[Federal Register Volume 78, Number 94 (Wednesday, May 15, 2013)]
[Proposed Rules]
[Pages 28532-28540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11333]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 78, No. 94 / Wednesday, May 15, 2013 / 
Proposed Rules  

[[Page 28532]]



PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

6 CFR Chapter X

[PCLOB; Docket No. 2013-0005; Sequence 1]
RIN 0311-AA01


Freedom of Information, Privacy Act, and Government in the 
Sunshine Act Procedures

AGENCY: Privacy and Civil Liberties Oversight Board.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Privacy and Civil Liberties Oversight Board is proposing 
regulations to implement the Freedom of Information Act, the Privacy 
Act of 1974, and the Government in the Sunshine Act. This proposed 
rulemaking describes the procedures for members of the public to 
request access to records. In addition, this notice also proposes 
procedures for the Board's responses to these requests, including the 
timeframe for response and applicable fees.

DATES: You must submit comments on or before July 15, 2013.

ADDRESSES: You may submit comments, identified by the docket number in 
the heading of this document, by the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Written comments may be submitted by mail to: 
Privacy and Civil Liberties Oversight Board, c/o General Services 
Administration, Agency Liaison Division, ATTN: M. Conrad, 849C, 1275 
First Street NE., Washington, DC 20417.
    To ensure proper handling, please include the docket number on your 
correspondence. See SUPPLEMENTARY INFORMATION for further information 
about submitting comments.

FOR FURTHER INFORMATION CONTACT: Susan Reingold, Chief Administrative 
Officer, Privacy and Civil Liberties Oversight Board, at 202-331-1986 
or [email protected].

SUPPLEMENTARY INFORMATION: Please note that all comments received are 
considered part of the public record and made available for public 
inspection online at http://www.regulations.gov. Information made 
available to the public includes personally identifying information 
(such as your name, address, etc.) voluntarily submitted by the 
commenter. Additional information about the handling of personally 
identifiable information submitted for the public record is available 
in the system of records notice for the federal dockets management 
system, EPA-GOVT-2, published in the Federal Register at 70 FR 15086 
(March 24, 2005).

I. Background

    The Privacy and Civil Liberties Oversight Board (Board) was created 
as an independent agency within the executive branch by the 
Implementing Recommendations of the 9/11 Commission Act of 2007, Public 
Law 110-53. It has two primary purposes: (1) To analyze and review 
actions the executive branch takes to protect the United States from 
terrorism, ensuring that the need for such actions is balanced with the 
need to protect privacy and civil liberties; and (2) to ensure that 
liberty concerns are appropriately considered in the development and 
implementation of laws, regulations, and policies related to efforts to 
protect the United States against terrorism.
    This rulemaking action would implement the Board's procedures 
required under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as 
amended; the Privacy Act of 1974 (Privacy Act), 5 U.S.C. 552a, as 
amended; and the Government in the Sunshine Act (Sunshine Act), 5 
U.S.C. 552b, as amended. The FOIA requires agencies to implement 
procedures for public access to records. This proposed rulemaking 
describes the procedures for members of the public to request access to 
records. In addition, this notice also proposes procedures for the 
Board's responses to these requests, including the timeframe for 
response and applicable fees.
    The Privacy Act imposes requirements on agencies that maintain 
systems of records pertaining to individuals. These requirements 
include procedures for an individual to request access to or amendment 
of information about him or herself maintained in a system of records. 
This proposed rulemaking describes the Board's procedures for providing 
individuals access to their records or to request amendment of those 
records, including the timeframes for response and any applicable fees.
    The Sunshine Act requires public meetings for the deliberations of 
federal agencies headed by collegial bodies comprised of members a 
majority of whom are appointed by the President with the advice and 
consent of the Senate. Agencies subject to the Sunshine Act must 
publish procedures for such public meetings. As an agency headed by a 
Board comprised entirely of individuals appointed by the President with 
the advice and consent of the Senate, the Board is subject to the 
Sunshine Act and must publish a rulemaking to implement its public 
meeting procedures, including procedures to close meetings when 
permitted by the Sunshine Act.
    Most of the proposed regulatory provisions contained in this notice 
of proposed rulemaking are drawn directly from requirements specified 
in the FOIA, Privacy Act, and Sunshine Act. In addition, the Board 
modeled its proposed procedures on those already adopted by other 
federal agencies to incorporate for its own use those practices that 
seem to represent ``best practices'' for FOIA, Privacy Act, and 
Sunshine Act administration.

II. Regulatory Analysis and Notices

Executive Order 12866

    This proposal is not a ``significant regulatory action'' within the 
meaning of Executive Order 12866. The economic impact of these 
regulations should be minimal, therefore, further economic evaluation 
is not necessary.

Regulatory Flexibility Act, as Amended

    The Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Act of 1996 (5 U.S.C. 601 et seq.), generally 
requires an agency to prepare a regulatory flexibility analysis for any 
rule subject to notice and comment rulemaking under the Administrative 
Procedure Act or any other statute, unless the agency certifies

[[Page 28533]]

that the rule will not have a significant economic impact on a number 
of small entities. Small entities include small businesses, small 
organizations, and small government jurisdictions. The Board considered 
the effects on this proposed rulemaking on small entities and certifies 
that these proposed rules will not have a significant impact on a 
substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, 
requires each agency to assess the effects of its regulatory actions on 
state, local, and tribal governments, and the private sector. Agencies 
must prepare a written statement of economic and regulatory 
alternatives anytime a proposed or final rule imposes a new or 
additional enforceable duty on any state, local, or tribal government 
or the private sector that causes those entities to spend, in 
aggregate, $100 million or more (adjusted for inflation) in any one 
year (defined in UMRA as a ``federal mandate''). The Board determined 
that such a written statement is not required in connection with these 
proposed rules because they will not impose a federal mandate, as 
defined in UMRA.

