[Federal Register Volume 64, Number 182 (Tuesday, September 21, 1999)]
[Rules and Regulations]
[Pages 51039-51043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24551]



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 Rules and Regulations
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  Federal Register / Vol. 64, No. 182 / Tuesday, September 21, 1999 / 
Rules and Regulations  

[[Page 51039]]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1204


Availability of Official Information

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
amending its rules regarding the availability of official information 
to comply with the Electronic Freedom of Information Act Amendments of 
1996, to update the fee schedule, and to add a time limit to ask for 
review by the Board's Chairman of an action or a failure to act under 
this part. Certain other changes are made to update the rules on the 
availability of official information for the benefit of the Board's 
customers, for consistency, and to comply with the President's 
Memorandum on Plain Language in Government Writing.

EFFECTIVE DATE: September 21, 1999.

FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board, 
(202) 653-7200.

SUPPLEMENTARY INFORMATION: The Board previously published a notice of 
proposed rulemaking regarding the availability of official information 
to comply with the Electronic Freedom of Information Act Amendments of 
1996, to update the fee schedule, and to add a time limit to ask for 
review by the Board's Chairman of an action or a failure to act under 
this part (64 FR 35952, July 2, 1999). The proposed rule requested 
public comments and allowed 60 days, until August 31, 1999, for receipt 
of such comments. No comments were received. The Board, therefore, 
amends its regulations implementing 5 U.S.C. 552 (the Freedom of 
Information Act) to accommodate the requirements of the amendments.
    The Board also is updating its rules on computing and collecting 
fees charged requesters for services provided in processing requests 
for information to produce a more realistic schedule.
    In addition, the Board is updating various rules to reflect changes 
in regional realignments of the Merit Systems Protection Board, to make 
other changes for consistency and grammatical reasons, and to comply 
with the President's Memorandum, ``Plain Language in Government 
Writing,'' 34 Weekly Comp. Pres. Doc. 1010 (June 1, 1998).

List of Subjects in 5 CFR Part 1204

    Confidential business information, Freedom of information, Privacy.

    Accordingly, the Board is revising 5 CFR part 1204 to read as 
follows:

PART 1204--AVAILABILITY OF OFFICIAL INFORMATION

Subpart A--Purpose and Scope

Sec.
1204.1  Purpose.
1204.2  Scope.

Subpart B--Procedures for Obtaining Records under the Freedom of 
Information Act

1204.11  Requests for access to Board records.
1204.12  Fees.
1204.13  Denials.
1204.14  Requests for access to confidential commercial information.
1204.15  Records of other agencies.

Subpart C--Appeals

1204.21  Submission.
1204.22  Decision on appeal.

    Authority: 5 U.S.C. 552 and 1204, Pub. L. 99-570, Pub. L. 104-
231, and E.O. 12600.

Subpart A--Purpose and Scope


Sec. 1204.1  Purpose.

    This part implements the Freedom of Information Act (FOIA), 5 
U.S.C. 552, as amended, by stating the procedures to follow when 
requesting information from the Board, and by stating the fees that 
will be charged for that information.


Sec. 1204.2  Scope.

    (a) For the purpose of this part, the term record and any other 
term used in reference to information includes any information that 
would be a Board record subject to the requirements of 5 U.S.C. 552 
when maintained by the Board in any format including an electronic 
format. All written requests for information that are not processed 
under part 1205 of this chapter will be processed under this part. The 
Board may continue, without complying with this part, to furnish the 
public with the information it has furnished in the regular course of 
performing its official duties, unless furnishing the information would 
violate the Privacy Act of 1974, 5 U.S.C. 552a, or another law.
    (b) When the subject of the record, or the subject's 
representative, requests a record from a Privacy Act system of records, 
as that term is defined by 5 U.S.C. 552a(a)(5), and the Board retrieves 
the record by the subject's name or other personal identifier, the 
Board will handle the request under the procedures and fees shown in 
part 1205 of this chapter. When a third party requests access to those 
records, without the written consent of the subject of the record, the 
Board will handle the request under this part.
    (c) When a party to an appeal requests a copy of a tape recording, 
video tape, or transcript (if one has been prepared) of a hearing that 
the Board or a judge held under part 1201 or part 1209 of this chapter, 
the Board will handle the request under Sec. 1201.53 of this chapter. 
When someone other than a party to the appeal makes this request, the 
Board will handle the request under this part.
    (d) In accordance with 5 U.S.C. 552(a)(2), the Board's final 
opinions and orders (including concurring and dissenting opinions), 
those statements of policy and interpretations adopted by the Board and 
that are not published in the Federal Register, administrative staff 
manuals and instructions to staff that affect a member of the public, 
and agency records processed and disclosed in response to a FOIA 
request that the Board determines have been or are likely to become the 
subject of additional requests for basically the same records and a 
general index of those records, are available for public review and 
copying in the Board's Headquarters' Library, 1120 Vermont Avenue NW., 
Washington, DC 20419-0001, and on the Board's World Wide Web site at 
http://www.mspb.gov.

