[Federal Register Volume 80, Number 99 (Friday, May 22, 2015)]
[Rules and Regulations]
[Pages 29539-29550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12459]


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GULF COAST ECOSYSTEM RESTORATION COUNCIL

40 CFR Part 1850

[Docket Number: 105002015-1111-05]


Procedures for Disclosure of Records Under the Freedom of 
Information Act and Privacy Act

AGENCY: Gulf Coast Ecosystem Restoration Council.

ACTION: Final rule.

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SUMMARY: This rule sets forth the Gulf Coast Ecosystem Restoration 
Council's (Council) regulations regarding the Freedom of Information 
Act (FOIA), Privacy Act (PA), and declassification and public 
availability of national security information. The FOIA and PA require 
each agency to promulgate regulations implementing the provisions of 
those laws and this Final Rule fulfills that mandate, facilitating 
public access to Council records.

DATES: This rule becomes effective on June 22, 2015.

ADDRESSES: The Council posted all comments on the proposed FOIA and PA 
regulations on its Web site, http://www.restorethegulf.gov/, without 
change, including any business or personal information provided, such 
as names, addresses, email addresses, or telephone numbers. All 
comments received are part of the public record and subject to public 
disclosure.

FOR FURTHER INFORMATION CONTACT: Jeffrey Roberson at 202-482-1315.

SUPPLEMENTARY INFORMATION:

I. Background

    The RESTORE Act, Public Law 112-141 (July 6, 2012), codified at 33 
U.S.C. 1321(t) and note, makes funds available for the restoration and 
protection of the Gulf Coast Region through a new trust fund in the 
Treasury of the United States, known as the Gulf Coast Restoration 
Trust Fund (Trust Fund). The Trust Fund will contain 80 percent of the 
administrative and civil penalties paid by the responsible parties 
after July 6, 2012, under the Federal Water Pollution Control Act in 
connection with the Deepwater Horizon oil spill. These funds will be 
invested and made available through five components of the RESTORE Act.
    Two of the five components, the Comprehensive Plan and Spill Impact 
Components, are administered by the Council, an independent federal 
entity created by the RESTORE Act. Under the Comprehensive Plan 
Component (33 U.S.C. 1321(t)(2)), 30 percent of funds in the Trust Fund 
(plus interest) are available to develop a Comprehensive Plan to 
restore the ecosystem and the economy of the Gulf Coast Region. Under 
the Spill Impact Component (33 U.S.C. 1321(t)(3)), 30 percent of funds 
in the Trust Fund will be disbursed to the five Gulf Coast States 
(Alabama, Florida, Louisiana, Mississippi, and Texas) or their 
administrative agents based on an allocation formula established by the 
Council by regulation based on criteria in the RESTORE Act.

II. Public Comments and Summary of Changes to Final Rule

    On February 9, 2015, the Council proposed a draft rule implementing 
its obligations to make records available under the Freedom of 
Information Act (FOIA) and Privacy Act (PA). 80 FR 6934. The FOIA 
regulations govern third-party requests for information controlled by 
the Council. The PA regulations govern first-party requests for his or 
her own information. The Council provided a public comment period of 30 
days and received comments from four separate commenters, three 
citizens and one Federal agency. The recommendations contained in the 
four comments are summarized below section by section, along with the 
Council's responses to the recommendations. The Council also posted all 
comments on its Web site, http://www.restorethegulf.gov/, without 
change, including any business or personal information provided, such 
as names, addresses, email addresses, or telephone numbers. All 
comments received are part of the public record and subject to public 
disclosure.

Section-by-Section Analysis

Section 1850.1 Purpose and Scope

    The agency commenter suggested that the Council include language 
clarifying the intersection of FOIA and the PA. The Council accepts 
this comment and the suggested language can be found in the last 
paragraph of section 1850.1.

Section 1850.2 Definitions

    The agency commenter suggested adding three new definitions: FOIA 
public liaison, requester category, and fee waiver. The Council accepts 
this comment and the definitions can be found at new paragraphs 
1850.2(i), (j), and (s).

Section 1850.4 Public Reading Room

    One commenter asked whether documents will be placed online for the 
public to access without request. The Council is committed to making 
documents of interest to the public available online in its public 
reading room on its Web site, http://www.restorethegulf.gov. This 
commitment is documented in section 1850.4 of these regulations. No 
change was made to the regulations in response to this comment.

Section 1850.5 Requirements for Making Requests

    The agency commenter suggested that the Council's wording of 
paragraph 1850.5(b) where the Council describes its process for 
contacting a requester to narrow the scope of a request has a negative 
connotation. The agency commenter suggested alternative text that the 
Council has incorporated into paragraph 1850.5(b).
    The agency commenter also suggested adding two paragraphs to the 
end of section 1850.5 to help explain the interaction of the Council's 
FOIA and PA regulations and the effect on a request for Council records 
pertaining to another individual of submitting proof of death or a 
notarized authorization to access records by that individual. The 
Council accepts this comment and the paragraphs can be found at new 
paragraphs 1850.5(e) and (f).

Section 1850.6 Responding to Records

    The agency commenter suggested consistency edits to paragraph 
1850.6(a) to keep the terminology of simple and complex track 
processing consistent. The Council accepts this comment and the revised 
language can be found in paragraph 1850.6(a).
    The agency commenter recommended that the Council modify paragraph 
1850.6(c)(1) to include a requirement that the Council Records 
Management Officer provide the requester with a unique tracking number, 
an estimated date of completion (once the request is perfected) and a 
fee estimate (when applicable). The agency commenter also suggested 
that the Council include in its acknowledgment to the requester a brief 
description of the subject of the request to aid both the requester and 
the Council in keeping track of multiple

[[Page 29540]]

pending requests. The Council accepts these comments and revised 
language can be found in the final two sentences of paragraph 
1850.6(c)(1).
    The agency commenter recommended that the Council include in the 
list of required elements in a denial letter a description of the 
exemption(s) applied. The Council accepts this comment and the revised 
language can be found at 1850.6(e)(1).
    The agency commenter also recommended adding a new subsection to 
paragraph 1850.6(e) that addresses requirements under the FOIA to 
indicate, if technically feasible, the precise amount of information 
deleted at the place in the record where the deletion was made, and to 
indicate the exemption under which a deletion is made on the released 
portion of the record unless including that information would harm an 
interest protected by the exemption. The Council accepts this comment 
and the new subsection can be found at 1850.6(e)(3).
    One commenter suggested broadening the language of paragraph 
1850.6(h) to provide more leeway to respond to a request electronically 
rather than only by mail. The Council accepts this comment and 
paragraph 1850.6(h) has been modified accordingly.
    The same commenter suggested revising subsection 1850.6(h)(3) to 
clarify that retrieving data from a database or running a report from a 
database is permissible. The Council accepts this comment and 
subsection 1850.6(h)(3) has been modified accordingly.
    One commenter asked whether records will be transferred to another 
agency in the future and how the public will be informed of any such 
transfer. Section 1850.6(f) of these regulations discusses the 
Council's procedures for referring documents to another agency when 
that other agency is the originating agency. Whenever the Council 
refers any part of the responsibility for responding to a request to 
another agency, it will notify the requester of the referral and inform 
the requester of the name of the agency to which the record was 
referred, including that agency's FOIA contact information. No change 
was made to the regulations in response to this comment.

Section 1850.7 Appeals

    One commenter suggested that the Council remove requirements that 
an appellant include in his/her appeal a copy of the original request 
and the initial determination. The commenter suggested that these 
additional requirements are beyond the strict requirements of the 
statute and could create unnecessary burdens on potential appellants, 
including possibly leading to the rejection of an appeal based on the 
failure to include such documentation. The commenter also pointed out 
that this sort of requirement is rare among agencies. In the 
alternative, the commenter suggested that the Council could include 
language encouraging but not requiring the inclusion of such additional 
documentation in an appeal. The Council accepts this comment and has 
revised section 1850.7(c) to remove this requirement; instead the 
Council has included language encouraging submission of the original 
request and initial determination when filing an appeal. The Council is 
also clarifying in section 1850.7(c) that the appellant may submit as 
much or as little information as he/she wishes, so long as the 
determination that is being appealed is clearly identified.
    The agency commenter suggested that the Council amend section 
1850.7 to add language discussing the Office of Government Information 
Services (OGIS) and the services provided by that office. The Council 
accepts this comment and has added a new paragraph (3) to section 
1850.7(f) that contains language recommended by the commenter and the 
Department of Justice's Office of Information Policy. See http://www.justice.gov/oip/blog/foia-post-2010-oip-guidance-notifying-requesters-mediation-services-offered-ogis.

