[Federal Register Volume 82, Number 169 (Friday, September 1, 2017)]
[Rules and Regulations]
[Pages 41511-41519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18626]


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TENNESSEE VALLEY AUTHORITY

18 CFR Part 1301


Freedom of Information Act Regulations

AGENCY: Tennessee Valley Authority (TVA).

ACTION: Final rule.

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SUMMARY: The Tennessee Valley Authority issues this final rule amending 
its Freedom of Information Act (FOIA) regulations to incorporate the 
statutory changes made to the FOIA by the FOIA Improvement Act of 2016 
(Act). The TVA's FOIA regulations provide the procedures by which the 
public may request records from TVA, and the policies and procedures by 
which TVA provides such records to the public upon written request. TVA 
is updating its regulations to incorporate the procedural requirements 
of the Act.

DATES: This rule is effective September 1, 2017.

ADDRESSES: Tennessee Valley Authority, Freedom of Information Act 
Office, 400 W. Summit Hill Drive (WT 7D), Knoxville, TN 37902-1401.

FOR FURTHER INFORMATION CONTACT: Ms. Denise Smith, FOIA Officer, 
Tennessee Valley Authority, 400 W. Summit Hill Drive (WT 7D), 
Knoxville, TN 37902-1401. Telephone: (865) 632-6945. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: The FOIA Improvement Act of 2016 requires 
that Federal agencies review and update their FOIA regulations in 
accordance with its provisions. The provisions include a requirement 
that agencies make available for public inspection, in an electronic 
format records, that have become or are likely to become the subject of 
subsequent requests for substantially the same records, or records that 
have been requested under FOIA three or more times. The Act requires 
that agencies provide a minimum of 90 days for requesters to file an 
administrative appeal following an adverse determination, and that 
agencies provide dispute resolution services at various times 
throughout the FOIA process. The Act codifies the U.S. Department of 
Justice's ``foreseeable harm'' standard, specifying that an agency 
shall withhold information only if the agency reasonably foresees that 
disclosure would harm an interest protected by an exemption under 5 
U.S.C. 552(b) or if disclosure is prohibited by law. This provision 
also requires agencies to consider whether partial disclosure is 
possible if full disclosure is not possible, and to take reasonable 
steps to segregate and release nonexempt information. The Act amends 
FOIA exemption 5 to specify that the deliberative process privilege 
does not apply to records created 25 years or more before the date of 
the request and must be released if requested.
    The Tennessee Valley Authority issues a final rule amending its 
Freedom of Information Act (FOIA) regulations to incorporate the 
statutory changes made to the FOIA by the Act. TVA exercises no 
discretion in implementing these statutory changes, therefore, public 
notice and comment is not required pursuant to 5 U.S.C. 553(b)(B). For 
these same reasons, the 30-day delay in effective date provided for in 
5 U.S.C. 553(d) is waived.

List of Subjects in 18 CFR Part 1301

    Freedom of Information, Privacy, Government in the Sunshine.

    For the reasons stated in the preamble, TVA amends 18 CFR part 1301 
as follows:

PART 1301--PROCEDURES

0
1. The authority citation for part 1301 Subpart A continues to read as 
follows:

    Authority: 16 U.S.C. 831-831dd, 5 U.S.C. 552.

0
2. Subpart A of part 1301 is revised as follows:
Subpart A--Freedom of Information Act
Sec.
1301.1 General provisions.
1301.2 Proactive disclosures.
1301.3 Requirements for making requests.
1301.4 Responsibility for responding to requests.
1301.5 Timing of responses to requests.
1301.6 Responses to requests.
1301.7 Exempt records.
1301.8 Confidential commercial information.

[[Page 41512]]

1301.9 Appeals.
1301.10 Preservation of records.
1301.11 Fees.
1301.12 Other rights and services.


Sec.  1301.1  General provisions.

    (a) This subpart contains the rules that the Tennessee Valley 
Authority (TVA) follows in processing requests for records under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552. These rules should be 
read in conjunction with the text of the FOIA and the Uniform Freedom 
of Information Fee Schedule and Guidelines published by the Office of 
Management and Budget (``OMB Guidelines''). Requests made by 
individuals for records about themselves under the Privacy Act of 1974, 
5 U.S.C. 552a, are processed in accordance with TVA's Privacy Act 
regulations as well as under this subpart.


