shall be in a form
that is reasonably usable by requesters.
Educational institution refers to a preschool, a public or private
elementary or high school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, and an institution of vocational education,
which operates a program of scholarly research.
FOIA Officer means the person designated to process requests for CSB
documents under the FOIA.
Non-commercial scientific institution refers to an institution that
is not operated on a commercial basis as that term is used above in
defining commercial-use requester, and which is operated solely for the
purpose of conducting scientific research the results of which are not
intended to promote any particular product or industry.
Record includes any writing, drawing, map, recording, tape, film,
photo, or other documentary material by which information is preserved.
Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that is
about current events or that would be of current interest to the public.
For freelance journalists to be regarded as working for a news
organization, they must demonstrate a solid basis for expecting
publication through that organization. A publication contract would be
the clearest proof, but components shall also look to the past
publication record of a requester in making this determination.
Requester means any person, including an individual, Indian tribe,
partnership, corporation, association, or public or private organization
other than a Federal agency, that requests access to records in the
possession of the CSB.
Review refers to the process of examining a record, in response to a
FOIA request, to determine whether any portion of that record may be
withheld under one or more of the FOIA exemptions. It also includes the
processing of any record for disclosure; for example, redacting
information that is exempt from disclosure under the FOIA. Review does
not include time spent resolving general legal or policy issues
regarding the use of FOIA exemptions.
Search refers to the time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within a document. The CSB shall ensure that
searches are conducted in the most efficient and least expensive manner
reasonably possible.
Submitter means any person or entity who provides information
directly or indirectly to the CSB. The term includes, but is not limited
to, corporations, Indian tribal governments, state governments, and
foreign governments.
Working day means a Federal workday that does not include Saturdays,
Sundays, or Federal holidays.
Subpart B--Administration
Sec. 1601.10 Protection of records.
(a) Except as authorized by this part or as otherwise necessary in
performing official duties, no employee shall in any manner disclose or
permit
[[Page 511]]
disclosure of any document or information in the possession of the CSB
that is confidential or otherwise of a nonpublic nature, including that
regarding the CSB, the Environmental Protection Agency or the
Occupational Safety and Health Administration.
(b) No person may, without permission, remove from the place where
it is made available any record made available to him for inspection or
copying. Stealing, altering, mutilating, obliterating, or destroying, in
whole or in part, such a record shall be deemed a crime.
Sec. 1601.11 Preservation of records pertaining to requests under this part.
The CSB will preserve all correspondence pertaining to the requests
that it receives under this part, as well as copies of all requested
records, until disposition or destruction is authorized by Title 44 of
the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of while they are the subject of a pending request, appeal, or
lawsuit under the FOIA.
Sec. 1601.12 Public reading room.
(a) The CSB maintains a public reading room that contains the
records that the FOIA requires to be made regularly available for public
inspection and copying as well as a current subject-matter index of its
reading room records.
(b) Because of the lack of requests to date for material required to
be indexed, the CSB has determined that it is unnecessary and
impracticable to publish quarterly, or more frequently, and distribute
(by sale or otherwise) copies of each index and supplements thereto, as
provided in 5 U.S.C. 552(a)(2). However, the CSB will provide a copy of
such indexes to a member of the public upon request, at a cost not to
exceed the direct cost of duplication and mailing, if sending records by
other than ordinary mail.
(c) The CSB maintains a public reading room at its headquarters:
2175 K Street, NW, Suite 400, Washington, DC 20037-1809.
(d) Copying. The cost of copying information available in the
offices of the CSB shall be imposed on a requester in accordance with
the provisions of Secs. 1601.30 through 1601.33.
(e) The CSB also makes reading room records available electronically
through the agency's World Wide Web site (which can be found at http://
www.csb.gov). This includes the index of its reading room records,
indicating which records are available electronically.
Subpart C--Procedures for Requesting and Disclosing Records
Sec. 1601.20 Requests for records.
(a) Addressing requests. Requests for records in the possession of
the CSB shall be made in writing. The envelope and the request both
should be clearly marked FOIA Request and addressed to: FOIA Officer,
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
Sec. 1601.24(a) until it is received, or would have been received with
the exercise of due diligence, by the FOIA Officer. Records requested in
conformance with this section and which are not withholdable records may
be obtained in person or by mail as specified in the request. Records to
be obtained in person will be available for inspection or copying during
business hours on a regular business day in the office of the CSB.