Section 1850.9 Maintenance of Files

    The agency commenter suggested including language explaining how 
long the Council will retain records related to FOIA requests and why. 
The agency commenter also suggested clarifying that material responsive 
to a FOIA request may not be disposed of or destroyed while the request 
or related appeal or lawsuit is pending even if otherwise authorized 
for disposition under an approved records retention schedule. The 
Council accepts this comment and new language was incorporated into 
1850.9.
    One commenter asked whether Council record schedules will be clear 
for the public to understand. While these regulations do not establish 
any record retention schedules, the Council does endeavor to make all 
its regulations and internal processes clear to the public. At this 
time the Council uses the government-wide record retention schedules 
promulgated by the National Archives and Records Administration (http://www.archives.gov/records-mgmt/grs.html). No change was made to the 
regulations in response to this comment.

Section 1850.10 Fees

    One commenter noted that the rate the Council intends to charge as 
a fee when conducting reviews of records includes the actual salary 
rate of the employee involved plus 16 percent to cover benefits and 
wondered whether this was affordable for most U.S. citizens. The review 
fee is only applicable to commercial use requests so most individual 
U.S. citizens would not be subject to the fee. See section 
1850.10(b)(4). Further, the FOIA directs agencies to develop fee 
schedules that reflect direct costs of search, duplication, or review. 
The Council's review fee rate is based on the actual time an employee 
spends reviewing documents potentially responsive to a request. These 
costs include salary and attendant benefits. The Council has calculated 
that 16 percent reasonably represents the benefit costs of its 
employees. No change was made to the regulations in response to this 
comment.
    One commenter asked whether the Council would charge fees if the 
Council does not process the FOIA request in a timely manner. 
Consistent with 5 U.S.C. 552(a)(4)(viii), no search fee will be charged 
to a requester if the Council does not comply with the statutory time 
limits of the FOIA (5 U.S.C. 552(a)(6)) unless unusual or exceptional 
circumstances apply to the processing of the request. Further, no 
duplication fees will be charged to requesters in the fee category of a 
representative of the news media or an educational or noncommercial 
scientific institution when the Council does not comply with the 
statutory time limits of the FOIA (5 U.S.C. 552(a)(6)) unless unusual 
or exceptional circumstances apply to the processing of the request. 
Language related to not charging fees in this these circumstances is 
already included at section 1850.10(b)(5)(vi) and (vii). No change was 
made to the regulations in response to this comment.

Other

    The Council also received one comment that expressed general 
support for the proposed regulations and noted that the regulations 
strike a balance between permitting access to government records and 
protecting potentially national security information. No change was 
made to the regulations in response to this comment.
    In addition to the modifications discussed above, the Council has 
made minor formatting changes and corrected typographical errors in the 
zip code for the Council, the citation for one of the

[[Page 29541]]

authorities under which the Council is issuing this rule, and an 
internal cross-reference in section 1850.6(f).
    After considering public comments, the Council now issues the 
regulations as a final rule. The rule will take effect on June 22, 
2015.

III. Procedural Requirements

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally 
requires agencies to prepare a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute, unless the agency 
certifies that this Interim Final Rule will not have a significant 
economic impact on a substantial number of small entities. The Council 
hereby certifies that this rule will not have a significant economic 
impact on a substantial number of small entities. Under the FOIA, 
agencies may recover only the direct costs of searching for, reviewing, 
and duplicating the records processed for requesters. Thus, the fees 
the Council assesses are typically nominal. Further, the number of 
``small entities'' that make FOIA requests is relatively small compared 
to the number of individuals who make such requests.

B. Paperwork Reduction Act

    This rule does not contain a ``collection of information'' as 
defined by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)).

C. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    As an independent federal entity that is composed of, in part, six 
federal agencies, including the Departments of Agriculture, Army, 
Commerce, and Interior, the Department in which the Coast Guard is 
operating, and the Environmental Protection Agency, the requirements of 
Executive Orders 12866 and 13563 are inapplicable to this rule.

List of Subjects in 40 CFR Part 1850

    Administrative practice and procedure, Freedom of Information, 
Privacy, Public information, Classified information.

    For the reasons set forth in the preamble, the Gulf Coast Ecosystem 
Restoration Council adds part 1850 to 40 CFR chapter VIII, to read as 
follows:

PART 1850--AVAILABILITY OF RECORDS

Sec.
Subpart A--Production or Disclosure Under the Freedom of Information 
Act
1850.1 Purpose and scope.
1850.2 Definitions.
1850.3 General provisions.
1850.4 Public reading room.
1850.5 Requirements for making requests.
1850.6 Responding to requests.
1850.7 Appeals.
1850.8 Authority to determine.
1850.9 Maintenance of files.
1850.10 Fees.
1850.11 Requests for confidential treatment of business information.
1850.12 Requests for access to confidential commercial or financial 
information.
1850.13 Classified information.
Subpart B--Production or Disclosure Under the Privacy Act
1850.31 Purpose and scope.
1850.32 Definitions.
1850.33 Procedures for requests pertaining to individual records in 
a record system.
1850.34 Times, places, and requirements for identification of 
individuals making requests.
1850.35 Disclosure of requested information to individuals.
1850.36 Special procedures: Medical records.
1850.37 Request for correction or amendment to record.
1850.38 Council review of request for correction or amendment to 
record.
1850.39 Appeal of initial adverse agency determination on correction 
or amendment.
1850.40 Disclosure of record to person other than the individual to 
whom it pertains.
1850.41 Fees.
1850.42 Penalties.

    Authority: 33 U.S.C. 1321(t); 5 U.S.C. 552; 5 U.S.C. 552a.

Subpart A--Production or Disclosure Under the Freedom of 
Information Act


Sec.  1850.1  Purpose and scope.

    This subpart contains the regulations of the Gulf Coast Ecosystem 
Restoration Council (Council) implementing the Freedom of Information 
Act (FOIA) (5 U.S.C. 552), as amended. These regulations supplement the 
FOIA, which provides more detail regarding requesters' rights and the 
records the Council may release.
    The regulations of this subpart provide information concerning the 
procedures by which records may be obtained from the Council. Official 
records of the Council made available pursuant to the requirements of 
the FOIA shall be furnished to members of the public only as prescribed 
by this subpart. Information routinely provided to the public as part 
of a regular Council activity (for example, press releases) may be 
provided to the public without following this subpart.
    The FOIA applies to third-party requests for documents concerning 
the general activities of the Government, and of the Council in 
particular. When a U.S. citizen or an individual lawfully admitted for 
permanent residence requests access to his or her own records, he/she 
is making a first-person Privacy Act request, not a FOIA request, 
subject to subpart B of these rules. The Council maintains records 
about individuals under the individual's name or personal identifier. 
Although the Council determines whether a request is a FOIA request or 
a Privacy Act request, the Council processes requests in accordance 
with both laws. This provides the greatest degree of lawful access to 
requesters while safeguarding individuals' personal privacy.


Sec.  1850.2  Definitions.