Sec.  1301.2  Proactive disclosures.

    Records that the FOIA requires agencies to make available for 
public inspection in an electronic format may be accessed through the 
TVA Web site. Each TVA organization is responsible for determining 
which of its records must be made publicly available, for identifying 
additional records of interest to the public that are appropriate for 
public disclosure, and for posting and indexing such records. Each TVA 
organization shall ensure that its posted records and indices are 
reviewed and updated on an ongoing basis. TVA has a FOIA Requester 
Service Center and a FOIA Public Liaison who can assist individuals in 
locating TVA records. Contact information for the FOIA Requester 
Service Center and Public Liaison is available at https://www.tva.com/Information/Freedom-of-Information/FOIA-Contacts.


Sec.  1301.3  Requirements for making requests.

    (a) General information. (1) TVA has a centralized system for 
responding to FOIA requests. To make a request for records, a requester 
should write directly to the Tennessee Valley Authority, FOIA Officer, 
400 W. Summit Hill Drive (WT 7D), Knoxville, TN 37902-1401. TVA's Guide 
to Information, which may be accessed on the TVA Web site at https://www.tva.com/Information/Freedom-of-Information/A-Guide-to-Information-About-The-Tennessee-Valley-Authority may be helpful in making your 
request.
    (2) If you are making a request about yourself, see subpart B 
Privacy Act for additional requirements.
    (3) Where a request for records pertains to another individual, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester, or 
by submitting proof that the individual is deceased (e.g., a copy of a 
death certificate or an obituary). As an exercise of administrative 
discretion, TVA may require a requester to supply additional 
information if necessary in order to verify that a particular 
individual has consented to disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable TVA personnel to locate 
them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may help TVA 
identify the requested records, such as the date, title or name, 
author, recipient, subject matter of the record, case number, file 
designation, or reference number. Before submitting their requests, 
requesters may contact the TVA's FOIA Officer or FOIA Public Liaison to 
discuss the records they seek and to receive assistance in describing 
the records. If after receiving a request the agency determines that 
the request does not reasonably describe the records sought, the agency 
shall inform the requester of what additional information is needed or 
why the request is otherwise insufficient. Requesters who are 
attempting to reformulate or modify such a request may discuss their 
request with the agency's FOIA Officer or FOIA Public Liaison. If a 
request does not reasonably describe the records sought, the agency's 
response to the request may be delayed.
    (c) Format of records sought. Requests may specify the preferred 
form or format (including electronic formats) for the records you seek. 
TVA will accommodate your request if the record is readily reproducible 
in that form or format.
    (d) Requester contact information. Requesters must provide contact 
information, such as their phone number, email address, and/or mailing 
address, to assist the agency in communicating with them and providing 
released records.


Sec.  1301.4  Responsibility for responding to requests.

    (a) In general. TVA's FOIA Officer or the FOIA Officer's designee 
is responsible for responding to all FOIA requests. In determining 
which records are responsive to a request, TVA ordinarily will include 
only records in its possession as of the date that it begins its 
search. If any other date is used, the agency will inform the requester 
of that date. A record that is excluded from the requirements of the 
FOIA pursuant to 5 U.S.C. 552(c), is not considered responsive to a 
request.
    (b) Authority to grant or deny requests. TVA's FOIA Officer or the 
FOIA Officer's designee is authorized to grant or to deny any requests 
for records that are maintained by TVA.
    (c) Consultation, referral and coordination. When reviewing records 
located by TVA in response to a request, TVA will determine whether 
another agency of the Federal Government is better able to determine 
whether the record is exempt from disclosure under the FOIA. As to any 
such record, TVA shall proceed in one of the following ways:
    (1) Consultation. When records originated with the agency 
processing the request, but contain within them information of interest 
to another agency or other Federal Government office, the agency 
processing the request should typically consult with that other entity 
prior to making a release determination.
    (2) Referral. (i) When the agency processing the request believes 
that a different agency or component is best able to determine whether 
to disclose the record, the agency typically should refer the 
responsibility for responding to the request regarding that record to 
that agency. Ordinarily, the agency that originated the record is 
presumed to be the best agency to make the disclosure determination. 
However, if the agency processing the request and the originating 
agency jointly agree that the agency processing the request is in the 
best position to respond regarding the record, then the record may be 
handled as a consultation.
    (ii) Whenever an agency refers any part of the responsibility for 
responding to a request to another agency, it must document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral, informing the requester of the name(s) of 
the agency to which the record was referred, including that agency's 
FOIA contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the 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 or national security interests. For example, if a non-law 
enforcement agency responding to a request for records on a living 
third party locates