National Environmental Policy Act

    The Board analyzed this action for purposes of the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and 
determined that it would not significantly affect the environment; 
therefore, an environmental impact statement is not required.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et 
seq., federal agencies must obtain approval from the Office of 
Management and Budget for each collection of information they conduct, 
sponsor, or require through regulations. This proposed action does not 
include an information collection for purposes of the PRA.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, dated August 4, 1999, and 
the Board determined that it does not have sufficient implications for 
federalism to warrant the preparation of a Federalism Assessment.

List of Subjects

6 CFR Part 1001

    Administrative practice and procedure; Freedom of Information; 
Confidential Business Information; Privacy.

6 CFR Part 1002

    Administrative practice and procedure; Privacy.

6 CFR Part 1003

    Administrative practice and procedure; Public availability of 
information; Meetings.

    In consideration of the foregoing, the Board proposes to amend 
title 6, Code of Federal Regulations, by adding chapter X, consisting 
of parts 1001-1099, to read as follows:

CHAPTER X--PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

PART 1001--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM 
OF INFORMATION ACT

Sec.
1001.1 Purpose and Scope.
1001.2 Definitions.
1001.3 Availability of records.
1001.4 Categories of exemptions.
1001.5 Requests for records.
1001.6 Responsibility for Responding to Requests.
1001.7 Administrative Appeals.
1001.8 Timeframe for Board's response to a FOIA request or 
Administrative Appeal.
1001.9 Business Information.
1001.10 Fees.

    Authority:  5 U.S.C. 552, as amended; Executive Order 12600.


Sec.  1001.1  Purpose and Scope.

    The regulations in this part implement the provisions of the FOIA.


Sec.  1001.2   Definitions.

    The following definitions apply in this part:
    Board means the Privacy and Civil Liberties Oversight Board, 
established by the Implementing Recommendations of the 9/11 Commission 
Act of 2007, Public Law 110-53.
    Chairman means the Chairman of the Board, as appointed by the 
President and confirmed by the Senate under section 801(a) of the 
Implementing Recommendations of the 9/11 Commission Act of 2007, Public 
Law 110-53, or any person to whom the Board has delegated authority for 
the matter concerned.
    Chief FOIA Officer means the Chairman or, in the absence of a 
Chairman, the senior official to whom the Board delegated 
responsibility for efficient and appropriate compliance with the FOIA.
    Commercial use request means a FOIA request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, including pursuit of those 
interests through litigation.
    Confidential business information means trade secrets and 
confidential, privileged, or proprietary business or financial 
information submitted to the Board by a person.
    Direct costs means those expenses the Board actually incurred to 
search for, duplicate, and, in the case of commercial use requesters, 
review documents in response to a FOIA request. Direct costs include, 
but are not limited to, the salary of the employee performing the work 
and costs associated with duplication.
    Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate or 
graduate higher education, an institution of professional education, or 
an institution of vocational education, which operates a program or 
programs of scholarly research.
    FOIA means the Freedom of Information Act, 5 U.S.C. 552, as 
amended.
    FOIA Officer means the individual to whom the Board delegated 
authority to carry out the Board's day-to-day FOIA administration.
    FOIA Public Liaison means the individual designated by the Chairman 
to assist FOIA requesters with concerns about the Board's processing of 
their FOIA request.
    Non-commercial scientific institution means an organization 
operated solely for the purpose of conducting scientific research, the 
results of which are not intended to promote any product or research, 
and not operated on a commercial basis.
    Record means any writing, drawing, map, recording, diskette, DVD, 
CD-ROM, tape, film, photograph, or other documentary material, 
regardless of medium, by which information is preserved, including 
documentary material stored electronically.
    Redact means delete or mark over.
    Representative of the news media means any person or entity that 
gathers information of potential public interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience.
    Submitter means any person or entity from whom the Board obtains 
confidential business information, directly or indirectly.
    Unusual circumstances means, to the extent reasonably necessary for 
the proper processing of a FOIA request:

[[Page 28534]]

    (1) The need to search for and collect the requested records from 
physically separate facilities;
    (2) The need to search for, collect and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (3) The need for consultation with another agency having a 
substantial interest in the determination of the request.


Sec.  1001.3  Availability of Records.

    (a) In accordance with 5 U.S.C. 552(a)(1), the Board publishes the 
following records in the Federal Register and makes an index of the 
records publicly available:
    (1) Descriptions of the Board's organization and the established 
places at which, the employees from whom, and the methods by which, the 
public may obtain information, submit documents, or obtain decisions;
    (2) Statements of the general course and method by which the 
Board's functions are channeled and determined, including the nature 
and requirements of all formal and informal procedures available;
    (3) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations;
    (4) Substantive rules of general applicability adopted as 
authorized by law and statements of general policy or interpretations 
of general applicability formulated and adopted by the Board; and
    (5) Each amendment, revision, or repeal of any material listed in 
paragraphs (a)(1) through (4) of this section.
    (b) In accordance with 5 U.S.C. 552(a)(2), the Board shall make the 
following materials available for public inspection and copying:
    (1) Statements of policy and interpretation that have been adopted 
by the Board and not published in the Federal Register;
    (2) Administrative staff manuals and instructions to staff that 
affect a member of the public;
    (3) Copies of all records, regardless of the form or format, which 
have been released to any person under paragraph (c) of this section 
and that, because of their nature or subject matter, the Board 
determines have become or are likely to become the subject of 
subsequent requests for substantially the same records; and
    (4) A general index of the records referred to in paragraph (b)(3) 
of this section.
    (c) In accordance with 5 U.S.C. 552(a)(3), the Board shall make 
available, upon proper request, as described in section 5 of this part, 
all non-exempt Board records, or portions of records, not previously 
made public under paragraphs (a) and (b) of this section.
    (d) The FOIA applies only to Board records in existence at the time 
of the request; the FOIA does not require that the Board create new 
records in order to respond to FOIA requests.


