[Federal Register Volume 59, Number 102 (Friday, May 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12959]
[[Page Unknown]]
[Federal Register: May 27, 1994]
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UNITED STATES ENRICHMENT CORPORATION
10 CFR Part 1102
Freedom of Information Act Regulations
AGENCY: United States Enrichment Corporation.
ACTION: Final rule.
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SUMMARY: The United States Enrichment Corporation (Corporation) is
adopting this final rule pursuant to the Freedom of Information Act
(FOIA). The implementing regulations establish procedures for the
disclosure of information by the Corporation under FOIA. The objective
of these implementing regulations is to facilitate the exercise of
rights conferred on the public by FOIA and to ensure that the
Corporation's determinations regarding disclosure of information are in
compliance with FOIA.
EFFECTIVE DATE: May 27, 1994.
FOR FURTHER INFORMATION CONTACT:
Robert J. Moore, General Counsel, United States Enrichment Corporation,
Two Democracy Center, 6903 Rockledge Drive, Bethesda, MD 20817 or
telephone (301) 564-3200.
SUPPLEMENTARY INFORMATION: On March 30, 1994 (59 FR 14789), the
Corporation published a proposed rule pursuant to the Freedom of
Information Act, 5 U.S.C. 552 (FOIA). The period for public comment
extended through April 29, 1994. The Corporation received no comments
with regard to the proposed rule. These final regulations are adopted
by the Corporation, without change, as published below.
Background
The United States Enrichment Corporation (Corporation), an agency
and instrumentality of the United States, was established by the Energy
Policy Act of 1992 (Pub. L. 102-486; 42 U.S.C. 2297 et seq.) as a
wholly owned Government corporation. On July 1, 1993, the Corporation
assumed responsibility for the majority of the uranium enrichment
enterprise activities formerly conducted by the U.S. Department of
Energy. Since that date, the Corporation has been the exclusive
marketing agent for the U.S. Government for entering into contracts for
providing enriched uranium and uranium enrichment and related services.
In connection with its legitimate activities, the Corporation possesses
records that may fall within the scope of the Freedom of Information
Act (FOIA), 5 U.S.C. 552. Consequently, the Corporation is promulgating
these implementing regulations pursuant to 5 U.S.C. 552(a)(4)(A) to
ensure compliance with the provisions of FOIA.
In general, FOIA provides for public access to records in the
possession of the Corporation, while preserving the Corporation's
ability to protect certain specifically exempted material from
disclosure. Specifically, FOIA requires the Corporation to publish
certain information in the Federal Register, including a description of
the organization of the Corporation and substantive rules of general
applicability, and make other information available for public
inspection and copying, including statements of policy and
interpretations adopted by the Corporation which are not published in
the Federal Register. FOIA also requires the Corporation to make
records available in response to a request which (i) reasonably
describes such records; and (ii) is made in accordance with these
implementing regulations, which state the time, place, fees and
procedures to be followed. The Corporation, however, will not treat
records that have been prepared by a contractor, and are available to
the Corporation pursuant to the terms of a contract between the
Corporation and the contractor, but which have not been delivered to
the Corporation, as ``records'' available in response to a request made
in accordance with these implementing regulations. Finally, FOIA
exempts specific categories of matters from disclosure pursuant to a
request for information made under these implementing regulations. For
example, 5 U.S.C. 552(b)(3) exempts those matters which are
``specifically exempted from disclosure by statute * * * provided that
such statute'' meets certain criteria. Recognizing the unique status of
the Corporation as a government agency with the statutory mission to
``operate as a business enterprise on a profitable and efficient
basis,'' Congress specifically provided the Corporation with authority
to ``protect trade secrets and commercial or financial information to
the same extent as a privately owned corporation,'' 42 U.S.C. 2297b-
13(a). The Corporation interprets 42 U.S.C. 2297b-13(a) as being a
statute covered by section (b)(3) of FOIA and anticipates that a
significant amount of the Corporation's records will fall under this
exemption.