    (a) Commercial Use Request means a request from or on behalf of one 
who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or the person 
on whose behalf the request is made.
    (b) Confidential Commercial Information means commercial or 
financial information, obtained by the Council from a submitter, that 
may contain information exempt from release under Exemption 4 of FOIA, 
5 U.S.C. 552(b)(4).
    (c) Council means to the Gulf Coast Ecosystem Restoration Council.
    (d) Days, unless stated as ``calendar days,'' are business days and 
do not include Saturday, Sunday, or federal holidays.
    (e) Direct costs means those expenses the Council actually incurs 
in searching for and duplicating (and, in the case of commercial 
requesters, reviewing) documents in response to a request made under 
Sec.  1850.5. Direct costs include, for example, the labor costs of the 
employee performing the work (the basic rate of pay for the employee, 
plus 16 percent of that rate to cover benefits) and the cost of 
operating duplicating machinery. Not included in direct costs are 
overhead expenses such as costs of space and heating or lighting of the 
facility in which the documents are stored.
    (f) Duplication means the making a copy of a document, or other 
information contained in it, necessary to respond to a FOIA request. 
Copies may take the form of paper, microfilm, audio-visual materials, 
or electronic records, among others. The Council shall honor a 
requester's specified preference of form or format of disclosure if the 
record is readily

[[Page 29542]]

reproducible with reasonable efforts in the requested form or format.
    (g) Educational institution means a preschool, a public or private 
elementary or secondary school, or an institution of undergraduate 
higher education, graduate higher education, professional education, or 
an institution of vocational education that operates a program of 
scholarly research.
    (h) Fee category means one of the three categories that agencies 
place requesters in for the purpose of determining whether a requester 
will be charged fees for search, review and duplication. The three fee 
categories are:
    (1) Commercial requesters;
    (2) Non-commercial scientific or educational institutions or news 
media requesters; and
    (3) All other requesters.
    (i) Fee waiver means the waiver or reduction of processing fees if 
a requester can demonstrate that certain statutory standards are 
satisfied, including that the information is in the public interest and 
is not requested for a commercial interest.
    (j) FOIA Public Liaison means an agency official who is responsible 
for assisting in reducing delays, increasing transparency and 
understanding of the status of requests, and assisting in the 
resolution of disputes.
    (k) News means information about current events or that would be of 
current interest to the public.
    (l) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis (as that term is used in this 
section) and which is operated solely for the purpose of conducting 
scientific research, the results of which are not intended to promote 
any particular product or industry.
    (m) Perfected request means a written FOIA request that meets all 
of the criteria set forth in Sec.  1850.5.
    (n) Reading room means a location where records are available for 
review pursuant to 5 U.S.C. 552(a)(2).
    (o) Records under the FOIA include all Government records, 
regardless of format, medium or physical characteristics, and 
electronic records and information, audiotapes, videotapes, Compact 
Disks, DVDs, and photographs.
    (p) Records Management Officer means the person designated by the 
Executive Director of the Council to oversee all aspects of the 
Council's records management program, including FOIA.
    (q) Representative of the news media, or news media requester, 
means any person or entity organized and operated to publish or 
broadcast news to the public that actively gathers information of 
potential interest to a segment of the public, uses its editorial 
skills to turn the raw materials into a distinct work, and distributes 
the work to an audience. Examples of news-media entities are television 
or radio stations broadcasting to the public at large, and publishers 
of periodicals that disseminate ``news'' and make their products 
available through a variety of means to the general public including 
news organizations that disseminate solely on the Internet. To be in 
this category, a requester must not be seeking the requested records 
for a commercial use. A request for records that supports the news-
dissemination function of the requester shall not be considered to be 
for a commercial use. A ``freelance journalist'' shall be regarded as 
working for a news-media entity if the journalist can demonstrate a 
solid basis for expecting publication through that entity, whether or 
not the journalist is actually employed by the entity. A publication 
contract would be the clearest proof, but the Council shall also look 
to the past publication record of a requester in making this 
determination. The Council's decision to grant a requester media status 
will be made on a case-by-case basis based upon the requester's 
intended use of the material.
    (r) Requester means any person, partnership, corporation, 
association, or foreign or State or local government, which has made a 
request to access a Council record under FOIA.
    (s) Requester category means one of the three categories in which 
agencies place requesters to determine whether the agency will charge a 
requester fees for search, review, and duplication. The categories 
include commercial requesters, non-commercial scientific or educational 
institutions or news media requesters, and all other requesters.
    (t) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt 
from disclosure. Review time includes processing any record for 
disclosure, such as doing all that is necessary to prepare the record 
for disclosure, including the process of redacting it and marking any 
applicable exemptions. Review costs are recoverable even if a record 
ultimately is not disclosed. Review time includes time spent obtaining 
and considering any formal objection to disclosure made by a business 
submitter under Sec.  1850.12 but does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (u) Search means the process of looking for and retrieving 
documents or information that is responsive to a request. Search time 
includes page-by-page or line-by-line identification of information 
within documents and also includes reasonable efforts to locate and 
retrieve information from records maintained in electronic form or 
format.
    (v) Submitter means any person or entity from whom the Council 
obtains confidential commercial information, directly or indirectly.
    (w) Unusual circumstances include situations in which the Council 
must:
    (1) Search for and collect the requested agency records from field 
facilities or other establishments that are separate from the office 
processing the request;
    (2) Search for, collect, and appropriately examine a voluminous 
amount of separate and distinct records that are the subject of a 
single request; or
    (3) Consult with another Federal agency having a substantial 
interest in the determination of the FOIA request.


Sec.  1850.3  General provisions.

    The Council shall prepare an annual report to the Attorney General 
of the United States regarding its FOIA activities in accordance with 5 
U.S.C. 552(e).


Sec.  1850.4  Public reading room.

    The Council maintains an electronic public reading room on its Web 
site, http://www.restorethegulf.gov, which contains the records FOIA 
requires the Council to make available for public inspection and 
copying, as well as additional records of interest to the public.


Sec.  1850.5  Requirements for making requests.

    (a) Type of records made available. The Council shall make 
available upon request, pursuant to the procedures in this section and 
subject to the exceptions set forth in FOIA, all records of the Council 
that are not available under Sec.  1850.4. The Council's policy is to 
make discretionary disclosures of records or information otherwise 
exempt from disclosure under FOIA unless the Council reasonably 
foresees that such disclosure would harm an interest protected by one 
or more FOIA exemptions, or otherwise prohibited by law. This policy 
does not create any enforceable right in court.
    (b) Procedures for requesting records. A request for records shall 
reasonably describe the records in a way that enables Council staff to 
identify and produce the records with reasonable effort. The requester 
should include as much specific information as possible regarding 
dates, titles, and names of

[[Page 29543]]

individuals. In cases where the request requires production of 
voluminous records, or is not reasonably described, a Council 
representative may suggest the requester, or the individual acting on 
the requester's behalf, to verify the scope of the request and, if 
possible, narrow the request. Once narrowed, the Council will process 
the request. All requests must be submitted in writing (including by 
email, fax or mail) to the Council's Records Management Officer. 
Requesters shall clearly mark a request as a ``Freedom of Information 
Act Request'' or ``FOIA Request'' on the front of the envelope or in 
the subject line of the email.
    (c) Contents of request. The request, at minimum, shall contain the 
following information:
    (1) The name, telephone number, and non-electronic address of the 
requester;
    (2) Whether the requested information is intended for commercial 
use, or whether the requester represents an education or noncommercial 
scientific institution, or news media; and
    (3) A statement agreeing to pay the applicable fees, identifying 
any fee limitation desired, or requesting a waiver or reduction of fees 
that satisfies Sec.  1850.10(j)(1) to (3).
    (d) Perfected requests. The requester must meet all the 
requirements in this section to perfect a request. The Council will 
only process perfected requests.
    (e) Requests by an individual for Council records pertaining to 
that individual. An individual who wishes to inspect or obtain copies 
of Council records that pertain to that individual must file a request 
in accordance with subpart B of this part.
    (f) Requests for Council records pertaining to another individual. 
Where a request for records pertains to a third party, a requester may 
receive greater access by submitting a notarized authorization signed 
by that individual or a declaration by that individual made in 
compliance with the requirements set forth in 28 U.S.C. 1746, 
authorizing disclosure of the records to the requester, or by 
submitting proof the individual is deceased (e.g. a copy of the death 
certificate or an obituary). The Council may require a requester to 
supply additional information if necessary to verify that a particular 
individual has consented to disclosure.
    (g) Requesters may submit a request for records, expedited 
processing or waiver of fees by writing directly to the Records 
Management Officer via email at [email protected], or 
first class United States mail at 500 Poydras Street, Suite 1117, New 
Orleans, LA 70130.
    (h) Any Council officer or employee who receives a written Freedom 
of Information Act request shall promptly forward it to the Records 
Management Officer. Any Council officer or employee who receives an 
oral request under the Freedom of Information Act shall inform the 
person making the request that it must be in writing and also inform 
such person of the provisions of this subpart.


Sec.  1850.6  Responding to requests.