[[Page 51040]]

Subpart B--Procedures for Obtaining Records Under the Freedom of 
Information Act


Sec. 1204.11  Request for access to Board records.

    (a) Sending a request. A person may request a Board record under 
this part by writing to the office that has the record. If the 
requester believes that the records are located in a regional or field 
office, the request must be sent to that office. A list of the 
addresses of the Board's regional and field offices are in appendix II 
of part 1201 of this chapter and on the Board's World Wide Web site at 
http://www.mspb.gov. Other requests must be sent to the Clerk of the 
Board, 1120 Vermont Avenue NW., Washington, DC 20419-0001. Requests 
sent under this part must be clearly marked ``Freedom of Information 
Act Request'' on both the envelope and the request.
    (b) Description. A request must describe the records wanted in 
enough detail for Board employees to locate the records with no more 
than a reasonable effort. Wherever possible, a request must include 
specific information about each record, such as the date, title or 
name, author, recipient, and subject matter of the record. In addition, 
if the request asks for records on cases decided by the Board, it must 
show the title of the case, the MSPB docket number, and the date of the 
decision.
    (c) Time limits and decisions. If a request is not properly labeled 
or is sent to the wrong office, the time for processing the request 
will begin when the proper office receives it. Requests to the Board's 
headquarters will be decided by the Clerk of the Board. Requests to one 
of the regional or field offices will be decided by the Regional 
Director or Chief Administrative Judge. The Board will decide a request 
within 20 workdays after the appropriate office receives it, except 
under the conditions that follow.
    (1) Extension of time. If ``unusual circumstances'' exist, the 
Board may extend the time for deciding the request by no more than 10 
additional workdays. An example of unusual circumstances could be the 
need to find and retrieve records from regional or field offices or 
from federal records centers or the need to search, collect and or 
examine a large number of records which are demanded in a single 
request, or the need to talk to another agency with a substantial 
interest in the determination of the request. When the Board extends 
the time to decide the request, it will inform the requester in writing 
and describe the ``unusual circumstances'', and it will state a date on 
which a decision on the request will be made. If the ``unusual 
circumstances'' are such that the Board cannot comply with the request 
within the time limit, the Board will offer the requester an 
opportunity:
    (i) To limit the request so that it may be processed within the 
time limit, or
    (ii) To arrange with the Board a different time frame for 
processing the request or a changed request.
    (2) Expedited processing. Where a requester shows a ``compelling 
need'' and in other cases determined by the Board, a decision whether 
to provide expedited processing of a request and notification of that 
decision to the requester will be made within 10 workdays of the date 
of the request. An example of a compelling need could be that a failure 
to obtain the records expeditiously could reasonably be expected to be 
a threat to the life or physical safety of a person or that there is 
urgency to inform the public about actual or alleged Federal Government 
activity by a person primarily engaged in distributing information. 
Where the Board approves expeditious processing, the Board will process 
the request within 5 workdays from the date of the decision to grant 
the expeditious processing. If, in order to fully satisfy the request, 
the Board requires the standard or additional processing time, or if it 
decides that good cause for expedited processing has not been made, it 
will provide written notice of its decision to the requester and will 
inform the requester of the right to administrative and court review of 
the decision. A showing of a compelling need must be made by a 
statement certified to be true to the best of the requester's knowledge 
and belief.


Sec. 1204.12  Fees.

