Rule Implementing the Freedom of Information Act, 47079-47085 [05-15985]
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Federal Register / Vol. 70, No. 155 / Friday, August 12, 2005 / Rules and Regulations
Background
Brucellosis is a contagious disease
caused by bacteria of the genus Brucella.
The disease mainly affects cattle, bison,
and swine, but goats, sheep, horses, and
even humans are susceptible. In its
principal animal hosts, it causes loss of
young through spontaneous abortion or
birth of weak offspring, reduced milk
production, and infertility. There is no
economically feasible treatment for
brucellosis in livestock. In humans,
brucellosis initially causes flu-like
symptoms, but the disease may develop
into a variety of chronic conditions,
including arthritis. Humans can be
treated for brucellosis with antibiotics.
The brucellosis regulations in 9 CFR
part 78 (referred to below as the
regulations) contain specific provisions
for cattle, bison, and swine. Under the
regulations, States, herds, and
individual animals are classified
according to their brucellosis status.
Interstate movement requirements for
animals are based upon the disease
status of the individual animals or the
herd or State from which the animal
originates.
In an interim rule effective and
published in the Federal Register on
May 2, 2005 (70 FR 22588–22589,
Docket No. 05–009–1), we amended the
regulations by adding Florida to the list
of validated swine brucellosis-free
States in § 78.43.
Comments on the interim rule were
required to be received on or before July
1, 2005. We did not receive any
comments. Therefore, for the reasons
given in the interim rule, we are
adopting the interim rule as a final rule.
This action also affirms the
information contained in the interim
rule concerning Executive Order 12866
and the Regulatory Flexibility Act,
Executive Orders 12372 and 12988, and
the Paperwork Reduction Act.
Further, for this action, the Office of
Management and Budget has waived its
review under Executive Order 12866.
Done in Washington, DC, this 5th day of
August 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. 05–16013 Filed 8–11–05; 8:45 am]
BILLING CODE 3410–34–P
NUCLEAR WASTE TECHNICAL
REVIEW BOARD
10 CFR Part 1303
Rule Implementing the Freedom of
Information Act
U.S. Nuclear Waste Technical
Review Board.
ACTION: Final act.
AGENCY:
SUMMARY: This document institutes the
Board’s final rule to implement a set of
procedural regulations under the
Freedom of Information Act (FOIA) in
accordance with 5 U.S.C. 552, the
Freedom of Information Act, and Public
Law 104–231, the Electronic Freedom of
Information Act Amendments of 1996.
These regulations were written to
conform to the statutory provisions in
the Acts, to expedite the processing of
FOIA requests received by the Board,
and to ensure the proper dissemination
of information to the public.
DATES: Effective August 12, 2005.
FOR FURTHER INFORMATION CONTACT:
Victoria Reich at (703) 235–4473.
SUPPLEMENTARY INFORMATION: The
proposed rule was published in the
December 29, 2004 Federal Register (69
FR 77956) for a six-week public
comment period. A copy of the
proposed rule was also posted on the
Board’s Web site and on the Federal
Rulemaking Portal.
This rule sets forth the procedures for
members of the public to request
records from the U.S. Nuclear Waste
Technical Review Board under both the
Freedom of Information Act and the
Electronic Freedom of Information Act
Amendments of 1996. The rule also
describes the procedures that the Board
will use when responding to such
requests. It sets up the time frames for
List of Subjects in 9 CFR Part 78
responses and the current fee schedule
Animal diseases, Bison, Cattle, Hogs,
for applicable charges for information.
Quarantine, Reporting and
The rule also supplies information
recordkeeping requirements,
about Board materials available to the
Transportation.
public through both the Board’s reading
room and its Web site.
PART 78—BRUCELLOSIS
The Board received several comments
on the proposed rule. Its responses to
I Accordingly, we are adopting as a final
those comments are detailed below.
rule, without change, the interim rule
1. The Board modified § 1303.106
that amended 9 CFR part 78 and that was Responsibility, form, and content of
published at 70 FR 22588–22589 on May responses. To ensure that its record
search was not inappropriately limited,
2, 2005.
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the Board substituted ‘‘When
determining which records are
responsive to a request, the Board will
include only records in its possession as
of the date of the search.’’ for ‘‘When
determining which records are
responsive to a request, the Board will
include only records in its possession as
of the date receipt of the request.’’
2. The Board added additional
language to § 1303.106(c)
Responsibility, form, and content of
responses to clarify its procedure for
dealing with records containing
nonpublic information obtained from
other federal agencies.
3. The Board modified
§ 1303.107(e)(3) Timing of responses to
requests. To make explicit its intent to
expedite a broad range of requests, the
Board substituted ‘‘[A] requestor under
§ 1303.108 must demonstrate that their
professional activity involves news
reporting or otherwise disseminating
information to the public,’’ for ‘‘[A]
requestor under § 1303.108 must
establish that his/her professional
activity is news reporting.’’
4. The board modified § 1303.109(a)
Restrictions of charging fees. To clarify
that it would not charge fees for certain
searches, the Board substituted ‘‘No
search or review fee shall be charged for
requests by educational institutions,
noncommercial scientific institutions,
and representatives of the news media.’’
for ‘‘No review fee shall be charged for
requests by educational institutions,
noncommercial scientific institutions,
and representatives of the news media.’’
The Board has made two additional
changes to the rule not considered to be
substantive.
1. The mailing address for
§ 1303.105(a)(2) Requests for Board
records was incorrect. It has been
corrected to read, ‘‘Send an e-mail
request to foia@nwtrb.gov.’’
2. Because of problems with the
receipt of excessive e-mails to
foia@nwtrb.gov not relating to the
regulation, the Board has decided to
amend § 130.105(a)(2) Requests for
Board records and § 1303.114(a)(ii)
Appeals by specifying that the acronym
FOIA or words Freedom of Information
Act must appear in the subject line.
Executive Order No. 12866
These proposed regulations do not
meet the criteria for a significant
regulatory action under Executive Order
12866. Thus, review by the Office of
Management and Budget is not required.
Regulatory Flexibility Act
These proposed regulations will not
have a significant economic impact on
a substantial number of small entities.
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Therefore, a regulatory flexibility
analysis as provided by the Regulatory
Flexibility Act, as amended, is not
required.
List of Subjects in 10 CFR Part 1303
Administrative practice and
procedure, Freedom of Information,
Reporting and recordkeeping
requirements.
I Therefore, the Board establishes
Chapter XIII in Title 10 of the Code of
Federal Regulations, consisting of part
1303, to read as follows:
CHAPTER XIII—NUCLEAR WASTE
TECHNICAL REVIEW BOARD
PART 1303—PUBLIC INFORMATION
AND REQUESTS
Sec.
1303.101 Scope.
1303.102 Definitions.
1303.103 Public reading area.
1303.104 Board records exempt from public
disclosure.
1303.105 Requests for Board records.
1303.106 Responsibility, form, and content
of responses.
1303.107 Timing of responses to requests.
1303.108 Fees.
1303.109 Restriction on charging fees.
1303.110 Notice of anticipated fees.
1303.111 Requirements for waiver or
reduction of fees.
1303.112 Denials.
1303.113 Business information.
1303.114 Apeals.
1303.115 Preservation of records.
1303.116 Other rights and services.
Authority: 5 U.S.C. 301, 5 U.S.C. 552 as
amended, Executive Order 12600 (3 CFR
1988 Comp., p. 235)
§ 1303.101
Scope
This part sets forth the policies and
procedures of the U.S. Nuclear Waste
Technical Review Board (Board)
regarding public access to documents
under the Freedom of Information Act
(FOIA), 5 U.S.C. 552. The provisions in
the Act shall take precedence over any
part of the Board’s regulations in
conflict with the Act. This part gives the
procedures the public may use to
inspect and obtain copies of Board
records under the FOIA, including
administrative procedures which must
be exhausted before a request invokes
the jurisdiction of an appropriate United
States District Court for the Board’s
failure to respond to a proper request
within the statutory time limits, for a
denial of Board records or challenges to
the adequacy of a search, or for denial
of fee waiver.
1303.102
Definitions.
For words used in this part, unless the
context varies otherwise, singular
includes the plural, plural includes the
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singular, present tense includes the
future tense, and words of one gender
include the other gender.
(a)(1) Agency records—include
materials that are in the control of the
Board and associated with Board
business, as follows:
(i) Materials produced by the Board.
(ii) Materials produced a consultant
for the Board.
(iii) Materials distributed by
presenters at a Board meeting.
(2) All references to records, include
both the entire record, or any part of the
record.
(b) Board—The U.S. Nuclear Waste
Technical Review Board.
(c) Chairman—The Chairman of the
Board as designated by the President.
(d) Designated FOIA Officer—The
person named by the Board to
administer the Board’s activities in
regard do the regulations in this part.
The FOIA Officer also shall be:
(1) The Board officer having custody
of, or responsibility for, agency records
in the possession of the Board.
(2) The Board officer having
responsibility for authorizing or denying
production of records from requests
filed under the Freedom of Information
Act.
(e) Executive Director—The chief
operating officer of the Board.