Sec.  1001.4  Categories of exemptions.

    (a) The FOIA does not require disclosure of matters that are:
    (1) Specifically authorized under 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 under executive 
order;
    (2) Related solely to the internal personnel rules and practices of 
the Board;
    (3) Specifically exempted from disclosure by statute (other than 
the Government in the Sunshine Act, 5 U.S.C. 552b, as amended), 
provided that such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, establishes particular 
criteria for withholding, or refers to particular types of matters to 
be withheld; and
    (ii) If enacted after October 28, 2009, specifically cites to 
Exemption 3 of the FOIA, 5 U.S.C. 552(b)(3);
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memoranda or letters that would be 
available at law to a party in litigation with the Board;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or impartial 
adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a state, local, or foreign agency or 
authority or any private institution that furnished information on a 
confidential basis, and, in the case of a record or information 
compiled by a criminal investigation, or by an agency conducting a 
lawful national security intelligence investigation, information 
furnished by a confidential source;
    (v) 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
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (8) 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; or
    (9) Geological and geophysical information and data, including 
maps, concerning wells.
    (b) [Reserved]


Sec.  1001.5  Request for records.

    (a) You may request copies of records under this part in writing 
addressed to FOIA Officer, Privacy and Civil Liberties Oversight Board, 
c/o General Services Administration, Agency Liaison Division, 1275 
First Street NE., ATTN: 849C, Washington, DC 20417.
    (b) Your request shall reasonably describe the records sought with 
sufficient specificity regarding names, dates, and subject matter to 
permit the FOIA Officer to locate the records. If the FOIA Officer 
cannot locate responsive records based on your written description, you 
will be notified and advised that further identifying information is 
necessary before the request can be fulfilled.
    (c) Your request should specify your preferred form or format 
(including electronic formats) for the records you seek. We will 
accommodate your request if the record is readily available in that 
form or format. When you do not specify the form or format of the 
response, we will provide responsive records in the form or format most 
accessible to us.
    (d) The Board interprets your FOIA request as your agreement to pay 
up to $25 in fees chargeable under Sec.  1001.10 to fulfill your 
request, unless you specify a different amount or request a fee waiver, 
as further described in Sec.  1001.10.


Sec.  1001.6  Responsibility for responding to requests.

    (a) In general. The Board delegates authority to grant or deny FOIA 
requests in whole or in part to the FOIA Officer. When conducting a 
search for

[[Page 28535]]

responsive records, the FOIA Officer generally will search for records 
in existence on the date of the search. If another date is used, the 
FOIA Officer shall inform the requester of the date used.
    (b) Responses. The FOIA Officer will notify you of his or her 
determination to grant or deny your FOIA request in the time frame 
stated in Sec.  1001.8. For any adverse determination, including those 
regarding any disputed fee matter; a denial of a request for a fee 
waiver; or a determination to withhold a record, in whole or in part, 
that a record does not exist or cannot be located, or to deny a request 
for expedited processing, the notice shall include the following 
information:
    (1) The name(s) of any person responsible for the determination to 
deny the request in whole or in part;
    (2) A brief description of the reason(s) for the denial, including 
reference to any applicable FOIA exemptions;
    (3) An estimate of the volume of information withheld, if 
applicable. This estimate does not need to be provided if it is 
ascertainable based on redactions in partially disclosed records or if 
the disclosure of the estimate would harm an interest protected by an 
applicable FOIA exemption; and
    (4) A statement that the adverse determination may be appealed and 
a description of the requirements for an appeal under Sec.  1001.7.
    (c) Consultations and referrals.
    (1) Upon receipt of a FOIA request for a record within the Board's 
possession, the FOIA Officer shall determine whether the Board or 
another federal agency is best able to determine whether the records 
are exempt from disclosure under the FOIA and, if so, whether the 
records should be released as a matter of administrative discretion. If 
the FOIA Officer determines that another agency is better able to 
evaluate the releasibility of the record, the FOIA Officer shall:
    (i) Respond to the FOIA requester after consulting with any other 
federal agency that has an interest in the record; or
    (ii) Refer the responsibility for responding to the request to the 
department or agency best able to determine whether to disclose it (but 
only if that other department or agency is subject to FOIA). 
Ordinarily, the department or agency that originated the record will be 
presumed best able to determine whether to disclose it.
    (2) Whenever a request is made for information that has been 
classified or may be appropriate for classification by another agency, 
the FOIA Officer shall refer the responsibility for responding to that 
portion of your request to the agency that classified the information, 
should consider the information for classification, or has the primary 
interest in it, as appropriate. Whenever a record contains information 
that the Board has derivatively classified because it contains 
information classified by another agency, the FOIA Officer shall refer 
the responsibility for responding to the request regarding that 
information to the agency that classified the underlying information.
    (3) If responsibility for responding to a request is referred to 
another department or agency, the FOIA Officer shall notify you of the 
referral. This notice shall identify the part of the request that has 
been referred and the name of each department or agency to which the 
request, or part of the request, has been referred.


Sec.  1001.7  Administrative appeals.

