[Federal Register Volume 74, Number 223 (Friday, November 20, 2009)]
[Rules and Regulations]
[Pages 60130-60137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27877]


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RECOVERY ACCOUNTABILITY AND TRANSPARENCY BOARD

4 CFR Part 201

RIN 0430-AA01


Rule Implementing the Freedom of Information Act

AGENCY:  Recovery Accountability and Transparency Board.

ACTION: Final rule.

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SUMMARY: This document institutes the Recovery Accountability and 
Transparency Board's (Board) final rule implementing a set of 
procedural regulations under the Freedom of Information Act (FOIA) in 
accordance with 5 U.S.C. 552, and Public Law 104-231, the Electronic 
Freedom of

[[Page 60131]]

Information Act Amendments of 1996. These regulations have been written 
to conform to the statutory provisions of the Acts, to expedite the 
processing of FOIA requests received by the Board, and to ensure the 
proper dissemination of information to the public.

DATES: Effective November 20, 2009.

FOR FURTHER INFORMATION CONTACT: Jennifer Dure, General Counsel, (202) 
254-7900.

SUPPLEMENTARY INFORMATION: The proposed rule was published in the 
Federal Register on August 3, 2009 (74 FR 38366) for a public comment 
period to end on October 2, 2009. This rule sets forth the procedures 
for members of the public to request records from the Board under both 
the FOIA and the Electronic Freedom of Information Act Amendments of 
1996. The rule also sets forth the procedures that the Board will use 
when responding to such requests. It sets forth the time frames for 
responses and the current fee schedule for any applicable charges for 
information. The rule also supplies information about Board materials 
available to the public through the Board's Web site.

Public Comment

    The Board received comments from two organizations. One commenter 
requested an explanation concerning the differences between the 
proposed FOIA and Privacy Act rules regarding what is procedurally 
required in order for an individual to request access to records in the 
custody of the Board. Under the Board's proposed Privacy Act rule, all 
requests should include, among other things, the requester's full name, 
address, and telephone number. Requests for Privacy Act records may be 
made in writing, by fax, by telephone, or in person. The commenter 
contends that there are additional and more stringent requirements 
placed on a requester who requests access to his or her records in 
person. More specifically, such a requester must contact the Board's 
office at least one week before the desired appointment date. In 
addition, before a requester can review his or her records, the 
requester must provide proof of identification. Identification should 
be a valid copy of one of the following: A government ID, a driver's 
license, a passport, or other current identification that contains both 
an address and a picture of the requester.
    According to the commenter, the process for requesting records 
under the Board's proposed FOIA rule ``seem[s] quite simplified.'' 
Under the proposed FOIA rule, all requests for records must include the 
requester's full name, address, and telephone number. Such a request 
can be made in writing, via e-mail, or via fax. The commenter correctly 
points out that the proposed FOIA rule does not provide the option of 
an in-person request. The commenter concluded that the differences in 
treatment of requesters for access to the Board's records seem 
unnecessary, especially with respect to the identification information 
required of a requester seeking information in person.
    The commenter correctly points out the difference between the 
proposed Privacy Act and FOIA rules, but there is a reason for the 
difference between them which stems from the laws at issue. Briefly, a 
Privacy Act request is a request from an individual seeking to review 
and/or make corrections to federal records, maintained and retrieved in 
an approved system of records, which are about that individual--with 
very limited exceptions, no one else can ask for these records. A FOIA 
request is a request from the general public for copies of specific 
records maintained by a federal agency--any member of the public can 
make such a request. When individuals request information about 
themselves contained in an approved Privacy Act system of records, the 
request should be handled under the Privacy Act. Requested records 
about an individual not contained in an approved system of records 
asked for under the Privacy Act will have their request processed under 
the FOIA, since no access rights exist under the Privacy Act.
    Because the nature of a Privacy Act request is narrow and specific 
to an individual in an approved system of records, the Board feels that 
providing the additional provisions to request and examine records in 
person is reasonable. In addition, in order to ensure that individuals 
who request to examine records in person are who they claim to be, it 
is necessary to require that individuals provide the proper proof of 
identification as set forth in the proposed Privacy Act rules. This 
Privacy Act requirement is designed to protect requesters from having 
their personal information disclosed to anyone else.
    The other commenter raised concerns regarding the Board's proposed 
definition of ``agency records'' under Sec.  201.2. The Board's 
proposed FOIA rule defines ``agency record'' as ``materials that are in 
the control of the Board and associated with Board business, as 
follows: (i) Materials produced by the Board. (ii) Materials produced 
by staff for the Board. (iii) Materials distributed by presenters at a 
Board meeting or Board Committee meeting.'' The commenter feels that 
the proposed definition is too narrow. The Board agrees and has 
therefore modified its definition in a way as to leave open the types 
of information that may be considered ``agency records.'' \1\
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    \1\ The Board will follow the U.S. Department of Justice's 
``Guide to the Freedom of Information Act'' in determining what 
constitutes an agency record. See U.S. Department of Justice ``Guide 
to the Freedom of Information Act,'' (2009), at 33.
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    The same commenter raised concerns regarding Sec.  201.3 of the 
Board's proposed rule--publicly available documents and the electronic 
reading room. More specifically, Sec.  201.3(b)(6) of the Board's 
proposed rule provides that ``[r]ecords available electronically on the 
Board's Web site include * * * [c]opies of records repeatedly released 
in response to FOIA requests.'' The commenter is concerned that this 
provision suggests that the Board will make available a narrower 
category of records than what is required under FOIA. To alleviate any 
confusion as to whether the Board will track the law, the Board has 
modified Sec.  201.3(b)(6) to track the language used in the DOJ 
Guidance, reflecting its intention to comply with the requirement of 
proactive disclosure and make records of public interest available 
prior to receiving frequent requests for such information.
    Finally, the same commenter raised concerns regarding Sec.  
201.14(c) of the Board's proposed rule--appeals and exhaustion of 
administrative remedies. The commenter feels that the Board has 
misstated FOIA regarding when a FOIA requester may bring a lawsuit in 
federal court to challenge an agency's response to his or her FOIA 
request. The Board feels that proposed Sec.  201.14(c) and (e) confuse 
the administrative appeals/judicial review issues and therefore 
withdraws both provisions in their entirety. The Board believes that 
the case law on this matter--referenced in the U.S. Department of 
Justice's ``Guide to the Freedom of Information Act,''--speaks for 
itself.\2\ As revised, the Board's regulations provide requesters with 
sufficient procedural information to ensure the proper review of 
requests.
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    \2\ See id. at 97.
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Executive Order No. 12866