(b) Description of records. Each request must reasonably describe
the desired records in sufficient detail to enable CSB personnel to
locate the records with a reasonable amount of effort. A request for a
specific category of records will be regarded as fulfilling this
requirement if it enables responsive records to be identified by a
technique or process that is not unreasonably burdensome or disruptive
of CSB operations.
(1) Whenever possible, a request should include specific information
about each record sought, such as the date, title or name, author,
recipient, and subject matter of the record.
[[Page 512]]
(2) If the FOIA Officer determines that a request does not
reasonably describe the records sought, he or she will either advise the
requester what additional information is needed to locate the record or
otherwise state why the request is insufficient. The FOIA Officer will
also extend to the requester an opportunity to confer with CSB personnel
with the objective of reformulating the request in a manner which will
meet the requirements of this section.
(c) Agreement to pay fees. A FOIA request shall be considered an
agreement by the requester to pay all applicable fees charged under
Secs. 1601.30 through 1601.33 up to $25, unless the requester seeks a
waiver of fees. The CSB ordinarily will confirm this agreement in an
acknowledgement letter. When making a request, you may specify a
willingness to pay a greater or lesser amount.
(d) Types of records not available. The FOIA does not require the
CSB to:
(1) Compile or create records solely for the purpose of satisfying a
request for records;
(2) Provide records not yet in existence, even if such records may
be expected to come into existence at some future time; or
(3) Restore records destroyed or otherwise disposed of, except that
the FOIA Officer must notify the requester that the requested records
have been destroyed or otherwise disposed of.
Sec. 1601.21 Responses to requests.
(a) Response to initial request. The FOIA Officer is authorized to
grant or deny any request for a record and to determine appropriate
fees.
(b) Referral to another agency. When a requester seeks records that
originated in another Federal government agency, the CSB will refer the
request to the other agency for response. If the CSB refers the request
to another agency, it will notify the requester of the referral. A
request for any records classified by some other agency will be referred
to that agency for response.
(c) Creating records. If a person seeks information from the CSB in
a format that does not currently exist, the CSB will make reasonable
efforts to provide the information in the format requested. The CSB will
not create a new record of information to satisfy a request.
(d) No responsive record. If no records are responsive to the
request, the FOIA Officer will so notify the requester in writing.
Sec. 1601.22 Form and content of responses.
(a) Form of notice granting a request. After the FOIA Officer has
granted a request in whole or in part, the requester will be notified in
writing. The notice shall describe the manner in which the record will
be disclosed, whether by providing a copy of the record with the
response or at a later date, or by making a copy of the record available
to the requester for inspection at a reasonable time and place. The
procedure for such an inspection may not unreasonably disrupt the
operation of the CSB. The response letter will also inform the requester
of any fees to be charged in accordance with the provisions of
Secs. 1601.30 through 1601.33.
(b) Form of notice denying a request. When the FOIA Officer denies a
request in whole or in part, he or she will so notify the requester in
writing. The response will be signed by the FOIA Officer and will
include:
(1) The name and title or position of the person making the denial;
(2) A brief statement of the reason or reasons for the denial,
including the FOIA exemption or exemptions which the FOIA Officer has
relied upon in denying the request; and
(3) A statement that the denial may be appealed under Sec. 1601.23
and a description of the requirements of that section.
Sec. 1601.23 Appeals of denials.
(a) Right of appeal. If a request has been denied in whole or in
part, the requester may appeal the denial to: FOIA Appeals Officer,
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
[[Page 513]]
initial request, a copy of the letter denying the request in whole or in
part, and a statement of the circumstances, reasons, or arguments
advanced in support of disclosure of the requested record. Both the
envelope and the letter of appeal must be clearly marked FOIA Appeal. An
appeal improperly addressed shall be deemed not to have been received
for purposes of the 20-day time period set forth in Sec. 1601.24(e)
until it is received, or would have been received with the exercise of
due diligence, by the Appeals Officer.
(c) Action on appeal. The disposition of an appeal will be in
writing and will constitute the final action of the CSB on a request. A
decision affirming in whole or in part the denial of a request will
include a brief statement of the reason or reasons for affirmance,
including each FOIA exemption relied on. If the denial of a request is
reversed in whole or in part on appeal, the request will be processed
promptly in accordance with the decision on appeal.
