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service shall be prescribed in accord- tional education, which operates a proance with paragraph (b)(6) of this sec gram of scholarly research; tion. A person may obtain a copy of the Noncommercial scientific institution reschedule of fees in person or by mail fers to an institution that is not operfrom the Public Reading Room. There ated on a commercial basis and which shall be no charge for responses con is operated solely for the purpose of sisting of ten or fewer pages.

conducting scientific research the re(2) Transcripts of Board public hear sults of which are not intended to proings are made by private contractors. mote any particular product or indusInterested persons may obtain copies of try; public hearing transcripts from the Representative of the news media refers contractor at prices set in the con to any person actively gathering news tract, or through the duplication serv for an entity that is organized and op ice noted in paragraph (a) of this sec erated to publish or broadcast news to tion, if the particular contract so per the public. The term news means informits. Copies of the contracts shall be mation that is about current events or available for public inspection in the that would be of current interest to the Public Reading Room.

public. Examples of news media enti(3) Requests for certification of cop ties include television or radio stations ies of official Board records must be ac broadcasting to the public at large, and companied by a fee of $5.00 per docu- publishers of periodicals (but only in ment. Inquiries and orders may be those instances when the periodicals made to the Public Reading Room in can qualify as disseminations of person or by mail.

"news") who make their products (b) Fees for records not available available for purchase or subscription through the Public Reading Room by the general public. These examples (FOLA requests).

are not intended to be all-inclusive. (1) Definitions. For the purpose of Moreover, as traditional methods of paragraph (b) of this section:

news delivery evolve (e.g., electronic Commercial use request means a re dissemination of newspapers through quest from or on behalf of one who telecommunications services), such alseeks information for a use or purpose ternative media may be included in that furthers commercial, trade, or this category. A "freelance" journalist profit interests as these phrases are may be regarded as working for a news commonly known or have been inter organization if the journalist can dempreted by the courts in the context of onstrate a solid basis for expecting the FOIA;

publication through that organization, Direct costs means those expenditures even though the journalist is not actuwhich the Board incurs in search, re ally employed by the news organizaview and duplication, as applicable to tion. A publication contract would be different categories of requesters, to the clearest proof, but the Board may respond to requests under $1703.105. Di also look to the past publication record rect costs include, for example, the av of a requester in making this detererage hourly salary and projected bene- mination. fits costs of Board employees applied (2) Fees. (i) If documents are reto time spent in responding to the re- quested for commercial use, the Board quest and the cost of operating dupli- shall charge the average hourly pay cating machinery. Not included in di rate for Board employees, plus the avrect costs are overhead expenses such erage hourly projected benefits cost, as cost of space, and heating or light- for document search time and for docuing the facility in which the Board ment review time, and the costs of durecords are stored.

plication as established in the schedule Educational institution refers to a pre- of fees referenced in paragraph (b)(6) of school, a public or private elementary this section. or secondary school, an institution of (11) If documents are not sought for graduate higher education, an institu- commercial use and the request is tion of undergraduate higher edu made by an educational or noncommercation, an institution of professional cial scientific institution, whose pureducation, and an institution of voca- pose is scholarly or scientific research,

or a representative of the news media, the Board's charges shall be limited to the direct costs of duplication as established in the schedule of fees referenced in paragraph (b)(6) of this section. There shall be no charge for the first 100 pages of duplication.

(iii) For a request not described in paragraphs (b)(2) (1) or (ii) of this section the Board shall charge the average hourly pay rate for Board employees, plus the average hourly projected benefits cost, for document search time, and the direct costs of duplication as established in the schedule of fees referenced in paragraph (b)(6) of this section. There shall be no charge for document review time and the first 100 pages of reproduction and the first two hours of search time will be furnished without charge.

(iv) I documents are mailed, requesters shall be charged fees based on the current postage or express delivery service rates.

