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CHAPTER XVII—DEFENSE NUCLEAR FACILITIES

SAFETY BOARD

Part 1703 1704

Page 918

Public information and requests .......
Rules Implementing the Government in the Sun-

shine Act .........
Privacy Act ........
Organizational and consultant conflicts of inter-

ests

1705 1706

PART 1703-PUBLIC INFORMATION (5) Non-substantive information in AND REQUESTS

the calendar or schedule books of the

Chairman or Members, uncirculated Sec.

except for typing or recording pur1703.101 Scope.

poses. 1703.102 Definitions; words denoting num Board means the Defense Nuclear Faber, gender and tense.

cilities Safety Board. 1703.103 Requests for board records avail

Chairman means the Chairman of the able through the public reading room.

Board. 1703.104 Board records exempt from public

Designated FOIA Officer means the disclosure. 1703.105 Requests for board records not

person designated by the Board to adavailable through the public reading minister the Board's activities pursuroom (FOLA requests).

ant to the regulations in this part. The 1703.106 Requests for waiver or reduction of Designated FOIA Officer shall also be fees.

the Board officer having custody of or 1703.107 Fees for record requests.

responsibility for agency records in the 1703.108 Processing of POLA requests.

possession of the Board and shall be 1703.109 Procedure for appeal of denial of requests for board records and denial of re

the Board officer responsible for auquests for fee waiver or reduction.

thorizing or denying production of 1703.110 Requests for classified records. records upon requests filed pursuant to 1703.111 Requests for privileged treatment $1703.105.

of documents submitted to the board. General Counsel means the chief legal 1703.112 Computation of time.

officer of the Board. AUTHORITY: 5 U.S.C. 552; Executive Order General Manager means the chief ad12600, 3 CFR, 1987 Comp., p. 235; 42 U.S.C. 2286, ministrative officer of the Board. 2286b(c).

Member means a Member of the SOURCE: 56 FR 21261, May 8, 1991, unless

Board. otherwise noted.

In determining the meaning of any

provision of this part, unless the con$ 1703.101 Scope.

text indicates otherwise: the singular This part contains the Board's regu includes the plural; the plural includes lations implementing the Freedom of the singular; the present tense includes Information Act, 5 U.S.C. 552.

the future tense; and words of one gen

der include the other gender. 81703.102 Definitions; words denoting number, gender and tense.

81703.103 Requests for board record, Agency record is a record in the pos

available through the public readsession and control of the Board that is

ing room. associated with Board business. Agency (a) A Public Reading Room will be records do not include records such as: maintained at the Board's head

(1) Publicly available books, periodic quarters and will be open between 8:30 cals, or other publications that are a.m. and 4:30 p.m. Mondays through owned or copyrighted by non-federal Fridays, with the exception of legal sources;

holidays. Documents may be obtained (2) Records solely in the possession in person or by written or telephonic and control of Board contractors;

request from the Public Reading Room (3) Personal records in the possession by reasonably describing the records of Board personnel that have not been sought. The purpose of the Public circulated, were not required by the Reading Room is to provide easy accesBoard to be created or retained, and sibility to a substantial portion of the may be retained or discarded at the au- Board's records. The Board considers thor's sole discretion. In determining that documents available through the whether such records are agency Public Reading Room have been placed records the Board shall consider wheth- in the public domain. er, and to what extent, the records (b) The public records of the Board were used in agency business;

that are available for inspection and (4) Records of a personal nature that copying upon request in the Public are not associated with any Board busi- Reading Room include: ness; or

(1) The Board's rules and regulations;

(2) Statements of policy adopted by the Board.

(3) Board recommendations; the Secretary of Energy's response, any final decision, and implementation plans regarding Board recommendations; and interested person's comments, data, views, or arguments to the Board concerning its recommendations and the Secretary of Energy's response and final decision;

(4) Transcripts of public hearings and any Board correspondence related thereto;

(5) Recordings or transcripts of Board meetings that were closed under 10 CFR part 1704, where the Board subsequently determines under 10 CFR 1704.9 that the recordings or transcripts may be made publicly available;

(6) Board orders, decisions, notices, and other actions in a public hearing;

(7) Board correspondence, except that which is exempt from mandatory public disclosure under $1703.104;

(8) Copies of the filings, certiflcations, pleadings, records, briefs, orders, judgments, decrees, and mandates in court proceedings to which the Board is a party and the correspondence with the courts or clerks of court;

(9) Those of the Board's Administrative Directives that affect members of the public;

(10) Index of the documents identified in this section, but not including drafts thereof; and

(11) Annual reports to Congress in which the Board's operations during a past fiscal year are described.

(1) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or

(2) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(d) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(e) Interagency or intraagency memoranda or letters which would not be available by law to a party other than an agency in litigation with the Board;

(1) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(8) Records of information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

(1) Could reasonably be expected to interfere with enforcement proceedings,

(2) Would deprive a person of a right to a fair trial or an impartial adjudication,

(3) Could reasonably be expected to constitute an unwarranted invasion of personal privacy,

(4) Could reasonably be expected to disclose the identity of 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,

(5) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or

(6) Could reasonably be expected to endanger the life or physical safety of any individual;

$1703.104 Board records exempt from

public disclosure. The following records are exempt from public disclosure:

(a)(1) Records specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, and

(2) Which are in fact properly classifiled pursuant to such Executive Order;

(b) Records related solely to the internal personnel rules and practices of an agency;

(c) Records specifically exempted from disclosure by statute, provided that such statute:

81703.106 Requests for board records

not available through the public

reading room (FOLA Requests). (a) Upon the request of any person, the Board shall make available for public inspection and copying any reasonably described agency record in the possession and control of the Board, but not available through the Public Reading Room, subject to the provisions of this part. If a member of the public files a request with the Board under the FOIA for records that the Board determines are available through the Public Reading Room, the Board will treat the request under the simplified procedures of $1703.103.