    (a) General. The Board will charge the requester fees for services 
provided in processing requests for information. Those fees will be 
charged according to the schedule in paragraph (d) of this section, and 
will recover the full allowable direct costs that the Board incurs. 
Fees may be charged for time spent searching for information, even if 
the Board fails to locate responsive records, and even if it determines 
that the information is exempt from disclosure.
    (b) Definitions. (1) The term direct costs means the costs to an 
agency for searching for and copying (and in the case of commercial 
requesters, reviewing) documents to respond to a FOIA request. Direct 
costs include, for example, the salary of each employee performing work 
at the rate of $5 per quarter hour. Overhead expenses, such as costs of 
space and of heating or lighting the facility in which the records are 
stored, are not included in direct costs.
    (2) The term search, as defined by 5 U.S.C. 552(a)(3)(D), means 
either manual or automated review of Board records to locate those 
records asked for, and includes all time spent looking for material in 
response to a request, including page-by-page or line-by-line 
identification of material within documents. Searches will be done in 
the most efficient and least expensive way to limit costs for both the 
Board and the requester. Searches may be done manually or by computer 
using existing programming. The Board will make a reasonable effort to 
search for the records in electronic form or format, except when such 
effort would interfere to a large extent with the operation of the 
Board's automated information system.
    (3) The term duplication means the process of copying a document or 
electronically maintained information in response to a FOIA request. 
Copies can take the form of paper, microfilm, audio-visual materials, 
or machine-readable documentation (e.g., magnetic tape or disk), among 
others. The copy provided will be in a form or format requested if the 
record is readily reproducible by the Board in that form or format. The 
Board will make a reasonable effort to maintain its records in forms or 
formats that are reproducible.
    (4) The term review includes the process of examining documents to 
determine whether any portion of them may be exempt from disclosure 
under the FOIA, when the documents have been located in response to a 
request that is for a commercial use. The term also includes processing 
any documents for disclosure, e.g., doing all that is necessary to edit 
them and otherwise prepare them for release. Review does not include 
time spent resolving general legal or policy issues.
    (5) The term commercial use request means 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 deciding whether a 
requester properly belongs in this category, the Board will decide the 
use the requester will make of the documents requested. Also, where the 
Board has reasonable cause to doubt the use a requester will make of 
the records requested, or where that use is not clear from the request, 
the Board will seek additional clarification before assigning the 
request to a specific category.

[[Page 51041]]

    (6) The term 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 that operates a program or programs of scholarly research.
    (7) The term noncommercial scientific institution means an 
institution that is not operated on a ``commercial'' basis as that term 
is used above, and that is operated solely for the purpose of 
conducting scientific research whose results are not intended to 
promote any particular product or industry.
    (8) The term 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 concerns current events or that would be of current 
interest to the public.
    (c) Categories of requesters. There are four categories of FOIA 
requesters: Commercial use requesters; educational and noncommercial 
scientific institutions; representatives of the news media; and all 
other requesters. To be included in the category of educational and 
noncommercial scientific institutions, requesters must show that the 
request is authorized by a qualifying institution and that they are 
seeking the records not for a commercial use, but to further scholarly 
or scientific research. To be included in the news media category, a 
requester must meet the definition in paragraph (b)(8) of this section 
and the request must not be made for a commercial use. To avoid 
commercial use charges, requesters must show that they should be 
included in a category or categories other than that of commercial use 
requesters. The Board will decide the categories to place requesters 
for fee purposes. It will make these determinations based on 
information given by the requesters and information otherwise known to 