    These proposed regulations do not meet the criteria for a 
significant regulatory action under Executive Order 12866. Thus, review 
by the Office of Management and Budget is not required.

Regulatory Flexibility Act

    These proposed regulations will not have a significant economic 
impact on

[[Page 60132]]

a substantial number of small entities. Therefore, a regulatory 
flexibility analysis as provided by the Regulatory Flexibility Act, as 
amended, is not required.

Paperwork Reduction Act

    These proposed regulations impose no additional reporting and 
recordkeeping requirements. Therefore, clearance by the Office of 
Management and Budget is not required.

List of Subjects in 4 CFR Part 201

    Administrative practice and procedure; Freedom of Information; 
Reporting and recordkeeping requirements.


0
Therefore, the Board amends Title 4 of the Code of Federal Regulations 
by adding Part 201 to read as follows:

CHAPTER II--RECOVERY ACCOUNTABILITY AND TRANSPARENCY BOARD

PART 201--PUBLIC INFORMATION AND REQUESTS

Sec.
201.1 Scope.
201.2 Definitions.
201.3 Publicly available documents and electronic reading room.
201.4 Board records exempt from public disclosure.
201.5 Requests for Board records.
201.6 Responsibility, form, and content of responses.
201.7 Time of responses to requests.
201.8 Fees.
201.9 Restrictions on charging fees.
201.10 Notice of anticipated fees.
201.11 Requirements for waiver or reduction of fees.
201.12 Denials.
201.13 Business information.
201.14 Appeals.
201.15 Preservation of records.
201.16 Other rights and services.
201.17 How to track a FOIA request.

    Authority:  5 U.S.C. 301, 5 U.S.C. 552 as amended; Executive 
Order 12600, 3 CFR, 1987 Comp., p. 235.


Sec.  201.1  Scope.

    This part sets forth the policies and procedures of the Recovery 
Accountability and Transparency Board (Board) regarding public access 
to documents under the Freedom of Information Act (FOIA or the Act), 5 
U.S.C. 552. The provisions in the Act shall take precedence over any 
part of the Board's regulations in conflict with the Act. This part 
gives the procedures the public may use to inspect and obtain copies of 
Board records under the FOIA, including administrative procedures which 
must be exhausted before a requestor invokes the jurisdiction of an 
appropriate United States District Court for the Board's failure to 
respond to a proper request within the statutory time limits, for a 
denial of Board records or challenges to the adequacy of a search, or 
for denial of fee waiver.


