[Federal Register Volume 63, Number 173 (Tuesday, September 8, 1998)]
[Proposed Rules]
[Pages 47448-47455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23690]
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TENNESSEE VALLEY AUTHORITY
18 CFR Part 1301
Revision of Tennessee Valley Authority Freedom of Information Act
Regulations and Implementation of Electronic Freedom of Information Act
Amendments of 1996
AGENCY: Tennessee Valley Authority.
ACTION: Proposed rule.
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[[Page 47449]]
SUMMARY: These proposed revisions incorporate TVA's former Freedom of
Information Act (FOIA) regulations, as revised herein, and contain new
provisions implementing the Electronic Freedom of Information Act
(EFOIA) of 1996. Additionally, the regulations include updated cost
figures to be used in calculating and charging fees.
DATES: Submit comments on or before October 8, 1998.
ADDRESSES: Address all comments concerning this proposed rule to Wilma
H. McCauley, FOIA Officer, Tennessee Valley Authority, 1101 Market
Street (WR 4Q), Chattanooga, Tennessee 37402.
FOR FURTHER INFORMATION: Wilma H. McCauley, FOIA Officer, Tennessee
Valley Authority, 1101 Market Street (WR 4Q), Chattanooga, Tennessee
37402-2801, telephone number (423) 751-2523.
SUPPLEMENTARY INFORMATION: These proposed revisions will revise TVA's
existing regulations to reflect the provisions of Public Law 104-231,
the EFOIA, to provide the public access to government information and
records maintained in an electronic format, lengthen the time limits
for responding to FOIA requests as prescribed by the EFOIA, provide for
expedited processing of certain requests, establish electronic reading
rooms, provide for multi-track processing of requests, and provide for
an agency reference guide on FOIA. Additionally, the proposed
regulations have been revised to include updated cost figures used in
calculating and charging fees. The duplication charge will remain the
same at ten cents per page, while document search and review charges
will increase to $14.90 per hour for clerical time and $34.30 per hour
for professional and managerial time.
Regulatory Flexibility Act Certification
We certify that these rules will not have a significant economic
impact on a substantial number of small entities because these rules
affect primarily individuals, not small entities, and for the most part
simply implement the language of the EFOIA amendments. There is no
reason to believe that the revised rules will impose any costs on FOIA
requesters beyond those nominal costs imposed under TVA's former rules.
Further, the ``small entities'' that make FOIA requests, as compared
with individual requesters and other requesters, are relatively few in
number.
List of Subjects in 18 CFR Part 1301
Freedom of Information, Privacy, Sunshine Act.
For the reasons stated in the preamble, TVA proposes to amend 18
CFR Part 1301 as follows:
Part 1301--PROCEDURES
1. The authority citation for part 1301 Subpart A continues to read
as follows:
Authority: 16 U.S.C. 831-831dd, 5 U.S.C. 552.
2. Subpart A of Part 1301 is revised to read as follows:
Subpart A--Freedom of Information Act
Sec.
1301.1 General provisions.
1301.2 Public reading rooms.
1301.3 Requirements for making requests.
1301.4 Responsibility for responding to requests.
1301.5 Timing of responses to requests.
1301.6 Responses to requests.
1301.7 Exempt records.
1301.8 Business information.
1301.9 Appeals.
1301.10 Fees.
1301.11 Other rights and services.
Subpart A--Freedom of Information Act
Sec. 1301.1 General provisions
This subpart contains the rules that TVA follows in processing
requests for records under the Freedom of Information Act (FOIA), 5
U.S.C. 552. These rules should be read together with the FOIA, which
provides additional information about access to records maintained by
TVA. Requests made by individuals for records about themselves under
the Privacy Act of 1974, 5 U.S.C. 552a, which are processed under
subpart B of this part, are processed under this subpart also.
Information routinely provided to the public as part of a regular TVA
activity (for example, press releases) may be provided to the public
without the need for a FOIA request under this subpart. As a matter of
policy, TVA makes discretionary disclosures of records or information
exempt from disclosure under the FOIA whenever disclosure would not
foreseeably harm an interest protected by a FOIA exemption, but this
policy does not create any right enforceable in court.