    (a) Receipt and processing. The date of receipt for any request, 
including one that is addressed incorrectly or that is referred to the 
Council by another agency, is the date the Council actually receives 
the request. The Council normally will process requests in the order 
they are received. However, in the Records Management Officer's 
discretion, the Council may use two or more processing tracks by 
distinguishing between simple and more complex requests based on the 
number of pages involved, or some other measure of the amount of work 
and/or time needed to process the request, and whether the request 
qualifies for expedited processing as defined by paragraph (d) of this 
section. When using multi-track processing, the Records Management 
Officer may provide requesters in the complex track(s) with an 
opportunity to limit the scope of their requests to qualify for the 
simple track and faster processing.
    (b) Authorization. The Records Management Officer and other persons 
designated by the Council's Executive Director are solely authorized to 
grant or deny any request for Council records.
    (c) Timing. (1) When a requester submits a request in accordance 
with Sec.  1850.5, the Records Management Officer shall inform the 
requester of the determination concerning that request within 20 days 
from receipt of the request, unless ``unusual circumstances'' exist, as 
defined in Sec.  1850.2(w). The Records Management Officer also shall 
provide requesters with a unique tracking number, an estimated date of 
completion (once the request is perfected), and a fee estimate (when 
applicable). The Records Management Officer shall also include in the 
Council's acknowledgment letter a brief description of the subject of 
the request.
    (2) When additional time is required as a result of ``unusual 
circumstances,'' as defined in Sec.  1850.2(w), the Records Management 
Officer shall, within the statutory 20 day period, issue to the 
requester a brief written statement of the reason for the delay and an 
indication of the date on which it is expected that a determination as 
to disclosure will be forthcoming. If more than 10 additional days are 
needed, the requester shall be notified and provided an opportunity to 
limit the scope of the request or to arrange for an alternate time 
frame for processing the request.
    (3) The Council may toll the statutory time period to issue its 
determination on a FOIA request one time during the processing of the 
request to obtain clarification from the requester. The statutory time 
period to issue the determination on disclosure is tolled until the 
Council receives the information reasonably requested from the 
requester. The Council may also toll the statutory time period to issue 
the determination to clarify with the requester issues regarding fees. 
There is no limit on the number of times the agency may request 
clarifying fee information from the requester.
    (d) Expedited processing. (1) A requester may request expedited 
processing by submitting a statement, certified to be true and correct 
to the best of that person's knowledge and belief, that demonstrates a 
compelling need for records, as defined in 5 U.S.C. 552(a)(6)(E)(v).
    (2) The Records Management Officer will notify a requester of the 
determination to grant or deny a request for expedited processing 
within ten days of receipt of the request. If the Records Management 
Officer grants the request for expedited processing, the Council staff 
shall process the request as soon as practicable subject to Sec.  
1850.10(d) and (e). If the Records Management Officer denies the 
request for expedited processing, the requester may file an appeal in 
accordance with the process described in Sec.  1850.7.
    (3) The Council staff will give expedited treatment to a request 
when the Records Management Officer determines the requester has 
established one of the following:
    (i) Circumstances in which the lack of expedited treatment 
reasonably could be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by an individual primarily engaged 
in disseminating information;
    (iii) The loss of substantial due process rights;
    (iv) A matter of widespread and exceptional media interest raising 
possible questions about the Federal government's integrity which 
affects public confidence; or
    (4) These procedures for expedited processing also apply to 
requests for

[[Page 29544]]

expedited processing of administrative appeals.
    (e) Denials. If the Records Management Officer denies the request 
in whole or part, the Records Management Officer will inform the 
requester in writing and include the following:
    (1) A brief statement of the reason(s) for the denial, including 
applicable FOIA exemption(s) and a description of those exemptions;
    (2) An estimate of the volume of records or information withheld;
    (3) If technically feasible, the precise amount of information 
deleted at the place in the record where the deletion was made, and the 
exemption under which a deletion is made on the released portion of the 
record, unless including that information would harm an interest 
protected by the exemption;
    (4) The name and title or position of the person responsible for 
the denial of the request;
    (5) The requester's right to appeal any such denial and the title 
and address of the official to whom such appeal is to be addressed; and
    (6) The requirement that the appeal be received within 45 days of 
the date of the denial.
    (f) Referrals to another agency. (1) When the Council receives a 
request for a record (or a portion thereof) in its possession that 
originated with another Federal agency subject to the FOIA, the Council 
shall, except as provided in paragraph (f)(4) of this section, refer 
the record to that agency for direct response to the requester. 
However, if the Council and the originating agency jointly agree that 
the Council is in the best position to respond regarding the record, 
then the record may be handled as a consultation.
    (2) Whenever the Council refers any part of the responsibility for 
responding to a request to another agency, it shall document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral and inform the requester of the name of the 
agency to which the record was referred, including that agency's FOIA 
contact information.
    (3) The Council's response to an appeal will advise the requester 
that the 2007 FOIA amendments created the Office of Government 
Information Services (OGIS) to offer mediation services to resolve 
disputes between FOIA requesters and Federal agencies as a non-
exclusive alternative to litigation. A requester may contact OGIS in 
any of the following ways: Office of Government Information Services, 
National Archives and Records Administration, 8601 Adelphi Road--OGIS, 
College Park, MD 20740, ogis.archives.gov, Email: [email protected], 
Telephone: 202-741-5770, Facsimile: 202-741-5769, Toll-free: 1-877-684-
6448.
    (4) The referral procedure is not appropriate where disclosure of 
the identity of the agency, typically a law enforcement agency or 
Intelligence Community agency, to which the referral would be made 
could harm an interest protected by an applicable exemption, such as 
the exemptions that protect personal privacy and national security 
interests. In such instances, in order to avoid harm to an interest 
protected by an applicable exemption, the Council shall coordinate with 
the originating agency to seek its views on the disclosability of the 
record. The release determination for the record that is the subject of 
the coordination shall then be conveyed to the requester by the 
Council.
    (g) Consulting with another agency. In instances where a record is 
requested that originated with the Council and another agency has a 
significant interest in the record (or a portion thereof), the Council 
shall consult with that agency before responding to a requester. When 
the Council receives a request for a record (or a portion thereof) in 
its possession that originated with another agency that is not subject 
to the FOIA, the Council shall consult with that agency before 
responding to the requester.
    (h) Providing responsive records. (1) Council staff shall send a 
copy of records or portions of records responsive to the request to the 
requester by regular United States mail to the address indicated in the 
request or by email to the email address provided by the requester, 
unless the requester makes other acceptable arrangements or the Council 
deems it appropriate to send the records by other means. The Council 
shall provide a copy of the record in any form or format requested if 
the record is readily reproducible in that form or format. The Council 
need not provide more than one copy of any record to a requester.
    (2) The Records Management Officer shall provide any reasonably 
segregable portion of a record that is responsive to the request after 
redacting those portions that are exempt under FOIA or this section.
    (3) The Council is not required to create, compile, prepare or 
obtain from outside the Council a record to satisfy a request. 
Retrieving data from a Council database or running a report from a 
database is permissible.
    (i) Prohibition against disclosure. Except as provided in this 
subpart, no member or employee of the Council shall disclose or permit 
the disclosure of any non-public information of the Council to any 
person (other than Council members, employees, or agents properly 
entitled to such information for the performance of their official 
duties), unless required by law to do so.


Sec.  1850.7  Appeals.

    (a) Requesters may administratively appeal an adverse determination 
regarding a request by writing directly to the General Counsel via 
email at [email protected] or first class United States 
mail at 500 Poydras Street, Suite 1117, New Orleans, LA 70130. 
Administrative appeals sent to other individuals or addresses are not 
considered perfected. An adverse determination is a denial of a request 
and includes decisions that: The requested record is exempt, in whole 
or in part; the information requested is not a record subject to the 
FOIA; the requested record does not exist, cannot be located, or has 
previously been destroyed; or the requested record is not readily 
reproducible in the form or format sought by the requester. Adverse 
determinations also include denials involving fees or fee waiver 
matters or denials of requests for expedited processing.
    (b) FOIA administrative appeals must be in writing and should 
contain the phrase ``FOIA Appeal'' on the front of the envelope or in 
the subject line of the electronic mail.
    (c) Appellants are encouraged to include a copy of the original 
request and the initial denial (if any) in the appeal. The appeal 
letter may include as much or as little related information as the 
appellant wishes, as long as it clearly identifies the component 
determination (including the assigned request number, if known) that is 
being appealed.
    (d) Requesters submitting an administrative appeal of an adverse 
determination must ensure that the Council receives the appeal within 
45 days of the date of the denial letter.
    (e) Upon receipt of an administrative appeal, Council staff shall 
inform the requester within 20 days of the determination on that 
appeal.
    (f) The determination on an appeal shall be in writing and, when it 
denies the appeal, in whole or in part, the letter to the requester 
shall include:
    (1) A brief explanation of the basis for the denial, including a 
list of the applicable FOIA exemptions and a description of how they 
apply;
    (2) A statement that the decision is final for the Council;

[[Page 29545]]

    (3) Notification that judicial review of the denial is available in 
the district court of the United States in the district in which the 
requester resides, or has his or her principal place of business, or in 
which the agency records are located, or in the District of Columbia; 
and
    (4) The name and title or position of the official responsible for 
denying the appeal.