Sec.  201.2  Definitions.

    For words used in this document, unless the context indicates 
otherwise, singular includes the plural, plural includes the singular, 
present tense includes the future tense, and words of one gender 
include the other gender.
    (a)(1) Agency records--Materials that are in the control of the 
Board and associated with Board business, including:
    (i) Materials produced by the Board.
    (ii) Materials produced by staff for the Board.
    (iii) Materials distributed by presenters at a Board meeting or 
Board Committee meeting.
    (2) All references to records include the entire record and/or any 
part of the record.
    (b) Board--The Recovery Accountability and Transparency Board.
    (c) Chairman--The Chairman of the Board is designated or appointed 
by the President.
    (d) Designated FOIA Officer--The person designated to administer 
the Board's activities in regard to the regulations in this part. The 
FOIA Officer shall be:
    (1) The Board officer having custody of, or responsibility for, 
agency records in the possession of the Board.
    (2) The Board officer having responsibility for authorizing or 
denying production of records from requests filed under the FOIA.
    (e) Executive Director--The chief operating officer of the Board.
    (f) Member--An individual appointed to serve on the Board pursuant 
to Title XV, Subtitle B of the American Recovery and Reinvestment Act 
of 2009 (Pub. L. 111-5).
    (g) Days--Standard working days, excluding weekends and federal 
holidays.


Sec.  201.3  Publicly available documents and electronic reading room.

    (a) Many Board records are available electronically at the Board's 
Web site (http://www.recovery.gov).
    (b) Records available electronically on the Board's Web site 
include:
    (1) The rules and regulations of the Board.
    (2) Statements of policy adopted by the Board.
    (3) Board reports to the President and Congress, including the 
Committees on Appropriations of the Senate and House of 
Representatives.
    (4) Congressional Testimony of the Chairman of the Board.
    (5) Biographical information about the Chairman and other Board 
members.
    (6) Copies of records frequently requested and released in response 
to FOIA requests.
    (c) The cost of copying information available in the Board office 
shall be imposed in accordance with the provisions of Sec.  201.8.


Sec.  201.4  Board records exempt from public disclosure.

    5 U.S.C. 552 provides that the requirements of the FOIA do not 
apply to matters that are:
    (a) Specifically authorized under the criteria established by an 
executive order to be kept secret in the interest of national defense 
or foreign policy and are in fact properly classified pursuant to such 
an executive order.
    (b) Related solely to the internal personnel rules and practices of 
the Board.
    (c) Specifically exempted from disclosure by another federal 
statute, provided that such statute:
    (1) Requires that records are withheld from the public in such a 
manner that leaves no discretion on the issue; or
    (2) Establishes 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 intra-agency memoranda or letters that would not 
be available by law to a party other than an agency in litigation with 
the Board.
    (f) Personnel, medical, or similar files that disclosing would 
constitute a clearly unwarranted invasion of personal privacy.
    (g) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records of 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 any 
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 agency in the course of a criminal 
investigation or by an agency conducting a lawful security

[[Page 60133]]

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.
    (h) Contained in or related to examination, operating, or condition 
reports, prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial 
institutions.
    (i) Geological and geophysical information and data, including 
maps, concerning wells.


Sec.  201.5  Requests for Board records.

    (a) To request Board records, you may:
    (1) Write: FOIA Officer, Recovery Accountability and Transparency 
Board, 1717 Pennsylvania Avenue, NW., Suite 700, Washington, DC 20006;
    (2) Send a request via e-mail at [email protected]; or
    (3) Fax: (202) 254-7970.
    (b) When requesting records under this section you must state, in 
writing:
    (1) Your full name,
    (2) Address,
    (3) Telephone number, and
    (4) At your option, electronic mail address.
    (c) When making a request for records about a person, Privacy Act 
regulations also may apply. Please check the regulations for additional 
requirements before submitting a request. When making a request for 
records about someone other than yourself, you must include either:
    (1) Written authorization signed by the person permitting you to 
see the records; or
    (2) Proof that the individual is deceased (e.g., a death 
certificate or obituary).
    (d) A request will be considered received for purposes of Sec.  
201.7 on the date that it is received by the Board's FOIA office. For 
prompt handling, write ``Freedom of Information Act Request'' on the 
letter and envelope or in the subject line of the e-mail request or 
fax.
    (e) Each request must clearly describe the desired records in 
sufficient detail to enable Board personnel to locate them with 
reasonable effort. Response to requests may be delayed if the records 
are not clearly described.
    (f) Whenever possible, requests should include specific information 
about each record sought, such as date, title or name, author, 
recipient, and subject.
    (g) If the FOIA Officer determines that the request does not 
clearly describe the records sought, he or she will either advise you 
of the additional information needed to locate the record or otherwise 
state why the request is insufficient. You will then be given the 
opportunity to provide additional information or to modify your 
request.
    (h) Submitting a FOIA request shall be considered a commitment by 
the requestor to pay applicable fees required under Sec.  201.8 unless 
the requestor seeks a waiver of fees. When making a request, you may 
specify a willingness to pay fees up to a specific amount.
    (i) The FOIA does not require the Board to:
    (1) Compile or create records solely for the purpose of satisfying 
a request for records.
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some time in the future.
    (3) Restore records destroyed or otherwise disposed of, except that 
the FOIA Officer must notify the requestor that the records have been 
destroyed or otherwise disposed of.


