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extended as provided in paragraph (b)(2) of this Section. (2) In unusual Circumstances, an appropriate official authorized to make initial denials of requests may extend the time for initial determination for up to ten days (excluding Saturdays, Sundays and legal public holidays) by written notice to the requester setting forth the reasons for the extension and the date on which a determination is expected to be sent. Extensions of time for the initial determination and extensions of time on appeal may not exceed a total of ten days, and time taken for the former Counts against available appeal extension time. “Unusual Circumstances” means, but Only to the extent reasonably necessary to the processing of a particular request: (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 examine a voluminous amount of separate and distinct records which are the subject of a single request, or (iii) The need for Consultation, which shall be conducted with all practical speed, with another agency or unit having a substantial interest in the determination of the request, Or annong two or more components of the responsible unit having Substantial subjectmatter interest in the pertinent document.S. (3) If no determination has been Sent to the requester at the end Of the initial ten day period, or the last extenSion date, the requester may consider the request to be initially denied, and exercise a right of appeal of the denial. When no determination can be made within the applicable time period, the responsible unit shall nevertheless exercise due dilligence in Continuing to process the request. It shall, on expiration of the applicable time period, inform the requester of the reason for the delay, of the date a determination is expected to be sent, and of the requester's right to treat the delay as a denial and to appeal. It may ask the requester to forego an appeal until a determination is made. (4) If it is determined that the records requested are to be made avail
able, and there are no further fees to be paid, the responsible Official shall promptly notify the requester as to how the disclosable records will be made available. If there are fees still to be paid by the requester, the requester shall be notified that upon payment the records will immediately be made available. (5) Appendix C lists the limited number of Officials who have been authorized to make initial denials of requests for records, except as may be subsequently authorized. A reply initially denying, in whole Or in part, a request for records shall be in writing, signed by an authorized official, and it shall include: (i) A reference to the specific exemptions of the Act authorizing the withholding of the records, stating briefly why the exemption applies and, where relevant why a discretionary release is not appropriate. (ii) The name and title or position of each Official responsible for the denial. (iii) A Statement of the manner in which any rea,SOnably segregable portion of a record shall be provided to the requester after deletion of the portion which is determined to be exempt. (iv) A brief Statement of the right of the requester to appeal the determination to the General Counsel and the address to which the appeal Should be sent, in accordance with $4.8 (a) and (b). (6) A copy of each initial denial and its incoming request for records shall be provided to the Assistant General Counsel for Administration.
[53 FR. 6972, Mar. 4, 1988; 53 FR 16057, 16211, May 5, 1988]
§ 4.7 Predisclosure notification procedures for confidential commercial information.
(a) General policy. Confidential Commercial or financial information provided to the Department Of Commerce by a submitter shall not be disclosed pursuant to a Freedom of Information Act request except in accordance with this Section.
(b) Definitions. (1) The term “confidential commercial or financial information” means records provided to the Department by a Submitter that arguably contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure could realsonably be expected to cause Substantial competitive harm to the Submitter. (2) The term “Submitter” means any person or entity who provides confidential commercial or financial information to the Department. The term “Submitter” includes, but is not limited to Corporations, State governments and foreign governments. (c) Notice to Submitters. A unit Of the Department of Commerce shall provide a Submitter with prompt written notice of a request for disclosure Of Confidential commercial or financial information whenever required under paragraph (d) of this section. Such written notice shall be sent via certified mail, return receipt requested, Or any Other expeditious manner which provides for documentation of receipt of Such notice. The notice Shall either describe the exact nature of the information requested or provide Copies of the records or portions thereof Containing the Confidential information. (d) When motice is required. (1) For Confidential commercial Or financial information Submitted to the Department prior to January 1, 1988, the unit, shall provide a Submitter with notice of a request whenever: (i) The records are less than ten years old, and the information has been designated by the submitter as Confidential commercial or financial information; (ii) The Department has reason to believe that disclosure Of the information COuld reasonably be expected to Cause Substantial competitive harm; Or (iii) The information is the Subject. Of a prior express commitment of Confidentiality given by the Department to the Submitter. (2) For confidential commercial Or financial information Submitted to the Department. On Or after January 1, 1988, the unit shall provide a submitter with notice Of a request whenever: (i) The submitter has in good faith designated the information as confidential commercial or financial information, Or
(ii) The unit has reason to believe that disclosure of the information Could reasonably be expected to result in Substantial competitive harm to the Submitter.