Sec.  1850.8  Authority to determine.

    The Records Management Officer or Council Executive Director, when 
receiving a request pursuant to these regulations, shall grant or deny 
such request. That decision shall be final, subject only to 
administrative appeal as provided in Sec.  1850.7. The Council General 
Counsel shall deny or grant an administrative appeal requested under 
Sec.  1850.7.


Sec.  1850.9  Maintenance of files.

    The Records Management Officer shall maintain files containing all 
material required to be retained by or furnished to them under this 
subpart. The Council shall preserve all correspondence pertaining to 
the FOIA requests that it receives, as well as copies of all requested 
records, until a General Records Schedule (GRS) published by the 
National Archives and Records Administration (NARA) or another NARA-
approved records schedule authorizes the office to dispose of or 
destroy the records. All materials identified as responsive to a FOIA 
request will be retained while the request or a related appeal or 
lawsuit is pending even otherwise authorized for disposal or 
destruction under a GRS or other NARA-approved records schedule. The 
material shall be filed by a unique tracking number.


Sec.  1850.10  Fees.

    (a) Generally. Except as provided elsewhere in this section, the 
Records Management Officer shall assess fees where applicable in 
accordance with this section for search, review, and duplication of 
records requested. The Records Management Officer shall also have 
authority to furnish documents without any charge or at a reduced 
charge if disclosure of the information is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the government and is 
not primarily in the commercial interest of the requester.
    (b)(1) Fee schedule; waiver of fees. The fees applicable to a 
request for Council records pursuant to Sec.  1850.5 are set forth in 
the following uniform fee schedule:

------------------------------------------------------------------------
                Service                                Rate
------------------------------------------------------------------------
(i) Manual search......................  Actual salary rate of employee
                                          involved, plus 16 percent of
                                          salary rate to cover benefits.
(ii) Computerized search...............  Actual direct cost, including
                                          operator time.
(iii) Duplication of records:
    (A) Paper copy reproduction........  $0.05 per page.
    (B) Other reproduction (e.g.,        Actual direct cost, including
     computer disk or printout,           operator time.
     microfilm, microfiche, or
     microform).
(iv) Review of records (including        Actual salary rate of employee
 redaction).                              involved, plus 16 percent of
                                          salary rate to cover benefits.
------------------------------------------------------------------------

    (2) Search. (i) The Council shall charge search fees for all 
requests, subject to the limitations of paragraph (b)(5) of this 
section. The Records Management Officer shall charge for time spent 
searching for responsive records, even if no responsive record is 
located or if the Records Management Officer withholds records located 
as entirely exempt from disclosure. Search fees shall equal the direct 
costs of conducting the search by the Council employee involved, plus 
16 percent of the salary rate to cover benefits.
    (ii) For computer searches of records, the Council will charge 
requesters the direct costs of conducting the search. In accordance 
with paragraph (f) of this section, however, the Council will charge 
certain requesters no search fee and certain other requesters are 
entitled to the cost equivalent of two hours of manual search time 
without charge. These direct costs include the costs attributable to 
the salary of an operator/programmer performing a computer search.
    (3) Duplication. The Council will charge duplication fees to all 
requesters, subject to the limitations of paragraph (b)(5) of this 
section. The fee for a paper photocopy of a record (no more than one 
copy of which need be supplied) is 5 cents per page. The Records 
Management Officer will charge the requester for the direct costs, 
including operator time, of making copies produced by computer, such as 
tapes or printouts. The Records Management Officer will charge a 
requester the direct costs of providing other forms of duplication.
    (4) Review. The Council will charge review fees to requesters who 
make a commercial use request. Review fees generally are limited to the 
initial record review, i.e., the review done when the Records 
Management Officer determines whether an exemption applies to a 
particular record at the initial request level. The Council will not 
charge a requester for additional review at the administrative appeal 
level. Review fees consist of the direct costs of conducting the review 
by the Council employee involved, plus 16 percent of the salary rate to 
cover benefits.
    (5) Limitations on charging fees. (i) The Council will not charge a 
search fee for requests from educational institutions, noncommercial 
scientific institutions, or representatives of the news media.
    (ii) The Council will not charge a search fee or review fee for a 
quarter-hour period unless more than half of that period is required 
for search or review.
    (iii) The Council will not charge a fee to a requester whenever the 
total fee calculated under this paragraph is $25 or less for the 
request.
    (iv) Except for requesters seeking records for a commercial use, 
the Council will provide without charge the first 100 pages of 
duplication (or the cost equivalent) and the first two hours of search.
    (v) The provisions of paragraphs (b)(5)(iii) and (iv) of this 
section work together. This means that for requesters other than those 
seeking records for a commercial use, no fee shall be charged unless 
the cost of search is in excess of two hours plus the cost of 
duplication in excess of 100 pages totals more than $25.
    (vi) No search fees shall be charged to a requester when the 
Council does not comply with the statutory time limits at 5 U.S.C. 
552(a)(6) in which to respond to a request, unless unusual or 
exceptional circumstances (as those terms are defined by the FOIA) 
apply to the processing of the request.

[[Page 29546]]

    (vii) No duplication fees shall be charged to requesters in the fee 
category of a representative of the news media or an educational or 
noncommercial scientific institution when the Council does not comply 
with the statutory time limits at 5 U.S.C. 552(a)(6) in which to 
respond to a request, unless unusual or exceptional circumstances (as 
those terms are defined by the FOIA) apply to the processing of the 
request.
    (c) Payment procedures. All requesters shall pay the applicable fee 
before the Council sends copies of the requested records, unless the 
Records Management Official grants a fee waiver. Requesters must pay 
fees by check or money order made payable to the ``Treasury of the 
United States.'' Checks and money orders should be mailed to 500 
Poydras Street, Suite 1117, New Orleans, LA 70130.
    (d) Advance notification of fees. If the estimated charges exceed 
$25, the Records Management Officer shall notify the requester of the 
estimated amount, unless the requester has indicated a willingness to 
pay fees as high as those anticipated. Upon receipt of such notice, the 
requester may confer with the Records Management Officer to reformulate 
the request to lower the costs. Council staff shall suspend processing 
the request until the requester provides the Records Management Officer 
with a written guarantee that the requester will make payment upon 
completion of processing (i.e., upon completion of the search, review 
and duplication, but prior the Council sending copies of the requested 
records to the requester).
    (e) Advance payment. The Records Management Officer shall require 
advance payment of any fee estimated to exceed $250. The Records 
Management Officer also shall require full payment in advance where a 
requester has previously failed to pay a fee in a timely fashion. If an 
advance payment of an estimated fee exceeds the actual total fee by $1 
or more, the Council shall refund the difference to the requester. The 
Council shall suspend the processing of the request and the statutory 
time period for responding to the request until the Records Management 
Officer receives the required payment.
    (f) Categories of uses. The fees assessed depend upon the fee 
category. In determining which category is appropriate, the Records 
Management Officer shall look to the identity of the requester and the 
intended use set forth in the request for records. Where a requester's 
description of the use is insufficient to make a determination, the 
Records Management Officer may seek additional clarification before 
categorizing the request.
    (1) Commercial use requester: The fees for search, duplication, and 
review apply.
    (2) Educational institutions, non-commercial scientific 
institutions, or representatives of the news media requesters: The fees 
for duplication apply. The Council will provide the first 100 pages of 
duplication free of charge.
    (3) All other requesters: The fees for search and duplication 
apply. The Council will provide the first two hours of search time and 
the first 100 pages of duplication free of charge.