Sec.  201.6  Responsibility, form, and content of response.

    The Board's Executive Director or his/her designated FOIA Officer 
is authorized to grant or deny any request for a record and determine 
appropriate fees. When determining which records are responsive to a 
request, the Board will include only records in its possession as of 
the date of the request.
    (a) If no records are responsive to the request, the FOIA Officer 
will notify the requestor in writing.
    (b) When the FOIA Officer denies a request in whole or in part, he/
she will notify the requestor in writing. The response will be signed 
by the FOIA Officer and will include:
    (1) The name and title or position of the person making the denial;
    (2) A brief statement of the reasons for the denial, including the 
FOIA exemption(s) that the FOIA Officer has relied on in denying the 
request; and
    (3) A statement that the denial may be appealed under Sec.  201.14 
and a description of the requirements of that section.
    (c) Referrals. When a request for a record not created by the Board 
is received, the Board shall refer the requestor to the issuing agency 
in writing, providing the address of the agency contact and the 
section(s) referred.
    (d) Timing of responses to requests sent to other agencies. The 
Board shall provide, within the FOIA deadline, responses only to those 
parts of the request not referred.
    (e) Agreements on referrals. The Board may make agreements with 
other agencies to eliminate the need for referrals for particular types 
of records.


Sec.  201.7   Timing of responses to requests.

    (a) General. The Board shall normally respond to requests in the 
order of their receipt.
    (b) Acknowledgement of requests. On receipt of a request, the Board 
shall send an acknowledgement letter or an e-mail confirming the 
requestor's agreement to pay fees under Sec.  201.8 and providing a 
request number for future reference.
    (c) Time limits for responding to FOIA requests. The Board shall 
make an initial determination to grant or deny a request for records 
within 20 days (excluding Saturday, Sunday and holidays) after the date 
of receipt of the request, as described in Sec.  201.5(d), except as 
stated in paragraph (f) of this section. Once the Board determines 
whether it can grant a request entirely or in part, it shall notify the 
requestor in writing. The Board shall advise the requestor of any fees 
to be charged under Sec.  201.8 and shall disclose records promptly on 
payment of the fees. Records disclosed in part shall be marked or 
annotated to show the amount of information deleted unless doing so 
would harm an interest protected by an applicable exemption. The 
location of the information deleted also shall be indicated on the 
record when technically feasible.
    (d) Unusual circumstances. (1) If the statutory time limits for 
processing a request cannot be met because of ``unusual circumstances'' 
as defined in the FOIA (5 U.S.C. 552(6)(B)(iii)), the Board shall 
promptly notify the requestor in writing, explaining the circumstances 
and giving the date by which the request can be completed or if the 
Board cannot complete the request. If the extension is for more than 10 
working days, the Board shall provide the requestor with an opportunity 
to:
    (i) Modify the request so that it can be processed within the time 
limit; or
    (ii) Arrange an alternative time period for processing the original 
request.
    (2) If the Board believes that multiple requests submitted by a 
requestor or by requestors acting in concert constitute a single 
request that would otherwise involve unusual circumstances, and if the 
requests involve clearly related matters, they may be aggregated. 
Multiple requests involving unrelated matters will not be aggregated.