[[Page 41513]]

within its files records originating with a law enforcement agency, and 
if the existence of that law enforcement interest in the third party 
was not publicly known, then to disclose that law enforcement interest 
could cause an unwarranted invasion of the personal privacy of the 
third party. Similarly, if an agency locates within its files material 
originating with an Intelligence Community agency, and the involvement 
of that agency in the matter is classified and not publicly 
acknowledged, then to disclose or give attribution to the involvement 
of that Intelligence Community agency could cause national security 
harms. In such instances, in order to avoid harm to an interest 
protected by an applicable exemption, the agency that received the 
request should 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 should then be conveyed 
to the requester by the agency that originally received the request.
    (d) Classified information. On receipt of any request involving 
classified information, the agency must determine whether the 
information is currently and properly classified in accordance with 
applicable classification rules. Whenever a request involves a record 
containing information that has been classified or may be appropriate 
for classification by another agency under any applicable executive 
order concerning the classification of records, the receiving agency 
must refer the responsibility for responding to the request regarding 
that information to the agency that classified the information, or that 
should consider the information for classification. Whenever an 
agency's record contains information that has been derivatively 
classified (for example, when it contains information classified by 
another agency), the agency must refer the responsibility for 
responding to that portion of the request to the agency that classified 
the underlying information.
    (e) Timing of responses to consultations and referrals. All 
consultations and referrals received by TVA will be handled according 
to the date that the first agency received the perfected FOIA request.
    (f) Agreements regarding consultations and referrals. TVA may 
establish agreements with other agencies to eliminate the need for 
consultations or referrals with respect to particular types of records.


Sec.  1301.5  Timing of responses to requests.

    (a) In general. TVA ordinarily will respond to requests according 
to their order of receipt and placement in an appropriate processing 
track as follows.
    (b) Multitrack processing. TVA has established three tracks for 
handling requests and the track to which a request is assigned will 
depend on the nature of the request and the estimated processing time. 
Among the factors TVA may consider are the number of records requested, 
the number of pages involved in processing the request and the need for 
consultations or referrals. TVA will also designate a specific track 
for requests that are granted expedited processing, in accordance with 
the standards set forth in paragraph (e) of this section. TVA will 
advise requesters of the track into which their request falls and, when 
appropriate, will offer the requesters an opportunity to narrow or 
modify their request so that it can be placed in a different processing 
track.
    (1) Track 1. Requests that can be answered with readily available 
records or information. These are the fastest to process. These 
requests ordinarily will be responded to within 20 working days of 
receipt of a proper request by the FOIA Officer. The 20 working day 
time limit provided in this paragraph may be extended by TVA for 
unusual circumstances, as defined in paragraph (c) of this section, 
upon written notice to the person requesting the records.
    (2) Track 2. Requests where we need records or information from 
other offices throughout TVA, where we must consult with other 
Government agencies, or when we must process a submitter notice as 
described in Sec.  1301.8(d), but we do not expect that the decision on 
disclosure will be as time consuming as for requests in Track 3.
    (3) Track 3. Requests which require a decision or input from 
another office or agency, extensive submitter notifications because of 
the presence of Business Information as defined in Sec.  1301.8(b)(1), 
and a considerable amount of time will be needed for that, or the 
request is complicated or involves a large number of records. Usually, 
these requests will take the longest to process.
    (c) Unusual circumstances. Whenever the statutory time limit for 
processing a request cannot be met because of ``unusual 
circumstances,'' and TVA extends the time limit on that basis, TVA 
will, before expiration of the 20-day period to respond, notify the 
requester in writing of the unusual circumstances involved and of the 
date by which TVA estimates processing of the request will be 
completed. Where the extension exceeds 10 working days, TVA will, as 
described by the FOIA, provide the requester with an opportunity to 
modify the request or arrange an alternative time period for processing 
the original or modified request. TVA will make available its FOIA 
Officer or its FOIA Public Liaison for this purpose. A list of agency 
FOIA Public Liaisons is available at https://www.foia.gov/report-makerequest.html. TVA will also alert requesters to the availability of 
the Office of Government Information Services (OGIS) to provide dispute 
resolution services. As used in this paragraph, ``unusual 
circumstances'' means, but only to the extent reasonable necessary to 
the proper processing of the particular requests:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (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, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject-matter interest therein.
    (d) Aggregating requests. To satisfy unusual circumstances under 
the FOIA, TVA may aggregate requests in cases where it reasonably 
appears that multiple requests, submitted either by a requester or by a 
group of requesters acting in concert, constitute a single request that 
would otherwise involve unusual circumstances. TVA cannot aggregate 
multiple requests that involve unrelated matters.
    (e) Expedited processing. (1) TVA will process requests and appeals 
on an expedited basis whenever it is determined that they involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably 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 a person who is primarily 
engaged in disseminating information;
    (iii) The loss of substantial due process rights.
    (2) A request for expedited processing may be made at any time. For 
a prompt determination, requests based on paragraphs (e)(1)(i) and (ii) 
of this