(v) The Board, or its designee, may establish minimum fees below which no charges will be collected, if it determines that the costs of routine collection and processing of the fees are likely to equal or exceed the amount of the fees. I total fees determined by the Board for a FOIA request would be less than the appropriate threshold, the Board shall not charge the requesters.

(vi) Payment of fees must be by check or money order made payable to the U.S. Treasury.

(vii) Requesters may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When the Board reasonably believes that a requester, or a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading Assessment of fees, the Board may aggregate any such requests and charge the requester accord ingly. The Board shall not, however, aggregate multiple requests on unrelated subjects from a requester.

(viii) Whenever the Board estimates that duplication or search costs are likely to exceed $26, it shall notify the requester of the estimated costs, unless the requester has indicated in advance his willingness to pay fees as high as

those anticipated. Such a notice shall offer the requester an opportunity to confer with the Board personnel with the object of reformulating the request to meet the requester's needs at a lower cost.

(3) Fees for unsuccessful search. The Board may assess charges for time spent searching, even if it fails to locate the records, or if records located are determined to be exempt from disclosure.

(4) Advance payments. (1) If the Board estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250, the Board shall notify such requester of the estimated cost and either require satisfactory assurance of full payment where the requester has a history of prompt payment of fees, or require advance payment of the charges if a requester has no payment history.

(ii) If a requester has previously failed to pay a fee charged in a timely fashion, the Board shall require the requester to pay the full amount owed plus any applicable interest, and to make an advance payment of the full amount of the estimated fee before the Board will begin to process a new request or a pending request from that requester.

(iii) When the Board requires advance payment under this paragraph, the administrative time limits prescribed in $1703.108(b) will begin only after the Board has received the fee payments.

(6) Debt collection. The Board itself may endeavor to collect unpaid FOIA fees, or may refer unpaid FOLA invoices to the General Services Administration, or other federal agency performing financial management services for the Board, for collection.

(6) Annual adjustment of fees.-(1) Up date and publication. The Board, by its designee, the General Manager, shall promulgate a schedule of fees and the average hourly pay rates and average hourly projected benefits cost and will update that schedule once every twelve months. The General Manager shall publish the schedule for public comment in the FEDERAL REGISTER.

(ii) Payment of updated fees. The fee applicable to a particular FOLA request will be the fee in effect on the date that the request is received.

$ 1708.108 Processing of FOIA requests

(a) Where a request complies with 81703.105 as to specificity and statement of willingness to pay or request for fee waiver or reduction, the Designated FOIA Officer shall acknowledge receipt of the request and commence processing of the request. The Designated FOLA Officer shall prepare a written response:

(1) Granting the request,
(2) Denying the request,
(3) Granting or denying it in part,

(4) Stating that the request has been referred to another agency under $1703.106, or

(6) Informing the requester that responsive records cannot be located or do not exist.

(b) Action pursuant to this section to provide access to requested records shall be taken within ten working days of receipt of a request for Board records, as defined in $1703.106, except that, if unusual circumstances require an extension of time before a decision on a request can be reached and the person requesting records is promptly informed in writing by the Designated FOIA Officer of the reasons for such extension and the date on which a determination is expected to be made, the Designated FOIA Officer may take an extension not to exceed ten working days. In the event of a request for fee waiver or reduction, unless the requester has stated a willingness to pay the fee anticipated to be incurred in processing its request under $1703.106, or to pay that fee not to exceed a specific amount, should his request for fee waiver or reduction be denied, the period for action under this paragraph shall begin to run from the date that the Designated FOIA Officer grants the waiver or reduction request.

(c) For purposes of this section and $1703.109, the term unusual circumstances may include but is not limited to the following:

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the Board's Washington, DC offices:

(2) The need to search for, collect and appropriately examine a voluminous amount of separate and distinct

records which may be responsive to a single request; or

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency pursuant to $1703.105(d).