Final Rule
As a whole, these implementing regulations provide the means
necessary for the public to exercise fully the rights provided under
FOIA. Section 1102.3 establishes the Corporation's policy regarding the
disclosure of Corporation records pursuant to FOIA. Section 1102.4
establishes the availability of materials to the public as required by
5 U.S.C. 552(a) (2) and (5). Section 1102.5 establishes procedures by
which the public can request access to Corporation records which are
not covered by 5 U.S.C. 552(a) (1) or (2) and time requirements
regarding the Corporation's response to such requests. Section 1102.6
establishes nine categories of matters which are exempt from all
publication and disclosure requirements of FOIA, provides for the
disclosure of any reasonably segregable portion of an exempted record
subsequent to deletion of exempted portions of the record, and
establishes guidance for the Corporation in relation to providing a
requesting party with information regarding exempt material. Section
1102.7 establishes procedures for responding to a request for
disclosure of records made pursuant to these implementing regulations.
Section 1102.8 establishes procedures for denying a request for
disclosure of records made pursuant to these implementing regulations.
Section 1102.9 establishes procedures for the appeal of a denial of a
request for disclosure of records made pursuant to these implementing
regulations. Section 1102.10 establishes the schedule of fees
applicable to the processing of requests under these implementing
regulations and also establishes procedures and guidance for
determining when such fees should be waived or reduced. Section 1102.11
establishes procedures to provide submitters of information containing
confidential commercial information, as defined by Executive Order
12600, with notice of a request for such information submitted pursuant
to these implementing regulations.
Paperwork Reduction Act
The Corporation certifies that these implementing regulations do
not require additional reporting under the criteria of the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501 et seq.
Executive Order 12291
These implementing regulations are not a ``major rule'' within the
meaning of E.O. 12291 because they: (1) do not have an annual effect on
the economy of $100 million or more; (2) do not result in a major
increase in the cost of financial institution operations or
governmental supervision; and (3) do not have a significant adverse
effect on competition (foreign or domestic), employment, investment
productivity or innovation within the meaning of E.O. 12291.
Accordingly, a regulatory impact analysis is not required.
Regulatory Flexibility Act
Pursuant to Section 605(b), the Corporation certifies that these
implementing regulations are not expected to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. These
regulations implement FOIA, which is concerned with disclosure of
records in the possession of an agency of the Federal Government.
Accordingly, a regulatory flexibility analysis is not required.
List of Subject in 10 CFR Part 1102
Administrative practice and procedures, Records.
William H. Timbers, Jr.,
President & Chief Executive Officer.
For the reasons set out in the preamble, 10 CFR chapter 11 is added
as follows:
Chapter XI--United States Enrichment Corporation
PART 1102--PROCEDURES FOR DISCLOSURE OF INFORMATION UNDER THE
FREEDOM OF INFORMATION ACT
Sec.
1102.1 Purpose.
1102.2 Definitions.
1102.3 Policy.
1102.4 Public Reading Room.
1102.5 Availability of records on request.
1102.6 Exemptions.
1102.7 Officials authorized to grant or deny requests for records.
1102.8 Denials.
1102.9 Appeals of denials.
1102.10 Fees.
1102.11 Notice to submitters of certain information.
Authority: 5 U.S.C. 552.
Sec. 1102.1 Purpose.
This part prescribes the procedures by which records of the United
States Enrichment Corporation may be made available pursuant to section
1314 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2297b-13,
and the Freedom of Information Act, 5 U.S.C. 552.
Sec. 1102.2 Definitions.
As used in this part--
Commercial use request means 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 determining whether a request for
records properly belongs in this category, the Corporation will look to
the use to which a requester will put the documents requested. When the
Corporation has reasonable cause to doubt the use to which a requester
will put the records sought, or where the use is not clear from the
request itself, it will seek additional clarification before assigning
the request to a specific category. If still in doubt, the Corporation
will make the determination based on the factual circumstances
surrounding the request, including the identity of the requester.
Corporation means the United States Enrichment Corporation.
Duplication means the process of making a copy of a document
necessary to respond to a FOIA request. Such copies can take the form
of paper copy, microform, audio-visual materials, or machine readable
documentation (e.g., magnetic tape or disk), among others.