(d) Judicial review. If the denial of the request for records is
upheld in whole or in part, or if a determination on the appeal has not
been mailed at the end of the 20-day period or the last extension
thereof, the requester is deemed to have exhausted his or her
administrative remedies, giving rise to a right of judicial review under
5 U.S.C. 552(a)(4).
Sec. 1601.24 Timing of responses to requests.
(a) In general. The CSB ordinarily shall respond to requests
according to their order of receipt.
(b) Multitrack processing. (1) The CSB may use two processing tracks
by distinguishing between simple and more complex requests based on the
amount of work and/or time needed to process the request, including
according to limits based on the number of pages involved. If the agency
does so, it shall advise requesters assigned to its slower track of the
eligibility limits for its faster track.
(2) The agency may provide requesters in its slower track with an
opportunity to limit the scope of their requests in order to qualify for
faster processing within the specified limits of the agency's faster
track. If it does so, the agency will contact the requester either by
telephone or by letter, whichever is most efficient in each case.
(c) Unusual circumstances. (1) Where the time limits for processing
a request cannot be met because of unusual circumstances and the CSB
determines to extend the time limits on that basis, the agency shall as
soon as practicable notify the requester in writing of the unusual
circumstances and of the date by which processing of the request can be
expected to be completed. Where the extension is for more than ten
working days, the CSB shall provide the requester with an opportunity
either to modify the request so that it may be processed within the time
limits or to arrange an alternative time period for processing the
request or a modified request.
(2) Where the CSB reasonably believes that multiple requests
submitted by a requester, or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances, and the requests involve clearly related matters, they
may be aggregated. Multiple requests involving unrelated matters will
not be aggregated.
(d) Expedited processing. (1) Requests and appeals will be taken out
of order and given expedited treatment whenever it is determined that
they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
Federal government activity, if made by a person primarily engaged in
disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which
there exists possible questions about the government's integrity which
affect public confidence.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the
[[Page 514]]
best of that person's knowledge and belief, explaining in detail the
basis for requesting expedited processing. For example, a requester
within the category in paragraph (d)(1)(ii) of this section, if not a
full-time member of the news media, must establish that he or she is a
person whose main professional activity or occupation is information
dissemination, though it need not be his or her sole occupation. A
requester within the category in paragraph (d)(1)(ii) of this section
also must establish a particular urgency to inform the public about the
government activity involved in the request, beyond the public's right
to know about government activity generally. The formality of
certification may be waived as a matter of administrative discretion.
(4) Within ten calendar days of its receipt of a request for
expedited processing, the CSB shall decide whether to grant it and shall
notify the requester of the decision. If a request for expedited
treatment is granted, the request shall be given priority and shall be
processed as soon as practicable. If a request for expedited processing
is denied, any appeal of that decision shall be acted on expeditiously.
(e) Appeals. A written determination on an appeal submitted in
accordance with Sec. 1601.23 will be issued within 20 working days after
receipt of the appeal. This time limit may be extended in unusual
circumstances up to a total of 10 working days after written notice to
the requester setting forth the reasons for the extension and the date
on which a determination is expected to be made. As used in this
paragraph, unusual circumstances means that there is a need to:
(1) Search for and collect the requested records from facilities
that are separate from the office processing the request;
(2) Search for, collect, and appropriately examine a voluminous
amount of separate and distinct records which are demanded in a single
request; or
(3) Consult with another agency having a substantial interest in the
determination of the request, or consult with various offices within the
CSB that have a substantial interest in the records requested.
(f) When a determination cannot be mailed within the applicable time
limit, the appeal will nevertheless be processed. In such case, upon the
expiration of the time limit, the requester will be informed of the
reason for the delay, of the date on which a determination may be
expected to be mailed, and of that person's right to seek judicial
review. The requester may be asked to forego judicial review until
determination of the appeal.
Sec. 1601.25 Disclosure of requested records.