    (a) You may appeal an adverse determination related to your FOIA 
request, or the Board's failure to respond to your FOIA request within 
the prescribed time limits, to the Chief FOIA Officer, Privacy and 
Civil Liberties Oversight Board, c/o General Services Administration, 
Agency Liaison Division, 1275 First Street NE., ATTN: 849C, Washington, 
DC 20417.
    (b) Your appeal must be in writing and received by the Chief FOIA 
Officer within 60 days of the date of the letter denying your request, 
in whole or in part, or, in the case of the Board's failure to respond 
within the statutory time frame, of the date by which the Board should 
have responded to your request.
    (c) For the quickest possible handling, your appeal letter and 
envelope should be marked ``Freedom of Information Act appeal.''
    (d) Your appeal letter should state facts and cite legal or other 
authorities in support of your request.
    (e) The Chief FOIA Officer shall respond to all administrative 
appeals in writing and within the time frame stated in section 
1001.8(d). If the decision affirms, in whole or in part, the FOIA 
Officer's determination, the letter shall contain a statement of the 
reasons for the affirmance, including any FOIA exemption(s) applied, 
and will inform you of the FOIA's provisions for court review. If the 
Chief FOIA Officer reverses or modifies the FOIA Officer's 
determination, in whole or in part, you will be notified in writing and 
your request will be reprocessed in accordance with that decision.


Sec.  1001.8  Time frame for Board response.

    (a) In general. The Board ordinarily shall respond to requests 
according to their order of receipt.
    (b) Multi-track processing. The Board may use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work or time needed to process the 
request.
    (c) Initial decisions. The Board shall determine whether to comply 
with a FOIA request within 20 working days after our receipt of the 
request, unless the time frame for response is extended due to unusual 
circumstances as further described in paragraph (f) of this section. A 
request is received by the Board, for purposes of commencing the 20-day 
timeframe for its response, on the day it is received by the FOIA 
Officer or, in any event, not later than ten days after the request is 
first received by any Board office.
    (d) Administrative Appeals. The Chief FOIA Officer shall determine 
whether to affirm or overturn a decision subject to administrative 
appeal within 20 working days after receipt of the appeal, unless the 
time frame for response is extended in accordance with paragraph (e) of 
this section.
    (e) Tolling timelines. We may toll the 20-day timeframe set forth 
in paragraphs (c) or (d) of this section:
    (1) One time to await information that we reasonably requested from 
you, as permitted by 5 U.S.C. 552(a)(6)(A)(iii)(I);
    (2) As necessary to clarify with you issues regarding the fee 
assessment.
    (3) If we toll the time frame for response under paragraphs (e)(1) 
or (2) of this section, the tolling period ends upon our receipt of 
your response.
    (f) In the event of unusual circumstances, we may extend the time 
frame for response provided in paragraphs (c) or (d) of this section by 
providing you with written notice of the unusual circumstances and the 
date on which a determination is expected to be made. Where the 
extension is for more than ten working days, we will provide you with 
an opportunity either to modify your request so that it may be 
processed within the statutorily-prescribed time limits or to arrange 
an alternative time period for processing your request or modified 
request.
    (d) Expedited processing. You may request that the Board expedite 
processing of your FOIA request. To receive expedited processing, you 
must demonstrate a compelling need for such processing.
    (1) For requests for expedited processing, a ``compelling need'' 
involves:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or

[[Page 28536]]

    (ii) A request made by a person primarily engaged in disseminating 
information, with a time urgency to inform the public of actual or 
alleged federal government activity.
    (2) Your request for expedited processing must be in writing and 
may be made at the time of the initial FOIA request or at any later 
time.
    (3) Your request for expedited processing must include a statement, 
certified to be true and correct to the best of your knowledge and 
belief, explaining in detail the basis for requesting expedited 
processing. If you are a person primarily engaged in disseminating 
information, you must establish a particular urgency to inform the 
public about the federal government activity involved in the request, 
beyond the public's right to know about government activity generally.
    (4) The FOIA Officer will decide whether to grant or deny your 
request for expedited processing within ten calendar days of receipt. 
You will be notified in writing of the determination. Appeals of 
adverse decisions regarding expedited processing shall be processed 
expeditiously.


Sec.  1001.9  Business information.

    (a) Designation of Confidential Business Information. If you submit 
business information, you must use a good-faith effort to designate, by 
use of appropriate markings, at the time of submission or at a 
reasonable time thereafter, any portions of your submission that you 
consider to be exempt from disclosure under FOIA Exemption 4, 5 U.S.C. 
552(b)(4). Your designation will expire ten years after the date of 
submission unless you request, and provide justification for, a longer 
designation period.
    (b) Notice to submitters. Whenever you designate confidential 
business information as provided in paragraph (a) of this section, or 
the Board has reason to believe that your submission may contain 
confidential business information, we will provide you with prompt 
written notice of a FOIA request that seeks your business information. 
The notice shall:
    (1) Give you an opportunity to object to disclosure of your 
information, in whole or in part;
    (2) Describe the business information requested or include copies 
of the requested records or record portions containing the information; 
and
    (3) Inform you of the time frame in which you must respond to the 
notice.
    (c) Opportunity to object to disclosure. The Board shall allow you 
a reasonable time to respond to the notice described in paragraph (b) 
of this section. If you object to the disclosure of your information, 
in whole or in part, you must provide us with a detailed written 
statement of your objection. The statement must specify all grounds for 
withholding any portion of the information under any FOIA exemption 
and, when relying on FOIA Exemption 4, it must explain why the 
information is a trade secret or commercial or financial information 
that is privileged and confidential. If you fail to respond within the 
time frame specified in the notice, the Board will conclude that you 
have no objection to disclosure of your information. The Board will 
only consider information that we receive within the time frame 
specified in the notice.
    (d) Notice of intent to disclose. The Board will consider your 
objection and specific grounds for non-disclosure in deciding whether 
to disclose business information. Whenever the Board decides to 
disclose business information over your objection, we will provide you 
with written notice that includes:
    (1) A statement of the reasons why each of your bases for 
withholding were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
after the notice.
    (e) Exceptions to the notice requirement. The notice requirements 
of paragraphs (c) and (d) of this section shall not apply if:
    (1) The Board determines that the information shall not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than the FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600;
    (4) The designation made by the submitter under paragraph (a) of 
this section appears obviously frivolous, except that, in such a case, 
the Board shall, within a reasonable time prior to the date the 
disclosure will be made, give the submitter written notice of the final 
decision to disclose the information.
    (f) Notice to requesters. Whenever we provide a submitter with the 
notice described in paragraph (b) of this section, we also will provide 
notice to the requester that notice and opportunity to object to the 
disclosure are being provided to the submitter.