Educational institution means a preschool, a public or private
elementary or secondary school, an institution of graduate higher
education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education, which operates a program or programs of scholarly research.
FOIA means the Freedom of Information Act, 5 U.S.C. 552.
Freedom of Information Officer means the person designated to
administer the FOIA at the Corporation's headquarters.
General Counsel means the General Counsel of the Corporation or any
Corporation attorney designated by the General Counsel as having
responsibility for counseling the Corporation on FOIA requests.
Headquarters means the Corporation's offices at 2 Democracy Center,
6903 Rockledge Drive, Bethesda, Maryland 20817.
Non-commercial scientific institution means an institution that is
not operated on a ``commercial'' basis and which is operated solely for
the purpose of conducting scientific research, the results of which are
not intended to promote any particular product or industry.
Records means books, papers, maps, photographs, or other
documentary materials, regardless of physical form or characteristics,
made or received by the Corporation in connection with the transaction
of the Corporation's business and preserved by the Corporation as
evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the Corporation or
because of the informational value of data in them. The term does not
include inter alia, books, magazines, or other materials acquired
solely for library purposes and available through any officially
designated library of the Corporation, or records that have been
prepared by a contractor, and are available to the Corporation pursuant
to the terms of a contract between the Corporation and the contractor
(e.g., the contract for the operation and maintenance of the
Corporation's leased gaseous diffusion plants), but which have not been
delivered to the Corporation.
Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that would be of current interest to
the public. Examples of news media entities include television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only in those instances when they can qualify as
disseminators of ``news'') who make their products available for
purchase or subscription by the general public. These examples are not
intended to be all-inclusive. Moreover, as traditional methods of news
delivery evolve (e.g., electronic dissemination of newspapers through
telecommunications services), such alternative media would be included
in this category. In the case of ``freelance'' journalists, they will
be regarded as working for a news organization if they can demonstrate
a solid basis for expecting publication through that organization, even
though not actually employed by it.
Review means the process of examining documents located in response
to a commercial use request to determine whether any portion of any
document located is permitted to be withheld. It also includes
processing any documents for disclosure, e.g., doing all that is
necessary to excise them and otherwise prepare them for release. Review
does not include time spent resolving general legal or policy issues
regarding the application of exemptions.
Search means all the time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within documents. The search should be
conducted in the most efficient and least expensive manner. Searches
may be done manually or by computer using existing programming.
Working days means all days except Saturdays, Sundays, and legal
public holidays.
Sec. 1102.3 Policy.
The Corporation will make records concerning its operations,
activities, and business available to the public upon request. Records
will be withheld from the public only in accordance with the FOIA and
this part. Records that may be exempt from disclosure may be made
available as a matter of discretion when disclosure is not prohibited
by law, and it does not appear adverse to legitimate interests of the
public, the Corporation, or any person. The Corporation will attempt to
provide assistance to requesting parties, including information about
how a request may be submitted. The Corporation will act on requests
for records in a timely manner.
Sec. 1102.4 Public Reading Room.
(a) The Corporation will maintain in a public reading room at its
headquarters the materials which are required by 5 U.S.C. 552(a)(2) and
(5) to be made available for public inspection and copying, unless it
is determined that such records should be withheld and are exempt from
mandatory disclosure under the FOIA and Sec. 1102.6 of this part.
(b) The public reading room will maintain and make available for
public inspection and copying current indices of the materials which
are required to be indexed by 5 U.S.C. 552(a)(2) or other applicable
statutes. Because publication of such indices is unnecessary and
impracticable and because current versions thereof will be available
for inspection at the Corporation's public reading room, it is
determined and so ordered that the Corporation will not publish the
indices in the Federal Register.
(c) Certain records maintained in the public reading room or
otherwise made available pursuant to this part may be ``edited'' by the
deletion of identifying details concerning individuals, to prevent a
clearly unwarranted invasion of personal privacy. In such cases the
record shall have attached to it a full explanation of the deletion.
Sec. 1102.5 Availability of records on request.
(a) In addition to the records made available through the public
reading room, the Corporation will make records available to any person
in accordance with paragraphs (b) and (c) of this section, unless it is
determined that such records are exempt from mandatory disclosure under
the FOIA and Sec. 1102.6 of this part and that such records should be
withheld by the Corporation.
(b) Requests. (1) A request will be acceptable if it identifies a
record with sufficient particularity to enable officials of the
Corporation to locate the record with a reasonable amount of effort.
Requests seeking records within a reasonably specific category will be
deemed to conform to the statutory requirement of a request which
``reasonably describes'' such records if professional employees of the
Corporation who are familiar with the subject area of the request would
be able, with a reasonable amount of effort, to determine which
particular records are encompassed within the scope of the request, and
to search for, locate, and collect the records without unduly burdening
or materially interfering with operations because of the staff time
consumed or the resulting disruption of files. If it is determined that
a request does not reasonably describe the records sought as specified
in this paragraph, the response denying the request on that ground
shall specify the reasons why the request failed to meet the
requirements of this paragraph and shall extend to the requester an
opportunity to confer with Corporation personnel in order to attempt to
reformulate the request in a manner that will meet the needs of the
requester and the requirements of this paragraph.
(2) To facilitate the location of records by the Corporation, a
requester should try to provide the following kinds of information, if
known: (i) the specific event or action to which the record refers;
(ii) the unit or program of the Corporation which may be responsible
for or may have produced the record; (iii) the date of the record or
the date or period to which it refers or relates; (iv) the type of
record such as an application, a grant, a contract, or a report; (v)
personnel of the Corporation who may have prepared or have knowledge of
the record; and (vi) citations to newspapers or publications which have
referred to the record.
(3) The Corporation is not required to create a record or to seek
to acquire a record from its contractors in order to satisfy a request.
(4) All requests for records under this section shall be made in
writing, with the envelope and the letter clearly marked: ``Freedom of
Information Request.'' All such requests shall be addressed to the
Freedom of Information Officer, 2 Democracy Center, 6903 Rockledge
Drive, Bethesda, MD 20817. Any request not marked and addressed as
specified in this paragraph will be so marked by Corporation personnel
as soon as it is properly identified, and forwarded immediately to the
Freedom of Information Officer. A request improperly addressed will not
be deemed to have been received for purposes of the time period set
forth in paragraph (c) of this section until forwarding to the
appropriate office has been effected. On receipt of an improperly
addressed request, the Freedom of Information Officer shall notify the
requester of the date on which the time period commenced to run.
(5) A person desiring to secure copies of records by mail should
write to the Freedom of Information Officer, 2 Democracy Center, 6903
Rockledge Drive, Bethesda, Maryland 20817. The request must identify
the records of which copies are sought in accordance with the
requirements of this section, and the number of copies desired. Fees
may be required to be paid in advance in accordance with Sec. 1102.10.
The requester will be advised of the estimated fee, if any, as promptly
as possible. If a waiver or reduction of fees is requested, the grounds
for such request should be included in the letter.
(c) The Freedom of Information Officer, upon receipt of a request
for any records made in accordance with this section, shall make an
initial determination of whether to comply with or deny such request
and dispatch such determination to the requester within 10 working days
after receipt of such request, except for unusual circumstances in
which case the time limit may be extended for not more than 10 working
days by written notice to the requester setting forth the reasons for
such extension and the date on which a determination is expected to be
dispatched. In determining whether to issue a notice of extension of
time for a response to a request beyond the 10-day period, the Freedom
of Information Officer shall consult with the Office of the General
Counsel. As used herein, ``unusual circumstances'' are limited to the
following, but only to the extent reasonably necessary to the proper
processing of the particular request:
(1) The need to search for and collect the requested records from
the Corporation's field offices;
(2) 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
(3) The need for consultation, which shall be conducted with all
practicable speed, including consultation with another agency having a
substantial interest in the determination of the request or among
components of the Corporation having substantial subject matter
interest therein.
