[Federal Register Volume 64, Number 182 (Tuesday, September 21, 1999)]
[Rules and Regulations]
[Pages 51039-51043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24551]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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Federal Register / Vol. 64, No. 182 / Tuesday, September 21, 1999 /
Rules and Regulations
[[Page 51039]]
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MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1204
Availability of Official Information
AGENCY: Merit Systems Protection Board.
ACTION: Final rule.
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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is
amending its rules regarding the availability of official information
to comply with the Electronic Freedom of Information Act Amendments of
1996, to update the fee schedule, and to add a time limit to ask for
review by the Board's Chairman of an action or a failure to act under
this part. Certain other changes are made to update the rules on the
availability of official information for the benefit of the Board's
customers, for consistency, and to comply with the President's
Memorandum on Plain Language in Government Writing.
EFFECTIVE DATE: September 21, 1999.
FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board,
(202) 653-7200.
SUPPLEMENTARY INFORMATION: The Board previously published a notice of
proposed rulemaking regarding the availability of official information
to comply with the Electronic Freedom of Information Act Amendments of
1996, to update the fee schedule, and to add a time limit to ask for
review by the Board's Chairman of an action or a failure to act under
this part (64 FR 35952, July 2, 1999). The proposed rule requested
public comments and allowed 60 days, until August 31, 1999, for receipt
of such comments. No comments were received. The Board, therefore,
amends its regulations implementing 5 U.S.C. 552 (the Freedom of
Information Act) to accommodate the requirements of the amendments.
The Board also is updating its rules on computing and collecting
fees charged requesters for services provided in processing requests
for information to produce a more realistic schedule.
In addition, the Board is updating various rules to reflect changes
in regional realignments of the Merit Systems Protection Board, to make
other changes for consistency and grammatical reasons, and to comply
with the President's Memorandum, ``Plain Language in Government
Writing,'' 34 Weekly Comp. Pres. Doc. 1010 (June 1, 1998).
List of Subjects in 5 CFR Part 1204
Confidential business information, Freedom of information, Privacy.
Accordingly, the Board is revising 5 CFR part 1204 to read as
follows:
PART 1204--AVAILABILITY OF OFFICIAL INFORMATION
Subpart A--Purpose and Scope
Sec.
1204.1 Purpose.
1204.2 Scope.
Subpart B--Procedures for Obtaining Records under the Freedom of
Information Act
1204.11 Requests for access to Board records.
1204.12 Fees.
1204.13 Denials.
1204.14 Requests for access to confidential commercial information.
1204.15 Records of other agencies.
Subpart C--Appeals
1204.21 Submission.
1204.22 Decision on appeal.
Authority: 5 U.S.C. 552 and 1204, Pub. L. 99-570, Pub. L. 104-
231, and E.O. 12600.
Subpart A--Purpose and Scope
Sec. 1204.1 Purpose.
This part implements the Freedom of Information Act (FOIA), 5
U.S.C. 552, as amended, by stating the procedures to follow when
requesting information from the Board, and by stating the fees that
will be charged for that information.
Sec. 1204.2 Scope.
(a) For the purpose of this part, the term record and any other
term used in reference to information includes any information that
would be a Board record subject to the requirements of 5 U.S.C. 552
when maintained by the Board in any format including an electronic
format. All written requests for information that are not processed
under part 1205 of this chapter will be processed under this part. The
Board may continue, without complying with this part, to furnish the
public with the information it has furnished in the regular course of
performing its official duties, unless furnishing the information would
violate the Privacy Act of 1974, 5 U.S.C. 552a, or another law.
(b) When the subject of the record, or the subject's
representative, requests a record from a Privacy Act system of records,
as that term is defined by 5 U.S.C. 552a(a)(5), and the Board retrieves
the record by the subject's name or other personal identifier, the
Board will handle the request under the procedures and fees shown in
part 1205 of this chapter. When a third party requests access to those
records, without the written consent of the subject of the record, the
Board will handle the request under this part.
(c) When a party to an appeal requests a copy of a tape recording,
video tape, or transcript (if one has been prepared) of a hearing that
the Board or a judge held under part 1201 or part 1209 of this chapter,
the Board will handle the request under Sec. 1201.53 of this chapter.
When someone other than a party to the appeal makes this request, the
Board will handle the request under this part.