(a) The FOIA Officer shall make requested records available to the
public to the greatest extent possible in keeping with the FOIA, except
that the following records are exempt from the disclosure requirements:
(1) Records specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense or
foreign policy and which are, in fact, properly classified pursuant to
such Executive Order;
(2) Records related solely to the internal personnel rules and
practices of the CSB;
(3) Records specifically exempted from disclosure by statute (other
than 5 U.S.C. 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:
[[Page 515]]
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and in the case of a record or information compiled
by criminal law enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Records contained in or related to examination, operating, or
condition reports prepared by, or on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions;
(9) Geological or geophysical information and data, including maps,
concerning wells.
(b) If a requested record contains exempted material along with
nonexempted material, all reasonably segregable nonexempt material shall
be disclosed.
(c) Even if an exemption described in paragraph (a) of this section
may be reasonably applicable to a requested record, or portion thereof,
the CSB may elect under the circumstances of any particular request not
to apply the exemption to such requested record, or portion thereof,
subject to the provisions in Sec. 1601.26 for confidential business
information. The fact that the exemption is not applied by the CSB to
any requested record, or portion thereof, has no precedential
significance as to the application or non-application of the exemption
to any other requested record, or portion thereof, no matter when the
request is received.
Sec. 1601.26 Special procedures for confidential business information.
(a) In general. Confidential business information provided to the
CSB by a business submitter shall not be disclosed pursuant to a FOIA
request except in accordance with this section.
(b) Designation of business information. Business submitters should
use good-faith efforts to designate, by appropriate markings, either at
the time of submission or at a reasonable time thereafter, those
portions of their submissions which they deem to be protected under
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Any such designation will
expire 10 years after the records were submitted to the government,
unless the submitter requests, and provides reasonable justification
for, a designation period of longer duration.
(c) Predisclosure notification. (1) Except as is provided for in
paragraph (h) of this section, the FOIA Officer shall, to the extent
permitted by law, provide a submitter with prompt written notice of a
FOIA request or administrative appeal encompassing its confidential
business information whenever required under paragraph (d) of this
section. Such notice shall either describe the exact nature of the
business information requested or provide copies of the records or
portions thereof containing the business information.
(2) Whenever the FOIA Officer provides a business submitter with the
notice set forth in this paragraph, the FOIA Officer shall notify the
requester that the request includes information that may arguably be
exempt from disclosure under Exemption 4 of the FOIA and that the person
or entity who submitted the information to the CSB has been given the
opportunity to comment on the proposed disclosure of information.
(d) When notice is required. The CSB shall provide a business
submitter with notice of a request whenever:
(1) The business submitter has in good faith designated the
information
[[Page 516]]
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
Sec. 1601.30 Fees to be charged--general.
(a) Policy. Generally, the fees charged for requests for records
pursuant to 5 U.S.C. 552 shall cover the full allowable direct costs of
searching for, reproducing, and reviewing records that are responsive to
a request for information. Fees shall be assessed according to the
schedule contained in paragraph (b) of this section and the category of
requesters described in Sec. 1601.31 for services rendered by the CSB
staff in responding to, and processing requests for, records under this
part. Fees assessed will be paid by check or money order payable to the
United States Treasury.
(b) Types of charges. The types of charges that may be assessed in
connection with the production of records in response to a FOIA request
are as follows:
(1) Searches.
(i) Manual searches for records. For each quarter hour spent in
searching for and/or reviewing a requested record, the fees will be:
$4.00 for clerical personnel; $8.00 for professional personnel; and
$11.00 for managerial personnel.
(ii) Computer searches for records. Requesters will be charged at
the actual direct costs of conducting a search
[[Page 517]]
using existing programming. These direct costs will include the cost of
operating the central processing unit for that portion of operating time
that is directly attributable to searching for records and the operator/
programmer salary, i.e., basic pay plus 16 percent, apportionable to the
search. A charge shall also be made for any substantial amounts of
special supplies or materials used to contain, present, or make
available the output of computers, based upon the prevailing levels of
costs to the CSB for the type and amount of such supplies or materials
that are used. Nothing in this paragraph shall be construed to entitle
any person or entity, as of right, to any services in connection with
computerized records, other than services to which such person or entity
may be entitled under the provisions of this section or Sec. 1601.32.
The CSB will not alter or develop programming to conduct a search.
(iii) Unproductive searches. The CSB will charge search fees even if
no records are found which are responsive to the request or if the
records found are exempt from disclosure.