(f) Member—An individual appointed
to serve on the Board by the President
of the United States.
(g) Days—Standard working days,
excluding weekends and federal
holidays.
§ 1303.103
Public reading area.
(a) A public reading area is available
at the Board office located at 2300
Clarendon Blvd., Suite 1300, Arlington,
Virginia 22201. To use the reading area,
contact the Director of Administration
by:
(1) Letter to the address in this
paragraph (a):
(2) Telephone: 703–235–4473;
(3) A request to the Board’s Web site
at https://www.nwtrb.gov; or
(4) Fax: 703–532–4495.
(b) Documents also may be requested
through the Board’s Web site or by letter
or fax. Please ensure that the records
sought are clearly described. Materials
produced by the Board are in the public
domain unless otherwise noted.
(c) Many Board records are available
electronically at the Board’s Web site
(https://www.nwtrb.gov).
(d) Records of the Board available for
inspection and copying include:
(1) The rules and regulations of the
Board.
(2) Statements of policy adopted by
the Board.
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(3) Board reports to the U.S. Congress
and the U.S. Secretary of Energy.
(4) Board correspondence with
Congress and the Department of Energy
(DOE).
(5) Transcripts of Board meetings.
(6) Biographical information about
current Board members.
(7) Copies of records released in
response to FOIA requests.
(e) The cost of copying information
available in the Board office shall be
imposed in accordance with the
provisions of § 1303.108.
§ 1303.104 Board records exempt from
public disclosure.
5 U.S.C. 552 provides that the
requirements of the FOIA do not apply
to matters that are:
(a) Specifically authorized under the
criteria established by an executive
order to be kept secret in the interest of
national defense or foreign policy and in
fact are properly classified pursuant to
such an executive order.
(b) Related solely to the internal
personnel rules and practices of the
Board.
(c) Specifically exempted from
disclosure by another federal statute,
provided that such statute:
(1) Requires that records be withheld
from the public in such a manner that
leaves no discretion on the issue; or
(2) Establishes criteria for withholding
or refers to particular types of matters to
be withheld.
(d) Trade secrets, and commercial or
financial information obtained from a
person and privileged or confidential.
(e) Interagency or intra-agency
memoranda or letters that would not be
available by law to a party other than an
agency in litigation with the Board.
(f) Personnel, medical, or similar files
that disclosing would constitute a
clearly unwarranted invasion of
personal privacy.
(g) Records or information compiled
for law enforcement purposes. Buy only
to the extent that the production of such
law enforcement records or information:
(1) Could reasonably be expected to
interfere with enforcement proceedings:
(2) Would deprive a person of a right
to a fair trial or an impartial
adjudication;
(3) Could reasonably be expected to
constitute an unwarranted invasion of
personal privacy;
(4) Could reasonably be expected to
disclose the identity of any 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
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agency in the course of a criminal
investigation or by an agency
conducting a lawful security
intelligence investigation, information
furnished by a confidential source;
(5) 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
(6) Could reasonably be expected to
endanger the life or physical safety of
any individual.
(h) 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.
(i) Geological and geophysical
information and data, including maps,
concerning wells.
§ 1303.105
Requests for Board records.
(a) A written FOIA request must be
submitted. You may:
(1) Write: NWTRB Designated FOIA
Officer, 2300 Clarendon Boulevard,
Suite 1300, Arlington, VA 22201;
(2) Send an e-mail request to
foia@nwtrb.gov and specify that this is
a FOIA request in the subject line; or
(3) Fax: 703–235–4495.
(b) When making a request for records
about a person, Privacy Act regulations
also may apply. Please check the
regulations for additional requirements
before submitting a request. When
making a request for records about
someone other than yourself, you must
include either:
(1) Written authorization signed by
the person permitting you to see the
records; or
(2) Proof that the individual is
deceased (e.g., a death certificate or an
obituary).
(c) A request will be considered
received for purposes of § 1303.107 on
the date that it is received by the
Board’s FOIA office. For prompt
handling, write ‘‘Freedom of
Information Act Request’’ on the letter
and envelope or in the subject line of
the Web request or fax.
(d) Each request must clearly describe
the desired records in sufficient detail to
enable Board personnel to locate them
with reasonable effort. Response to
requests may be delayed if the records
are not clearly described.
(e) Whenever possible, requests
should include specific information
about each record sought, such as date,
title or name, author, recipient, and
subject.
(f) If the FOIA Officer determines that
the request does not clearly describe the
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records sought, he or she will either
advise you of the additional needed to
locate the record or otherwise state why
the request is insufficient. The requestor
will then be given the opportunity to
provide additional information or to
modify their request.
(g) Submitting a FOIA request shall be
considered a commitment by the
requestor to pay all applicable fees
required under § 1303.108 unless the
requestor seeks a waiver of fees. When
making a request, you may specify a
willingness to pay fees up to a specific
amount.
(h) The FOIA does not require the
Board 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
time in the future.
(3) Restore records destroyed or
otherwise disposed of, except that the
FOIA Officer must notify the requestor
that the records have been destroyed or
otherwise disposed of.
§ 1303.106 Responsibility, form, and
content of responses.
The Board’s Executive Director of his/
her designated FOIA Officer is
authorized to grant or deny any request
for a record and determine appropriate
fees. When determining which records
are responsive to a request, the Board
will include only records in its
possession as of the date of the search.
(a) If no records are responsive to the
request, the FOIA Officer will notify the
requestor in writing.
(b) When a FOIA Officer denies a
request in whole or in part he/she will
notify the requestor 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 reasons for
the denial, including the FOIA
exemption(s) that the FOIA Officer has
relied on the denying the request; and
(3) A statement that the denial may be
appealed under § 1303.114 and a
description of the requirements of that
section.
(c) Consultations and referrals. When
a request for a record not produced by
the Board is received, the Board shall
refer the requestor to the issuing agency
in writing. The Board may hold records
that contain or refer to non-public
information obtained from other federal
agencies (co-mingled records). If those
co-mingled records are requested, the
Board shall determine whether the
portion of those records produced by
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47081
the Board can be released. Before any
portion of a co-mingled record is
released, the Board shall redact the nonpublic information obtained from other
federal agencies. The Board shall inform
the requestor of the reason for the
redaction and shall refer the requestor to
the issuing agency in writing.
(d) Notice of referral. When the Board
refers all or part of a request to another
agency, it shall give the requestor the
address of the agency contact and the
section(s) referred.
(e) Timing of responses to requests
sent to other agencies. The Board shall
provide, within the FOIA deadline,
responses only to those parts of the
request not referred. Requests will be
referred to other agencies and the
requestor notified as soon as it is
determined that a referral is appropriate.
(f) Agreements on consultations and
referrals. The Board may make
agreements with other agencies to
eliminate the need for consultations or
referrals for particular types of records.
§ 1303.107
requests.
Timing of responses to
(a) General. The Board shall normally
respond to requests in the order of their
receipt.
(b) Acknowledgement of requests. On
receipt of a request, the Board shall send
an acknowledgment letter or an e-mail
confirming the requestor’s agreement to
pay fees under § 1303.108 and providing
a request number for further reference.
(c) Granting requests. The Board shall
have 20 business days from when a
request is received to determine
whether to grant or deny it. Once the
Board determines whether it can grant
a request entirely or in part, it shall
notify the requestor in writing. The
Board shall advise the requestor of any
fees to be charged under § 1303.108 and
shall disclose records promptly on
payment of the fees. Records disclosed
in part shall be marked or annotated to
show the amount of information deleted
unless doing so would harm an interest
protected by an applicable exemption.
The location of the information deleted
also shall be indicated on the record
when technically feasible.
(d) Unusual circumstances:
(1) If the statutory time limits for
processing a request cannot be met
because of ‘‘usual circumstances’’ as
defined in the FOIA, the Board shall
promptly notify the requestor in writing,
explaining the circumstances and giving
the date by which the request can be
completed or if the Board cannot
complete the request. If the extension is
for more than 10 working days, the
Board shall provide the requestor with
an opportunity either to:
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(i) Modify the request so that it can be
processed within the time limits; or
(ii) Arrange an alternative time period
for processing the original request.
(2) If the Board believes that multiple
requests submitted by a requestor or by
requestors acting in concert constitute a
single request that would otherwise
involve unusual circumstances, and if
the requests involve clearly related
matters, they may be aggregated.
Multiple requests involving unrelated
matters will not be aggregated.
(e) Expedited processing:
(1) Requests and appeals shall be
taken out of order and given expedited
processing whenever it is determined
that they involve:
(i) Circumstances that could
reasonably be expected to pose an
imminent threat to the life or physical
safety of an individual; or
(ii) An urgency to inform the public
about an actual or alleged activity if
made by a person primarily engaged in
disseminating information.
(2) Requests for expedited processing
may be made either at the time of the
initial request or at a later time.
(3) Requests for expedited processing
must include a statement explaining in
detail the basis for requesting expedited
processing. For example, a requestor
under § 1303.108 must demonstrate that
their professional activity involves news
reporting or otherwise disseminating
information to the public, although this
need not be their sole occupation. A
requestor also must establish a
particular urgency to inform the public
about government activity involved in
the request, beyond the public’s right to
know about government activity
generally.