(b)(1) A person may request access to Board records that are not available through the Public Reading Room by using the following procedures:

(i) The request must be in writing and must describe the records requested to enable Board personnel to locate them with a reasonable amount of effort. Where possible, specific information regarding dates, titles, file designations, and other information which may help identify the records should be supplied by the requester, including the names and titles of any Board personnel who have been contacted regarding the request prior to the submission of the written request.

(ii) A request for all records falling within a reasonably specific and welldefined category shall be regarded as conforming to the statutory requirement that records be reasonably described. The request must enable the Board to identify and locate the records by a process that is not unrea sonably burdensome or disruptive of Board operations.

(2) The request should be addressed to the Designated FOIA Officer and clearly marked "Freedom of Information Act Request." The address for such requests is: Designated FOIA Officer, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue, NW., suite 700, Washington, DC 20004. For purposes of calculating the time for response to the request under $1703.108, the request shall not be deemed to have been received until it is in the possession of the Designated FOIA Officer or his designee.

(3) The request must include:

(1) A statement by the requester of a willingness to pay the fee applicable under $1703.107(b), or to pay that fee not to exceed a specific amount, or

(ii) A request for waiver or reduction of fees.

(4) No request shall be deemed to have been received until the Board has:

(1) Received a statement of willingness to pay, as indicated in $1703.105(b)(3)(1), or

(ii) Received and approved a request for waiver or reduction of fees. However, the FOIA request shall be deemed to have been received if the request for waiver or reduction of fees includes a statement of willingness to pay the fee anticipated to be incurred in processing the request under this section, or to pay that fee not to exceed a specific amount, should the request for fee waiver or reduction be denied.

(c) with respect to records in the files of the Board that have been obtained from other federal agencies:

(1) Where the record originated in another federal agency, the Designated FOIA Officer shall refer the request to that agency and so inform the requester, unless the originating agency agrees to direct release by the Board.

(2) Requests for Board records containing information received from another agency, or records prepared jointly by the Board and other agencies, shall be treated as requests for Board records. The Designated FOIA Officer shall, however, coordinate with the appropriate official of the other agency. The notice of determination to the requester, in the event part or all of the record is recommended for denial by the other agency, shall cite the other agency Denying Official as well as the Designated FOIA Officer if a denial by the Board is also involved.

(d) If a request does not reasonably describe the records sought, as provided in paragraph (b) of this section, the Board response shall specify the reasons why the request failed to meet those requirements and shall offer the requester the opportunity to confer with knowledgeable Board personnel in an attempt to restate the request. If additional information is needed from the requester to render records reasonably described, any restated request submitted by the requester shall be treated as an initial request for purposes of calculating the time for response under $1703.108.

81703.106 Requests for waiver or ro

duction of fees. (a) The Board shall collect fees for record requests made under $1703.105, as provided in $1703.107(b), unless a requester submits a request in writing for a waiver or reduction of fees. The Designated FOIA Officer shall make a determination on a fee waiver or reduction request within five working days of the request coming into his possession. No determination shall be made that a fee waiver or reduction request should be denied, until the Designated FOLA Officer has consulted with the General Counsel's Office. If the determination is made that the written request for a waiver or reduction of fees does not meet the requirements of this section, the Designated FOIA Officer shall inform the requester that the request for waiver or reduction of fees is being denied and set forth his appeal rights under $1703.109.

(b) A person requesting the board to waive or reduce search, review, or duplication fees shall:

(1) Describe the purpose for which the requester intends to use the requested information;

(2) Explain the extent to which the requester will extract and analyze the substantive content of the agency record;

(3) Describe the nature of the specific activity or research in which the agency records will be used and the specific qualifications the requester possesses to utilize information for the intended use in such a way that it will contribute to public understanding;

(4) Describe the likely impact of disclosure of the requested records on the public's understanding of the subject as compared to the level of understanding of the subject existing prior to disclosure;

(5) Describe the size and nature of the public to whose understanding a contribution will be made;

(6) Describe the intended means of dissemination to the general public;

(7) Indicate if public access to information will be provided free of charge

or provided for an access or publication fee; and

(8) Describe any commercial or private interest the requester or any other party has in the agency records sought.

(c) The Board shall waive or reduce fees, without further specific information from the requester if, from information provided with the request for agency records made under $1703.105, it can determine that disclosure of the information in the agency records 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.

(d) In making a determination regarding a request for a waiver or reduction of fees, the Board shall consider the following factors:

(1) Whether the subject of the requested agency records concerns the operations or activities of the Government;

(2) Whether disclosure of the information is likely to contribute significantly to public understanding of Government operations or activities;

(3) Whether, and the extent to which, the requester has a commercial interest that would be furthered by the disclosure of the requested agency records; and

(4) 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.

$1703.107 Fees for record requests.

(a) Fees for records available through the Public Reading Room

(1) With the exception of copies of transcripts of Board public hearings addressed in paragraph (a)(2) of this section, the fees charged shall be limited to costs of duplication of the requested records. The Board shall either duplicate the requested records or have them duplicated by a commercial contractor. If the Board duplicates the records, it shall not charge the requester for the associated labor costs. A schedule of fees for this duplication

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