[[Page 60134]]

    (e) Expedited processing. (1) Requests and appeals shall be taken 
out of order and given expedited processing whenever it is determined 
that they involve:
    (i) Circumstances that could reasonably be expected to pose an 
imminent threat to the life or physical safety of an individual; or
    (ii) An urgency to inform the public about an actual or alleged 
activity if made by a person primarily engaged in disseminating 
information.
    (2) Requests for expedited processing may be made either at the 
time of the initial request or at a later time.
    (3) Requests for expedited processing must include a statement 
explaining in detail the basis for requesting expedited processing. For 
example, a requestor under Sec.  201.8 must establish that his/her 
professional activity is news reporting, although it need not be his/
her sole occupation. The requestor also must establish a particular 
urgency to inform the public about government activity involved in the 
request, beyond the public's right to know about government activity 
generally.
    (4) Within 10 calendar days of receipt of a request for expedited 
processing, the Board shall decide whether to grant the request and 
notify the requestor of its decision. If a request for expedited 
treatment is granted, the request shall be processed as soon as 
practicable. If a request for expedited processing is denied, an appeal 
of that decision shall be acted on expeditiously.
    (f) Tolling of time limits. (1) The Board may toll the 20-day time 
period to:
    (i) Make one request for additional information from the requester; 
or
    (ii) Clarify the applicability or amount of any fees, if necessary, 
with the requester.
    (2) The tolling period ends upon the Board's receipt of information 
from the requester or resolution of the fee issue.


Sec.  201.8  Fees.

    (a) General. The Board shall charge for processing requests under 
the FOIA in accordance with paragraph (c) of this section, except where 
fees are limited under Sec.  201.9 or where a waiver or reduction of 
fees is granted under Sec.  201.11. Fees must be paid before the copies 
of records are sent. Fees may be paid by check or money order payable 
to the Treasury of the United States.
    (b) Definitions for this section. (1) Commercial use request--A 
request from, or on behalf of, a person who seeks information for a 
purpose that furthers his/her commercial, trade, or profit interests 
including furthering those interests through litigation. The Board 
shall try to determine the use to which a record will be put. When the 
Board believes that a request is for commercial use either because of 
the nature of the request or because the Board has cause to doubt the 
stated use, the Board shall ask the requestor for clarification.
    (2) Direct costs--Expenses that the Board incurs in searching for, 
duplicating, and reviewing records in response to a request. Direct 
costs include the full salary of the employee performing the work and 
the cost of duplication of the records. Overhead expenses, such as the 
cost of space, heating, and lighting, are not included.
    (3) Duplication--Making a copy of a record or the information in 
the record, to respond to a request. Copies can be in paper, 
electronic, or other format. The Board shall honor a requestor's 
preference for format if the record is readily reproducible in that 
format at a reasonable cost.
    (4) Educational institution--A public or private undergraduate, 
graduate, professional or vocational school that has a program of 
scholarly research. For a request to be in this category, a requestor 
must show that the request is authorized by and made under the auspices 
of the qualifying institution and that the records will be used for 
scholarly research.
    (5) Noncommercial scientific institution--An institution that is 
not operated on a commercial basis, as defined in paragraph (b)(1) of 
this section and is operated solely for conducting scientific research 
that does not promote any particular product or industry. For a request 
to be in this category, the requestor must show that the request is 
authorized and made under the auspices of the qualifying institution 
and that the records will be used for further scientific research.
    (6) Representative of the news media--Any person who, or entity 
that, gathers information of potential interest to a segment of the 
public, uses editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. A freelance journalist 
shall be regarded as working for a news media entity if the person can 
demonstrate a solid basis for expecting publication through that 
entity, whether or not the journalist is actually employed by that 
entity. A publication contract is one example of a basis for expecting 
publication that ordinarily would satisfy this standard. The Board may 
consider past publication records of the requester in determining 
whether he or she qualifies as a ``representative of the news media.''
    (7) Review--Examining a record to determine whether any part of it 
is exempt from disclosure, and processing a record for disclosure. 
Review costs are recoverable even if a record is not disclosed. Review 
time includes time spent considering any formal objection to disclosure 
made by a business submitter under Sec.  201.13 but does not include 
time spent resolving general legal or policy issues regarding the 
application of exemptions.
    (8) Search--The process of looking for and retrieving records, 
including page-by-page or line-by-line identification of information 
within records and reasonable efforts to locate and retrieve 
information from records maintained in electronic form. The Board shall 
ensure that searches are done in the most efficient and least expensive 
way that is reasonably possible.
    (c) Fees. In responding to FOIA requests, the Board shall charge 
the following fees unless a waiver or a reduction of fees has been 
granted under Sec.  201.11.
    (1) Search. (i) Search fees shall be charged for all requests 
subject to the limitations of Sec.  201.9. The Board may charge for 
time spent searching even if no responsive record is located, or if the 
record(s) located are withheld as exempt from disclosure.
    (ii) For each quarter hour spent by clerical personnel in searching 
for and retrieving a requested record, the fee will be $5. If a search 
and retrieval requires the use of professional personnel, the fee will 
be $8 for each quarter hour. If the time of managerial personnel is 
required, the fee will be $10 for each quarter hour.
    (iii) For computer searches for records, requestors will be charged 
the direct costs of conducting the search although certain requestors 
(see Sec.  201.9(a)) will be charged no search fee and certain other 
requestors (see Sec.  201.9(b)) will be entitled to two hours of manual 
search time without charge. Direct costs include the cost of operating 
a computer for the search time for requested records and the operator 
salary for the search.
    (2) Duplication. Duplication fees for paper copies of a record will 
be 10 cents per page for black and white and 20 cents per page for 
color. For all other forms of duplication, the Board shall charge the 
direct costs of producing the copy. All charges are subject to the 
limitations of Sec. Sec.  201.9 and 201.11.
    (3) Review. When a commercial-use request is made, review fees 
shall be charged as stated in paragraph (c)(1) of this section. These 
fees apply only to the initial record review, when the Board determines 
whether an