(2) Duplication. Records will be reproduced at a rate of $0.25 per
page. For copies prepared by computer, such as tapes or printouts, the
requester shall be charged the actual cost, including operator time, of
production of the tape or printout. For other methods of reproduction,
the actual direct costs of reproducing the record(s) shall be charged.
(3) Review. Only commercial-use requesters may be charged for time
spent reviewing records to determine whether they are exempt from
mandatory disclosure. Charges may be assessed only for initial review,
i.e., the review undertaken the first time the CSB analyzes the
applicability of a specific exemption to a particular record or portion
of a record. Records or portions of records withheld in full under an
exemption that is subsequently determined not to apply may be reviewed
again to determine the applicability of other exemptions not previously
considered. The costs for such a subsequent review are properly
assessable.
(4) Other services and materials. Where the CSB elects, as a matter
of administrative discretion, to comply with a request for a special
service or materials, such as certifying that records are true copies or
sending records by special methods, the actual direct costs of providing
the service or materials will be charged.
Sec. 1601.31 Fees to be charged--categories of requesters.
(a) Fees for various requester categories. Paragraphs (b) through
(e) of this section state, for each category of requester, the types of
fees generally charged by the CSB. However, for each of these
categories, the fees may be limited, waived or reduced in accordance
with the provisions set forth in Sec. 1601.32(c). If the CSB has
reasonable cause to doubt the purpose specified in the request for which
a requester will use the records sought, or where the purpose is not
clear from the request itself, the CSB will seek clarification before
assigning the request a specific category.
(b) Commercial use requester. The CSB shall charge fees for records
requested by persons or entities making a commercial use request in an
amount that equals the full direct costs for searching for, reviewing
for release, and reproducing the records sought. Commercial use
requesters are not entitled to 2 hours of free search time nor 100 free
pages of reproduction of records. In accordance with Sec. 1601.30,
commercial use requesters may be charged the costs of searching for and
reviewing records even if there is ultimately no disclosure of records.
(c) Educational and noncommercial scientific institutions. The CSB
shall charge fees for records requested by, or on behalf of, educational
institutions and noncommercial scientific institutions in an amount
which equals the cost of reproducing the records responsive to the
request, excluding the cost of reproducing the first 100 pages. No
search fee shall be charged with respect to requests by educational and
noncommercial scientific institutions. For a request to be included in
this category, requesters must show that the request being made is
authorized by and under the auspices of a qualifying institution, and
that the records are not sought for commercial use but are
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sought in furtherance of scholarly research (if the request is from an
educational institution) or scientific research (if the request is from
a noncommercial scientific institution).
(d) News media. The CSB shall charge fees for records requested by
representatives of the news media in an amount which equals the cost of
reproducing the records responsive to the request, excluding the costs
of reproducing the first 100 pages. No search fee shall be charged with
respect to requests by representatives of the news media. For a request
to be included in this category, the requester must qualify as a
representative of the news media and the request must not be made for a
commercial use. A request for records supporting the news dissemination
function of the requester shall not be considered to be a request that
is for commercial use.
(e) All other requesters. The CSB shall charge fees for records
requested by persons or entities that are not classified in any of the
categories listed in paragraphs (b), (c), or (d) of this section in an
amount that equals the full reasonable direct cost of searching for and
reproducing records that are responsive to the request, excluding the
first 2 hours of search time and the cost of reproducing the first 100
pages of records. In accordance with Sec. 1601.30, requesters in this
category may be charged the cost of searching for records even if there
is ultimately no disclosure of records, excluding the first 2 hours of
search time.
(f) For purposes of the exceptions contained in this section on
assessment of fees, the word pages refers to paper copies of 8\1/2\ x 11
inches or 11 x 14 inches. Thus, requesters are not entitled to 100
microfiche or 100 computer disks, for example. A microfiche containing
the equivalent of 100 pages or a computer disk containing the equivalent
of 100 pages of computer printout meets the terms of the exception.
(g) For purposes of paragraph (e) of this section, the term search
time has as its basis, manual search. To apply this term to searches
made by computer, the CSB will determine the hourly cost of operating
the central processing unit and the operator's hourly salary plus 16
percent. When the cost of the search (including the operator time and
the cost of operating the computer to process a request) equals the
equivalent dollar amount of 2 hours of the salary plus 16 percent of the
person performing the search, i.e., the operator, the CSB will begin
assessing charges for the computer.
Sec. 1601.32 Limitations on charging fees.
(a) In general. Except for requesters seeking records for a
commercial use as described in Sec. 1601.31(b), the CSB will provide,
without charge, the first 100 pages of duplication and the first 2 hours
of search time, or their cost equivalent.
(b) No fee charged. The CSB will not charge fees to any requester,
including commercial use requesters, if the cost of collecting a fee
would be equal to or greater than the fee itself. The elements to be
considered in determining the cost of collecting a fee are the
administrative costs of receiving and recording a requester's remittance
and of processing the fee.
(c) Waiver or reduction of fees. The CSB may grant a waiver or
reduction of fees if the CSB determines that the disclosure of the
information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the Federal government, and the disclosure of the information is not
primarily in the commercial interest of the requester. Requests for a
waiver or reduction of fees will be considered on a case-by-case basis.
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
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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
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(iv) If specialized use of the documents is contemplated, a
statement of the requester's qualifications that are relevant to the
specialized use.
(5) A requester may appeal the denial of a request for a waiver or
reduction of fees in accordance with the provisions of Sec. 1601.23.
Sec. 1601.33 Miscellaneous fee provisions.
(a) Notice of anticipated fees in excess of $25. Where the CSB
determines or estimates that the fees chargeable will amount to more
than $25, the CSB shall promptly notify the requester of the actual or
estimated amount of fees or such portion thereof that can be readily
estimated, unless the requester has indicated his or her willingness to
pay fees as high as those anticipated. Where a requester has been
notified that the actual or estimated fees may exceed $25, the request
will be deemed not to have been received until the requester has agreed
to pay the anticipated total fee. A notice to the requester pursuant to
this paragraph will include the opportunity to confer with CSB personnel
in order to reformulate the request to meet the requester's needs at a
lower cost.
(b) Aggregating requests. A requester may not file multiple requests
at the same time, each seeking portions of a record or records, solely
in order to avoid the payment of fees. When the CSB reasonably believes
that a requester, or a group of requesters acting in concert, is
attempting to break a request into a series of requests for the purpose
of evading the assessment of fees, the CSB may aggregate such requests
and charge accordingly. One element to be considered in determining
whether a belief would be reasonable is the time period over which the
requests have occurred. The CSB will presume that multiple requests of
this type made within a 30-day period have been made in order to evade
fees. Where requests are separated by a longer period, the CSB shall
aggregate them only where there exists a solid basis for determining
that such aggregation is warranted, e.g., where the requests involve
clearly related matters. Multiple requests regarding unrelated matters
will not be aggregated.
(c) Advance payment of fees. (1) The CSB does not require an advance
payment before work is commenced or continued, unless:
(i) The CSB estimates or determines that the fees are likely to
exceed $250. If it appears that the fees will exceed $250, the CSB will
notify the requester of the likely cost and obtain satisfactory
assurance of full payment where the requester has a history of prompt
payment of FOIA fees. In the case of requesters with no history of
payment, the CSB may require an advance payment of fees in an amount up
to the full estimated charge that will be incurred; or
(ii) The requester has previously failed to pay a fee in a timely
fashion, i.e., within 30 days of the date of a billing. In such cases,
the CSB may require the requester to pay the full amount owed plus any
applicable interest, as provided in paragraph (d) of this section, or
demonstrate that the fee owed has been paid, prior to processing any
further record request. Under these circumstances, the CSB may require
the requester to make an advance payment of the full amount of the fees
anticipated before processing a new request or finishing processing of a
pending request from that requester.
(2) A request for an advance deposit shall ordinarily include an
offer to the requester to confer with identified CSB personnel to
attempt to reformulate the request in a manner which will meet the needs
of the requester at a lower cost.
(3) When the CSB requests an advance payment of fees, the
administrative time limits described in 5 U.S.C. 552(a)(6) begin only
after the CSB has received the advance payment.
(d) Interest. The CSB may assess interest charges on an unpaid bill
starting on the 31st day following the day on which the bill was sent.
Once a fee payment has been received by the CSB, even if not processed,
the accrual of interest shall be stayed. Interest charges shall be
assessed at the rate prescribed in 31 U.S.C. 3717 and shall accrue from
the date of the billing.
(e) Whenever a total fee calculated under paragraph (d) of this
section is $14.00 or less for any request, no fee will be charged.
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