(d) In accordance with 5 U.S.C. 552(a)(2), the Board's final
opinions and orders (including concurring and dissenting opinions),
those statements of policy and interpretations adopted by the Board and
that are not published in the Federal Register, administrative staff
manuals and instructions to staff that affect a member of the public,
and agency records processed and disclosed in response to a FOIA
request that the Board determines have been or are likely to become the
subject of additional requests for basically the same records and a
general index of those records, are available for public review and
copying in the Board's Headquarters' Library, 1120 Vermont Avenue NW.,
Washington, DC 20419-0001, and on the Board's World Wide Web site at
http://www.mspb.gov.
[[Page 51040]]
Subpart B--Procedures for Obtaining Records Under the Freedom of
Information Act
Sec. 1204.11 Request for access to Board records.
(a) Sending a request. A person may request a Board record under
this part by writing to the office that has the record. If the
requester believes that the records are located in a regional or field
office, the request must be sent to that office. A list of the
addresses of the Board's regional and field offices are in appendix II
of part 1201 of this chapter and on the Board's World Wide Web site at
http://www.mspb.gov. Other requests must be sent to the Clerk of the
Board, 1120 Vermont Avenue NW., Washington, DC 20419-0001. Requests
sent under this part must be clearly marked ``Freedom of Information
Act Request'' on both the envelope and the request.
(b) Description. A request must describe the records wanted in
enough detail for Board employees to locate the records with no more
than a reasonable effort. Wherever possible, a request must include
specific information about each record, such as the date, title or
name, author, recipient, and subject matter of the record. In addition,
if the request asks for records on cases decided by the Board, it must
show the title of the case, the MSPB docket number, and the date of the
decision.
(c) Time limits and decisions. If a request is not properly labeled
or is sent to the wrong office, the time for processing the request
will begin when the proper office receives it. Requests to the Board's
headquarters will be decided by the Clerk of the Board. Requests to one
of the regional or field offices will be decided by the Regional
Director or Chief Administrative Judge. The Board will decide a request
within 20 workdays after the appropriate office receives it, except
under the conditions that follow.
(1) Extension of time. If ``unusual circumstances'' exist, the
Board may extend the time for deciding the request by no more than 10
additional workdays. An example of unusual circumstances could be the
need to find and retrieve records from regional or field offices or
from federal records centers or the need to search, collect and or
examine a large number of records which are demanded in a single
request, or the need to talk to another agency with a substantial
interest in the determination of the request. When the Board extends
the time to decide the request, it will inform the requester in writing
and describe the ``unusual circumstances'', and it will state a date on
which a decision on the request will be made. If the ``unusual
circumstances'' are such that the Board cannot comply with the request
within the time limit, the Board will offer the requester an
opportunity:
(i) To limit the request so that it may be processed within the
time limit, or
(ii) To arrange with the Board a different time frame for
processing the request or a changed request.
(2) Expedited processing. Where a requester shows a ``compelling
need'' and in other cases determined by the Board, a decision whether
to provide expedited processing of a request and notification of that
decision to the requester will be made within 10 workdays of the date
of the request. An example of a compelling need could be that a failure
to obtain the records expeditiously could reasonably be expected to be
a threat to the life or physical safety of a person or that there is
urgency to inform the public about actual or alleged Federal Government
activity by a person primarily engaged in distributing information.
Where the Board approves expeditious processing, the Board will process
the request within 5 workdays from the date of the decision to grant
the expeditious processing. If, in order to fully satisfy the request,
the Board requires the standard or additional processing time, or if it
decides that good cause for expedited processing has not been made, it
will provide written notice of its decision to the requester and will
inform the requester of the right to administrative and court review of
the decision. A showing of a compelling need must be made by a
statement certified to be true to the best of the requester's knowledge
and belief.
Sec. 1204.12 Fees.
(a) General. The Board will charge the requester fees for services
provided in processing requests for information. Those fees will be
charged according to the schedule in paragraph (d) of this section, and
will recover the full allowable direct costs that the Board incurs.
Fees may be charged for time spent searching for information, even if
the Board fails to locate responsive records, and even if it determines
that the information is exempt from disclosure.
(b) Definitions. (1) The term direct costs means the costs to an
agency for searching for and copying (and in the case of commercial
requesters, reviewing) documents to respond to a FOIA request. Direct
costs include, for example, the salary of each employee performing work
at the rate of $5 per quarter hour. Overhead expenses, such as costs of
space and of heating or lighting the facility in which the records are
stored, are not included in direct costs.