[[Page 41514]]

section should be submitted to the TVA FOIA Officer. Requests based on 
paragraph (e)(1)(iii) of this section should be submitted in accordance 
with the agency's requirements as described in Sec.  1301.3. When 
making a request for expedited processing of an administrative appeal, 
the request should be submitted to the TVA Chief FOIA Officer and 
Appeals Official.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (e)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency 
to inform the public about the government activity involved in the 
request--one that extends beyond the public's right to know about 
government activity generally. The existence of numerous articles 
published on a given subject can be helpful in establishing the 
requirement that there be an ``urgency to inform'' the public on the 
topic. As a matter of administrative discretion, TVA may waive the 
formal certification requirement.
    (4) TVA will notify the requester within 10 calendar days of the 
receipt of a request for expedited processing of its decision whether 
to grant or deny expedited processing. If expedited processing is 
granted, the request must be given priority, placed in the processing 
track for expedited requests, and must be processed as soon as 
practicable. If a request for expedited processing is denied, the 
agency must act on any appeal of that decision expeditiously.


Sec.  1301.6  Responses to requests.

    (a) In general. TVA, to the extent practicable, will communicate 
with requesters having access to the Internet electronically, such as 
email.
    (b) Acknowledgments of requests. TVA will acknowledge the request 
in writing and assign it an individualized tracking number if it will 
take longer than 10 working days to process. TVA will include in the 
acknowledgment a brief description of the records sought to allow 
requesters to more easily keep track of their requests.
    (c) Estimated dates of completion and interim responses. Upon 
request, TVA will provide an estimated date by which the agency expects 
to provide a response to the requester. If a request involves a 
voluminous amount of material, or searches in multiple locations, TVA 
may provide interim responses, releasing the records on a rolling 
basis.
    (d) Grants of requests. Once TVA determines it will grant a request 
in full or in part, it will notify the requester in writing. TVA will 
also inform the requester of any fees charged under Sec.  1301.11 of 
this subpart and will disclose the requested records to the requester 
promptly upon payment of any applicable fees.
    (e) Adverse determinations of requests. If TVA makes an adverse 
determination denying a request in any respect, it will notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, include decisions that: the requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject 
to the FOIA; the requested record does not exist, cannot be located, or 
has 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. In the event of an adverse 
determination, TVA will inform the requester of the availability of its 
FOIA Public Liaison to offer assistance to requesters.
    (f) Content of denial. The denial must be signed by the head of the 
agency or their designee and must include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the agency in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed 
in part or if providing an estimate would harm an interest protected by 
an applicable exemption; and
    (4) A statement that the denial may be appealed under Sec.  
1301.9(a) of this subpart, and a description of the appeal 
requirements.
    (5) A statement notifying the requester of the assistance available 
from the agency's FOIA Public Liaison and the dispute resolution 
services offered by OGIS.
    (g) Markings on released documents. Records disclosed in part must 
be marked clearly to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted must also be indicated on the record, if 
technically feasible.
    (h) Use of record exclusions. (1) In the event that TVA identifies 
records that may be subject to exclusion from the requirements of the 
FOIA pursuant to 5 U.S.C. 552(c), TVA will confer with the Department 
of Justice, Office of Information Policy, to obtain approval to apply 
the exclusion.
    (2) If an exclusion is invoked, TVA will maintain an administrative 
record of the process of invocation and approval of the exclusion by 
OIP.