Sec. 1301.2 Public reading rooms.
TVA maintains a public electronic reading room accessible in its
Corporate Libraries at 400 Summit Hill Drive, Knoxville, TN 37902-1499
and 1101 Market Street, Chattanooga, TN 37402-2801. This electronic
reading room contains the records that the FOIA requires to be made
regularly available for public inspection and copying. Each TVA
organization is responsible for determining which of the records it
generates are required to be made available in this way and for
ensuring that those records are available in TVA's reading room. TVA's
FOIA Officer will maintain a current subject-matter index of TVA's
reading room records. The index will be updated regularly, at least
quarterly, with respect to newly included records.
Sec. 1301.3 Requirements for making requests.
(a) How made and addressed. You may make a request for records of
TVA by writing to the Tennessee Valley Authority, TVA FOIA Officer,
Enterprise Document Management (EDM), 1101 Market Street (WR 4Q),
Chattanooga, TN 37402-2801. You may find TVA's ``Guide to Information
About TVA''--which is available electronically at TVA's World Wide Web
site, and is available in paper form as well--helpful in making your
request. For additional information about the FOIA, you may refer
directly to the statute. If you are making a request for records about
yourself, see Subpart B Privacy Act for additional requirements. If you
are making a request for records about another individual, either a
written authorization signed by that individual permitting disclosure
of those records to you or proof that that individual is deceased (for
example, a copy of a death certificate or an obituary) will help the
processing of your request. Your request will be considered received as
of the date it is received by the FOIA Officer. For the quickest
possible handling, you should mark both your request letter and the
envelope ``Freedom of Information Act Request.''
(b) Descriptions of records sought. You must describe the records
that you seek in enough detail to enable TVA personnel to locate them
with a reasonable amount of effort. Whenever possible, your request
should include specific information about each record sought, such as
the date, title or name, author, recipient, and subject matter of the
record. If known, you should include any file designations or
descriptions for the records that you want. As a general rule, the more
specific you are about the records or type of records that you want,
the more likely TVA will be able to locate those records in response to
your request. If TVA determines that your request does not reasonably
describe records, it shall tell you either what additional information
is needed or why your request is otherwise insufficient. TVA shall also
give you an opportunity to discuss your request so that you may modify
it to meet the requirements of this section. If your request does not
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reasonably describe the records you seek, the agency's response to your
request may be delayed.
(c) Agreement to pay fees. If you make a FOIA request, it shall be
considered an agreement by you to pay all applicable fees charged under
section 1301.11, up to $25.00, unless you seek a waiver of fees. TVA's
FOIA Officer will confirm this agreement in an acknowledgement letter.
When making a request, you may specify a willingness to pay a greater
or lesser amount.
Sec. 1301.4 Responsibility for responding to requests.
(a) TVA's FOIA Officer, or the FOIA Officer's designee, is
responsible for responding to all FOIA requests. In determining which
records are responsive to a request, TVA will include only records in
its possession as of the date the request is received by the FOIA
Officer. If any other date is used, the FOIA Officer shall inform the
requester of that date.
(b) Authority to grant or deny requests. TVA's FOIA Officer, or the
FOIA Officer's designee, is authorized to grant or deny any request for
a TVA record.
(c) Consultations and referrals. When the FOIA Officer receives a
request for a record in TVA's possession, the FOIA Officer shall
determine whether another agency of the Federal Government is better
able to determine whether the record is exempt from disclosure under
the FOIA and, if so, whether it should be disclosed as a matter of
administrative discretion. If the FOIA Officer determines that TVA is
not best able to process the record, the FOIA Officer shall either:
(1) Respond to the request regarding that record, after consulting
with the agency best able to determine whether to disclose it and with
any other agency that has a substantial interest in it; or
(2) Refer the responsibility for responding to the request
regarding that record to the agency that originated the record (but
only if that agency is subject to the FOIA). Ordinarily, the agency
that originated a record will be presumed to be best able to determine
whether to disclose it.