(d) I no determination has been made at the end of the ten day period, or the last extension thereof, the requester may deem his administrative remedies to have been exhausted, giving rise to & right of review in a district court of the United States as specified in 5 U.S.C. 552(a)(1). When no determination can be made within the applicable time limit, the Board will nevertheless continue to process the request. If the Board is unable to provide a response within the statutory period, the Designated FOIA Omcer shall inform the requester of the reason for the delay; the date on which a determination may be expected to be made; and that the requester can seek remedy through the courts, but shall ask the requester to forgo such action until a determination is made.

(e) Nothing in this part shall preclude the Designated FOLA Officer and a requester from agreeing to an extension of time for the initial determination on a request. Any such agreement shall be confirmed in writing and shall clearly specify the total time agreed upon.

(1) The procedure for appeal of denial of a request for Board records is set forth in $1703.109.

$1703.109 Procedure for appeal of de

nial of requests for board records and denial of requests for fee walv

er or reduction. (a)(1) A person whose request for access to records or request for fee waiver or reduction is denied in whole or in part may appeal that determination to the General Counsel within 30 days of the determination. Appeals filed pursuant to this section must be in writing, directed to the General Counsel at the address indicated in $1703.105(b)(2) and clearly marked "Freedom of Information Act Appeal.” Such an appeal received by the Board not addressed and marked as indicated in this paragraph will be so addressed and marked by Board personnel as soon as it is properly identified and then will be for

warded to the General Counsel. Appeals wise be withheld from public disclotaken pursuant to this paragraph will sure. be considered to be received upon ac- (b) Procedures. A person claiming tual receipt by the General Counsel. that information is privileged under

(2) The General Counsel shall make a paragraph (a) of this section must file: determination with respect to any ap (1) An application, accompanied by peal within 20 working days after the an affidavit, requesting privileged receipt of such appeal. If, on appeal, treatment for some or all of the inforthe denial of the request for records or mation in a document, and stating the fee reduction is in whole or in part justification for nondisclosure of the upheld, the General Counsel shall no- information and addressing the factors tify the person making such request of set forth in paragraph (e) of this secthe provisions for judicial review of tion; that determination.

(2) The original document, boldly in(b) In unusual circumstances, as de- dicating on the front page “Contains fined in $1703.108(c), the time limits Privileged Information-Do Not Represcribed for deciding an appeal pur- lease" and identifying within the docusuant to this section may be extended ment the information for which the by up to ten working days, by the Gen privileged treatment is sought; eral Counsel, who will send written no (3) Three copies of the redacted docutice to the requester setting forth the ment (i.e., without the information for reasons for such extension and the ex which privileged treatment is sought) pected determination date.

and with a statement indicating that

information has been removed for priv1703.110 Requests for classified ileged treatment; and records.

(4) The name, title, address, teleThe Board may at any time be in pos- phone number, and telecopy informasession of classified records and Un tion of the person or persons to be conclassified Controlled Nuclear Informa tacted regarding the request for privition (UCNI) received from the Depart leged treatment of documents submitment of Energy or other federal agen- ted to the Board. cies. The Board shall refer requests (c) Effect of privilege claim. (1) The under $1703.105 for such records or in- Designated FOIA Officer shall place formation to the Department of Energy documents for which privileged treator other originating agency without ment is sought in accordance with making an independent determination paragraph (b) of this section in a as to the releasability of such docu nonpublic file, while the request for ments. The Board shall refer requests confidential treatment is pending. By for classified records in a manner con placing documents in a nonpublic flle, sistent with Executive Order 12356, the Board is not making a determina"National Security Information." 3 tion on any claim for privilege. The CFR, 1982 Comp., p. 166, or any super- Board retains the right to make deterseding Executive Order. The Board minations with regard to any claim of shall refer requests for UCNI in a man privilege, and the discretion to release ner consistent with 42 U.S.C. 2168 and information as necessary to carry out the Department of Energy's imple its responsibilities. menting regulations in 10 CFR part (2) The Designated FOIA Officer shall 1017 or any successor regulations.

place the request for privileged treat

ment described in paragraph (b)(1) of $ 1703.111 Requests for privileged this section and a copy of the redacted tagatment of documents submitted

document described in paragraph (b)(3) to the board.

of this section in a public file while the (a) Scope. Any person submitting a request for privileged treatment is document to the Board may request pending. privileged treatment by claiming that (d) Notification of request and opporsome or all of the information con- tunity to comment. When a FOIA retained in the document is exempt from quester seeks a document for which the mandatory public disclosure re- privilege is claimed, the Designated quirements of FOLA and should other- FOIA Officer shall so notify the person

who submitted the document and give action is not included. The last day of that person an opportunity (at least the period is included unless it is a Satfive days) in which to comment in writ- urday, Sunday or legal holiday, in ing on the request. A copy of this no- which case the period runs until the tice shall be sent to the FOIA re end of the next working day. Whenever quester.

a person has the right or is required to (e) Factors to be considered by Board. take some action within a prescribed In determining whether to grant the period after notification by the Board document privileged status and to deny and the notification is made by mail, the request for the document the Board five days shall be added to the preshall consider:

scribed period. Only two days shall be (1) Whether the information has been added when a notification is made by held in confidence by its owner;

express mail. (2) Whether the information is of a type customarily held in confidence by its owner and whether there is a ra

PART 1704—RULES IMPLEMENTING tional basis therefor;

THE GOVERNMENT IN THE SUN(3) Whether the information was SHINE ACT transmitted to and received by the Board in confidence;

Sec. (4) Whether the information is avail

1704.1 Applicability. able in public sources; and

1704.2 Definitions. (5) Whether public disclosure of the 1704.3 Open meetings roquirement. information sought to be withheld is 1704.4 Grounds on which meetings may be likely to cause substantial harm to the closed or information may be withheld. competitive position of the owner of 1704.5 Procedures for closing meetings, or the information, taking into account withholding Information, and requests by the value of the information to the affected persons to close a meeting. owner; the amount of effort or money, 1704.6 Procedures for public announcement if any, expended by the owner in devel

of meetings. oping the information; and the ease or

1704.7 Changes following public announcedifficulty with which the information

ment.

1704.8 Transcripts, recordings, or minutes of could be properly acquired or dupli

closed meetings. cated by others.

1704.9 Availability and retention of tran(1) Notification before release. Notice of

scripts, recordings, and minutes, and ap a decision by the Designated FOIA Offi

plicable fees. cer to deny a claim of privilege, in 1704.10 Soverability. whole or in part, shall be given to any

AUTHORITY: 5 U.S.C. 552b; 42 U.S.C. 2286, person claiming that information is

22860(c). privileged no less than five days before public disclosure. The decision shall be

SOURCE: 56 FR 9609, Mar. 7, 1991, unless othmade only after consultation with the General Counsel's Office. The notice shall briefly explain why the person's

81704.1 Applicability. objections to disclosure were not sus- (a) This part implements the provitained. A copy of this notice shall be sions of the Government in the Sunsent to the FOIA requester.

shine Act (5 U.S.C. 552b). These proce(8) Notification of suit in Federal dures apply to meetings, as defined courts. When a FOIA requester brings herein, of the Members of the Defense suit to compel disclosure of confiden- Nuclear Facilities Safety Board tial commercial information, the (Board). The Board may waive the proBoard shall notify the person who sub visions set forth in this part to the exmitted documents containing such con- tent authorized by law. fidential commercial information of (b) Requests for all documents other the suit.

than the transcripts, recordings, and

minutes described in $1704.8 shall be 81703.112 Computation of time.

governed by Board regulations pursuIn computing any period of time ant to the Freedom of Information Act under this part, the day of the Board's (5 U.S.C. 552).

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