the Board.
    (d) The Board will not charge a requester if the fee for any 
request is less that $100 (the cost to the Board of processing and 
collecting the fee).
    (1) When the Board receives a request:
    (i) From a commercial use requester, it will charge fees that 
recover the full direct costs for searching for the information 
requested, reviewing it for release at the initial request stage, 
reviewing it after an appeal to determine whether other exemptions not 
considered before the appeal apply to it, and copying it.
    (ii) From an educational and noncommercial scientific institution 
or, to the extent copying exceeds 100 pages, from a representative of 
the news media, it will charge fees only for the cost of copying the 
requested information.
    (iii) From all other requesters, to the extent copying exceeds 100 
pages and search time exceeds 2 hours, it will charge fees for the full 
direct cost of searching for and copying requested records.
    (2) When the Board reasonably believes that a requester or group of 
requesters is attempting to divide a request into more than one request 
to avoid payment of fees, the Board will combine the requests and 
charge fees accordingly. The Board will not combine multiple requests 
on unrelated subjects from one requester.
    (3) When the Board decides that charges for a request are likely to 
exceed $250, the Board will require the requester to pay the entire fee 
in advance before continuing to process the request.
    (4) When a requester has an outstanding fee charge or has not paid 
a fee on time, the Board will require the requester to pay the full 
amount of the estimated fee in advance before the Board begins to 
process a new or pending request from that requester, and before it 
applies administrative time limits for making a decision on the new or 
pending request.
    (e) Fee schedule. (1) Fees for document searches for records will 
be charged at a rate of $5 per quarter hour spent by each Board 
employee performing the search.
    (2) Fees for computer searches for records will be $5 per quarter 
hour spent by each employee operating the computer equipment and/or 
developing a new inquiry or report.
    (3) Fees for review at the initial administrative level to 
determine whether records or portions of records are exempt from 
disclosure, and for review after an appeal to determine whether the 
records are exempt on other legal grounds, will be charged, for 
commercial use requests, at a rate of $5 per quarter hour spent by each 
reviewing employee.
    (4) Fees for photocopying records is 20 cents a page, the fee for 
copying audio tapes is the direct cost up to $15 per cassette tape; the 
fee for copying video tapes is the direct cost up to $20 per tape; and 
the fee for computer printouts is 10 cents a page. The fee for 
duplication of electronically maintained information in the requester's 
preferred format will be $21 for copying computer tapes and $4 for 
copying records on computer diskettes, if it is feasible for the Board 
to reproduce records in the format requested. Fees for certified copies 
of the Board's records will include a $4 per page charge for each page 
displaying the Board's seal and certification. When the Board estimates 
that copying costs will exceed $100, it will notify the requester of 
the estimated amount unless the requester has indicated in advance a 
willingness to pay an equal or higher amount.
    (f) Fee waivers. (1) Upon request, the Clerk of the Board, Regional 
Director, or Chief Administrative Judge, as appropriate, will furnish 
information without charge or at reduced rates if it is established 
that disclosure ``is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government.'' This decision will be based on:
    (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 information to be disclosed: 
Whether the disclosure is likely to contribute to an understanding of 
government operations or activities;
    (iii) Whether disclosure of the requested information is likely to 
contribute to public understanding of the subject of the disclosure; 
and
    (iv) The significance of the contribution the disclosure would make 
to public understanding of government operations or activities.
    (2) If information is to be furnished without charge or at reduced 
rates, the requester must also establish that disclosure of the 
information is not primarily in the commercial interest of the 
requester. This decision will be based on:
    (i) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and, if so,
    (ii) Whether 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) The requester must establish eligibility for a waiver of fees 
or for reduced fees. The denial of a request for waiver of fees may be 
appealed under subpart C of this part.