(d) If no determination has been dispatched at the end of the 10-
day period, or the last extension thereof, the requester may deem the
request denied, and exercise a right of appeal in accordance with
Sec. 1102.9. When no determination can be dispatched within the
applicable time limit, the Freedom of Information Officer shall
nevertheless continue to process the request. On expiration of the time
limit, the Freedom of Information Officer shall inform the requester of
the reason for the delay, of the date on which a determination may be
expected to be dispatched, and of the right to treat the delay as a
denial and to appeal to the Corporation's Chief Executive Officer
(``CEO'') in accordance with Sec. 1102.9. The Freedom of Information
Officer may ask the requester to forego appeal until a determination is
made.
(e) After it has been determined to comply with a request, the
Corporation will act with diligence in providing a substantive response
to the requester.
Sec. 1102.6 Exemptions.
(a) 5 U.S.C. 552 exempts from all of its publication and disclosure
requirements matters falling within nine categories, which are
described in paragraph (b) of that section.
(b) Specifically, the exemptions of 5 U.S.C. 552(b) will be applied
to matters that 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
an agency;
(3) Specifically exempted from disclosure by statute (other than 5
U.S.C. 552b), provided that such statute (i) requires that the matters
be withheld from the public in such a manner as to leave no discretion
on the issue, or (ii) establishes particular criteria for withholding
or refers to particular types of matters to be withheld, including
sections 148 and 1314 of the Atomic Energy Act of 1954, as amended (42
U.S.C. 2168, 2297b-13), the latter of which authorizes the Corporation
to ``protect trade secrets and commercial or financial information to
the same extent as a privately owned corporation'';
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the Corporation;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Investigatory records compiled for law enforcement purposes,
but only to the extent that the production of such records could
reasonably be expected to (i) interfere with enforcement proceedings,
(ii) deprive a person of a right to a fair trial or an impartial
adjudication, (iii) constitute an unwarranted invasion of personal
privacy, (iv) disclose the identity of a confidential source and, in
the case of a record 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, confidential
information furnished only by the confidential source, (v) disclose
investigative techniques and procedures or guidelines for law
enforcement investigations or prosecutions if such disclosure would
risk circumvention of the law, or (vi) endanger the life or physical
safety of law enforcement personnel;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(c) In the event that one or more of the exemptions in paragraph
(b) applies, any reasonably segregable portion of a record shall be
provided to the requester after deletion of the portions that are
exempt. In appropriate circumstances, subject to the discretion of
Corporation officials, it may be possible to provide a requester with:
(1) A summary of information in the exempt portion of a record; or
(2) An oral description of the exempt portion of a record.
(d) In determining whether any of the foregoing techniques, cited
in paragraphs (c)(1) and (c)(2), should be employed or whether an
exemption should be waived in accordance with paragraph (e) of this
section, Corporation officials shall consult with the Office of General
Counsel. No requester shall have a right to insist that any or all of
the foregoing techniques should be employed in order to satisfy a
request.
(e) Records that may be exempted from disclosure pursuant to
paragraph (b) of this section may be made available as a matter of
discretion when disclosure is not prohibited by law, if it does not
appear adverse to legitimate interests of the Corporation, the public,
or any person.
Sec. 1102.7 Officials authorized to grant or deny requests for
records.
The General Counsel shall furnish necessary advice to Corporation
officials and staff as to their obligations under this part and shall
take such other actions as may be necessary or appropriate to assure a
consistent and equitable application of the provisions of this part by
and within the Corporation. The Freedom of Information Officer, with
concurrence from the appropriate program officials of the Corporation,
is authorized to grant or deny requests under this part. The Freedom of
Information Officer shall consult with the General Counsel before
denying requests under this part, or before granting requests for
waiver or modified application of an exemption or for categories of
records which the General Counsel determines may present special or
unusual problems.
Sec. 1102.8 Denials.
(a) A denial of a written request for a record that complies with
the requirements of Sec. 1102.5 shall be in writing and shall include
the following:
(1) A reference to the applicable exemption or exemptions in
Sec. 1102.6(b) upon which the denial is based;
(2) An explanation of how the exemption applies to the requested
records;
(3) A statement explaining whether there is any segregable
nonexempt material of the record after deleting the exempt portions;
(4) The name and title of the person or persons responsible for
denying the request; and
(5) An explanation of the right to appeal the denial and of the
procedures for submitting an appeal, including the address of the
official to whom appeals should be submitted.