Sec.  1001.10  Fees.

    (a) We will charge fees that recoup the full allowable direct costs 
we incur in processing your FOIA request. We will use the most 
efficient and least costly methods to comply with your request.
    (b) With regard to manual searches for records, we will charge the 
salary rate(s) (calculated as the basic rate of pay plus 16 percent of 
that basic rate to cover benefits) of the employee(s) performing the 
search.
    (c) In calculating charges for computer searches for records, we 
will charge at the actual direct cost of providing the service, 
including the cost of operating the central processing unit directly 
attributable to searching for records potentially responsive to your 
FOIA request and the portion of the salary of the operators/programmers 
performing the search.
    (d) We may only charge requesters seeking documents for commercial 
use for time spent reviewing records to determine whether they are 
exempt from mandatory disclosure. Charges may be assessed only for the 
initial review--that is the review undertaken the first time we analyze 
the applicability of a specific exemption to a particular record or 
portion of a record. Records or portions of records withheld in full 
under an exemption that is subsequently determined not to apply may be 
reviewed again to determine the applicability of other exemptions not 
previously considered. We may assess the costs for such subsequent 
review.
    (e) Records will be duplicated at a rate of $.10 per page, except 
that the Board may adjust this rate from time to time by notice 
published in the Federal Register. For copies prepared by computer, 
such as tapes, CDs, DVDs, or printouts, we will charge the actual cost, 
including operator time, of production. For other methods of 
reproduction or duplication, we will charge the actual direct costs of 
producing the document(s). If we estimate that duplication charges are 
likely to exceed $25, we will notify you of the estimated amount of 
fees, unless you indicated in advance your willingness to pay fees as 
high as those anticipated. Our notice will offer you an opportunity to 
confer with Board personnel to reformulate the request to meet your 
needs at a lower cost.
    (f) We will charge you the full costs of providing you with the 
following services:
    (1) Certifying that records are true copies; or
    (2) Sending records by special methods such as express mail.
    (g) We may assess interest charges on an unpaid bill starting on 
the 31st calendar day following the day on which the billing was sent. 
Interest shall

[[Page 28537]]

be at the rate prescribed in section 3717 of title 31 of the United 
States Code and will accrue from the date of the billing.
    (h) We will not charge a search fee for requests by educational 
institutions, non-commercial scientific institutions, or 
representatives of the news media.
    (i) Except for a commercial use request, we will not charge you for 
the first 100 pages of duplication and the first two hours of search.
    (j) You may not file multiple requests, each seeking portions of a 
document or documents, solely in order to avoid payment of fees. When 
the Board reasonably believes that a requester, or a group of 
requesters acting in concert, has submitted requests that constitute a 
single request involving clearly related matters, we may aggregate 
those requests and charge accordingly.
    (k) We may not require you to make payment before we begin work to 
satisfy the request or to continue work on a request, unless:
    (1) We estimate or determine that the allowable charges that you 
may be required to pay are likely to exceed $250; or
    (2) You have previously failed to pay a fee charged within 30 days 
of the date of billing.
    (l) Upon written request, we may waive or reduce fees that are 
otherwise chargeable under this part. If you request a waiver or 
reduction in fees, you must demonstrate that a waiver or reduction in 
fees is in the public interest because disclosure of the requested 
records is likely to contribute significantly to the public 
understanding of the operations or activities of the government and is 
not primarily in your commercial interest.

PART 1002--IMPLEMENTATION OF THE PRIVACY ACT OF 1974

Sec.
1002.1 Purpose.
1002.2 Definitions.
1002.3 Privacy Act requests.
1002.4 Responses to Privacy Act requests.
1002.5 Administrative appeals.
1002.6 Fees.
1002.7 Penalties.

    Authority:  5 U.S.C. 552a.


Sec.  1002.1  Purpose and scope.

    The regulations in this part implement the provisions of the 
Privacy Act.


Sec.  1002.2  Definitions.

    The following terms used in this part are defined in the Privacy 
Act: individual, maintain, record, system of records, statistical 
record, and routine use. The following definitions also apply in this 
part:
    Board means the Privacy and Civil Liberties Oversight Board, 
established by the Implementing Recommendations of the 9/11 Commission 
Act of 2007, Public Law 110-53.
    Chairman means the Chairman of the Board, as appointed by the 
President and confirmed by the Senate under section 801(a) of the 
Implementing Recommendations of the 9/11 Commission Act of 2007, Public 
Law 110-53, or any person to whom the Board has delegated authority in 
the matter concerned.
    General Counsel means the Board's principal legal advisor, or his 
or her designee.
    Privacy Act means the Privacy Act of 1974, 5 U.S.C. 552a, as 
amended.
    Privacy Act Officer means the person designated by the Chairman to 
be responsible for the day-to-day administration of the Privacy Act.


Sec.  1002.3  Privacy Act requests.