[[Page 60135]]

exemption applies to a particular record. Charges shall not be imposed 
for review at the administrative appeal level if an exemption is 
applied. However, records withheld under an exemption that is 
subsequently determined not to apply may be reviewed again to determine 
whether any other exemption not previously considered applies. The 
costs of that review shall be charged. All review fees shall be charged 
at the same rates as those charged in paragraph (c)(1) of this section.


Sec.  201.9  Restrictions on charging fees.

    (a) When determining search or review fees:
    (1) No search fee shall be charged for requests by educational 
institutions, noncommercial scientific institutions, or representatives 
of the news media.
    (2) The Board shall provide without charge to all but commercial 
users:
    (i) The first 100 pages of black and white duplication (or the cost 
equivalent); and
    (ii) The first two hours of search by a clerical staff member (or 
the cost equivalent).
    (3) When the total fee for a request will be $14.00 or less for any 
request, no fee shall be charged.
    (b) The Board will not assess search and/or duplication fees, as 
applicable, if it fails to respond to a requester's FOIA request within 
the time limits specified under 4 CFR 201.7, and no ``unusual'' 
circumstances (as defined in 5 U.S.C. 552(a)(6)(B) and 4 CFR 201.7(d)) 
or ``exceptional'' circumstances (as defined in 5 U.S.C. 552(a)(6)(C)) 
apply to the processing of the request.


Sec.  201.10  Notice of anticipated fees.

    (a) General. The Board shall advise the requestor in writing of any 
applicable fees. If only a part of the fee can be estimated readily, 
the Board shall advise the requestor that this may be only a part of 
the total fee. After the requestor has been sent a fee estimate, the 
request shall not be considered received until the requestor makes a 
firm commitment to pay the anticipated total fee. Any such agreement 
must be made by the requestor in writing and must be received within 60 
days of the Board's notice. If the requestor does not provide a firm 
commitment to pay the anticipated fee within 60 days of the notice, the 
request shall be closed. The requestor may be given an opportunity to 
work with the Board to change the request and lower the cost.
    (b) Charges for other services. When the Board chooses as a matter 
of administrative discretion to provide a special service, such as 
certifying that records are true copies or sending them by other than 
ordinary mail, the Board shall pay the costs of providing the services 
unless previous arrangements have been made with the requestor.
    (c) Charging interest. The Board may charge interest on any unpaid 
bill starting on the 31st day following the date of billing. Interest 
charges shall be assessed at the rate provided in 31 U.S.C. 3717 and 
shall accrue from the date of the billing until payment is received by 
the Board. The Board shall follow the provisions of the Debt Collection 
Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended.
    (d) Aggregating requests. If the Board reasonably believes that a 
requestor or a group of requestors acting together is trying to divide 
a request into a series of smaller requests for the purpose of avoiding 
fees, the Board may aggregate the requests and charge accordingly. The 
Board shall assume that multiple requests of the same type made within 
a 30-day period have been made in order to avoid fees. If requests are 
separated by a longer period, the Board shall aggregate them only if 
there is a solid basis for determining that aggregation is warranted. 
Multiple requests involving unrelated matters shall not be aggregated.
    (e) Advance payments. When a requestor has previously failed to pay 
promptly a properly charged FOIA fee to the Board or another agency, 
the Board shall require proof that full payment has been made to that 
agency before it begins to process that requestor's FOIA request. The 
Board shall also require advance payment of the full amount of the 
anticipated fee. When advance payment is required, the request is not 
considered received until payment has been made.