------------------------------------------------------------------------
                Category                         Chargeable fees
------------------------------------------------------------------------
(i) Commercial Use Requesters..........  Search, Review, and
                                          Duplication.
(ii) Education and Non-commercial        Duplication (excluding the cost
 Scientific Institution Requesters.       of the first 100 pages).
(iii) Representatives of the News Media  Duplication (excluding the cost
                                          of the first 100 pages).
(iv) All Other Requesters..............  Search and Duplication
                                          (excluding the cost of the
                                          first 2 hours of search and
                                          first 100 pages of
                                          duplication).
------------------------------------------------------------------------

    (g) Nonproductive search. The Council may charge fees for search 
even if no responsive documents are found.
    (h) Interest charges. The Records Management Officer may assess 
interest charges on any unpaid bill starting on the 31st calendar day 
following the date the Council sent the bill to the requester. The 
Council will charge interest at the rate prescribed in 31 U.S.C. 3717 
on fees payable in accordance with this section. The Council will 
follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-
365, 96 Stat. 1749), as amended, and its administrative procedures, 
including the use of consumer reporting agencies, collection agencies, 
and offset.
    (i) Aggregated requests. A requester may not file multiple requests 
at the same time solely in order to avoid payment of fees. If the 
Council reasonably believes that a request, or a group of requesters 
acting in concert, is attempting to break down a request into a series 
of requests for the purpose of evading the assessment of fees, the 
Council may aggregate any such requests and charge accordingly. The 
Records Management Officer may reasonably presume that one requester 
making multiple requests on the same topic within a 30-day period has 
done so to avoid fees.
    (j) Waiver or reduction of fees. To seek a waiver, a requester 
shall include the request for waiver or reduction of fees, and the 
justification for such based on the factors set forth in this 
paragraph, with the request for records to which it pertains. If a 
requester requests a waiver or reduction and has not indicated in 
writing an agreement to pay the applicable fees, the time for 
responding to the request for Council records shall not begin until the 
Records Management Officer makes a determination regarding the request 
for a waiver or reduction of fees.
    (1) Records responsive to a request shall be furnished without 
charge, or at a reduced rate below that established in paragraph (b) of 
this section, where the Council determines, after consideration of all 
available information, that the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government; and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) In deciding whether disclosure of the requested information is 
in the public interest because it is likely to contribute significantly 
to public understanding of the operations or activities of the 
Government, the Council will consider the following factors:
    (i) The subject of the request: Whether the subject of the 
requested records concerns the operations or activities of the 
Government. The subject of the requested records must concern 
identifiable operations or activities of the Federal government, with a 
connection that is direct and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of Government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure

[[Page 29547]]

of information that already is in the public domain, in either the same 
or a substantially identical form, would not be likely to contribute to 
such an understanding.
    (iii) The contribution to an understanding of the subject by the 
public: Whether disclosure of the requested information will contribute 
to the understanding of a reasonably broad audience of persons 
interested in the subject, as opposed to the individual understanding 
of the requester. A requester's expertise in the subject area as well 
as his or her ability and intention to effectively convey information 
to the public shall be considered. It shall be presumed that a 
representative of the news media will satisfy this consideration. 
Merely providing information to media sources is insufficient to 
satisfy this consideration.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of Government operations or activities. The 
public's understanding of the subject in question prior to disclosure 
must be significantly enhanced by the disclosure.
    (3) To determine whether disclosure of the requested information is 
primarily in the commercial interest of the requester, the Council will 
consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. The Council shall consider any commercial 
interest of the requester (with reference to the definition of 
``commercial use request'' in Sec.  1850.2(b)), or of any person on 
whose behalf the requester may be acting, that would be furthered by 
the requested disclosure. Requesters shall be given an opportunity to 
provide explanatory information regarding this consideration.
    (ii) The primary interest in disclosure: Whether any identified 
commercial interest of the requester is sufficiently great, in 
comparison with the public interest in disclosure, that disclosure if 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified if the public interest standard (paragraph 
(j)(1)(i) of this section) is satisfied and the public interest is 
greater than any identified commercial interest in disclosure. The 
Council shall presume that if a news media requester has satisfied the 
public interest standard, the public interest is the primary interest 
served by disclosure to that requester. Disclosure to data brokers or 
others who merely compile and market Government information for direct 
economic return shall not be presumed to primarily serve the public 
interest.
    (4) A request for a waiver or reduction of fees shall include a 
clear statement of how the request satisfies the criteria set forth in 
paragraphs (j)(2) and (3) of this section, insofar as they apply to 
each request. The burden shall be on the requester to present evidence 
or information in support of a request for a waiver or reduction of 
fees.
    (5) Where only some of the records to be released satisfy the 
requirements for a fee waiver, a waiver shall be granted for those 
records.
    (6) The Records Management Officer shall make a determination on 
the request for a waiver or reduction of fees and shall notify the 
requester accordingly. A denial may be appealed to the General Counsel 
in accordance with Sec.  1850.7.


Sec.  1850.11  Requests for confidential treatment of business 
information.

    (a) Submission of request. Any submitter of information to the 
Council who desires confidential treatment of business information 
pursuant to 5 U.S.C. 552(b)(4) shall file a request for confidential 
treatment with the Council at the time the information is submitted or 
within a reasonable time after submission. These designations will 
expire ten years after the date of submission unless the submitter 
requests, and provides justification for, a longer period.
    (b) Form of request. Each request for confidential treatment of 
business information shall state in reasonable detail the facts 
supporting the commercial or financial nature of the business 
information and the legal justification under which the business 
information should be protected. Conclusory statements indicating that 
release of the information would cause competitive harm generally are 
not sufficient to justify confidential treatment.
    (c) Designation and separation of confidential material. A 
submitter shall clearly mark all information it considers confidential 
as ``PROPRIETARY'' or ``BUSINESS CONFIDENTIAL'' in the submission and 
shall separate information so marked from other information submitted. 
Failure by the submitter to segregate confidential commercial or 
financial information from other material may result in release of the 
nonsegregated material to the public without notice to the submitter.


Sec.  1850.12   Requests for access to confidential commercial or 
financial information.

    (a) Notice to submitters. The Council shall provide a submitter 
with prompt notice of a FOIA request or administrative appeal that 
seeks its business information whenever required under paragraph (b) of 
this section, except as provided in paragraph (e) of this section, in 
order to give the submitter an opportunity under paragraph (c) of this 
section to object to disclosure of any specified portion of that 
information. The notice shall either describe the business information 
requested or include copies of the requested records containing the 
information. If notification of a large number of submitters is 
required, notification may be made by posting or publishing the notice 
in a place reasonably likely to accomplish notification.
    (b) When notice is required. Notice shall be given to the submitter 
whenever:
    (1) The submitter has designated the information in good faith as 
protected from disclosure under FOIA exemption (b)(4); or
    (2) The Council has reason to believe that the information may be 
protected from disclosure under FOIA exemption (b)(4).
    (c) Opportunity to object to disclosure. The Council shall allow a 
submitter seven days from the date of receipt of the written notice 
described in paragraph (a) of this section to provide the Council with 
a statement of any objection to disclosure. The statement must identify 
any portions of the information the submitter requests to be withheld 
under FOIA exemption (b)(4), and describe how each qualifies for 
protection under the exemption: That is, why the information is a trade 
secret, or commercial or financial information that is privileged or 
confidential. If a submitter fails to respond to the notice within the 
time frame specified, the submitter will be considered to have no 
objection to disclosure of the information. Information a submitter 
provides under this paragraph may itself be subject to disclosure under 
the FOIA.
    (d) Notice of intent to disclose. The Council shall consider a 
submitter's objections and specific grounds under the FOIA for 
nondisclosure in deciding whether to disclose business information. If 
the Council decides to disclose business information over a submitter's 
objection, the Council shall give the submitter written notice via 
certified mail, return receipt requested, or similar means, which shall 
include:

[[Page 29548]]

    (1) A statement of reason(s) why the submitter's objections to 
disclosure were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A statement that the Council intends to disclose the 
information seven days from the date the submitter receives the notice.
    (e) Exceptions to notice requirements. The notice requirements of 
paragraphs (a) and (d) of this section shall not apply if:
    (1) The Council determines that the information is exempt and will 
be withheld under a FOIA exemption, other than exemption (b)(4);
    (2) The information has been lawfully 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 Executive 
Order 12600; or
    (4) The designation made by the submitter under this section or 
Sec.  1850.11 appears obviously frivolous, except that, in such a case, 
the Council shall provide the submitter written notice of any final 
decision to disclose the information seven days from the date the 
submitter receives the notice.
    (f) Notice to requester. The Council shall notify a requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure; whenever it notifies the submitter of its intent 
to disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.
    (g) Notice of lawsuits. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, the Council shall promptly notify the submitter.