    (a) Requests to determine if you are the subject of a record. You 
may request that the Board inform you if we maintain a system of 
records that contains records about you. Your request must follow the 
procedures described in paragraph (b) of this section.
    (b) Requests for access. You may request access to a Board record 
about you in writing or by appearing in person. You should direct your 
request to the Privacy Act Officer. Written requests may be sent to: 
Privacy Act Officer, Privacy and Civil Liberties Oversight Board, c/o 
General Services Administration, Agency Liaison Division, 1275 First 
Street NE., ATTN: 849C, Washington, DC 20417. Your request should 
include the following information:
    (1) Your name, address, and telephone number;
    (2) The system(s) of records in which the requested information is 
contained; and
    (3) At your option, authorization for copying expenses.
    (4) Written requests. In addition to the information described in 
subsection (b)(1)-(3), written requests must include a statement 
affirming your identity, signed by you and witnessed by two persons 
(including witnesses' addresses) or notarized.
    (i) Witnessed. If your statement is witnessed, it must include a 
sentence above the witnesses' signatures attesting that they personally 
know you or that you have provided satisfactory proof of your identity.
    (ii) Notarized. If your statement is notarized, you must provide 
the notary with adequate proof of your identity in the form of a 
drivers' license, passport, or other identification acceptable to the 
notary.
    (iii) The Board, in its discretion, may require additional proof of 
identification depending on the nature and sensitivity of the records 
in the system of records.
    (iv) For the quickest possible handling, your letter and envelope 
should be marked ``Privacy Act Request''.
    (5) In person requests. In addition to the information described in 
paragraphs (b)(1)-(3) of this section, if you make your request in 
person, you must provide adequate proof of identification at the time 
of your request. Adequate proof of identification includes a valid 
drivers' license, valid passport, or other current identification that 
includes your address and photograph.
    (c) Requests for amendment or correction of records. You may 
request an amendment to or correction of a record about you in person 
or by writing to the Privacy Act Officer following the procedures 
described in paragraph (b) of this section. Your request for amendment 
or correction should identify each particular record at issue, state 
the amendment or correction sought, and describe why the record is not 
accurate, relevant, timely, or complete.
    (d) Requests for an accounting of disclosures. Except for those 
disclosures for which the Privacy Act does not require an accounting, 
you may request an accounting of any disclosure by the Board of a 
record about you. Your request for an accounting of disclosures must be 
made in writing following the procedures described in subsection (b) of 
this section.
    (e) Requests for access on behalf of someone else.
    (1) If you are making a request on behalf of someone else, your 
request must include a statement from that individual verifying his or 
her identity, as provided in paragraph (b)(4) of this section. Your 
request also must include a statement certifying that individual's 
agreement that records about him or her may be released to you.
    (2) If you are the parent or guardian of the individual to whom the 
requested record pertains, or the individual to whom the record 
pertains has been deemed incompetent by a court, your request for 
access to records about that individual must include:
    (i) The identity of the individual who is the subject of the 
record, including his or her name, current address, and date and place 
of birth;
    (ii) Verification of your identity in accordance with paragraph 
(b)(4) of this section;

[[Page 28538]]

    (iii) Verification that you are the subject's parent or guardian, 
which may be established by a copy of the subject's birth certificate 
identifying you as his or her parent, or a court order establishing you 
as guardian; and
    (iv) A statement certifying that you are making the request on the 
subject's behalf.


Sec.  1002.4  Responses to Privacy Act requests.

    (a) Acknowledgement. The Privacy Act Officer shall provide you with 
a written acknowledgment of your written request under section 3 within 
ten business days of our receipt of your request.
    (b) Grants of requests. If you make your request in person, the 
Privacy Act Officer shall respond to your request directly, either by 
granting you access to the requested records, upon payment of any 
applicable fee and with a written record of the grant of your request 
and receipt of the records, or by informing you when a response may be 
expected. If you are accompanied by another person, you must authorize 
in writing any discussion of the records in the presence of the third 
person. If your request is in writing, the Privacy Act Officer shall 
provide you with written notice of the Board's decision to grant your 
request and the amount of any applicable fee. The Privacy Act Officer 
shall disclose the records to you promptly, upon payment of any 
applicable fee.
    (c) Denials of requests in whole or in part. The Privacy Act 
Officer shall notify you in writing of his or her determination to 
deny, in whole or in part, your request. This writing shall include the 
following information:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reason for the denial(s), including 
any applicable Privacy Act exemption;
    (3) A statement that you may appeal the denial and a brief 
description of the requirements for appeal under Sec.  1002.5.
    (d) Request for records not covered by the Privacy Act or subject 
to Privacy Act exemption. If the Privacy Act Officer determines that a 
requested record is not subject to the Privacy Act or the records are 
subject to Privacy Act exemption, your request will be processed in 
accordance with the Board's Freedom of Information Act procedures at 6 
CFR Part 1001.


Sec.  1002.5  Administrative Appeals.

    (a) Appeal procedures.
    (1) You may appeal any decision by the Board to deny, in whole or 
in part, your request under Sec.  1002.3 no later than 60 days after 
the decision is rendered.
    (2) Your appeal must be in writing, sent to the General Counsel at 
the address specified in Sec.  1002.3(b) and contain the following 
information:
    (i) Your name;
    (ii) Description of the record(s) at issue;
    (iii) The system of records in which the record(s) is contained;
    (iv) A statement of why your request should be granted.
    (3) The General Counsel shall determine whether to uphold or 
reverse the initial determination within 30 working days of our receipt 
of your appeal. The General Counsel shall notify you of his or her 
decision, including a brief statement of the reasons for the decision, 
in writing. The General Counsel's decision will be the final action of 
the Board.
    (b) Statement of disagreement. If your appeal of our determination 
related to your request for amendment or correction is denied in whole 
or in part, you may file a Statement of Disagreement that states the 
basis for your disagreement with the denial. Statements of Disagreement 
must be concise and must clearly identify each part of any record that 
is disputed. The Privacy Act Officer will place your Statement of 
Disagreement in the system of records in which the disputed record is 
maintained and shall mark the disputed record to indicate that a 
Statement of Disagreement has been filed and where it may be found.
    (c) Notification of amendment, correction, or disagreement. Within 
30 working days of the amendment or correction of a record, the Privacy 
Act Officer shall notify all persons, organizations, or agencies to 
which the Board previously disclosed the record, if an accounting of 
that disclosure was made, that the record has been corrected or 
amended. If you filed a Statement of Disagreement, the Privacy Act 
Officer shall append a copy of it to the disputed record whenever it is 
disclosed and also may append a concise statement of its reason(s) for 
denying the request to amend or correct the record.