Sec.  201.11  Requirements for waiver or reduction of fees.

    (a) Fees for processing your request may be waived if you meet the 
criteria listed in paragraph (b) of this section. The burden is on you 
to justify entitlement to a fee waiver. Requests for fee waivers are 
decided on a case-by-case basis. The fact that you have received a fee 
waiver in the past does not mean you are automatically entitled to a 
fee waiver for every request you may submit, because the essential 
element of any fee waiver determination is whether the release of the 
particular documents sought in the request will likely contribute 
significantly to public understanding of the operations or activities 
of the government. The Board will rely on the fee waiver justification 
you have submitted in your request letter. If you do not submit 
sufficient justification, your fee waiver request will be denied. The 
Board may, at its discretion, communicate with you to request 
additional information if necessary. However, the Board must make a 
determination on the fee waiver request within the statutory time 
limit, even if the Board has not received such additional information. 
In certain circumstances, a partial fee waiver may be appropriate, if 
some, but not all, of the requested records are likely to contribute 
significantly to public understanding of the operations and activities 
of the government.
    (b) The Board will waive fees (in whole or part) if disclosure of 
all or part of the information is in the public interest because its 
release:
    (1) Is likely to contribute significantly to public understanding 
of the operations or activities of the government; and
    (2) Is not primarily in the commercial interest of the requester.


Sec.  201.12  Denials.

    (a) When denying a request in any respect, the Board shall notify 
the requestor of that determination in writing. The types of denials 
include:
    (1) Denials of requests, including a determination:
    (i) To withhold any requested record in whole or in part;
    (ii) That a requested record does not exist or cannot be located;
    (iii) That a record is not readily reproducible in the form or 
format sought;
    (iv) That what has been requested is not a record subject to the 
FOIA; and
    (v) That the material requested is not a Board record (e.g., 
material produced by another agency or organization).
    (2) A determination on any disputed fee matter, including a denial 
of a request for a fee waiver.
    (3) A denial of a request for expedited processing.
    (b) The denial letter shall be signed by the FOIA Officer or 
designee and shall include all of the following:
    (1) The name and title of the person responsible for the denial.
    (2) A brief statement of the reason(s) for the denial, including 
any FOIA exemptions applied in denying the request.
    (3) An estimate of the volume of records withheld, in number of 
pages or in some other reasonable form of estimation. This estimate 
does not need to be provided if it would harm an interest protected by 
an applicable exemption.
    (4) A statement that the denial may be appealed under Sec.  201.14 
and a description of the requirements of Sec.  201.14.

[[Page 60136]]

Sec.  201.13  Business information.