(d) Notice of referral. Whenever TVA refers all or any part of the
responsibility for responding to a request to another agency, it
ordinarily shall notify the requester of the referral and inform the
requester of the name of each agency to which the request has been
referred and of the part of the request that has been referred.
(e) Timing of responses to consultations and referrals. All
consultations and referrals will be handled according to the date the
FOIA request initially was received by the FOIA Officer, not any later
date.
(f) Agreements regarding consultations and referrals. TVA may make
agreements with other agencies to eliminate the need for consultations
or referrals for particular types of records.
Sec. 1301.5 Timing of responses to requests.
(a) In general, TVA ordinarily shall respond to requests according
to their order of receipt and placement in an appropriate processing
track, as follows.
(b) Multi-track processing procedures. TVA has established three
tracks for handling requests and the track to which a request is
assigned will depend on the nature of the request and the estimated
processing time, including a consideration of the number of pages
involved. If TVA places a request in a track other than Track 1, it
will advise requesters of the limits of its faster track(s). TVA may
provide requesters in its tracks 2 and 3 with an opportunity to limit
the scope of their requests in order to qualify for faster processing
within the specified limits of TVA's faster track(s). When doing so,
TVA may contact the requester either by telephone or by letter,
whichever is most efficient in each case.
(1) Track 1. Requests that can be answered with readily available
records or information. These are the fastest to process. These
requests ordinarily will be responded to within 20 working days of
receipt of a request by the FOIA Officer. The 20 working day time limit
provided in this paragraph may be extended by TVA for unusual
circumstances, as defined in Sec. 1301.5(c), upon written notice to the
person requesting the records.
(2) Track 2. Requests where we need records or information from
other offices throughout TVA, where we must consult with other
Governmental agencies, or when we must process a submitter notice as
described in Sec. 1301.8(d), but we do not expect that the decision on
disclosure will be as time consuming as for requests in Tract 3.
(3) Tract 3. Requests which require a decision or input from
another office or agency, extensive submitter notifications because of
the presence of Business Information as defined in Sec. 1301.8(b)(1),
and a considerable amount of time will be needed for that, or the
request is complicated or involves a large number of records. Usually,
these cases will take the longest to process.
(c) Unusual circumstances. (1) Where the time limits for processing
a request cannot be met because of unusual circumstances and TVA
determines to extend the time limits on that basis, TVA shall as soon
as practicable notify the requester in writing of the unusual
circumstances and of the date by which processing of the request can be
expected to be completed. Where the extension is for more than ten
working days, TVA shall provide the requester with an opportunity
either to modify the request so that it may be processed within the
time limits or to arrange an alternative time period with TVA for
processing the request or a modified request. As used in this
paragraph, `unusual circumstances' means, but only to the extent
reasonably necessary to the proper processing of the particular
requests:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject matter interest therein.
(2) When TVA reasonably believes that multiple requests submitted
by a requester, or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances, and the requests involve clearly related matters, they
may be aggregated, as defined in Sec. 1301.10(h). Multiple requests by
a requester involving unrelated matters will not be aggregated.
(d) Expedited processing. (1) Requests and appeals will be taken
out of order and given expedited treatment whenever TVA determines that
they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person primarily engaged in
disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which
there exist possible questions about the
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government's integrity which affect public confidence.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. For a prompt
determination, a request for expedited processing must be sent to and
received by TVA's FOIA Officer.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
person's knowledge and belief, explaining in detail the basis for
requesting expedited processing. For example, a requester within the
category in paragraph (d)(1)(ii) of this section, if not a full-time
member of the news media, must establish that he or she is a person
whose main professional activity or occupation is information
dissemination, though it need not be his or her sole occupation. A
requester within the category in paragraph (d)(1)(ii) of this section
also must establish a particular urgency to inform the public about the
government activity involved in the request, beyond the public's right
to know about government activity generally. The formality of
certification may be waived as a matter of administrative discretion.
(4) Within ten calendar days of receipt of a request for expedited
processing, TVA's FOIA Officer shall decide whether to grant it and
shall notify the requester of the decision. If a request for expedited
treatment is granted, the request shall be given priority and shall be
processed as soon as practicable. If a request for expedited processing
is denied, any appeal of that decision shall be acted upon
expeditiously.
Sec. 1301.6 Responses to requests.
(a) Acknowledgements of requests. On receipt of a request, the FOIA
Officer ordinarily shall send an acknowledgement letter to the
requester which shall confirm the requester's agreement to pay fees
under section 1301.10 and provide an assigned request number for
further reference.
(b) Grants of requests. Ordinarily, TVA shall have twenty business
days from when a request is received to determine whether to grant or
deny the request. Once TVA makes a determination to grant a request in
whole or in part, it shall notify the requester in writing. The FOIA
Officer shall inform the requester in the notice of any fee charged
under section 1301.10 and shall disclose records to the requester
promptly on payment of any applicable fee, if the fee is equal to or
more than $100. If the fee is less than $100, the FOIA officer shall
disclose the records along with a statement of the fee. 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, if technically feasible.
(c) Adverse determinations of requests. If TVA makes an adverse
determination denying a request in any respect, they shall notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, consist of: a determination to withhold any
requested record in whole or in part; a determination that a requested
record does not exist or cannot be located; a determination that a
record is not readily reproducible in the form or format sought by the
requester; a determination that what has been requested is not a record
subject to the FOIA; a determination on any disputed fee matter,
including a denial of a request for a fee waiver; and a denial of a
request for expedited treatment. The denial letter shall be signed by
the FOIA Officer or the FOIA Officer's designee, and shall include:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reason(s) for the denial, including
any FOIA exemption applied by TVA in denying the request;
(3) An estimate of the volume of records or information withheld,
in number of pages or in some other reasonable form of estimation. This
estimate does not need to be provided if the volume is otherwise
indicated through deletions on records disclosed in part, or if
providing an estimate would harm an interest protected by an applicable
exemption; and
(4) A statement that the denial may be appealed under section
1301.9 and a description of the requirements of section 1301.9.
Sec. 1301.7 Exempt records.
(a) Records available. TVA's records will be made available for
inspection and copying upon request as provided in this section, except
that records are exempt and are not made available if they are:
(1)(i) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense
or foreign policy and
(ii) Are in fact properly classified pursuant to such Executive
order;
(2) Related solely to the internal personnel rules and practices of
TVA;
(3) Specifically exempted from disclosure by statute;
(4) Trade secrets and commercial or financial information obtained
from any person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters which would
not be available by law to a private party in litigation with TVA,
including without limitation records relating to control and accounting
for special nuclear material and to the physical security plans for the
protection of TVA's nuclear facilities;
(6) Personnel and medical files and similar files, the disclosure
of which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings,
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication,
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy.
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source,
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Contained in or related to examination, operation, or condition
reports prepared by, on behalf of, or for the use of any agency
responsible for the regulation or supervision of financial institution;
or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(b) The availability of certain classes of nonexempt records is
deferred for such time as TVA may determine is reasonably necessary to
avoid interference with the accomplishment of its statutory
responsibilities. Such records include bids and information concerning
the identity and number of bids received prior to bid opening; all
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nonexempt records relating to bids between the time of bid opening and
award; and all nonexempt records relating to negotiations in progress
involving contracts or agreements for the acquisition or disposal of
real or personal property by TVA prior to the conclusion of such
negotiations. Any reasonably segregable portion of an available record
shall be provided to any person requesting such record after deletion
of the portions which are exempt under this paragraph.
Sec. 1301.8 Business information.
(a) In general. Business information obtained by TVA from a
submitter will be disclosed under the FOIA only under this section.
(b) Definitions. For purposes of this section:
(1) Business information means commercial or financial information
obtained by TVA from a submitter that may be protected from disclosure
under Exemption 4 of the FOIA.
(2) Submitter means any person or entity from whom TVA obtains
business information, directly or indirectly. The term includes
corporations; state and local governments; and foreign governments.