(3) When a submitter has designated Commercial or financial information as confidential, notice of a FOIA request for Such information shall be required for a period of not more than ten years after the date of submission unless the Submitter requests, and provides acceptable justification for, a Specific notice period of greater duration. Whenever possible, the submitter’s claim of Confidentiality should be supported by a statement or certification by an offiCer Or authorized representative of the Submitter that the information at issue is in fact, Confidential Commercial Or financial information which has not been disclosed to the public.
(e) Opportunity to object to disclosure. Through the notice described in paragraph (C) Of this section, a unit Shall afford a submitter 7 working days from date of receipt of Such notice within which to provide the unit with a detailed Statement of any objection to disclosure. Such statement shall specify all grounds for withholding any of the information and Shall demonstrate why the information is considered to be commercial or financial information whose disclosure is likely to cause substantial competitive harm to the Submitter. Information provided by a Submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA. Whenever notice is given to a Submitter under this Section the requester shall be advised that the Submitter has been provided with notice and an Opportunity to object to discloSUll’e.
(f) Notice of intent to disclose. A unit, shall Carefully consider a Submitter’s objections and specific grounds for nondisclosure prior to determining whether to disclose confidential Commercial Or financial information. Whenever a unit decides to disclose information over the objection of a Submitter, the unit shall forward a Written notice to the Submitter which includes:
(1) A statement of the reasons why the submitter’s objections to disclosure were not Sustained;
(2) A description of the information to be disclosed; and (3) A specified disclosure date. Notice of intent to disclose shall be forwarded to the Submitter via Certified mail, return receipt requested. Such notice shall State the unit’s intent to disclose the information on the expiration of 7 working days from the date of the submitter’s receipt of the notice. When notice of intent to disclose is provided to the Submitter, the requester shall be advised of Such notice and of the Specified disclosure date. (g) Notice of FOIA lawsuit. Whenever a requester brings a legal action seeking to Compel disclosure of information subject to the notice requirements of paragraph (d) of this section, the unit shall promptly notify the Submitter. (h) When notice is not required. The notice requirements Of this Section shall not apply if: (1) The Department determines that the information should not be disclosed; (2) The information has been published Or has been Officially made available to the public; (3) Disclosure of the information is required by law (other than 5 U.S.C. 552); (4) The disclosure is required by an agency rule which: (i) was adopted purSuant to notice and public Comment; (ii) Specifies narrow classes of records Submitted to the agency that are to be released under the Freedom of Information Act; and (iii) provides in exceptional circumstances for notice when the Submitter provides written justification, at the time the information is Submitted Or a reasonable time thereafter, that disclosure of the information could reasonably be expected to Cause Substantial COmpetitive harm; Or (5) The designation made by the Submitter of confidential commercial or financial information appears obviously frivolous, except that the Department must provide the submitter with written notice of any final administrative disclosure determination 7 working days prior to the specified disclosure date.
[53 FR 6972, Mar. 4, 1988; 53 FR 16057, May 5, 1988]
$4.8 . Appeals from initial determinations or untimely delays.
(a) When a request for records has been initially denied in whole or in part, or has not been timely determined, or when a requester has received an adverse initial determination regarding any other matter under this regulation, the requester may submit a written appeal within thirty calendar days after the date of the written denial Or, if there has been no determination, on the last day of the applicable time limit. The appeal shall include a Copy of the Original request, the initial denial, if any, and a statement of the reasons why the records requested should be made available and why the initial denial, if any, was in error. No Opportunity for personal appearance, Oral argument or hearing On appeal is provided.