Sec. 1204.13  Denials

    (a) The Board may deny: A request for reduced fees or waiver of 
fees; a request for a record, either in whole or in part; a request for 
expeditious processing based on the requester's compelling need; or a 
request that records be

[[Page 51042]]

released in a specific electronic format. The denial will be in 
writing, will state the reasons, and will notify the requester of the 
right to appeal.
    (b) If the Board applies one or more of the exemptions provided 
under the FOIA to deny access to some or all of the information 
requested, it will respond in writing, identifying for the requester 
the specific exemption(s), providing an explanation as to why the 
exemption(s) to withhold the requested information must be applied, and 
providing an estimate of the amount of material that has been denied to 
the requester, unless providing such an estimate would harm an interest 
protected by the exemptions.
    (c) The amount of information deleted will be indicated on the 
released portion of the record at the place in the record where the 
deletion is made, if technically feasible and unless the indication 
would harm an interest protected by the exemption under which the 
deletion is made.


Sec. 1204.14  Requests for access to confidential commercial 
information.

    (a) General. Confidential commercial information provided to the 
Board by a business submitter will not be disclosed in response to a 
FOIA request except as required by this section.
    (b) Definitions. (1) The term confidential commercial information 
means records provided to the government by a submitter that are 
believed to contain material exempt from release under Exemption 4 of 
the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure 
could reasonably be expected to cause substantial competitive harm.
    (2) The term submitter means any person or organization that 
provides confidential commercial information to the government. The 
term submitter includes, but is not limited to, corporations, state 
governments, and foreign governments.
    (c) Notice to business submitters. The Board will provide a 
business submitter with prompt written notice of a request for its 
confidential commercial information whenever such written notice is 
required under paragraph (d) of this section. Exceptions to such 
written notice are at paragraph (h) of this section. This written 
notice will either describe the exact nature of the confidential 
information requested or provide copies of the records or parts of 
records containing the commercial information.
    (d) When initial notice is required. (1) With respect to 
confidential commercial information received by the Board before 
January 1, 1988, the Board will give the business submitter notice of a 
request whenever:
    (i) The information is less than 10 years old; or
    (ii) The Board has reason to believe that releasing the information 
could reasonably be expected to cause substantial competitive harm.
    (2) With respect to confidential commercial information received by 
the Board on or after January 1, 1988, the Board will give notice to 
the business submitter whenever:
    (i) The business submitter has designated the information in good 
faith as commercially or financially sensitive information; or
    (ii) The Board has reason to believe that releasing the information 
could reasonably be expected to cause substantial competitive harm.
    (3) Notice of a request for commercially confidential information 
that was received by January 1, 1988, is required for a period of not 
more than 10 years after the date on which the information is submitted 
unless the business submitter requests, and provides justification for, 
a longer specific notice period. Whenever possible, the submitter's 
claim of confidentially must be supported by a statement or 
certification, by an officer or authorized representative of the 
company, that the information in question is confidential commercial 
information and has not been disclosed to the public.
    (e) Opportunity to object to disclosure. Through the notice 
described in paragraph (c) of this section, the Board will give a 
business submitter a reasonable period to provide a detailed statement 
of any objection to disclosure. The statement must specify all grounds 
for withholding any of the information under any exemption of the 
Freedom of Information Act. In addition, in the case of Exemption 4, 
the statement must state why the information is considered to be a 
trade secret, or to be commercial or financial information that is 
privileged or confidential. Information a business submitter provides 
under this paragraph may itself be subject to disclosure under the 
Freedom of Information Act.
    (f) Notice of intent to release information. The Board will 
consider carefully a business submitter's objections and specific 
grounds for claiming that the information should not be released before 
determining whether to release confidential commercial information. 
Whenever the Board decides to release confidential commercial 
information over the objection of a business submitter, it will forward 
to the business submitter a written notice that includes:
    (1) A statement of the reasons for which the business submitter's 
objections to the release were not sufficient;
    (2) A description of the confidential commercial information to be 
released; and
    (3) A specified release date. The Board will forward the notice of 
intent to release the information a reasonable number of days, as 
circumstances permit, before the specified date upon which release is 
expected. It will forward a copy of the release notice to the requester 
at the same time.
    (g) Notice of Freedom of Information Act lawsuit. Whenever a 
requester files a lawsuit seeking to require release of business 
information covered by paragraph (d) of this section, the Board will 
notify the business submitter promptly.
    (h) Exceptions to notice requirements. The notice requirements of 
this section do not apply when:
    (1) The Board decides that the information should not be released;
    (2) The information lawfully has been published or otherwise made 
available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The disclosure is required by an agency rule that:
    (i) Was adopted after notice and public comment;
    (ii) Specifies narrow classes of records submitted to the agency 
that are to be released under the FOIA; or
    (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 release of the 
information could reasonably be expected to cause substantial 
competitive harm.
    (5) The information requested is not designated by the submitter as 
exempt from release according to agency regulations issued under this 
section, when the submitter has an opportunity to do so at the time of 
sending the information or a reasonable time thereafter, unless the 
agency has good reason to believe that disclosure of the information 
would result in competitive harm; or
    (6) The designation made by the submitter according to Board 
regulations appears obviously frivolous; except that, in such case, the 
Board must provide the submitter with written notice of any final 
administrative release decision within a reasonable period before the 
stated release date.

[[Page 51043]]

Sec. 1204.15  Records of other agencies.

    Requests for Board records that were created by another agency may, 
in appropriate circumstances, be referred to that agency for discussion 
or processing. In these instances, the Board will notify the requester.

Subpart C--Appeals


Sec. 1204.21  Submission.

    (a) A person may appeal the following actions, or failure to act by 
the Clerk of the Board, a Regional Director, or Chief Administrative 
Judge:
    (1) A denial of access to agency records;
    (2) A denial of a request for a waiver or reduced fees;
    (3) A decision that it is technically not possible to reproduce 
electronically maintained information in the requester's preferred 
format;
    (4) A denial of a request for expedited processing of information 
under this part; or
    (5) A failure to decide a request for expedited processing within 
10 workdays from the date of the request.
    (b) Appeals must be filed with the Chairman, Merit Systems 
Protection Board, 1120 Vermont Avenue NW., Washington, DC 20419-0001 
within 10 workdays from the date of the denial. Any appeal must include 
a copy of the initial request, a copy of the letter denying the 
request, and a statement of the reasons why the requester believes the 
denying employee erred.


Sec. 1204.22  Decision on appeal.

    A decision on an appeal will be made within 20 workdays after the 
appeal is received. A decision not to provide expeditious processing of 
a request will be made within 15 workdays after the appeal is received. 
The decision will be in writing and will contain the reasons for the 
decision and information about the appellant's right to seek court 
review of the denial.

    Dated: September 2, 1999.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 99-24551 Filed 9-20-99; 8:45 am]
BILLING CODE 7400-01-U