(c) Designation of business information. A submitter of business
information will use good-faith efforts to designate, by appropriate
markings, either at the time of submission or at a reasonable time
thereafter, any portions of its submission that it considers to be
protected from disclosure under Exemption 4. These designations will
expire ten years after the date of the submission unless the submitter
requests, and provides justification for, a longer designation period.
(d) Notice to submitters. TVA shall provide a submitter with prompt
written notice of a FOIA request or administrative appeal that seeks
its business information wherever required under paragraph (e) of this
section, except as provided in paragraph (h) of this section, in order
to give the submitter an opportunity to object to disclosure of any
specified portion of that information under paragraph (f) of this
section. The notice shall either describe the business information
requested or include copies of the requested records or record portions
containing the information. When notification of a voluminous number of
submitters is required, notification may be made by posting or
publishing the notice in a place reasonably likely to accomplish
notification of submitters.
(e) Where notice is required. Notice shall be given to a submitter
wherever:
(1) The information has been designated in good faith by the
submitter as information considered protected from disclosure under
Exemption 4; or
(2) TVA has reason to believe that the information may be protected
from disclosure under Exemption 4.
(f) Opportunity to object to disclosure. TVA will allow a submitter
a reasonable time to respond to the notice described in paragraph (d)
of this section. If a submitter has any objection to disclosure, it is
required to submit a detailed written statement. The statement must
specify all grounds for withholding any portion of the information
under any exemption of the FOIA and, in the case of Exemption 4, it
must show why the information is a trade secret or commercial or
financial information that is privileged or confidential. In the event
that a submitter fails to respond to the notice within the time
specified in it, the submitter will be considered to have no objection
to disclosure of the information. Information provided by the submitter
that is not received by TVA until after its disclosure decision has
been made shall not be considered by TVA. Information provided by a
submitter under this paragraph may itself be subject to disclosure
under the FOIA.
(g) Notice of intent to disclose. TVA shall consider a submitter's
objections and specific grounds for nondisclosure in deciding whether
to disclose business information. Whenever TVA decides to disclose
business information over the objection of a submitter, TVA shall give
the submitter written notice, which shall include:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections was not sustained;
(2) A description of the business information to be disclosed, and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(h) Exceptions to notice requirements. The notice requirements of
paragraphs (d) and (g) of this section shall not apply if:
(1) TVA determines that the information should not be disclosed;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other
than the FOIA) or by applicable regulation; or
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous-except that, in such a case,
the component shall, within a reasonable time prior to a specified
disclosure date, give the submitter written notice of any final
decision to disclose the information.
(i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of business information, TVA shall
promptly notify the submitter.
(j) Corresponding notice to requesters. Whenever TVA provides a
submitter with notice and an opportunity to object to disclosure under
paragraph (d) of this section, TVA shall also notify the requester(s).
Whenever TVA notifies a submitter of its intent to disclose requested
information under paragraph (g) of this section, TVA shall also notify
the requester(s). Whenever a submitter files a lawsuit seeking to
prevent the disclosure of business information, TVA shall notify the
requester(s).
Sec. 1301.9 Appeals.
(a) Appeals of adverse determinations. If you are dissatisfied with
TVA's response to your request, you may appeal an adverse determination
denying your request, in any respect, to TVA's FOIA Appeal Official,
the Senior Manager, Administrative Services, Tennessee Valley
Authority, 400 Summit Hill Drive (ET 6M), Knoxville, TN 37902-1499. You
must make your appeal in writing and it must be received by the Senior
Manager within 30 days of the date of the letter denying your request.
Your appeal letter may include as much or as little related information
as you wish, as long as it clearly identifies the TVA determination
(including the assigned request number, if known) that you are
appealing. An adverse determination by the TVA Appeal Official will be
the final action of TVA.
(b) Responses to appeals. The decision on your appeal will be made
in writing within 20 days (excluding Saturdays, Sundays, and legal
holidays) after an appeal is received. A decision affirming an adverse
determination in whole or in part shall contain a statement of the
reason(s) for the affirmance, including any FOIA exemption(s) applied,
and will inform you of the FOIA provisions for court review of the
decision. If the adverse determination is reversed or modified on
appeal, in whole or in part, you will be notified in a written decision
and your request will be reprocessed in accordance with that appeal
decision.
(c) When appeal is required. If you wish to seek review by a court
of any adverse determination, you must first appeal it under this
section.
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Sec. 1301.10 Fees.
(a) In general, TVA shall charge for processing requests under the
FOIA in accordance with paragraph (c) of this section, except where
fees are limited under paragraph (d) of this section or where a waiver
or reduction of fees is granted under paragraph (k) of this section. If
the applicable fees are $100 or more, TVA ordinarily will collect all
applicable fees before sending copies of requested records to a
requester. If the applicable fees are less than $100, TVA ordinarily
will bill the requester for the fees in the letter responding to the
request and enclosing the requested records. Requesters must pay fees
by check or money order made payable to the Tennessee Valley Authority
(b) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
person who seeks information for a use or purpose that furthers his or
her commercial, trade, or profit interests, which can include
furthering those interests through litigation. TVA shall determine,
whenever reasonably possible, the use to which a requester will put the
requested records. When it appears that the requester will put the
records to a commercial use, either because of the nature of the
request itself or because TVA has reasonable cause to doubt a
requester's stated use, TVA shall provide the requester a reasonable
opportunity to submit further clarification.
(2) Direct costs means those expenses that TVA actually incurs in
searching for and duplicating (and, in the case of commercial use
requests, reviewing) records to respond to a FOIA request. Direct costs
include, for example, the salary of the employee performing the work
(the basic rate of pay for the employee, plus 16 percent of that rate
to cover benefits, unless the fee is a standard TVA fee as set forth in
paragraph (c) of this section) and the cost of operating duplication
machinery. Not included in direct costs are overhead expenses such as
the costs of space and heating or lighting of the facility in which the
records are kept.
(3) Duplication means the making of a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, microform, audiovisual materials, or
electronic records (for example, magnetic tape or disk), among others.
TVA shall honor a requester's specified preference of form or format of
disclosure if the record is readily reproducible with reasonable
efforts in the requested form or format.
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, or an
institution of professional education, or an institution of vocational
education, that operates a program of scholarly research. To be in this
category, a requester must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are not sought for commercial or private use, but are sought to
further scholarly research.
(5) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis, as that term is defined in
paragraph (b)(1) of this section, and that is operated solely for the
purpose of conducting scientific research the results of which are not
intended to promote any particular product or industry. To be in this
category, a requester must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are not sought for a commercial or private use but are sought
to further scientific research.
(6) Representative of the news media, or news media requester,
means any person actively gathering news for an entity that is
organized and operated to publish or broadcast news to the public. The
term ``news'' means information that is about current events or that
would be of current interest to the public. Examples of news media
entities include television or radio stations broadcasting to the
public at large and publishers of periodicals (but only in those
instances where they can qualify as disseminators of ``news'') who make
their products available for purchase or subscription by the general
public. For ``freelance'' journalists to be regarded as working for a
news organization, they must demonstrate a solid basis for expecting
publication through that organization. A publication contract would be
the clearest proof, but TVA shall also look to the past publication
record of a requester in making this determination. To be in this
category, a requester must not be seeking the requested records for a
commercial or private use. However, a request for records supporting
the news-dissemination function of the requester shall not be
considered to be for a commercial use.
(7) Review means the examination of a record located in response to
a request in order to determine whether any portion of it is exempt
from disclosure. It also includes processing any record for disclosure-
for example, doing all that is necessary to redact it and prepare it
for disclosure. Review costs are recoverable even if a record
ultimately is not disclosed. Review time includes time spent
considering any formal objection to disclosure made by a business
submitter under section 1301.8, but does not include time spent
resolving general legal or policy issues regarding the application of
exemptions.