(4) Within 10 calendar days of receipt
of a request for expedited processing,
the Board shall decide whether to grant
the request and notify the requestor of
its decision. If a request for expedited
treatment is granted, the request shall be
processed as soon as practicable. If a
request for expedited processing is
denied, an appeal of that decision shall
be acted on expeditiously.
§ 1303.108
Fees.
(a) General. The Board shall charge
for processing requests the FOIA in
accordance with paragraph (c) of this
section, except where fees are limited
under § 1303.109 or where a waiver or
reduction of fees is granted under
§ 1303.111. Fees must be paid before the
copies of records are sent. Fees may be
paid by check or money order payable
to the Treasury of the United States.
(b) Definitions for this section:
(1) Commercial use request—A
request from, or on behalf of, a person
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who seeks information for a purpose
that furthers their commercial, trade, or
profit interests including furthering
those interests through litigation. The
Board shall try to determine the use to
which a record will be put. When the
Board believes that a request is for
commercial use either because of the
nature of the request or because the
Board has cause to doubt the stated use,
the Board shall ask the requestor for
clarification.
(2) Direct costs—Expenses that the
Board incurs in searching for,
duplicating, and, for some requests,
reviewing records in response to a
FOIA. Direct costs include the full
salary of the employee performing the
work and the cost of duplication of the
records. Overhead expenses, such as the
costs of space, heating, and lighting, are
not included.
(3) Duplication—Making a copy of a
record or the information in the record,
to respond to a FOIA. Copies can be in
paper, microform, electronic, or other
format. The Board shall honor a
requestor’s preference for format if the
record is readily reproducible in that
format at a reasonable cost.
(4) Educational institution—A public
or private school, an undergraduate,
graduate, professional or vocational
school, that has a program of scholarly
research. For a request to be in this
category, a requestor must show that the
request is authorized by and made
under the auspices of the qualifying
institution and that the records will be
used for scholarly research.
(5) Noncommercial scientific
institution—An institution that is not
operated on a commercial basis, as
defined in paragraph (b)(1) of this
section and is operated solely for
conducting scientific research that does
not promote any particular product or
industry. For a request to be in this
category, the requestor must show that
the request is authorized by and made
under the auspices of the qualifying
institution and that the records will be
used to further scientific research.
(6) Representative of the news
media—Any person actively reporting
for an entity that provides news to the
public. The term ‘‘news’’ means
information about current events or of
current interest to the public. Examples
include: Television and radio stations
broadcasting to the public; and
publishers of periodicals who make
their news products available to the
general public. For freelance journalists
to be regarded as working for a news
organization, they must demonstrate a
sold basis for expecting publication
through that organization. The Board
may use a publication contract or past
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publication records to make their
determination. The requestor must not
be seeking records for a commercial use;
however, a request solely supporting the
news-dissemination function is not
considered a commercial use.
(7) Review—Examining a record to
determine whether any part of its is
exempt from disclosure, and processing
a record for disclosure. Review costs are
recoverable even if a record is to
disclosed. Review time includes time
spent considering any formal objection
to disclosure made by a business
submitter under paragraph (c)(3) of this
section but does not include time spent
resolving general legal or policy issues
regarding the application of exemptions.
(8) Search—The process of looking for
and retrieving records, including pageby-page or line-by-line identification of
information within records and
reasonable efforts to locate and retrieve
information from records maintained in
electronic form. The Board shall ensure
that searches are done in the most
efficient and least expensive way that is
reasonably possible.
(c) Fees. In responding to FOIA
requests, the Board shall charge the
following fees unless a waiver or a
reduction of fees has been granted under
§ 1303.111:
(1) Search
(i) Search fees shall be charged for all
requests subject to the limitations of
§ 1303.109. The Board may charge for
time spent searching even if no
responsive record is located, or if the
record(s) located are withheld as exempt
from disclosure.
(ii) For each quarter hour spent by
clerical personnel in searching for and
retrieving a requested record, the fee
will be $5. If a search and retrieval
requires the use of professional
personnel the fee will be $8 for each
quarter hour. If the time of managerial
personnel is required, the fee will be
$10 for each quarter hour.
(iii) For computer searches of records,
requestors will be charged the direct
costs of conducting the search, although
certain requestors (see § 1303.109(a))
will be charged no search fee and
certain other requestors (see
§ 1303.109(b)) will be entitled to two
hours of manual search time without
charge. Direct costs include the cost of
operating a computer for the search time
for requested records and the operator
salary for the search.
(2) Duplication. Duplication fees for
paper copies of a record will be 10 cents
per page for black and white and 20
cents per page for color. For all other
forms of duplication, the Board shall
charge the direct costs of producing the
copy. All charges are subject to the
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limitations of § 1303.109 and
§ 1303.111.
(3) Review. When a commercial use
request is made, review fees shall be
charged as stated in paragraph (c)(1) of
this section. These fees apply only to
the initial record review, when the
Board determines whether an
exemption applies to a particular
record. Charges shall not be imposed for
review at the administrative appeal
level if an exemption is applied.
However, records withheld under an
exemption that is subsequently
determined not to apply may be
reviewed again to determine whether
any other exemption not previously
considered applies. The cost of that
review shall be charged. All review fees
shall be charged at the same rates as
those charged in paragraph (c)(1) of this
section.
§ 1303.109
Restrictions on charging fees.
(a) When determining search or
review fees:
(1) No search or review fee shall be
charged for requests by educational
institutions, noncommercial scientific
institutions, and representatives of the
news media.
(2) The Board shall provide without
charge, to all but commercial users.
(i) The first 100 pages of black and
white duplication (or the cost
equivalent); and
(ii) The first two hours of search by a
clerical staff member (or the cost
equivalent).
(3) When the total fee for a request
will be $14.00 or less for any request, no
fee shall be charged.
(b) The Provisions of paragraphs (a)(2)
and (a)(3) of this section work together.
All requestors seeking records for a noncommercial use shall not be charged
unless the total cost for the request
exceeds by more than $14.00, the cost
of a two hour clerical search, plus the
cost of duplication over the 100 page
exemption.
§ 1303.110
Notice of anticipated fees.
(a) General. The Board shall advise
the requetor in writing of any applicable
fees. If only a part of the fee can be
estimated readily, the Board shall advise
the requestor that this may be only a
part of the total fee. After the requestor
has been sent a fee estimate, the request
shall not be considered received until
the requestor makes a firm commitment
to pay the anticipated total fee. Any
such agreement must be made by the
requestor in writing and must be
received within 60 days of the Board’s
notice. If the requestor does not provide
a firm commitment to pay the
anticipated fee within 60 days of the
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notice, the request shall be closed. The
requestor may be given an opportunity
to work with the Board to change the
requests and lower the cost.
(b) Charges for other services. When
the Board chooses as a matter of
administrative discretion to provide a
special service, such as certifying that
records are true copies or sending them
by other than ordinary mail, the Board
shall pay the costs of providing the
service unless previous arrangements
have been made with the requestor.
(c) Charging interest. The Board may
charge interest on any unpaid bill
starting on the 31st day following the
date of billing. Interest charges shall be
assessed at the rate provided in 31
U.S.C. 3717 and shall accrue from the
date of the billing until payment is
received by the Board. The Board shall
follow the provisions of the Debt
Collection Act of 1982 (Pub. L. 97–365,
96 Stat. 1749), as amended.
(d) Aggregating requests. If the Board
reasonably believes that a requestor or a
group of requestors acting together is
trying to divide a request into a series
of smaller requests for the purpose of
avoiding fees, the Board may aggregate
the requests and charge accordingly.
The Board shall assume that multiple
requests of the same type made within
a 30-day period have been made in
order to avoid fees. If requests are
separated by a longer period, the Board
shall aggregate them only if there is a
solid basis for determining that
aggregation is warranted. Multiple
requests involving unrelated matters
shall not be aggregated.
(e) Advance payments. Where a
requestor has previously failed to pay
promptly a properly charged FOIA fee
to the Board or another agency, the
Board shall require proof that full
payment has been made to that agency
before it begins to process that
requestor’s FOIA. The Board shall also
require advance payment of the full
amount of the anticipated fee. When
advance payment is required, the
request is not considered received until
payment has been made.
§ 1303.111 Requirements for waiver or
reduction of fees.
(a) Records shall be furnished without
charge or at a reduced charge if the
Board determined that:
(1) Disclosure is in the public interest
and the information is likely to
contribute significantly to public
understanding of the activities of the
government; and
(2) Disclosure is not primarily in the
commercial interest of the requestor.
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47083
(b) In determining whether the first
requirement is met, the Board shall
consider:
(1) Subject: Do the requested records
concern identifiable activities of the
federal government?
(2) Informative value: Will the
disclosure contribute to an
understanding of government activities?
Do records contain information on
activities ‘‘likely to contribute’’ to an
increased public understanding? If the
information or similar information is
already in the public domain, the
record(s) would not increase the
public’s understanding.