    (a) In general. Business information obtained by the Board from a 
submitter shall be disclosed under the FOIA only under this section.
    (b) Definitions. For purposes of this section:
    (1) Business information--commercial or financial records obtained 
by the Board that may be protected from disclosure under Exemption 4 of 
the FOIA.
    (2) Submitter--any person or entity from which the Board obtains 
business records, either directly or indirectly. The term includes but 
is not limited to corporations and state, local, tribal, and foreign 
governments.
    (c) Designation of business information. Submitters of business 
information shall designate any part of the record considered to be 
protected from disclosure under Exemption 4 of the FOIA by 
appropriately marking the material. This may be done either at the time 
the record is submitted or at a reasonable time thereafter. This 
designation lasts for 10 years after submittal unless the submitter 
requests and provides justification for a longer period.
    (d) Notice to submitters. The Board shall provide a business 
submitter with prompt written notice of any FOIA request or appeal that 
seeks its business information under paragraph (e) of this section, 
except as provided in paragraph (h) of this section, to give the 
submitter an opportunity to object to that disclosure under paragraph 
(f) of this section. The notice shall either describe the records 
requested or include copies of the records.
    (e) Required notice. The Board shall give notice of a FOIA request 
seeking business information when:
    (1) The submitter has designated that the information is considered 
protected from disclosure under Exemption 4 of the FOIA; or
    (2) The Board has reason to believe that the information may be 
protected from disclosure under Exemption 4 of the FOIA.
    (f)(1) Objecting to disclosure. A submitter shall have 30 days to 
respond to the notice described in paragraph (d) of this section. If a 
submitter has an objection to disclosure, it is required to submit a 
detailed written statement including:
    (i) All grounds for withholding any of the information under any 
exemption of the FOIA, and
    (ii) In the case of Exemption 4, the reason why the information is 
a trade secret, commercial, or financial information that is privileged 
or confidential.
    (2) If a submitter fails to respond to the notice in paragraph (d) 
of this section within 30 days, the Board shall assume that the 
submitter has no objection to disclosure. The Board shall not consider 
information not received by the Board until after a disclosure decision 
has been made. Information provided by a submitter under this paragraph 
might itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. The Board shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose the business records. Whenever the Board 
decides to disclose business records over the objection of a submitter, 
it shall give the submitter written notice, that will include:
    (1) A statement of the reason(s) the submitter's objections were 
not sustained;
    (2) A description of the business records to be disclosed; and
    (3) A specified disclosure date at a reasonable time subsequent to 
the notice.
    (h) Exceptions to notice requirements. The notice requirements in 
paragraphs (d) and (g) of this section shall not apply if:
    (1) The Board determines that the information should not be 
disclosed;
    (2) The information has been published legally or has been 
officially made available to the public;
    (3) Disclosure of the information is required by another statute or 
by a regulation issued in accordance with Executive Order 12600 (3 CFR, 
1987 Comp., p. 235); or
    (4) The objection made by the submitter under paragraph (f) of this 
section appears frivolous. In such a case, the Board shall promptly 
notify the submitter of its decision using the guidelines in paragraph 
(g) of this section.
    (i) Notice of FOIA lawsuit. When a requestor files a lawsuit 
seeking to compel the disclosure of business information, the Board 
shall promptly notify the submitter.
    (j) Corresponding notice to requestors. When the Board provides a 
submitter with either notice and an opportunity to object to disclosure 
under paragraph (d) of this section or with its intent to disclose 
requested information under paragraph (g) of this section, the Board 
also shall notify the requestor(s). When a submitter files a lawsuit 
seeking to prevent the disclosure of business information, the Board 
shall notify the requestor(s).


Sec.  201.14  Appeals.

    (a)(1) Appeals of adverse determinations. If you are dissatisfied 
with the Board's response to your request, you may appeal to the 
Board's Executive Director:
    (i) By mail to: Recovery Accountability and Transparency Board, 
1717 Pennsylvania Avenue, NW., Suite 700, Washington, DC 20006;
    (ii) By e-mail to: [email protected]; or
    (iii) By fax to: 202-254-7970.
    (2) The appeal must be in writing and must be received within 30 
days of the date of the Board's response. The appeal letter, e-mail or 
fax may include as much or as little related information as you wish, 
as long as it clearly identifies the Board determination that you are 
appealing, including the assigned request number, if known. For prompt 
handling, please mark your appeal ``Freedom of Information Act 
Appeal.''
    (b) Responses to appeals. Requestors shall be notified in writing 
of the decision on the appeal. A decision affirming an adverse 
determination shall include a statement of the reason(s) for the 
affirmation, including any FOIA exemption(s) applied, and shall include 
the FOIA provisions for court review of the decision. If the adverse 
determination is reversed or modified on appeal, the request shall be 
reprocessed in accordance with that appeal decision.
    (d) Denial of appeal. An adverse determination by the Executive 
Director shall be the final action of the Board.


Sec.  201.15  Preservation of records.

    The Board shall preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code of the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit.


Sec.  201.16  Other rights and services.

    Nothing in this part shall be construed to entitle any person, as a 
right, to any service or to the disclosure of any record to which such 
person is entitled under the FOIA.


Sec.  201.17  How to track a FOIA request.

    (a) Tracking number. The Board will issue a tracking number to all 
FOIA requesters within 5 days of the receipt of the request (as 
described in Sec.  201.7(b)). The tracking number will be sent via 
electronic mail if the requester has provided an electronic mail 
address.

[[Page 60137]]

Otherwise, the Board will mail the tracking number to the requester's 
physical address, as provided in the FOIA request.
    (b) Status of request. FOIA requesters may check the status of 
their FOIA request(s) by contacting the FOIA Officer at [email protected] 
or (202) 254-7900.

Ivan J. Flores,
Paralegal Specialist, Recovery Accountability and Transparency Board.
[FR Doc. E9-27877 Filed 11-19-09; 8:45 am]
BILLING CODE 6820-GA-P