(8) Search means the process of looking for and retrieving records
or information responsive to a request. It includes page-by-page or
line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. TVA shall ensure that
searches are done in the most efficient and least expensive manner
reasonably possible. For example, TVA shall not search line-by-line
where duplicating an entire document would be quicker and less
expensive.
(c) Fees. In responding to a FOIA request, TVA shall charge the
following fees unless a waiver or reduction of fees has been granted
under paragraph (k) of this section:
(1) Search time charges for other than computer searches. For time
spent by clerical employees in searching files, the charge is $14.90
per hour. For time spent by supervisory and professional employees, the
charge is $34.30 per hour.
(2) Duplication charges. For photostatic reproduction of requested
material which consists of sheets no larger than 8\1/2\ by 14 inches,
the charge is 10 cents per page. For copies produced by computer, such
as tapes or printouts, TVA will charge the direct costs, including
operator time, of producing the copy. For other forms of duplication,
TVA will charge the direct cost of that duplication.
(3) Review charges. Review fees will be charged to requesters who
make a commercial use request. Review fees will be charged only for the
initial record review--in other words, the review done when TVA
determines whether an exemption applies to a particular record or
record portion at the initial request level. No charge will be made for
review at the administrative appeal level for an exemption already
applied. However, record or record portions 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 costs of that review are chargeable where it is made
necessary by a change of circumstances. Review fees will be
[[Page 47454]]
charged at the same rates as those charged for a search under paragraph
(c)(1) of this section.
(d) Limitations on charging fees. (1) No search fee will be charged
for requests by educational institutions, noncommercial scientific
institutions, or representatives of the news media.
(2) No search fee or review fee will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(3) Except for requesters seeking records for a commercial use, TVA
will provide the following without charge:
(i) The first 100 pages of duplication (or the cost equivalent);
and
(ii) The first two hours of search (or the cost equivalent).
(4) No fee is charged to any requester if the cost of collecting
the fee would be equal to or greater than the fee itself.
(5) The provisions of paragraphs (d)(3) and (4) of this section
work together. This means that for requesters other than those seeking
records for a commercial use, no fee will be charged unless the cost of
search in excess of two hours plus the cost of duplication in excess of
100 pages is equal to or greater than the fee itself.
(e) Notice of anticipated fees in excess of $25.00. When TVA
determines or estimates that the fees to be charged under this section
will amount to more than $25.00, TVA shall notify the requester of the
actual or estimated amount of the fees, unless the requester has
indicated a willingness to pay fees as high as those anticipated. If
only a portion of the fee can be estimated readily, TVA shall advise
the requester that the estimated fee may be only a portion of the total
fee. In cases in which a requester has been notified that actual or
estimated fees amount to more than $25.00, the request shall not be
considered received and further work shall not be done on it until the
requester agrees to pay the anticipated total fee. Any such agreement
should be documented in writing. A notice under this paragraph will
offer the requester an opportunity to discuss the matter with TVA
personnel in order to reformulate the request to meet the requester's
needs at a lower cost.
(f) Charges for other services. Apart from the other provisions of
this section, when TVA 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 direct costs of
providing the service ordinarily will be charged.
(g) Charging interest. TVA may charge interest on any unpaid bill
starting on the 31st day following the date of billing the requester.
Interest charges will be assessed at the rate provided in 31 U.S.C.
3717 and will accrue from the date of the billing until payment is
received by TVA.
(h) Aggregating requests. When TVA reasonably believes that a
requester or a group of requesters acting together is attempting to
divide a request into a series of requests for the purpose of avoiding
fees, TVA may aggregate those requests and charge accordingly. TVA may
presume that multiple requests of this type made within a 30-day period
have been made in order to avoid fees. Where requests are separated by
a longer period, TVA will aggregate them only where there exists a
solid basis for determining that aggregation is warranted under all of
the circumstances involved. Multiple requests involving unrelated
matters will not be aggregated.
(i) Advance payments. (1) For requests other than those described
in paragraphs (i) (2) and (3) of this section, TVA shall not require
the requester to make an advance payment--in other words, a payment
made before work is begun or continued on a request. Payment owed for
work already completed (i.e., a prepayment before copies are sent to a
requester) is not an advance payment.