(6) Whenever the Corporation makes a record available subject to
the deletion of a portion of the record, such action shall be deemed a
denial of a record for purposes of paragraph (a) of this section.
Sec. 1102.9 Appeals of denials.
(a) Any person whose written request has been denied is entitled to
appeal the denial within thirty calendar days of issuance thereof by
writing to the CEO of the Corporation at its headquarters. The envelope
and letter should be clearly marked: ``Freedom of Information Appeal.''
An appeal need not be in any particular form, but should adequately
identify the denial, if possible, by describing the requested record,
identifying the official who issued the denial, and providing the date
on which the denial was issued.
(b) No personal appearance, oral argument, or hearing will
ordinarily be permitted on appeal of a denial. Upon request and a
showing of special circumstances, however, this limitation may be
waived and an informal conference may be arranged with the Corporation
CEO, or the CEO's designated representative, for this purpose.
(c) The appeal decision of the CEO, or the CEO's designated
representative, shall be in writing and, in the event the denial is in
whole or in part upheld, shall contain an explanation responsive to the
arguments advanced by the requester, the matters described in
Sec. 1102.8(a) (1) through (4), and the provisions for judicial review
of such decision under section 552(a)(4) of the FOIA. The appeal
decision shall be dispatched to the requester within twenty working
days after receipt of the appeal, unless an additional period is
justified pursuant to Sec. 1102.5(c). The appeal decision shall
constitute the final action of the Corporation. All such decisions
shall be treated as final opinions under 5 U.S.C. 552(a)(2).
Sec. 1102.10 Fees.
(a) Records provided routinely in the normal course of doing
business will be provided at no charge.
(b) Fees shall be limited to reasonable standard charges for
document search, duplication, and review, when records are for a
commercial use request;
(c) Fees shall be limited to reasonable standard charges for
duplication when records are not sought through a commercial use
request and the request is made by an educational institution or non-
commercial scientific institution, whose purpose is scholarly or
scientific research, or a representative of the news media; and
(d) For any request not described in paragraph (b) or (c) of this
section, fees shall be limited to reasonable standard charges for
search, review and duplication.
(e) The schedule of charges for services regarding the production
or disclosure of the Corporation's records is as follows:
(1) Whenever feasible, for manual searches and reviews: The basic
rate(s) of pay of the employee(s) making the search and review plus 16
percent of the rate(s) to cover benefits.
(2) Computer time: Because of the diversity in the types of
configurations of computers which may be required in responding to
requests for records maintained in whole or part in computerized form,
it is not feasible to establish a uniform schedule of fees for search
and printout of such records. The charge for personnel time shall be
the basic rate(s) of pay of the employee(s) involved plus 16 percent of
the rate(s) to cover benefits. The charge for the computer time
involved and for any special supplies or materials used shall not
exceed the direct cost to the Corporation.
(3) Duplication of records: A per-page charge for paper copy
reproduction of documents. At present, the charge is $0.10 per page.
(4) Duplication of microform: Actual charges as incurred.
(5) Certification of true copies: $1.00 each.
(6) Packing and mailing records: Actual charges as incurred.
(7) Special delivery or express mail: Actual charges as incurred.
(f) A record shall be furnished without any charge or at a charge
reduced below the fees established under paragraph (e) of this section
if disclosure of the record is in the public interest because it is
likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the
commercial interest of the requester.
(1) In order to determine whether disclosure of the record ``is in
the public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the
government,'' the Corporation will consider the following four
criteria:
(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 record to be disclosed: Whether
the disclosure is ``likely to contribute'' to an understanding of
government operations or activities;
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested record will contribute to ``public understanding''; and
(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.
(2) In order to determine whether disclosure of a record ``is not
primarily in the commercial interest of the requester,'' the
Corporation will consider the following two 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; and, if so,
(ii) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is ``primarily in the commercial interest of the
requester.''
(3) A denial of a request for a waiver or reduction of fees will be
subject to appeal in the same manner as appeals from denial of a
request for information under Sec. 1102.9.