(3) Would the disclosure contribute to
the understanding of a reasonably broad
audience, as opposed to the individual
understanding of the requestor? A
requestor’s expertise in the subject and
intention to convey information to the
public shall be considered. Being a valid
representative of the news media shall
satisfy this consideration.
(4) Is the disclosure likely to
contribute significantly to public
understanding of government activities?
The level of understanding after the
disclosure versus that before the
disclosure must be enhanced to a
significant extent. However, the Board
shall not make value judgments about
whether information contributing to
public understanding of government
activities is important enough to release.
(c) In determining whether the second
requirement is met, the Board shall
consider:
(1) The existence and extent of the
commercial interest: Would a
commercial interest be substantially
furthered by the disclosure? The Board
shall consider the commercial interest
(see paragraph (a)(2) of this section) of
either the requestor or of any person on
whose behalf they may be acting that
would be furthered by the disclosure.
During the administrative process,
requestors shall be given an opportunity
to provide additional information about
this concern.
(2) The primary interest for
disclosure: Whether the commercial
interest of the requestor is sufficiently
large in comparison to the public
interest, that disclosure is ‘‘primarily in
the commercial interest of the
requestor.’’ A fee waiver is justified if
the public interest standard under
paragraph (b) of this section is satisfied
and if that public interest is greater than
any commercial interest. The Board
shall presume that when news media
requestors satisfy this standard,
primarily the public interest is served.
(d) If only some of the records to be
released satisfy the requirements for a
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waiver of fees, a waiver shall be granted
only for those records.
(e) Requests for a waiver or a
reduction of fees must address the
factors listed in paragraphs (a) and (b)
of this section only as they apply to
each request. The Board also shall
consider their administrative resources
when responding to requests and may
negotiate with the requestor to find the
best way to optimize their resources in
responding to the request when
deciding whether to grant waivers or
reductions of fees.
§ 1303.112
Denials.
(a) When denying a request in any
respect, the Board shall notify the
requestor of that determination in
writing. The types of denials include:
(1) Denials of requests, consisting of a
determination:
(i) To withhold any requested record
in whole or in part;
(ii) That a requested record does not
exist or cannot be located;
(iii) That a record is not readily
reproducible in the form or format
sought;
(iv) That what has been requested is
not a record subject to the FOIA; and
(v) That the material requested is not
a Board record (e.g., material produced
by another agency or organization).
(2) A determination on any disputed
fee matter, including a denial of a
request for a fee waiver.
(3) A denial of a request for expedited
processing.
(b) The denial letter shall be signed by
the Director of Administration, the
Deputy Director, or their designee, and
shall include all of the following:
(1) The name and title of the person
responsible for the denial.
(2) A brief statement of the reason(s)
for the denial, including any FOIA
exemptions applied in denying the
request.
(3) An estimate of the volume of
records withheld, in number of pages or
in some other reasonable form of
estimation. This estimate does not need
to be provided if it would harm an
interest protected by an applicable
exemption.
(4) A statement that the denial may be
appealed under § 1303.114 and a
description of the requirements of
§ 1303.114.
§ 1303.113
Business information.
(a) In general. Business information
obtained by the Board from a submitter
shall be disclosed under the FOIA only
under this section.
(b) Definitions. For purposes of this
section:
(1) Business information—commercial
or financial records obtained by the
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Board that may be protected from
disclosure under Exemption 4 of the
Freedom of Information Act (FOIA).
(2) Submitter—any person or entity
from which the Board obtains business
records, either directly or indirectly.
The term includes, but is not limited to,
corporations, and state, local, tribal, and
foreign governments.
(c) Designation of business
information. Submitters of business
information shall designate any part of
the record considered to be protected
from disclosure under Exemption 4 of
the FOIA by appropriately marking the
material. This may be done either at the
time the record is submitted or at a
reasonable time thereafter. This
designation lasts for 10 years after
submittal unless the submitter requests
and provides justification for a longer
period.
(d) Notice to submitters. The Board
shall provide a business submitter with
prompt written notice of any FOIA
request or appeal that seeks its business
information under paragraph (e) of this
section, except as provided in paragraph
(h) of this section, to give the submitter
an opportunity to object to that
disclosure under paragraph (f) of this
section. The notice shall either describe
the records requested or include copies
of the records.
(e) Required notice. Notice shall be
given to a submitter when:
(1) The submitter has designated that
the information is considered protected
from disclosure under Exemption 4 of
the FOIA; or
(2) The Board has reason to believe
that the information may be protected
from disclosure under Exemption 4 of
the FOIA.
(f)(1) Objecting to disclosure. A
submitter shall have 30 days to respond
to the notice described in paragraph (d)
of this section. If a submitter has an
objection to disclosure, they are
required to submit a detailed written
statement including:
(i) All grounds for withholding any of
the information under any exemption of
the FOIA, and
(ii) In the case of Exemption 4, the
reason why the information is a trade
secret, commercial, or financial
information that is privileged or
confidential.
(2) If a submitter fails to respond to
the notice in paragraph (d) of the section
within 30 days, the Board shall assume
that the submitter has no objection to
disclosure. The Board shall not consider
information not received by the Board
until after a disclosure decision has
been made. Information provided by a
submitter under this paragraph might
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itself be subject to disclosure under the
FOIA.
(g) Notice of intent to disclose. The
Board shall consider a submitter’s
objections and specific grounds for
nondisclosure in deciding whether to
disclose the business records. Whenever
the Board decides to disclose business
records over the objection of a
submitter, it shall give the submitter
written notice, that will include:
(1) A statement of the reason(s) the
submitter’s objections were not
sustained;
(2) A description of the business
records to be disclosed; and
(3) A specified disclosure date at a
reasonable time subsequent to the
notice.
(h) Exceptions to notice requirements.
The notice requirements in paragraphs
(d) and (g) of this section shall not apply
if:
(1) The Board determines that the
information should not be disclosed;
(2) The information has been
published legally or has been officially
made available to the public;
(3) Disclosure of the information is
required by another statute or by a
regulation issued in accordance with
Executive Order 12600 (3 CFR, 1988
Comp., p. 235); or
(4) The objection made by the
submitter under paragraph (f) of this
section appears frivolous. In such a
case, the Board shall promptly notify
the submitter of its decision using the
guidelines in paragraph (g) of this
section.
(i) Notice of FOIA lawsuit. When a
requestor files a lawsuit seeking to
compel the disclosure of business
information, the Board shall promptly
notify the submitter.
(j) Corresponding notice to requestors.
When the Board provides a submitter
with either notice and an opportunity to
object to disclosure under paragraph (d)
of this section or with its intent to
disclose requested information under
paragraph (g) of this section, the Board
also shall notify the requestor(s). When
a submitter files a lawsuit seeking to
prevent the disclosure of business
information, the Board shall notify the
requestor(s).
§ 1303.114
Appeals.
(a)(1) Appeals of adverse
determinations. If you are dissatisfied
with the Board’s response to your
request, you may appeal to the Board’s
Executive Director:
(i) By mail to: U.S. Nuclear Waste
Technical Review Board, 2300
Clarendon Boulevard, Suite 1300,
Arlington, VA 22201;
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(ii) By e-mail to: foia@nwtrb.gov
specifying that this is a FOIA request in
the subject line; or
(iii) By fax to: 703–235–4495.
(2) The appeal must be in writing and
must be received within 30 days of the
date of the Board’s response. The appeal
letter, e-mail, or fax may include as
much or as little related information as
you wish, as long is it clearly identifies
the Board determination that you are
appealing, including the assigned
request number, if known. For prompt
handling, please mark your appeal
‘‘Freedom of Information Act Appeal.’’
(b) Responses to appeals. Requestors
shall be notified in writing of the
decision on the appeal. A decision
affirming an adverse determination shall
include a statement of the reason(s) for
the affirmation, including any FOIA
exemption(s) applied, and shall include
the FOIA provisions for court review of
the decision. If the adverse
determination is reversed or modified
on appeal, the request shall be
reprocessed in accordance with that
appeal decision.
(c) When appeal is required. If a
review by a court or any adverse
determination is desired, the
determination must first be appealed
under this section.
(d) Denial of appeal. An adverse
determination by the Executive Director
shall be the final action of the Board.
(e) Unacceptable appeals. An appeal
will not be acted on if the request
becomes a matter of FOIA litigation.
§ 1303.115
Preservation of records.
The Board shall 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.
§ 1303.116
Other rights and services.
Nothing in this part shall be
construed to entitle any person, as a
right, to any service or to the disclosure
of any record to which such person is
not entitled under the FOIA.
Dated: August 8, 2005.
William D. Barnard,
Executive Director, U.S. Nuclear Waste
Technical Review Board.
[FR Doc. 05–15985 Filed 8–11–05; 8:45 am]
BILLING CODE 6820–AM–M
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FEDERAL RESERVE SYSTEM
12 CFR Part 229
[Regulation CC; Docket No. R–1233]
Availability of Funds and Collection of
Checks
Board of Governors of the
Federal Reserve System.
ACTION: Final rule; technical
amendment.