(2) Where TVA determines or estimates that a total fee to be
charged under this section will be more than $250.00, it may require
the requester to make an advance payment of an amount up to the amount
of the entire anticipated fee before beginning to process the request,
except where it receives a satisfactory assurance of full payment from
a requester that has a history of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to TVA or another agency within 30 days of the date of
billing, TVA may require the requester to pay the full amount due, plus
any applicable interest, and to make an advance payment of the full
amount of any anticipated fee, before TVA begins to process a new
request or continues to process a pending request from that requester.
(4) In cases in which TVA requires advance payment or payment due
under paragraph (i) (2) or (3) of this section, the request shall not
be considered received and further work will not be done on it until
the required payment is received.
(j) Other fees for TVA published materials. The fee schedule of
this section does not apply to fees charged by TVA for documents,
including maps or reports and the like, which TVA sells to the public
at established prices. Where records responsive to requests are
maintained for distribution and sale by TVA at established prices, TVA
will inform requesters of the steps for obtaining records from those
sources so that they may do so most economically.
(k) Waiver or reduction of fees. (1) Records responsive to a
request will be furnished without charge or at a charge reduced below
that established under paragraph (c) of this section where TVA
determines, based on all available information, that the requester has
documented that:
(i) Disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government, and
(ii) Disclosure of the information is not primarily in the
commercial interest of the requester.
(2) To determine whether the first fee waiver requirement is met,
TVA will consider the following factors:
(i) The subject of the request: Whether the subject of the
requested records concerns ``the operations or activities of the
government.'' The subject of the requested records must concern
identifiable operations or activities of the federal government, with a
connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about government
operations or activities in order to be ``likely to contribute'' to an
increased public understanding of those operations or activities. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not be as
likely to contribute to such understanding where nothing new would be
added to the public's understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: Whether disclosure of the
requested information will contribute to ``public understanding.'' The
disclosure must contribute to the understanding of a reasonably broad
audience of persons interested in the subject, as opposed to the
individual understanding of the requester. A requester's expertise in
the subject area and ability and intention to effectively convey
information to the public shall be considered. It shall be presumed
that a representative of the
[[Page 47455]]
news media will satisfy this consideration.
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities. The
public's understanding of the subject in question, as compared to the
level of public understanding existing prior to the disclosure, must be
enhanced by the disclosure to a significant extent. TVA shall not make
value judgments about whether information that would contribute
significantly to public understanding of the operations or activities
of the government is ``important'' enough to be made public.
(3) To determine whether the second fee waiver requirement is met,
TVA will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure. TVA shall consider any commercial interest of the
requester (with reference to the definition of ``commercial use'' in
paragraph (b) (1) of this section), or of any person on whose behalf
the requester may be acting, that would be furthered by the requested
disclosure. Requesters shall be given an opportunity in the
administrative process to provide explanatory information regarding
this consideration.
(ii) The primary interest in disclosure. Whether any identified
commercial interest of the requester is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified where the public interest standard is
satisfied and that public interest is greater in magnitude than that of
any identified commercial interest in disclosure. TVA ordinarily shall
presume that where a news media requester has satisfied the public
interest standard, the public interest will be the interest primarily
served by disclosure to that requester. Disclosure to data brokers or
others who merely compile and market government information for direct
economic return shall not be presumed to primarily serve the public
interest.
(4) Where only some of the requested records satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(5) Requests for the waiver or reduction of fees should address the
factors listed in paragraphs (k) (2) and (3) of this section, insofar
as they apply to each request. TVA will exercise their discretion to
consider the cost-effectiveness of their investment of administrative
resources in this decisionmaking process, however, in deciding to grant
waivers or reductions of fees.
Sec. 1301.11 Other rights and services.
Nothing in this subpart shall be construed to entitle any person,
as of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
William S. Moore,
Senior Manager, Administrative Services.
[FR Doc. 98-23690 Filed 9-4-98; 8:45 am]
BILLING CODE 8120-08-P