Sec.  1850.13  Classified information.

    In processing a request for information classified under Executive 
Order 13526 or any other Executive Order concerning the classification 
of records, the information shall be reviewed to determine whether it 
should remain classified. Ordinarily the Council or other Federal 
agency that classified the information should conduct the review, 
except that if a record contains information that has been derivatively 
classified by the Council because it contains information classified by 
another agency, the Council shall refer the responsibility for 
responding to the request to the agency that classified the underlying 
information. Information determined to no longer require classification 
shall not be withheld on the basis of FOIA exemption (b)(1) (5 U.S.C. 
552(b)(1)), but should be reviewed to assess whether any other FOIA 
exemption should be invoked. Appeals involving classified information 
shall be processed in accordance with Sec.  1850.7.

Subpart B--Production or Disclosure Under the Privacy Act


Sec.  1850.31  Purpose and scope.

    This subpart contains the regulations of the Gulf Coast Ecosystem 
Restoration Council (Council) implementing the Privacy Act of 1974, 5 
U.S.C. 552a. It sets forth the basic responsibilities of the Council 
under the Privacy Act (the Act) and offers guidance to members of the 
public who wish to exercise any of the rights established by the Act 
with regard to records maintained by the Council. Council records that 
are contained in a government-wide system of records established by the 
U.S. Office of Personnel Management (OPM), the General Services 
Administration (GSA), the Merit Systems Protection Board (MSPB), the 
Office of Government Ethics (OGE), Equal Employment Opportunity 
Commission (EEOC) or the Department of Labor (DOL) for which those 
agencies have published systems notices are subject to the publishing 
agency's Privacy Act regulations. Where the government-wide systems 
notices permit access to these records through the employing agency, an 
individual should submit requests for access to, for amendment of or 
for an accounting of disclosures to the Council in accordance with 
Sec.  1850.33.


Sec.  1850.32  Definitions.

    (a) For purposes of this subpart, the terms individual, maintain, 
record, and system of records shall have the meanings set forth in 5 
U.S.C. 552a(a).
    (b) Working days are business days and do not include Saturday, 
Sunday, or federal holidays.


Sec.  1850.33  Procedures for requests pertaining to individual records 
in a record system.

    (a) Any person who wishes to be notified if a system of records 
maintained by the Council contains any record pertaining to him or her, 
or to request access to such record or to request an accounting of 
disclosures made of such record, shall submit a written request, either 
in person or by mail, in accordance with the instructions set forth in 
the system notice published in the Federal Register. The request shall 
include:
    (1) The name of the individual making the request;
    (2) The name of the system of records (as set forth in the system 
notice to which the request relates);
    (3) Any other information specified in the system notice;
    (4) When the request is for access to records, a statement 
indicating whether the requester desires to make a personal inspection 
of the records or be supplied with copies by mail; and
    (5) Any additional information required by Sec.  1850.34 for proper 
verification of identity or authority to access the information.
    (b) Requests pertaining to records contained in a system of records 
established by the Council and for which the Council has published a 
system notice should be submitted to the person or office indicated in 
the system notice. Requests pertaining to Council records contained in 
the government-wide systems of records listed below should be submitted 
as follows:
    (1) For systems OPM/GOVT-1 (General Personnel Records), OPM/GOVT-2 
(Employee Performance File System Records), OPM/GOVT-3 (Records of 
Adverse Actions and Actions Based on Unacceptable Performance), GSA/
GOVT-4 (Contracted Travel Services Program), OPM/GOVT-5 (Recruiting, 
Examining and Placement Records), OPM/GOVT-6 (Personnel Research and 
Test Validation Records), OPM/GOVT-7 (Applicant Race, Sex, National 
Origin, and Disability Status Records), OPM/GOVT-9 (Files on Position 
Classification Appeals, Job Grading Appeals and Retained Grade or Pay 
Appeals), OPM/GOVT-10 (Employee Medical File System Records) and DOL/
ESA-13 (Office of Workers' Compensation Programs, Federal Employees' 
Compensation File), or any other government-wide system of record not 
specifically listed, to the [email protected]]; and
    (2) For systems OGE/GOVT-1 (Executive Branch Public Financial 
Disclosure Reports and Other Ethics Program Records), OGE/GOVT-2 
(Confidential Statements of Employment and Financial Interests) and 
MSPB/GOVT-1 (Appeal and Case Records), to the General Counsel at 
[email protected].
    (c) Any person whose request for access under paragraph (a) of this 
section is denied, may appeal that denial in accordance with Sec.  
1850.39.


Sec.  1850.34  Times, places, and requirements for identification of 
individuals making requests.

    (a) If a person submitting a request for access under Sec.  1850.33 
has asked that

[[Page 29549]]

the Council authorize a personal inspection of records pertaining to 
that person, and the appropriate Council official has granted that 
request, the requester shall present himself or herself at the time and 
place specified in the Council's response or arrange another, mutually 
convenient time with the appropriate Council official.
    (b) Prior to personal inspection of the records, the requester 
shall present sufficient personal identification (e.g., driver's 
license, employee identification card, social security card, credit 
cards). If the requester is unable to provide such identification, the 
requester shall complete and sign in the presence of a Council official 
a signed statement asserting his or her identity and stipulating that 
he or she understands that knowingly or willfully seeking or obtaining 
access to records about another individual under false pretenses is a 
misdemeanor punishable by fine up to $5,000.
    (c) Any person who has requested access under Sec.  1850.3 to 
records through personal inspection, and who wishes to be accompanied 
by another person or persons during this inspection, shall submit a 
written statement authorizing disclosure of the record in such person's 
or persons' presence.
    (d) If an individual submitting a request by mail under Sec.  
1850.33 wishes to have copies furnished by mail, he or she must include 
with the request a signed and notarized statement asserting his or her 
identity and stipulating that he or she understands that knowingly or 
willfully seeking or obtaining access to records about another 
individual under false pretenses is a misdemeanor punishable by fine up 
to $5,000.
    (e) A request filed by the parent of any minor or the legal 
guardian of any incompetent person shall: State the relationship of the 
requester to the individual to whom the record pertains; present 
sufficient identification; and, if not evident from information already 
available to the Council, present appropriate proof of the relationship 
or guardianship.
    (f) A person making a request pursuant to a power of attorney must 
possess a specific power of attorney to make that request.
    (g) No verification of identity will be required where the records 
sought are publicly available under the Freedom of Information Act.


Sec.  1850.35  Disclosure of requested information to individuals.

    (a) Upon receipt of request for notification as to whether the 
Council maintains a record about an individual and/or request for 
access to such record:
    (1) The appropriate Council official shall acknowledge such request 
in writing within 10 working days of receipt of the request. Wherever 
practicable, the acknowledgement should contain the notification and/or 
determination required in paragraph (a)(2) of this section.
    (2) The appropriate Council official shall provide, within 30 
working days of receipt of the request, written notification to the 
requester as to the existence of the records and/or a determination as 
to whether or not access will be granted. In some cases, such as where 
records have to be recalled from the Federal Records Center, 
notification and/or a determination of access may be delayed. In the 
event of such a delay, the Council official shall inform the requester 
of this fact, the reasons for the delay, and an estimate of the date on 
which notification and/or a determination will be forthcoming.
    (3) If access to a record is granted, the determination shall 
indicate when and where the record will be available for personal 
inspection. If a copy of the record has been requested, the Council 
official shall mail that copy or retain it at the Council to present to 
the individual, upon receipt of a check or money order in an amount 
computed pursuant to Sec.  1850.41.
    (4) When access to a record is to be granted, the appropriate 
Council official will normally provide access within 30 working days of 
receipt of the request unless, for good cause shown, he or she is 
unable to do so, in which case the requester shall be informed within 
30 working days of receipt of the request as to those reasons and when 
it is anticipated that access will be granted.
    (5) The Council shall not deny any request under Sec.  1850.33 
concerning the existence of records about the requester in any system 
of records it maintains, or any request for access to such records, 
unless that system is exempted from the requirements of 5 U.S.C. 552a.
    (6) If the Council receives a request pursuant to Sec.  1850.33 for 
access to records in a system of records it maintains which is so 
exempt, the appropriate Council official shall deny the request.
    (b) Upon request, the appropriate Council official shall make 
available an accounting of disclosures pursuant to 5 U.S.C. 552a(c)(3), 
unless that system is exempted from the requirements of 5 U.S.C. 552a.
    (c) If a request for access to records is denied pursuant to 
paragraph (a) or (b) of this section, the determination shall specify 
the reasons for the denial and advise the individual how to appeal the 
denial in accordance with Sec.  1850.39. All appeals must be submitted 
in writing to the General Counsel at [email protected].
    (d) Nothing in 5 U.S.C. 552a or this subpart allows an individual 
access to any information compiled in reasonable anticipation of a 
civil action or proceeding.