Sec.  1002.6  Fees.

    We will not charge a fee for search or review of records requested 
under this part, or for the correction of records. If you request 
copies of records, we may charge a fee of $.10 per page.


Sec.  1002.7  Penalties.

    Any person who makes a false statement in connection with any 
request for a record or an amendment or correction thereto under this 
part is subject to the penalties prescribed in 18 U.S.C. 494 and 495 
and 5 U.S.C. 552a(i)(3).

PART 1003--IMPLEMENTATION OF THE GOVERNMENT IN THE SUNSHINE ACT

Sec.
1003.1 Purpose and scope.
1003.2 Definitions.
1003.3 Open meetings.
1003.4 Procedures for public announcement of meetings.
1003.5 Changes following public announcement.
1003.6 Grounds on which meetings may be closed or information 
withheld.
1003.7 Procedures for closing meetings or withholding information, 
and requests by affected persons to close a meeting
1003.8 Transcripts, recordings, or minutes of closed meetings.
1003.9 Public availability and retention of transcripts, recordings, 
and minutes, and applicable fees.

    Authority:  5 U.S.C. 552b.


Sec.  1003.1  Purpose and scope.

    (a) The regulations in this part implement the provisions of the 
Sunshine Act.
    (b) Requests for all records other than those described in section 
1003.9 of this part, shall be governed by the Board's Freedom of 
Information Act procedures at 6 CFR Part 1001.


Sec.  1003.2  Definitions.

    The following definitions apply in this part:
    Board means the Privacy and Civil Liberties Oversight Board, 
established by the Implementing Recommendations of the 9/11 Commission 
Act of 2007, Public Law 110-53.
    Chairman means the Chairman of the Board, as appointed by the 
President and confirmed by the Senate under section 801(a) of the 
Implementing Recommendations of the 9/11 Commission Act of 2007, Public 
Law 110-53, or any person to whom the Board delegated authority in the 
matter concerned.
    General Counsel means the Board's principal legal advisor, or his 
or her designee.
    Meeting means the deliberations of three or more Board members that 
determine or result in the joint conduct or disposition of official 
Board business. A meeting does not include:
    (1) Notational voting or similar consideration of business for the 
purpose of recording votes, whether by circulation of material to 
members individually in writing or by a polling of the members 
individually by phone.
    (2) Action by three or more members to:

[[Page 28539]]

    (i) Open or close a meeting or to release or withhold information 
pursuant to section 1003.6 of this part;
    (ii) Set an agenda for a proposed meeting;
    (iii) Call a meeting on less than seven days' notice, as permitted 
by Sec.  1003.4; or
    (iv) Change the subject matter or the determination to open or to 
close a publicly announced meeting under Sec.  1003.7.
    (3) A session attended by three or more members for the purpose of 
having the Board's staff or expert consultants, another federal agency, 
or other persons or organizations brief or otherwise provide 
information to the Board concerning any matters within the purview of 
the Board, provided that the members do not engage in deliberations 
that determine or result in the joint conduct or disposition of 
official business on such matters.
    (4) A gathering of members for the purpose of holding informal, 
preliminary discussions or exchanges of views which do not effectively 
predetermine official action.
    Member means an individual duly appointed and confirmed to the 
Board.
    Public observation means attendance by the public at a meeting of 
the Board, but does not include public participation.
    Public participation means the presentation or discussion of 
information, raising of questions, or other manner of involvement in a 
meeting of the Board by the public in a manner that contributes to the 
disposition of official Board business.
    Sunshine Act means the Government in the Sunshine Act, 5 U.S.C. 
552b.


Sec.  1003.3  Open meetings.

    (a) Except as otherwise provided in this part, every portion of a 
Board meeting shall be open to public observation.
    (b) Board meetings, or portions thereof, shall be open to public 
participation only when an announcement to that effect is published 
under Sec.  1003.4. Public participation shall be conducted in an 
orderly, non-disruptive manner and in accordance with any procedures 
the Chairman may establish. Public participation may be terminated at 
any time for any reason.
    (c) The General Counsel or his or her designee will attend and 
monitor all briefings and informal, preliminary discussions excluded 
from the definition of meeting in section 1003.2 of this part to assure 
that those gatherings do not proceed to the point of becoming meetings.
    (d) The General Counsel or his or her designee will inform members 
if developing discussions at a briefing or gathering should be deferred 
for a meeting conducted pursuant to the Sunshine Act and these 
regulations.


Sec.  1003.4  Procedures for public announcement of meetings.

    (a) Except as otherwise provided in this section, the Board shall 
make a public announcement at least seven days prior to a meeting. The 
public announcement shall include:
    (1) The time and place of the meeting;
    (2) The subject matter of the meeting;
    (3) Whether the meeting is to be open, closed, or portions of a 
meeting will be closed;
    (4) Whether public participation will be allowed;
    (5) The name and telephone number of the person who will respond to 
requests for information about the meeting;
    (b) The seven day prior notice required by section 1003.4(a) may be 
reduced only if:
    (1) A majority of all members determine by recorded vote that Board 
business requires that such meeting be scheduled in less than seven 
days; and
    (2) The public announcement required by this section is made at the 
earliest practicable time.
    (c) If public notice is provided by means other than publication in 
the Federal Register, notice will be subsequently published in the 
Federal Register.


Sec.  1003.5  Grounds on which meetings may be closed or information 
withheld.