AGENCY:
SUMMARY: The Board of Governors is
amending appendix A of Regulation CC
to delete the reference to the Portland
branch office of the Federal Reserve
Bank of San Francisco and reassign the
Federal Reserve routing symbols
currently listed under that office to the
Seattle branch office of the Federal
Reserve Bank of San Francisco. These
amendments will ensure that the
information in appendix A accurately
describes the actual structure of check
processing operations within the
Federal Reserve System.
DATES: The final rule will become
effective on October 22, 2005.
FOR FURTHER INFORMATION CONTACT: Jack
K. Walton II, Assistant Director (202/
452–2660), or Joseph P. Baressi, Senior
Financial Services Analyst (202/452–
3959), Division of Reserve Bank
Operations and Payment Systems; or
Adrianne G. Threatt, Counsel (202/452–
3554), Legal Division. For users of
Telecommunications Devices for the
Deaf (TDD) only, contact 202/263–4869.
SUPPLEMENTARY INFORMATION: Regulation
CC establishes the maximum period a
depositary bank may wait between
receiving a deposit and making the
deposited funds available for
withdrawal.1 A depositary bank
generally must provide faster
availability for funds deposited by a
local check than by a nonlocal check. A
check drawn on a bank is considered
local if it is payable by or at a bank
located in the same Federal Reserve
check processing region as the
depositary bank. A check drawn on a
nonbank is considered local if it is
payable through a bank located in the
same Federal Reserve check processing
region as the depositary bank. Checks
that do not meet the requirements for
local checks are considered nonlocal.
Appendix A to Regulation CC
contains a routing number guide that
assists banks in identifying local and
nonlocal banks and thereby determining
the maximum permissible hold periods
1 For purposes of Regulation CC, the term ‘‘bank’’
refers to any depository institution, including
commercial banks, savings institutions, and credit
unions.
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47085
for most deposited checks. The
appendix includes a list of each Federal
Reserve check processing office and the
first four digits of the routing number,
known as the Federal Reserve routing
symbol, of each bank that is served by
that office for check processing
purposes. Banks whose Federal Reserve
routing symbols are grouped under the
same office are in the same check
processing region and thus are local to
one another.
As explained in detail in the Board’s
final rule published in the Federal
Register on September 28, 2004, the
Federal Reserve Banks have decided to
reduce further the number of locations
at which they process checks.2 The
appendix A amendments set forth in
this notice relate to one phase of the
overall restructuring plan. The Board
will issue separate notices for each
subsequent phase of the restructuring.3
As part of the restructuring process,
the Portland branch office of the Federal
Reserve Bank of San Francisco will
cease processing checks on October 22,
2005, and banks with routing symbols
currently assigned to that office for
check processing purposes will be
reassigned to the Seattle branch office of
the Federal Reserve Bank of San
Francisco. As a result of these changes,
some checks that are drawn on and
deposited at banks located in the
affected check processing regions and
that currently are nonlocal checks will
become local checks subject to faster
availability schedules.
To assist banks in identifying local
and nonlocal banks, the Board
accordingly is amending the list of
routing symbols associated with the
Federal Reserve Bank of San Francisco
to conform to the transfer of operations
from the Reserve Bank’s Portland
branch office to the Seattle branch
office. To coincide with the effective
date of the underlying check processing
changes, the amendments are effective
October 22, 2005. The Board is
providing advance notice of these
amendments to give affected banks
ample time to make any needed
processing changes. The advance notice
also will enable affected banks, if
necessary, to amend their availability
schedules and related disclosures and
provide their customers with notice of
2 See
69 FR 57837, September 28, 2004.
addition to the general advance notice of
future amendments provided by the Board, and the
Board’s notices of final amendments, the Reserve
Banks are striving to inform affected depository
institutions of the exact date of each office
transition at least 120 days in advance. The Reserve
Banks’ communications to affected depository
institutions are available at https://
www.frbservices.org.
3 In
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]]>Agencies
[Federal Register Volume 70, Number 155 (Friday, August 12, 2005)]
[Rules and Regulations]
[Pages 47079-47085]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-15985]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR WASTE TECHNICAL REVIEW BOARD
10 CFR Part 1303
Rule Implementing the Freedom of Information Act
AGENCY: U.S. Nuclear Waste Technical Review Board.
ACTION: Final act.
-----------------------------------------------------------------------
SUMMARY: This document institutes the Board's final rule to implement a
set of procedural regulations under the Freedom of Information Act
(FOIA) in accordance with 5 U.S.C. 552, the Freedom of Information Act,
and Public Law 104-231, the Electronic Freedom of Information Act
Amendments of 1996. These regulations were written to conform to the
statutory provisions in the Acts, to expedite the processing of FOIA
requests received by the Board, and to ensure the proper dissemination
of information to the public.
DATES: Effective August 12, 2005.
FOR FURTHER INFORMATION CONTACT: Victoria Reich at (703) 235-4473.
SUPPLEMENTARY INFORMATION: The proposed rule was published in the
December 29, 2004 Federal Register (69 FR 77956) for a six-week public
comment period. A copy of the proposed rule was also posted on the
Board's Web site and on the Federal Rulemaking Portal.
This rule sets forth the procedures for members of the public to
request records from the U.S. Nuclear Waste Technical Review Board
under both the Freedom of Information Act and the Electronic Freedom of
Information Act Amendments of 1996. The rule also describes the
procedures that the Board will use when responding to such requests. It
sets up the time frames for responses and the current fee schedule for
applicable charges for information. The rule also supplies information
about Board materials available to the public through both the Board's
reading room and its Web site.
The Board received several comments on the proposed rule. Its
responses to those comments are detailed below.
1. The Board modified Sec. 1303.106 Responsibility, form, and
content of responses. To ensure that its record search was not
inappropriately limited, the Board substituted ``When determining which
records are responsive to a request, the Board will include only
records in its possession as of the date of the search.'' for ``When
determining which records are responsive to a request, the Board will
include only records in its possession as of the date receipt of the
request.''
2. The Board added additional language to Sec. 1303.106(c)
Responsibility, form, and content of responses to clarify its procedure
for dealing with records containing nonpublic information obtained from
other federal agencies.
3. The Board modified Sec. 1303.107(e)(3) Timing of responses to
requests. To make explicit its intent to expedite a broad range of
requests, the Board substituted ``[A] requestor under Sec. 1303.108
must demonstrate that their professional activity involves news
reporting or otherwise disseminating information to the public,'' for
``[A] requestor under Sec. 1303.108 must establish that his/her
professional activity is news reporting.''
4. The board modified Sec. 1303.109(a) Restrictions of charging
fees. To clarify that it would not charge fees for certain searches,
the Board substituted ``No search or review fee shall be charged for
requests by educational institutions, noncommercial scientific
institutions, and representatives of the news media.'' for ``No review
fee shall be charged for requests by educational institutions,
noncommercial scientific institutions, and representatives of the news
media.''
The Board has made two additional changes to the rule not
considered to be substantive.
1. The mailing address for Sec. 1303.105(a)(2) Requests for Board
records was incorrect. It has been corrected to read, ``Send an e-mail
request to foia@nwtrb.gov.''
2. Because of problems with the receipt of excessive e-mails to
foia@nwtrb.gov not relating to the regulation, the Board has decided to
amend Sec. 130.105(a)(2) Requests for Board records and Sec.
1303.114(a)(ii) Appeals by specifying that the acronym FOIA or words
Freedom of Information Act must appear in the subject line.
Executive Order No. 12866
These proposed regulations do not meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, review
by the Office of Management and Budget is not required.
Regulatory Flexibility Act
These proposed regulations will not have a significant economic
impact on a substantial number of small entities.
[[Page 47080]]
Therefore, a regulatory flexibility analysis as provided by the
Regulatory Flexibility Act, as amended, is not required.
List of Subjects in 10 CFR Part 1303
Administrative practice and procedure, Freedom of Information,
Reporting and recordkeeping requirements.
0
Therefore, the Board establishes Chapter XIII in Title 10 of the Code
of Federal Regulations, consisting of part 1303, to read as follows:
CHAPTER XIII--NUCLEAR WASTE TECHNICAL REVIEW BOARD
PART 1303--PUBLIC INFORMATION AND REQUESTS
Sec.
1303.101 Scope.
1303.102 Definitions.
1303.103 Public reading area.
1303.104 Board records exempt from public disclosure.
1303.105 Requests for Board records.
1303.106 Responsibility, form, and content of responses.
1303.107 Timing of responses to requests.
1303.108 Fees.
1303.109 Restriction on charging fees.
1303.110 Notice of anticipated fees.
1303.111 Requirements for waiver or reduction of fees.
1303.112 Denials.
1303.113 Business information.
1303.114 Apeals.
1303.115 Preservation of records.
1303.116 Other rights and services.
Authority: 5 U.S.C. 301, 5 U.S.C. 552 as amended, Executive
Order 12600 (3 CFR 1988 Comp., p. 235)
Sec. 1303.101 Scope
This part sets forth the policies and procedures of the U.S.
Nuclear Waste Technical Review Board (Board) regarding public access to
documents under the Freedom of Information Act (FOIA), 5 U.S.C. 552.
The provisions in the Act shall take precedence over any part of the
Board's regulations in conflict with the Act. This part gives the
procedures the public may use to inspect and obtain copies of Board
records under the FOIA, including administrative procedures which must
be exhausted before a request invokes the jurisdiction of an
appropriate United States District Court for the Board's failure to
respond to a proper request within the statutory time limits, for a
denial of Board records or challenges to the adequacy of a search, or
for denial of fee waiver.
1303.102 Definitions.
For words used in this part, unless the context varies otherwise,
singular includes the plural, plural includes the singular, present
tense includes the future tense, and words of one gender include the
other gender.
(a)(1) Agency records--include materials that are in the control of
the Board and associated with Board business, as follows:
(i) Materials produced by the Board.
(ii) Materials produced a consultant for the Board.
(iii) Materials distributed by presenters at a Board meeting.
(2) All references to records, include both the entire record, or
any part of the record.
(b) Board--The U.S. Nuclear Waste Technical Review Board.
(c) Chairman--The Chairman of the Board as designated by the
President.
(d) Designated FOIA Officer--The person named by the Board to
administer the Board's activities in regard do the regulations in this
part. The FOIA Officer also shall be:
(1) The Board officer having custody of, or responsibility for,
agency records in the possession of the Board.
(2) The Board officer having responsibility for authorizing or
denying production of records from requests filed under the Freedom of
Information Act.
(e) Executive Director--The chief operating officer of the Board.
(f) Member--An individual appointed to serve on the Board by the
President of the United States.
(g) Days--Standard working days, excluding weekends and federal
holidays.
Sec. 1303.103 Public reading area.
(a) A public reading area is available at the Board office located
at 2300 Clarendon Blvd., Suite 1300, Arlington, Virginia 22201. To use
the reading area, contact the Director of Administration by:
(1) Letter to the address in this paragraph (a):
(2) Telephone: 703-235-4473;
(3) A request to the Board's Web site at https://www.nwtrb.gov; or
(4) Fax: 703-532-4495.
(b) Documents also may be requested through the Board's Web site or
by letter or fax. Please ensure that the records sought are clearly
described. Materials produced by the Board are in the public domain
unless otherwise noted.
(c) Many Board records are available electronically at the Board's
Web site (https://www.nwtrb.gov).
(d) Records of the Board available for inspection and copying
include:
(1) The rules and regulations of the Board.
(2) Statements of policy adopted by the Board.
(3) Board reports to the U.S. Congress and the U.S. Secretary of
Energy.
(4) Board correspondence with Congress and the Department of Energy
(DOE).
(5) Transcripts of Board meetings.
(6) Biographical information about current Board members.
(7) Copies of records released in response to FOIA requests.
(e) The cost of copying information available in the Board office
shall be imposed in accordance with the provisions of Sec. 1303.108.
Sec. 1303.104 Board records exempt from public disclosure.
5 U.S.C. 552 provides that the requirements of the FOIA do not
apply to matters that are:
(a) Specifically authorized under the criteria established by an
executive order to be kept secret in the interest of national defense
or foreign policy and in fact are properly classified pursuant to such
an executive order.
(b) Related solely to the internal personnel rules and practices of
the Board.
(c) Specifically exempted from disclosure by another federal
statute, provided that such statute:
(1) Requires that records be withheld from the public in such a
manner that leaves no discretion on the issue; or
(2) Establishes criteria for withholding or refers to particular
types of matters to be withheld.
(d) Trade secrets, and commercial or financial information obtained
from a person and privileged or confidential.
(e) Interagency or intra-agency memoranda or letters that would not
be available by law to a party other than an agency in litigation with
the Board.
(f) Personnel, medical, or similar files that disclosing would
constitute a clearly unwarranted invasion of personal privacy.
(g) Records or information compiled for law enforcement purposes.
Buy only to the extent that the production of such law enforcement
records or information:
(1) Could reasonably be expected to interfere with enforcement
proceedings:
(2) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(3) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(4) Could reasonably be expected to disclose the identity of any
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
[[Page 47081]]
agency in the course of a criminal investigation or by an agency
conducting a lawful security intelligence investigation, information
furnished by a confidential source;
(5) 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
(6) Could reasonably be expected to endanger the life or physical
safety of any individual.
(h) 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.
(i) Geological and geophysical information and data, including
maps, concerning wells.
Sec. 1303.105 Requests for Board records.
(a) A written FOIA request must be submitted. You may:
(1) Write: NWTRB Designated FOIA Officer, 2300 Clarendon Boulevard,
Suite 1300, Arlington, VA 22201;
(2) Send an e-mail request to foia@nwtrb.gov and specify that this
is a FOIA request in the subject line; or
(3) Fax: 703-235-4495.
(b) When making a request for records about a person, Privacy Act
regulations also may apply. Please check the regulations for additional
requirements before submitting a request. When making a request for
records about someone other than yourself, you must include either:
(1) Written authorization signed by the person permitting you to
see the records; or
(2) Proof that the individual is deceased (e.g., a death
certificate or an obituary).
(c) A request will be considered received for purposes of Sec.
1303.107 on the date that it is received by the Board's FOIA office.
For prompt handling, write ``Freedom of Information Act Request'' on
the letter and envelope or in the subject line of the Web request or
fax.
(d) Each request must clearly describe the desired records in
sufficient detail to enable Board personnel to locate them with
reasonable effort. Response to requests may be delayed if the records
are not clearly described.
(e) Whenever possible, requests should include specific information
about each record sought, such as date, title or name, author,
recipient, and subject.
(f) If the FOIA Officer determines that the request does not
clearly describe the records sought, he or she will either advise you
of the additional needed to locate the record or otherwise state why
the request is insufficient. The requestor will then be given the
opportunity to provide additional information or to modify their
request.
(g) Submitting a FOIA request shall be considered a commitment by
the requestor to pay all applicable fees required under Sec. 1303.108
unless the requestor seeks a waiver of fees. When making a request, you
may specify a willingness to pay fees up to a specific amount.
(h) The FOIA does not require the Board 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 time in the future.
(3) Restore records destroyed or otherwise disposed of, except that
the FOIA Officer must notify the requestor that the records have been
destroyed or otherwise disposed of.
Sec. 1303.106 Responsibility, form, and content of responses.
The Board's Executive Director of his/her designated FOIA Officer
is authorized to grant or deny any request for a record and determine
appropriate fees. When determining which records are responsive to a
request, the Board will include only records in its possession as of
the date of the search.
(a) If no records are responsive to the request, the FOIA Officer
will notify the requestor in writing.
(b) When a FOIA Officer denies a request in whole or in part he/she
will notify the requestor 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 reasons for the denial, including the
FOIA exemption(s) that the FOIA Officer has relied on the denying the
request; and
(3) A statement that the denial may be appealed under Sec.
1303.114 and a description of the requirements of that section.
(c) Consultations and referrals. When a request for a record not
produced by the Board is received, the Board shall refer the requestor
to the issuing agency in writing. The Board may hold records that
contain or refer to non-public information obtained from other federal
agencies (co-mingled records). If those co-mingled records are
requested, the Board shall determine whether the portion of those
records produced by the Board can be released. Before any portion of a
co-mingled record is released, the Board shall redact the non-public
information obtained from other federal agencies. The Board shall
inform the requestor of the reason for the redaction and shall refer
the requestor to the issuing agency in writing.
(d) Notice of referral. When the Board refers all or part of a
request to another agency, it shall give the requestor the address of
the agency contact and the section(s) referred.
(e) Timing of responses to requests sent to other agencies. The
Board shall provide, within the FOIA deadline, responses only to those
parts of the request not referred. Requests will be referred to other
agencies and the requestor notified as soon as it is determined that a
referral is appropriate.
(f) Agreements on consultations and referrals. The Board may make
agreements with other agencies to eliminate the need for consultations
or referrals for particular types of records.
Sec. 1303.107 Timing of responses to requests.
(a) General. The Board shall normally respond to requests in the
order of their receipt.
(b) Acknowledgement of requests. On receipt of a request, the Board
shall send an acknowledgment letter or an e-mail confirming the
requestor's agreement to pay fees under Sec. 1303.108 and providing a
request number for further reference.
(c) Granting requests. The Board shall have 20 business days from
when a request is received to determine whether to grant or deny it.
Once the Board determines whether it can grant a request entirely or in
part, it shall notify the requestor in writing. The Board shall advise
the requestor of any fees to be charged under Sec. 1303.108 and shall
disclose records promptly on payment of the fees. Records disclosed in
part shall be marked or annotated to show the amount of information
deleted unless doing so would harm an interest protected by an
applicable exemption. The location of the information deleted also
shall be indicated on the record when technically feasible.
(d) Unusual circumstances:
(1) If the statutory time limits for processing a request cannot be
met because of ``usual circumstances'' as defined in the FOIA, the
Board shall promptly notify the requestor in writing, explaining the
circumstances and giving the date by which the request can be completed
or if the Board cannot complete the request. If the extension is for
more than 10 working days, the Board shall provide the requestor with
an opportunity either to:
[[Page 47082]]
(i) Modify the request so that it can be processed within the time
limits; or
(ii) Arrange an alternative time period for processing the original
request.
(2) If the Board believes that multiple requests submitted by a
requestor or by requestors acting in concert constitute a single
request that would otherwise involve unusual circumstances, and if the
requests involve clearly related matters, they may be aggregated.
Multiple requests involving unrelated matters will not be aggregated.
(e) Expedited processing:
(1) Requests and appeals shall be taken out of order and given
expedited processing whenever it is determined that they involve:
(i) Circumstances that could reasonably be expected to pose an
imminent threat to the life or physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged
activity if made by a person primarily engaged in disseminating
information.
(2) Requests for expedited processing may be made either at the
time of the initial request or at a later time.
(3) Requests for expedited processing must include a statement
explaining in detail the basis for requesting expedited processing. For
example, a requestor under Sec. 1303.108 must demonstrate that their
professional activity involves news reporting or otherwise
disseminating information to the public, although this need not be
their sole occupation. A requestor also must establish a particular
urgency to inform the public about government activity involved in the
request, beyond the public's right to know about government activity
generally.
(4) Within 10 calendar days of receipt of a request for expedited
processing, the Board shall decide whether to grant the request and
notify the requestor of its decision. If a request for expedited
treatment is granted, the request shall be processed as soon as
practicable. If a request for expedited processing is denied, an appeal
of that decision shall be acted on expeditiously.
Sec. 1303.108 Fees.
(a) General. The Board shall charge for processing requests the
FOIA in accordance with paragraph (c) of this section, except where
fees are limited under Sec. 1303.109 or where a waiver or reduction of
fees is granted under Sec. 1303.111. Fees must be paid before the
copies of records are sent. Fees may be paid by check or money order
payable to the Treasury of the United States.
(b) Definitions for this section:
(1) Commercial use request--A request from, or on behalf of, a
person who seeks information for a purpose that furthers their
commercial, trade, or profit interests including furthering those
interests through litigation. The Board shall try to determine the use
to which a record will be put. When the Board believes that a request
is for commercial use either because of the nature of the request or
because the Board has cause to doubt the stated use, the Board shall
ask the requestor for clarification.
(2) Direct costs--Expenses that the Board incurs in searching for,
duplicating, and, for some requests, reviewing records in response to a
FOIA. Direct costs include the full salary of the employee performing
the work and the cost of duplication of the records. Overhead expenses,
such as the costs of space, heating, and lighting, are not included.
(3) Duplication--Making a copy of a record or the information in
the record, to respond to a FOIA. Copies can be in paper, microform,
electronic, or other format. The Board shall honor a requestor's
preference for format if the record is readily reproducible in that
format at a reasonable cost.
(4) Educational institution--A public or private school, an
undergraduate, graduate, professional or vocational school, that has a
program of scholarly research. For a request to be in this category, a
requestor must show that the request is authorized by and made under
the auspices of the qualifying institution and that the records will be
used for scholarly research.
(5) Noncommercial scientific institution--An institution that is
not operated on a commercial basis, as defined in paragraph (b)(1) of
this section and is operated solely for conducting scientific research
that does not promote any particular product or industry. For a request
to be in this category, the requestor must show that the request is
authorized by and made under the auspices of the qualifying institution
and that the records will be used to further scientific research.
(6) Representative of the news media--Any person actively reporting
for an entity that provides news to the public. The term ``news'' means
information about current events or of current interest to the public.
Examples include: Television and radio stations broadcasting to the
public; and publishers of periodicals who make their news products
available to the general public. For freelance journalists to be
regarded as working for a news organization, they must demonstrate a
sold basis for expecting publication through that organization. The
Board may use a publication contract or past publication records to
make their determination. The requestor must not be seeking records for
a commercial use; however, a request solely supporting the news-
dissemination function is not considered a commercial use.
(7) Review--Examining a record to determine whether any part of its
is exempt from disclosure, and processing a record for disclosure.
Review costs are recoverable even if a record is to disclosed. Review
time includes time spent considering any formal objection to disclosure
made by a business submitter under paragraph (c)(3) of this section but
does not include time spent resolving general legal or policy issues
regarding the application of exemptions.
(8) Search--The process of looking for and retrieving records,
including page-by-page or line-by-line identification of information
within records and reasonable efforts to locate and retrieve
information from records maintained in electronic form. The Board shall
ensure that searches are done in the most efficient and least expensive
way that is reasonably possible.
(c) Fees. In responding to FOIA requests, the Board shall charge
the following fees unless a waiver or a reduction of fees has been
granted under Sec. 1303.111:
(1) Search
(i) Search fees shall be charged for all requests subject to the
limitations of Sec. 1303.109. The Board may charge for time spent
searching even if no responsive record is located, or if the record(s)
located are withheld as exempt from disclosure.
(ii) For each quarter hour spent by clerical personnel in searching
for and retrieving a requested record, the fee will be $5. If a search
and retrieval requires the use of professional personnel the fee will
be $8 for each quarter hour. If the time of managerial personnel is
required, the fee will be $10 for each quarter hour.
(iii) For computer searches of records, requestors will be charged
the direct costs of conducting the search, although certain requestors
(see Sec. 1303.109(a)) will be charged no search fee and certain other
requestors (see Sec. 1303.109(b)) will be entitled to two hours of
manual search time without charge. Direct costs include the cost of
operating a computer for the search time for requested records and the
operator salary for the search.
(2) Duplication. Duplication fees for paper copies of a record will
be 10 cents per page for black and white and 20 cents per page for
color. For all other forms of duplication, the Board shall charge the
direct costs of producing the copy. All charges are subject to the
[[Page 47083]]
limitations of Sec. 1303.109 and Sec. 1303.111.
(3) Review. When a commercial use request is made, review fees
shall be charged as stated in paragraph (c)(1) of this section. These
fees apply only to the initial record review, when the Board determines
whether an exemption applies to a particular record. Charges shall not
be imposed for review at the administrative appeal level if an
exemption is applied. However, records withheld under an exemption that
is subsequently determined not to apply may be reviewed again to
determine whether any other exemption not previously considered
applies. The cost of that review shall be charged. All review fees
shall be charged at the same rates as those charged in paragraph (c)(1)
of this section.
Sec. 1303.109 Restrictions on charging fees.
(a) When determining search or review fees:
(1) No search or review fee shall be charged for requests by
educational institutions, noncommercial scientific institutions, and
representatives of the news media.
(2) The Board shall provide without charge, to all but commercial
users.
(i) The first 100 pages of black and white duplication (or the cost
equivalent); and
(ii) The first two hours of search by a clerical staff member (or
the cost equivalent).
(3) When the total fee for a request will be $14.00 or less for any
request, no fee shall be charged.
(b) The Provisions of paragraphs (a)(2) and (a)(3) of this section
work together. All requestors seeking records for a non-commercial use
shall not be charged unless the total cost for the request exceeds by
more than $14.00, the cost of a two hour clerical search, plus the cost
of duplication over the 100 page exemption.
Sec. 1303.110 Notice of anticipated fees.
(a) General. The Board shall advise the requetor in writing of any
applicable fees. If only a part of the fee can be estimated readily,
the Board shall advise the requestor that this may be only a part of
the total fee. After the requestor has been sent a fee estimate, the
request shall not be considered received until the requestor makes a
firm commitment to pay the anticipated total fee. Any such agreement
must be made by the requestor in writing and must be received within 60
days of the Board's notice. If the requestor does not provide a firm
commitment to pay the anticipated fee within 60 days of the notice, the
request shall be closed. The requestor may be given an opportunity to
work with the Board to change the requests and lower the cost.
(b) Charges for other services. When the Board chooses as a matter
of administrative discretion to provide a special service, such as
certifying that records are true copies or sending them by other than
ordinary mail, the Board shall pay the costs of providing the service
unless previous arrangements have been made with the requestor.
(c) Charging interest. The Board may charge interest on any unpaid
bill starting on the 31st day following the date of billing. Interest
charges shall be assessed at the rate provided in 31 U.S.C. 3717 and
shall accrue from the date of the billing until payment is received by
the Board. The Board shall follow the provisions of the Debt Collection
Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended.
(d) Aggregating requests. If the Board reasonably believes that a
requestor or a group of requestors acting together is trying to divide
a request into a series of smaller requests for the purpose of avoiding
fees, the Board may aggregate the requests and charge accordingly. The
Board shall assume that multiple requests of the same type made within
a 30-day period have been made in order to avoid fees. If requests are
separated by a longer period, the Board shall aggregate them only if
there is a solid basis for determining that aggregation is warranted.
Multiple requests involving unrelated matters shall not be aggregated.
(e) Advance payments. Where a requestor has previously failed to
pay promptly a properly charged FOIA fee to the Board or another
agency, the Board shall require proof that full payment has been made
to that agency before it begins to process that requestor's FOIA. The
Board shall also require advance payment of the full amount of the
anticipated fee. When advance payment is required, the request is not
considered received until payment has been made.
Sec. 1303.111 Requirements for waiver or reduction of fees.
(a) Records shall be furnished without charge or at a reduced
charge if the Board determined that:
(1) Disclosure is in the public interest and the information is
likely to contribute significantly to public understanding of the
activities of the government; and
(2) Disclosure is not primarily in the commercial interest of the
requestor.
(b) In determining whether the first requirement is met, the Board
shall consider:
(1) Subject: Do the requested records concern identifiable
activities of the federal government?
(2) Informative value: Will the disclosure contribute to an
understanding of government activities? Do records contain information
on activities ``likely to contribute'' to an increased public
understanding? If the information or similar information is already in
the public domain, the record(s) would not increase the public's
understanding.
(3) Would the disclosure contribute to the understanding of a
reasonably broad audience, as opposed to the individual understanding
of the requestor? A requestor's expertise in the subject and intention
to convey information to the public shall be considered. Being a valid
representative of the news media shall satisfy this consideration.
(4) Is the disclosure likely to contribute significantly to public
understanding of government activities? The level of understanding
after the disclosure versus that before the disclosure must be enhanced
to a significant extent. However, the Board shall not make value
judgments about whether information contributing to public
understanding of government activities is important enough to release.
(c) In determining whether the second requirement is met, the Board
shall consider:
(1) The existence and extent of the commercial interest: Would a
commercial interest be substantially furthered by the disclosure? The
Board shall consider the commercial interest (see paragraph (a)(2) of
this section) of either the requestor or of any person on whose behalf
they may be acting that would be furthered by the disclosure. During
the administrative process, requestors shall be given an opportunity to
provide additional information about this concern.
(2) The primary interest for disclosure: Whether the commercial
interest of the requestor is sufficiently large in comparison to the
public interest, that disclosure is ``primarily in the commercial
interest of the requestor.'' A fee waiver is justified if the public
interest standard under paragraph (b) of this section is satisfied and
if that public interest is greater than any commercial interest. The
Board shall presume that when news media requestors satisfy this
standard, primarily the public interest is served.
(d) If only some of the records to be released satisfy the
requirements for a
[[Page 47084]]
waiver of fees, a waiver shall be granted only for those records.
(e) Requests for a waiver or a reduction of fees must address the
factors listed in paragraphs (a) and (b) of this section only as they
apply to each request. The Board also shall consider their
administrative resources when responding to requests and may negotiate
with the requestor to find the best way to optimize their resources in
responding to the request when deciding whether to grant waivers or
reductions of fees.
Sec. 1303.112 Denials.
(a) When denying a request in any respect, the Board shall notify
the requestor of that determination in writing. The types of denials
include:
(1) Denials of requests, consisting of a determination:
(i) To withhold any requested record in whole or in part;
(ii) That a requested record does not exist or cannot be located;
(iii) That a record is not readily reproducible in the form or
format sought;
(iv) That what has been requested is not a record subject to the
FOIA; and
(v) That the material requested is not a Board record (e.g.,
material produced by another agency or organization).
(2) A determination on any disputed fee matter, including a denial
of a request for a fee waiver.
(3) A denial of a request for expedited processing.
(b) The denial letter shall be signed by the Director of
Administration, the Deputy Director, or their designee, and shall
include all of the following:
(1) The name and title of the person responsible for the denial.
(2) A brief statement of the reason(s) for the denial, including
any FOIA exemptions applied in denying the request.
(3) An estimate of the volume of records withheld, in number of
pages or in some other reasonable form of estimation. This estimate
does not need to be provided if it would harm an interest protected by
an applicable exemption.
(4) A statement that the denial may be appealed under Sec.
1303.114 and a description of the requirements of Sec. 1303.114.
Sec. 1303.113 Business information.
(a) In general. Business information obtained by the Board from a
submitter shall be disclosed under the FOIA only under this section.
(b) Definitions. For purposes of this section:
(1) Business information--commercial or financial records obtained
by the Board that may be protected from disclosure under Exemption 4 of
the Freedom of Information Act (FOIA).
(2) Submitter--any person or entity from which the Board obtains
business records, either directly or indirectly. The term includes, but
is not limited to, corporations, and state, local, tribal, and foreign
governments.
(c) Designation of business information. Submitters of business
information shall designate any part of the record considered to be
protected from disclosure under Exemption 4 of the FOIA by
appropriately marking the material. This may be done either at the time
the record is submitted or at a reasonable time thereafter. This
designation lasts for 10 years after submittal unless the submitter
requests and provides justification for a longer period.
(d) Notice to submitters. The Board shall provide a business
submitter with prompt written notice of any FOIA request or appeal that
seeks its business information under paragraph (e) of this section,
except as provided in paragraph (h) of this section, to give the
submitter an opportunity to object to that disclosure under paragraph
(f) of this section. The notice shall either describe the records
requested or include copies of the records.
(e) Required notice. Notice shall be given to a submitter when:
(1) The submitter has designated that the information is considered
protected from disclosure under Exemption 4 of the FOIA; or
(2) The Board has reason to believe that the information may be
protected from disclosure under Exemption 4 of the FOIA.
(f)(1) Objecting to disclosure. A submitter shall have 30 days to
respond to the notice described in paragraph (d) of this section. If a
submitter has an objection to disclosure, they are required to submit a
detailed written statement including:
(i) All grounds for withholding any of the information under any
exemption of the FOIA, and
(ii) In the case of Exemption 4, the reason why the information is
a trade secret, commercial, or financial information that is privileged
or confidential.
(2) If a submitter fails to respond to the notice in paragraph (d)
of the section within 30 days, the Board shall assume that the
submitter has no objection to disclosure. The Board shall not consider
information not received by the Board until after a disclosure decision
has been made. Information provided by a submitter under this paragraph
might itself be subject to disclosure under the FOIA.
(g) Notice of intent to disclose. The Board shall consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose the business records. Whenever the Board
decides to disclose business records over the objection of a submitter,
it shall give the submitter written notice, that will include:
(1) A statement of the reason(s) the submitter's objections were
not sustained;
(2) A description of the business records to be disclosed; and
(3) A specified disclosure date at a reasonable time subsequent to
the notice.
(h) Exceptions to notice requirements. The notice requirements in
paragraphs (d) and (g) of this section shall not apply if:
(1) The Board determines that the information should not be
disclosed;
(2) The information has been published legally or has been
officially made available to the public;
(3) Disclosure of the information is required by another statute or
by a regulation issued in accordance with Executive Order 12600 (3 CFR,
1988 Comp., p. 235); or
(4) The objection made by the submitter under paragraph (f) of this
section appears frivolous. In such a case, the Board shall promptly
notify the submitter of its decision using the guidelines in paragraph
(g) of this section.
(i) Notice of FOIA lawsuit. When a requestor files a lawsuit
seeking to compel the disclosure of business information, the Board
shall promptly notify the submitter.
(j) Corresponding notice to requestors. When the Board provides a
submitter with either notice and an opportunity to object to disclosure
under paragraph (d) of this section or with its intent to disclose
requested information under paragraph (g) of this section, the Board
also shall notify the requestor(s). When a submitter files a lawsuit
seeking to prevent the disclosure of business information, the Board
shall notify the requestor(s).
Sec. 1303.114 Appeals.
(a)(1) Appeals of adverse determinations. If you are dissatisfied
with the Board's response to your request, you may appeal to the
Board's Executive Director:
(i) By mail to: U.S. Nuclear Waste Technical Review Board, 2300
Clarendon Boulevard, Suite 1300, Arlington, VA 22201;
[[Page 47085]]
(ii) By e-mail to: foia@nwtrb.gov specifying that this is a FOIA
request in the subject line; or
(iii) By fax to: 703-235-4495.
(2) The appeal must be in writing and must be received within 30
days of the date of the Board's response. The appeal letter, e-mail, or
fax may include as much or as little related information as you wish,
as long is it clearly identifies the Board determination that you are
appealing, including the assigned request number, if known. For prompt
handling, please mark your appeal ``Freedom of Information Act
Appeal.''
(b) Responses to appeals. Requestors shall be notified in writing
of the decision on the appeal. A decision affirming an adverse
determination shall include a statement of the reason(s) for the
affirmation, including any FOIA exemption(s) applied, and shall include
the FOIA provisions for court review of the decision. If the adverse
determination is reversed or modified on appeal, the request shall be
reprocessed in accordance with that appeal decision.
(c) When appeal is required. If a review by a court or any adverse
determination is desired, the determination must first be appealed
under this section.
(d) Denial of appeal. An adverse determination by the Executive
Director shall be the final action of the Board.
(e) Unacceptable appeals. An appeal will not be acted on if the
request becomes a matter of FOIA litigation.
Sec. 1303.115 Preservation of records.
The Board shall 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.
Sec. 1303.116 Other rights and services.
Nothing in this part shall be construed to entitle any person, as a
right, to any service or to the disclosure of any record to which such
person is not entitled under the FOIA.
Dated: August 8, 2005.
William D. Barnard,
Executive Director, U.S. Nuclear Waste Technical Review Board.
[FR Doc. 05-15985 Filed 8-11-05; 8:45 am]
BILLING CODE 6820-AM-M