(b) An appeal shall be addressed to the Assistant General Counsel for Administration, Department Of Commerce, Room 5882, 14th and Constitution Avenue NW., Washington, DC 20230. Both the appeal envelope and the letter shall be clearly marked “Freedom of Information Appeal.” An appeal not addressed and marked as provided herein will be so marked by Department personnel when it is so identified, and will be forwarded innediately to the Assistant General Counsel for Administration. An appeal incorrectly addressed will not be deemed to have been “received” for purposes of the time period for appeal set forth in 5 U.S.C. 552(a)(6), until the earlier of the time that forwarding to the Assistant General Counsel for Administration has been effected; or such forwarding would have been effected with the exercise of due diligence by Department personnel. In each instance when an appeal is so forwarded, the Office of the Assistant General Counsel for Administration shall notify the requester that the appeal was improperly addressed and of the date the appeal was received by the office. All appeals shall be decided by the Assistant General Counsel for Administration with the exception of appeals for records which were initially denied by the Assistant General Counsel for Administration. Appeals initially denied by the Assistant General Counsel for Administration shall be decided by the General Counsel at the address listed in this paragraph. (c) The Assistant General Counsel for Administration shall make a determination on an appeal within twenty days (excluding Saturdays, Sundays and legal public holidays) of its receipt, unless an extension of time is taken in unusual circumstances, when the time for action may be extended up to ten days (excluding Saturdays, Sundays and legal public holidays) minus any days of extension granted at the initial request level. A notice of such extension shall be sent to the requester, setting forth the reasons and the date on which a determination of the appeal is expected to be sent. As used in this paragraph, “unusual circumstances” are defined in § 4.6(b)(2). (d) If a decision on appeal is to make the records available to the requester in part or whole, such records shall be promptly made available as provided in §4.6. (e) If no determination of an appeal has been sent to the requester within the twenty day period or the last extension thereof, the requester is deemed to have exhausted his administrative remedies with respect to such request, giving rise to a right of judicial review as specified in 5 U.S.C. 552(a)(6)(C). When no determination Can be sent to the requester within the time limit, the Assistant General Counsel for Administration shall nonetheless exercise due diligence in continuing to process the appeal. When the time limit expires, the requester shall be informed Of the reason for the delay, Of the date when a determination may be expected to be made, and of his right to seek judicial review. The requester may be asked to forego judicial review until the appeal is determined. (f) A determination on appeal shall be in writing and, when it denies records in whole Or in part, the notice to the requester shall include: (1) Identification of the Specific exemption Or exemptions Of the Act authorizing the withholding, a brief explanation of how the exemption applies, and, when relevant, a statement as to why a discretionary release is not appropriate; (2) A Statement that the decision is final for the Department;
(3) Advice that judicial review of the denial is available in the district in which the requester resides or has his principal place of business, the district in which the agency records are loCated, or the District of Columbia; and
(4) The names and titles or positions of each official responsible for the denial of the appeal.
(g) The Assistant General Counsel for Administration shall send a copy of each determination on appeal to the Central public reference facility referred to in § 4.4(c) where it will be indexed and kept available for public inSpection and Copying.
[53 FR 6972, Mar. 4, 1988; 53 FR 16058, May 5, 1988, as annended at 57 FR 28781, June 29, 1992]
§ 4.9 Fees.
(a) Definitions. The following definitions are applicable to this section. (1) The term “direct costs” means those expenditures which an agency actually incurs in searching for and duplicating (and in the case of commerCial requesters, reviewing) documents to respond to a FOIA request. Direct Costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of Operating duplicating machinery. Not included in direct Costs are overhead expenses such as costs of Space, and heating or lighting the facility in which the records are Stored. (2) The term “search” includes all time spent looking for material that is responsive to a request, including pageby-page or line-by-line identification of material within documents. Such activity should be distinguished, however, from “review” of material in Order to determine whether the material is exempt from disclosure (see paragraph (a)(4) Of this section). Searches may be done manually or by COmputer using existing programming. (3) The term “duplication” refers to 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. The copy provided
must be in a form that is reasonably usable by requesters. (4) The term “review” refers to the process of examining documents located in response to a request that is for a commercial use (see paragraph (a)(5) of this Section) 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. (5) The term “Commercial use request” refers to a request from Or on behalf of One who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester Or the person On whose behalf the request is made. In determining whether a requester properly belongs in this Category, the Department must determine the use to which a requester will put the documents requested. Moreover, where the department has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the Department shall seek additional clarification before assigning the request to a specific Category. (6) The term “educational institution” refers to 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 and an institution of vocational education, which Operates a program Or programs Of Scholarly research. (7) The term “non-commercial Scientific institution” refers to an institution that is not Operated on a “Commercial” basis as that term is referenced in paragraph (a)(5) of this Section, and which is operated Solely for the purpose of conducting Scientific research the results of which are not intended to promote any particular products or industry. (8) The term “representative of the news media,” refers to any perSOn a Ctively gathering news for an entity that is organized and operated to pub
lish 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 may 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. A publication Contract would be the clearest proof, but the Department may also look to the past publication record of a requester in making this determination.
(b) Application—Uniform fee schedule. The fees described in this section apply to FOIA requests processed by all units of the Department. They reflect rates for the full allocable direct cost of Search, review, and duplication. The fees to be charged shall be based on the requester Category.
(1) The four specific categories and chargeable fees are: