19 20 4 (a) by striking out the second sentence and insert ing in lieu thereof the following: "The schedule may provide for the payment of all costs reasonably attrib utable to responding to the request, including the costs of searching for, reviewing, and duplicating requested records. If the requested records contain commercially valuable technological or reference information, gener ated or acquired by the Government at substantial cost to the public, fees may be charged which reflect the fair market value or royalties or both, in addition to or in lieu of any processing fees otherwise chargeable, taking into account such factors as the estimated commercial value of the information, its cost to the Gov ernment, and any public interest served by its disclosure."; and (b) by adding after the word "determines" in the last sentence ", in the exercise of its discretion,". AMENDMENTS RELATING TO THE ADMINISTRATIVE RIGHTS OF SUBMITTERS OF INFORMATION SEC. 4. Paragraph (4) of section 552(a) of title 5, United 21 States Code, is amended 22 23 24 25 (a) by redesignating subparagraph (B) as subparagraph (E), and by redesignating subparagraphs (C) through (G) as subparagraphs (J) through (N), respectively; and 1 2 3 5 (b) by adding after subparagraph (A) the following new subparagraphs: "(B) Each agency shall promulgate regulations, pursu 4 ant to notice and receipt of public comment, specifying proce 5 dures by which 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2223 “(i) a submitter may be required to designate, at the time of submission, any information consisting of trade secrets, commercial or financial information, or other commercially valuable information, which is exempt from disclosure under subsection (b)(4); "(ii) the agency shall notify the submitter that a request has been made for information provided by the submitter within a reasonable time prior to a decision to release any such information; "(iii) the submitter may, within ten working days of the forwarding of such notification, submit to the agency written objection to such disclosure specifying all grounds upon which it is contended that the information should not be disclosed; and "(iv) the agency shall notify the submitter of any final decision to release such information. "(C) An agency is not required to notify a submitter 23 pursuant to subparagraph (B) if— 24 25 "(i) the information requested is not designated by the submitter as exempt from disclosure in accordance 6 1 2 3 4 5 6 7 8 9 10 with agency regulations promulgated pursuant to paragraph (4)(B)i), if ruch designation is required by the agency; "(ii) the agency determines, prior to giving such notice, that the request should be denied; “(iii) the disclosure is required by law (other than this section); or "(iv) the information lawfully has been published or otherwise made available to the public. "(D) If a submitter has objected, pursuant to subpara 11 graph (B)(iii), to disclosure of information that the agency 12 determines to be exempt from disclosure under subsection 13 (b)(4), the agency shall not release such information unless 14 the agency determines in writing that the failure to disclose 15 the records would injure an overriding public interest and 16 disclosure is not otherwise prohibited by law.". 17 18 AMENDMENTS RELATING TO JUDICIAL REVIEW SEC. 5. Paragraph (4) of section 552(a) of title 5, United 19 States Code, is amended 20 21 22 (a) by amending redesignated subparagraph (E) to read as follows: "(E) On complaint filed by a requester within ninety 23 days from the date of final agency action or by a submitter 24 prior to the release of submitted information, the district 25 court of the United States in the district in which the com 7 1 plainant resides, or has his principal place of business, or in 2 which the agency records are situated, or in the District of 3 Columbia, has jurisdiction— 24 “(i) to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the requester; or "(ii) to enjoin the agency from any disclosure of records which was objected to by a submitter under subparagraph (B)(iii) or which would have been objected to had notice been given as required by subparagraph (B)(ii)."; (b) by adding after subparagraph (E) the following new subparagraphs: "(F) In an action based on a complaint "(i) by a requester, the court shall have jurisdiction over any submitter of information contained in the requested records, and any such submitter may intervene as of right in the action; and "(ii) by a submitter, the court shall have jurisdiction over any requester of records containing information which the submitter seeks to have withheld, and any such requester may intervene as of right in the action. "(G) The agency that is the subject of the complaint 25 shall promptly, upon service of a complaint— 87-749 0 - 82 - 5 1 2 3 4 5 6 7 8 "(i) seeking the production of records, notify each submitter of information contained in the requested records that the complaint was filed; and “(ii) seeking the withholding of records, notify each requester of the records that the complaint was filed. "(H) In any action in which a requester is an intervenor 8 or is joined the court shall on timely motion of the requester 9 transfer the action to a district court which would have had 10 jurisdiction had the action been brought by the requester, 11 unless the court otherwise directs for good cause shown. 12 "(D) In a case in which a record is withheld under sub13 section (b)(1), the court shall not enjoin the agency from 14 withholding such record unless the agency's action is found 15 to be arbitrary or capricious. In all other cases, the court 16 shall determine the matter de novo. The court may examine 17 the contents of requested agency records in camera to deter18 mine whether such records or any part thereof shall be with19 held under any of the exemptions set forth in subsection (b) of 20 this section. The burden is on the agency to sustain its action 21 to withhold information and the burden is on any submitter 22 seeking the withholding of information. The court shall main23 tain under seal any affidavit or record submitted in camera to 24 the court in support of the applicability of any exemption, and |