(2) The term search, as defined by 5 U.S.C. 552(a)(3)(D), means
either manual or automated review of Board records to locate those
records asked for, and includes all time spent looking for material in
response to a request, including page-by-page or line-by-line
identification of material within documents. Searches will be done in
the most efficient and least expensive way to limit costs for both the
Board and the requester. Searches may be done manually or by computer
using existing programming. The Board will make a reasonable effort to
search for the records in electronic form or format, except when such
effort would interfere to a large extent with the operation of the
Board's automated information system.
(3) The term duplication means the process of copying a document or
electronically maintained information in response to a FOIA request.
Copies can take the form of paper, microfilm, audio-visual materials,
or machine-readable documentation (e.g., magnetic tape or disk), among
others. The copy provided will be in a form or format requested if the
record is readily reproducible by the Board in that form or format. The
Board will make a reasonable effort to maintain its records in forms or
formats that are reproducible.
(4) The term review includes the process of examining documents to
determine whether any portion of them may be exempt from disclosure
under the FOIA, when the documents have been located in response to a
request that is for a commercial use. The term also includes processing
any documents for disclosure, e.g., doing all that is necessary to edit
them and otherwise prepare them for release. Review does not include
time spent resolving general legal or policy issues.
(5) The term commercial use request means a request from or on
behalf of one who seeks information for a use or purpose that furthers
the commercial, trade, or profit interests of the requester or the
person on whose behalf the request is made. In deciding whether a
requester properly belongs in this category, the Board will decide the
use the requester will make of the documents requested. Also, where the
Board has reasonable cause to doubt the use a requester will make of
the records requested, or where that use is not clear from the request,
the Board will seek additional clarification before assigning the
request to a specific category.
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(6) The term educational institution means a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education that operates a program or programs of scholarly research.
(7) The term noncommercial scientific institution means an
institution that is not operated on a ``commercial'' basis as that term
is used above, and that is operated solely for the purpose of
conducting scientific research whose results are not intended to
promote any particular product or industry.
(8) The term representative of the news media means any person
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public. The term news means
information that concerns current events or that would be of current
interest to the public.
(c) Categories of requesters. There are four categories of FOIA
requesters: Commercial use requesters; educational and noncommercial
scientific institutions; representatives of the news media; and all
other requesters. To be included in the category of educational and
noncommercial scientific institutions, requesters must show that the
request is authorized by a qualifying institution and that they are
seeking the records not for a commercial use, but to further scholarly
or scientific research. To be included in the news media category, a
requester must meet the definition in paragraph (b)(8) of this section
and the request must not be made for a commercial use. To avoid
commercial use charges, requesters must show that they should be
included in a category or categories other than that of commercial use
requesters. The Board will decide the categories to place requesters
for fee purposes. It will make these determinations based on
information given by the requesters and information otherwise known to
the Board.
(d) The Board will not charge a requester if the fee for any
request is less that $100 (the cost to the Board of processing and
collecting the fee).
(1) When the Board receives a request:
(i) From a commercial use requester, it will charge fees that
recover the full direct costs for searching for the information
requested, reviewing it for release at the initial request stage,
reviewing it after an appeal to determine whether other exemptions not
considered before the appeal apply to it, and copying it.
(ii) From an educational and noncommercial scientific institution
or, to the extent copying exceeds 100 pages, from a representative of
the news media, it will charge fees only for the cost of copying the
requested information.
(iii) From all other requesters, to the extent copying exceeds 100
pages and search time exceeds 2 hours, it will charge fees for the full
direct cost of searching for and copying requested records.
(2) When the Board reasonably believes that a requester or group of
requesters is attempting to divide a request into more than one request
to avoid payment of fees, the Board will combine the requests and
charge fees accordingly. The Board will not combine multiple requests
on unrelated subjects from one requester.
(3) When the Board decides that charges for a request are likely to
exceed $250, the Board will require the requester to pay the entire fee
in advance before continuing to process the request.
(4) When a requester has an outstanding fee charge or has not paid
a fee on time, the Board will require the requester to pay the full
amount of the estimated fee in advance before the Board begins to
process a new or pending request from that requester, and before it
applies administrative time limits for making a decision on the new or
pending request.
(e) Fee schedule. (1) Fees for document searches for records will
be charged at a rate of $5 per quarter hour spent by each Board
employee performing the search.
(2) Fees for computer searches for records will be $5 per quarter
hour spent by each employee operating the computer equipment and/or
developing a new inquiry or report.
(3) Fees for review at the initial administrative level to
determine whether records or portions of records are exempt from
disclosure, and for review after an appeal to determine whether the
records are exempt on other legal grounds, will be charged, for
commercial use requests, at a rate of $5 per quarter hour spent by each
reviewing employee.
(4) Fees for photocopying records is 20 cents a page, the fee for
copying audio tapes is the direct cost up to $15 per cassette tape; the
fee for copying video tapes is the direct cost up to $20 per tape; and
the fee for computer printouts is 10 cents a page. The fee for
duplication of electronically maintained information in the requester's
preferred format will be $21 for copying computer tapes and $4 for
copying records on computer diskettes, if it is feasible for the Board
to reproduce records in the format requested. Fees for certified copies
of the Board's records will include a $4 per page charge for each page
displaying the Board's seal and certification. When the Board estimates
that copying costs will exceed $100, it will notify the requester of
the estimated amount unless the requester has indicated in advance a
willingness to pay an equal or higher amount.
(f) Fee waivers. (1) Upon request, the Clerk of the Board, Regional
Director, or Chief Administrative Judge, as appropriate, will furnish
information without charge or at reduced rates if it is established
that disclosure ``is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government.'' This decision will be based on:
(i) The subject of the request: Whether the subject of the
requested records concerns the operations or activities of the
government;
(ii) The informative value of the information to be disclosed:
Whether the disclosure is likely to contribute to an understanding of
government operations or activities;
(iii) Whether disclosure of the requested information is likely to
contribute to public understanding of the subject of the disclosure;
and
(iv) The significance of the contribution the disclosure would make
to public understanding of government operations or activities.
(2) If information is to be furnished without charge or at reduced
rates, the requester must also establish that disclosure of the
information is not primarily in the commercial interest of the
requester. This decision will be based on:
(i) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and, if so,
(ii) Whether the identified commercial interest of the requester is
sufficiently large, in comparison with the public interest in
disclosure, that disclosure is primarily in the commercial interest of
the requester.
(3) The requester must establish eligibility for a waiver of fees
or for reduced fees. The denial of a request for waiver of fees may be
appealed under subpart C of this part.
Sec. 1204.13 Denials
(a) The Board may deny: A request for reduced fees or waiver of
fees; a request for a record, either in whole or in part; a request for
expeditious processing based on the requester's compelling need; or a
request that records be
[[Page 51042]]
released in a specific electronic format. The denial will be in
writing, will state the reasons, and will notify the requester of the
right to appeal.
(b) If the Board applies one or more of the exemptions provided
under the FOIA to deny access to some or all of the information
requested, it will respond in writing, identifying for the requester
the specific exemption(s), providing an explanation as to why the
exemption(s) to withhold the requested information must be applied, and
providing an estimate of the amount of material that has been denied to
the requester, unless providing such an estimate would harm an interest
protected by the exemptions.
(c) The amount of information deleted will be indicated on the
released portion of the record at the place in the record where the
deletion is made, if technically feasible and unless the indication
would harm an interest protected by the exemption under which the
deletion is made.
Sec. 1204.14 Requests for access to confidential commercial
information.
(a) General. Confidential commercial information provided to the
Board by a business submitter will not be disclosed in response to a
FOIA request except as required by this section.
(b) Definitions. (1) The term confidential commercial information
means records provided to the government by a submitter that are
believed to contain material exempt from release under Exemption 4 of
the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure
could reasonably be expected to cause substantial competitive harm.
(2) The term submitter means any person or organization that
provides confidential commercial information to the government. The
term submitter includes, but is not limited to, corporations, state
governments, and foreign governments.
(c) Notice to business submitters. The Board will provide a
business submitter with prompt written notice of a request for its
confidential commercial information whenever such written notice is
required under paragraph (d) of this section. Exceptions to such
written notice are at paragraph (h) of this section. This written
notice will either describe the exact nature of the confidential
information requested or provide copies of the records or parts of
records containing the commercial information.
(d) When initial notice is required. (1) With respect to
confidential commercial information received by the Board before
January 1, 1988, the Board will give the business submitter notice of a
request whenever:
(i) The information is less than 10 years old; or
(ii) The Board has reason to believe that releasing the information
could reasonably be expected to cause substantial competitive harm.
(2) With respect to confidential commercial information received by
the Board on or after January 1, 1988, the Board will give notice to
the business submitter whenever:
(i) The business submitter has designated the information in good
faith as commercially or financially sensitive information; or
(ii) The Board has reason to believe that releasing the information
could reasonably be expected to cause substantial competitive harm.
(3) Notice of a request for commercially confidential information
that was received by January 1, 1988, is required for a period of not
more than 10 years after the date on which the information is submitted
unless the business submitter requests, and provides justification for,
a longer specific notice period. Whenever possible, the submitter's
claim of confidentially must be supported by a statement or
certification, by an officer or authorized representative of the
company, that the information in question is confidential commercial
information and has not been disclosed to the public.
(e) Opportunity to object to disclosure. Through the notice
described in paragraph (c) of this section, the Board will give a
business submitter a reasonable period to provide a detailed statement
of any objection to disclosure. The statement must specify all grounds
for withholding any of the information under any exemption of the
Freedom of Information Act. In addition, in the case of Exemption 4,
the statement must state why the information is considered to be a
trade secret, or to be commercial or financial information that is
privileged or confidential. Information a business submitter provides
under this paragraph may itself be subject to disclosure under the
Freedom of Information Act.
(f) Notice of intent to release information. The Board will
consider carefully a business submitter's objections and specific
grounds for claiming that the information should not be released before
determining whether to release confidential commercial information.
Whenever the Board decides to release confidential commercial
information over the objection of a business submitter, it will forward
to the business submitter a written notice that includes:
(1) A statement of the reasons for which the business submitter's
objections to the release were not sufficient;
(2) A description of the confidential commercial information to be
released; and
(3) A specified release date. The Board will forward the notice of
intent to release the information a reasonable number of days, as
circumstances permit, before the specified date upon which release is
expected. It will forward a copy of the release notice to the requester
at the same time.
(g) Notice of Freedom of Information Act lawsuit. Whenever a
requester files a lawsuit seeking to require release of business
information covered by paragraph (d) of this section, the Board will
notify the business submitter promptly.
(h) Exceptions to notice requirements. The notice requirements of
this section do not apply when:
(1) The Board decides that the information should not be released;
(2) The information lawfully has been published or otherwise made
available to the public;
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) The disclosure is required by an agency rule that:
(i) Was adopted after notice and public comment;
(ii) Specifies narrow classes of records submitted to the agency
that are to be released under the FOIA; or
(iii) Provides in exceptional circumstances for notice when the
submitter provides written justification, at the time the information
is submitted or a reasonable time thereafter, that release of the
information could reasonably be expected to cause substantial
competitive harm.
(5) The information requested is not designated by the submitter as
exempt from release according to agency regulations issued under this
section, when the submitter has an opportunity to do so at the time of
sending the information or a reasonable time thereafter, unless the
agency has good reason to believe that disclosure of the information
would result in competitive harm; or
(6) The designation made by the submitter according to Board
regulations appears obviously frivolous; except that, in such case, the
Board must provide the submitter with written notice of any final
administrative release decision within a reasonable period before the
stated release date.
[[Page 51043]]
Sec. 1204.15 Records of other agencies.
Requests for Board records that were created by another agency may,
in appropriate circumstances, be referred to that agency for discussion
or processing. In these instances, the Board will notify the requester.
Subpart C--Appeals
Sec. 1204.21 Submission.
(a) A person may appeal the following actions, or failure to act by
the Clerk of the Board, a Regional Director, or Chief Administrative
Judge:
(1) A denial of access to agency records;
(2) A denial of a request for a waiver or reduced fees;
(3) A decision that it is technically not possible to reproduce
electronically maintained information in the requester's preferred
format;
(4) A denial of a request for expedited processing of information
under this part; or
(5) A failure to decide a request for expedited processing within
10 workdays from the date of the request.
(b) Appeals must be filed with the Chairman, Merit Systems
Protection Board, 1120 Vermont Avenue NW., Washington, DC 20419-0001
within 10 workdays from the date of the denial. Any appeal must include
a copy of the initial request, a copy of the letter denying the
request, and a statement of the reasons why the requester believes the
denying employee erred.
Sec. 1204.22 Decision on appeal.
A decision on an appeal will be made within 20 workdays after the
appeal is received. A decision not to provide expeditious processing of
a request will be made within 15 workdays after the appeal is received.
The decision will be in writing and will contain the reasons for the
decision and information about the appellant's right to seek court
review of the denial.
Dated: September 2, 1999.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 99-24551 Filed 9-20-99; 8:45 am]
BILLING CODE 7400-01-U