Sec.  1850.36  Special procedures: Medical records.

    In the event the Council receives a request pursuant to Sec.  
1850.33 for access to medical records (including psychological records) 
and the appropriate Council official determines disclosure could be 
harmful to the individual to whom they relate, he or she may refuse to 
disclose the records directly to the requester but shall transmit them 
to a physician designated by that individual.


Sec.  1850.37  Request for correction or amendment to record.

    (a) Any person who wishes to request correction or amendment of any 
record pertaining to him or her that is contained in a system of 
records maintained by the Council, shall submit that request in writing 
in accordance with the instructions set forth in the system notice for 
that system of records. If the request is submitted by mail, the 
envelope should be clearly labeled ``Personal Information Amendment.'' 
The request shall include:
    (1) The name of the individual making the request;
    (2) The name of the system of records as set forth in the system 
notice to which the request relates;
    (3) A description of the nature (e.g., modification, addition or 
deletion) and substance of the correction or amendment requested; and
    (4) Any other information specified in the system notice.
    (b) Any person submitting a request pursuant to paragraph (a) of 
this section shall include sufficient information in support of that 
request to allow the Council to apply the standards set forth in 5 
U.S.C. 552a(e) requiring the Council to maintain accurate, relevant, 
timely, and complete information.
    (c) All requests to amend pertaining to personnel records described 
in Sec.  1850.33(b) shall conform to the requirements of paragraphs (a) 
and (b) of this section and may be directed to the appropriate 
officials as indicated in Sec.  1850.33(b). Such requests may also be 
directed to the system manager specified in the OPM's systems notices.
    (d) Any person whose request under paragraph (a) of this section is 
denied may appeal that denial in accordance with Sec.  1850.39.

[[Page 29550]]

Sec.  1850.38  Council review of request for correction or amendment to 
record.

    (a) When the Council receives a request for amendment or correction 
under Sec.  1850.37(a), the appropriate Council official shall 
acknowledge that request in writing within 10 working days of receipt. 
He or she shall promptly either:
    (1) Determine to grant all or any portion of a request for 
correction or amendment; and:
    (i) Advise the individual of that determination;
    (ii) Make the requested correction or amendment; and
    (iii) Inform any person or agency outside the Council to whom the 
record has been disclosed, and where an accounting of that disclosure 
is maintained in accordance with 5 U.S.C. 552a(c), of the occurrence 
and substance of the correction or amendments; or
    (2) Inform the requester of the refusal to amend the record in 
accordance with the request; the reason for the refusal; and the 
procedures whereby the requester can appeal the refusal to the General 
Counsel of the Council in accordance with Sec.  1850.39.
    (b) If the Council official informs the requester of the 
determination within the 10-day deadline, a separate acknowledgement is 
not required.
    (c) In conducting the review of a request for correction or 
amendment, the Council official shall be guided by the requirements of 
5 U.S.C. 552a(e).
    (d) In the event that the Council receives a notice of correction 
or amendment from another agency that pertains to records maintained by 
the Council, the Council shall make the appropriate correction or 
amendment to its records and comply with paragraph (a)(1)(iii) of this 
section.
    (e) Requests for amendment or correction of records maintained in 
the government-wide systems of records listed in Sec.  1850.35(c) shall 
be governed by the appropriate agency's regulations cited in that 
paragraph.


Sec.  1850.39  Appeal of initial adverse agency determination on 
correction or amendment.

    (a) If a request for correction or amendment of a record in a 
system of records maintained by the Council is denied, the requester 
may appeal the determination in writing to the General Counsel at 
[email protected].
    (b) The General Counsel shall make a final determination with 
regard to an appeal submitted under paragraph (a) of this section not 
later than 30 working days from the date on which the individual 
requests a review, unless for good cause shown, this 30-day period is 
extended and the requester is notified of the reasons for the extension 
and of the estimated date on which a final determination will be made. 
Such extensions will be used only in exceptional circumstances and will 
not normally exceed 30 working days.
    (c) In conducting the review of an appeal submitted under paragraph 
(a) of this section, the General Counsel shall be guided by the 
requirements of 5 U.S.C. 552a(e).
    (d) If the General Counsel determines to grant all or any portion 
of a request on an appeal submitted under paragraph (a) of this 
section, he or she shall so inform the requester, and the appropriate 
Council official shall comply with the procedures set forth in Sec.  
1850.38(a)(1)(ii) and (iii).
    (e) If the General Counsel determines in accordance with paragraphs 
(b) and (c) of this section not to grant all or any portion of a 
request on an appeal submitted under paragraph (a) of this section, he 
or she shall inform the requester:
    (1) Of this determination and the reasons for it;
    (2) Of the requester's right to file a concise statement of reasons 
for disagreement with the determination of the General Counsel;
    (3) That such statements of disagreement will be made available to 
anyone to whom the record is subsequently disclosed, together with (if 
the General Counsel deems it appropriate) a brief statement summarizing 
the General Counsel's reasons for refusing to amend the record;
    (4) That prior recipients of the disputed record will be provided 
with a copy of the statement of disagreement together with (if the 
General Counsel deems it appropriate) a brief statement of the General 
Counsel's reasons for refusing to amend the record, to the extent that 
an accounting of disclosure is maintained under 5 U.S.C. 552a(c); and
    (5) Of the requester's right to file a civil action in Federal 
district court to seek a review of the determination of the General 
Counsel in accordance with 5 U.S.C. 552a(g).
    (f) The General Counsel shall ensure that any statements of 
disagreement submitted by a requester are made available or distributed 
in accordance with paragraphs (e)(3) and (4) of this section.


Sec.  1850.40  Disclosure of record to person other than the individual 
to whom it pertains.

    The Counsel shall not disclose any record which is contained in a 
system of records it maintains, by any means of communication to any 
person or to another agency, except pursuant to a written request by, 
or with the prior written consent of the individual to whom the record 
pertains, unless the disclosure is authorized by one or more provisions 
of 5 U.S.C. 552a(b).


Sec.  1850.41  Fees.

    (a) No fee shall be charged for searches necessary to locate 
records. No charge shall be made if the total fees authorized are less 
than $1.00. Fees shall be charged for services rendered under this 
subpart as follows:
    (1) For copies made by photocopy--$0.05 per page (maximum of 10 
copies). For copies prepared by computer, such as tapes or printouts, 
the Council will charge the direct cost incurred by the agency, 
including operator time. For other forms of duplication, the Council 
will charge the actual costs of that duplication.
    (2) For attestation of documents--$25.00 per authenticating 
affidavit or declaration.
    (3) For certification of documents--$50.00 per authenticating 
affidavit or declaration.
    (b) All required fees shall be paid in full prior to issuance of 
requested copies of records. Requesters must pay fees by check or money 
order made payable to the ``Treasury of the United States.''


Sec.  1850.42  Penalties.

    The criminal penalties which have been established for violations 
of the Privacy Act of 1974 are set forth in 5 U.S.C. 552a(i). Penalties 
are applicable to any officer or employee of the Council; to 
contractors and employees of such contractors who enter into contracts 
with the Council, and who are considered to be employees of the Council 
within the meaning of 5 U.S.C. 552a(m); and to any person who knowingly 
and willfully requests or obtains any record concerning an individual 
from the Council under false pretenses.

Will D. Spoon,
Program Analyst, Gulf Coast Ecosystem Restoration Council.
[FR Doc. 2015-12459 Filed 5-21-15; 8:45 am]
BILLING CODE 3510-EA-P