(g) No fee will be charged under this section--
(1) If the costs of routine collection and processing of the fee
are likely to equal or exceed the amount of the fee; or
(2) For any request described in paragraph (b), (c), or (d) of this
section for the first two hours of search time and for the first one
hundred pages of duplication.
(h) No requester will be required to make an advance payment of any
fee unless the requester has previously failed to pay fees in a timely
fashion or the Corporation has determined that the fee will exceed
$250.
(1) In the event that a requester has previously failed to pay a
required fee (within 30 days of the date of billing), an advance
deposit of the full amount of the anticipated fee together with the fee
then due plus interest accrued may be required. The request will not be
deemed to have been received by the Corporation until such payment is
made.
(2) In the event that the Corporation determines that an estimated
fee will exceed $250, the requester shall be notified of the amount of
the anticipated fee or such portion thereof as can readily be
estimated. Such notification shall be transmitted as soon as possible,
but in any event within five working days of such determination, giving
the best estimate then available. The notification shall offer the
requester the opportunity to confer with appropriate representatives of
the Corporation for the purpose of reformulating the request so as to
meet the requester's needs at a reduced cost. The request will not be
deemed to have been received by the Corporation until an advance
payment of the entire fee is made.
(i) Interest will be charged to those requesters who fail to pay
the fees charged. Interest will be assessed on the amount billed,
starting on the 31st calendar day following the day on which the
billing was sent. The rate charged will be as prescribed in 31 U.S.C.
3717.
(j) If the Corporation reasonably believes that a requester or
group of requesters is attempting to break a request into a series of
requests for the purpose of evading the assessment of fees, the
Corporation shall aggregate such requests and charge accordingly.
(k) The Corporation reserves the right to limit the number of
copies that will be provided of any record to a requester or to require
that special arrangements for duplication be made in the case of bound
volumes or other records representing unusual problems of handling or
duplication.
Sec. 1102.11 Notice to submitters of certain information.
(a) Upon receipt of a request for information that either, (1) the
Freedom of Information Officer determines may be exempt from disclosure
under paragraph (b)(4) of Sec. 1102.6 as privileged or confidential
trade secrets or commercial or financial information submitted to the
Corporation by a third party or entity (other than federal government
agencies); or (2) is subject to an understanding of confidentiality
between the Corporation and the submitter thereof, the Freedom of
Information Officer shall provide the submitter of such information
with notice of the request.
(b) The Corporation shall afford a submitter of information covered
by paragraph (a) of this section a period, generally not in excess of
10 working days, within which to provide the Freedom of Information
Officer a detailed statement of objections to the disclosure of such
information by the Corporation. The submitter's response (if any) shall
include all bases, factual or legal, for the withholding of the
requested information pursuant to paragraph (b)(4) of Sec. 1102.6. If
the Freedom of Information Officer does not receive a timely response
from the submitter, the Freedom of Information Officer shall proceed
with the determination of whether or not to release such information.
(c) Whenever the Corporation decides to release any part of the
information covered by paragraph (a) of this section over the objection
of the submitter, the Corporation shall forward to the submitter a
written statement providing a brief explanation why the Corporation did
not agree with the submitter's objections; a description of the
information to be released; and the expected date of the release.
(d) If a requester or submitter brings suit against the Corporation
seeking to compel or restrict the release of information covered by
paragraph (a) of this section, the Corporation shall promptly notify
the other party.
(e) The notice requirement of this section shall not apply if:
(1) The information has been published or otherwise made available
to the public;
(2) Disclosure of the information is required by law (other than 5
U.S.C. 552);
(3) The submitter has received notice of a previous FOIA request
which encompassed the information requested in the later request, and
the Corporation intends to withhold information in the same manner as
in the previous FOIA request; or
(4) Upon submitting the information or within a reasonable period
thereafter, (i) the submitter reviewed its information in anticipation
of future requests pursuant to the FOIA, (ii) the submitter provided
the Corporation a statement of its objections to disclosure consistent
with that described in paragraph (b) of this section, and (iii) the
Corporation intends to release information consistent with the
submitter's objections.
[FR Doc. 94-12959 Filed 5-26-94, 8:45 am]
BILLING CODE 8270-01-M