    A meeting, or portion thereof, may be closed and information 
pertinent to such meeting withheld if the Board determines that the 
meeting or release of information is likely to disclose matters that 
are:
    (a) Specifically authorized under criteria established by an 
executive order to be kept secret in the interests of national defense 
or foreign policy; and, in fact, are properly classified pursuant to 
such executive order. In making the determination that this exemption 
applies, the Board shall rely on the classification assigned to the 
document from the federal agency from which the document was received.
    (b) Related solely to the internal personnel rules and practices of 
the Board;
    (c) Specifically exempt from disclosure by statute (other than 5 
U.S.C. 552), provided that such statute:
    (1) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue; or
    (2) Establishes particular 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) Involved with accusing any person of a crime or formally 
censuring any person;
    (f) Of a personal nature, if disclosure would constitute a clearly 
unwarranted invasion of personal privacy;
    (g) Either investigatory records compiled for law enforcement 
purposes or information which, if written, would be contained in such 
records, but only to the extent that the production of records or 
information would:
    (1) Interfere with enforcement proceedings;
    (2) Deprive a person of a right to either a fair trial or an 
impartial adjudication;
    (3) Constitute an unwarranted invasion of personal privacy;
    (4) Disclose the identity of a confidential source or sources and, 
in the case of a record compiled either by a criminal law enforcement 
authority or by an agency conducting a lawful national security 
intelligence investigation, confidential information furnished only by 
the confidential source(s);
    (5) Disclose investigative techniques and procedures; or
    (6) Endanger the life or physical safety of law enforcement 
personnel;
    (h) Contained in or relating 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) If prematurely disclosed, likely to significantly frustrate 
implementation of a proposed action of the Board, except that this 
subsection shall not apply in any instance where the Board has already 
disclosed to the public the content or nature of its proposed action or 
is required by law to make such disclosure on its own initiative prior 
to taking final action on such proposal; and
    (j) specifically concerned with the Board's issuance of a subpoena, 
or its participation in a civil action or proceeding, an action in a 
foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the Board of a particular case 
or formal agency adjudication pursuant to the procedures in 5 U.S.C. 
554 or otherwise involving a determination on the record after 
opportunity for a hearing.

[[Page 28540]]

Sec.  1003.6  Procedures for closing meetings or withholding 
information, and requests by affected persons to close a meeting.

    (a) A meeting or portion of a meeting may be closed and information 
pertaining to a meeting withheld under Sec.  1003.5 only by vote of a 
majority of members.
    (b) A separate vote of the members shall be taken with respect to 
each meeting or portion of a meeting proposed to be closed and with 
respect to information which is proposed to be withheld. A single vote 
may be taken with respect to a series of meetings or portions of a 
meeting that are proposed to be closed, so long as each meeting or 
portion thereof in the series involves the same particular matter and 
is scheduled to be held no more than 30 days after the initial meeting 
in the series. The vote of each member shall be recorded and no proxies 
shall be allowed.
    (c) A person whose interests may be directly affected by a portion 
of a meeting may request in writing that the Board close that portion 
for any of the reasons referred to in Sec.  1003.5(e), (f), and (g). 
Upon the request of a member, a recorded vote shall be taken whether to 
close such meeting or portion thereof.
    (d) For every meeting closed, the General Counsel shall publicly 
certify that, in his or her opinion, the meeting may be closed to the 
public and shall state each relevant basis for closing the meeting. If 
the General Counsel invokes the bases set forth in Sec.  1003.5(a) or 
(c), he/she shall rely upon the classification or designation assigned 
to the information by the originating agency. A copy of such 
certification, together with a statement by the presiding officer 
setting forth the time and place of the meeting and the persons 
present, shall be retained by the Board as part of the transcript, 
recording, or minutes required by Sec.  1003.8.


Sec.  1003.7  Changes following public announcement.

    (a) The time or place of a meeting may be changed following the 
public announcement described in section 1003.4 only if the Board 
publicly announces such change at the earliest practicable time. 
Members need not approve such change.
    (b) The subject matter of a meeting or the determination of the 
Board to open or close a meeting, or a portion thereof, to the public 
may be changed following public announcement if:
    (1) A majority of all members determine by recorded vote that Board 
business so requires and that no earlier announcement of the change was 
possible; and
    (2) The Board publicly announces such change and the vote of each 
member thereon at the earliest practicable time.
    (c) The deletion of any subject matter announced for a meeting is 
not a change requiring the approval of the Board under subsection (b) 
of this section.


Sec.  1003.8  Transcripts, recordings, or minutes of closed meetings.

    Along with the General Counsel's certification and presiding 
officer's statement referred to in Sec.  1003.6(d), the Board shall 
maintain a complete transcript or electronic recording adequate to 
record fully the proceedings of each meeting, or a portion thereof, 
closed to the public. Alternatively, for any meeting closed pursuant to 
Sec.  1003.5(h) or (j), the Board may maintain a set of minutes 
adequate to record fully the proceedings, including a description of 
each of the views expressed on any item and the record of any roll call 
vote.


Sec.  1003.9  Public availability and retention of transcripts, 
recordings, and minutes, and applicable fees.

    (a) The Board shall make available to the public the transcript, 
electronic recording, or minutes of a meeting, except for items of 
discussion or testimony related to matters the Board determines may be 
withheld under Sec.  1003.6.
    (b) Copies of the nonexempt portions of the transcripts or minutes 
shall be provided upon request at the actual costs of the transcription 
or duplication.
    (c) The Board shall maintain meeting transcripts, recordings, or 
minutes of each meeting closed to the public for a period ending at the 
later of two years following the date of the meeting, or one year after 
the conclusion of any Board proceeding with respect to the closed 
meeting.

PARTS 1004-1099 [RESERVED]

    Dated: May 8, 2013.
Claire McKenna,
Legal Counsel.
[FR Doc. 2013-11333 Filed 5-14-13; 8:45 am]
BILLING CODE 6820-B3-P