Sec.  1301.7  Exempt records.

    (a) TVA's records will be disclosed to any person upon request as 
provided in this section, except records that are exempt and are not 
made available if they are:
    (1)(i) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense 
or foreign policy, and
    (ii) Are in fact properly classified pursuant to such Executive 
order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (other than 
section 552b of this title), if that statute--
    (i)(A) Requires that the matters be withheld from the public in 
such a manner as to leave no discretion on the issue; or
    (B) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld; and
    (ii) If enacted after the date of enactment of the OPEN FOIA Act of 
2009, specifically cites to this paragraph.
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters that would 
not be available by law to a party other than an agency in litigation 
with the agency, provided that the deliberative process privilege shall 
not apply to records created 25 years or more before the date on which 
the records were requested;
    (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

[[Page 41515]]

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 an 
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 which furnished information on a 
confidential basis, and, in the case of a record or information 
compiled by a criminal law enforcement authority in the course of 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) The availability of certain classes of nonexempt records is 
deferred for such time as TVA may determine is reasonable necessary to 
avoid interference with the accomplishment of its statutory 
responsibilities. Such records include bids and information concerning 
the identity and number of bids received prior to bid opening and 
award; and all negotiations in progress involving contracts or 
agreements for the acquisition or disposal of real or personal property 
by TVA prior to the conclusion of such negotiations. Any reasonably 
segregable portion of an available record shall be provided to any 
person requesting such record after deletion of the portions which are 
exempt under this paragraph.


Sec.  1301.8  Confidential commercial information.

    (a) Definitions--(1) Confidential commercial information means 
commercial or financial information obtained by TVA from a submitter 
that may be protected from disclosure under Exemption 4 of the FOIA, 5 
U.S.C. 552(b)(4).
    (2) Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, at the time of submission, any 
portion of its submission that it considers to be protected from 
disclosure under Exemption 4. These designations expire 10 years after 
the date of the submission unless the submitter requests and provides 
justification for a longer designation period.
    (c) When notice to submitters is required. (1) TVA will promptly 
provide written notice to the submitter of confidential commercial 
information whenever records containing such information are requested 
under the FOIA if TVA determines that it may be required to disclose 
the records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) TVA has a reason to believe that the requested information may 
be protected from disclosure under Exemption 4, but has not yet 
determined whether the information is protected from disclosure.
    (2) The notice must either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, the agency may post or publish a notice in a 
place or manner reasonably likely to inform the submitters of the 
proposed disclosure, instead of sending individual notifications.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section do not apply if:
    (1) TVA determines that the information is exempt under the FOIA, 
and therefore will not be disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, TVA will give 
the submitter written notice of any final decision to disclose the 
information within a reasonable number of days prior to a specified 
disclosure date.
    (e) Opportunity to object to disclosure. (1) TVA will specify a 
reasonable time period within which the submitter must respond to the 
notice referenced under paragraph (c)(1) of this section.
    (2) If a submitter has any objections to disclosure, it should 
provide TVA a detailed written statement that specifies all grounds for 
withholding the particular information under any exemption of the FOIA. 
In order to rely on Exemption 4 as basis for nondisclosure, the 
submitter must explain why the information constitutes a trade secret 
or commercial or financial information that is confidential.
    (3) A submitter who fails to respond within the time period 
specified in the notice will be considered to have no objection to 
disclosure of the information. TVA is not required to consider any 
information received after the date of any disclosure decision. Any 
information provided by a submitter under this subpart may itself be 
subject to disclosure under the FOIA.
    (f) Analysis of objections. TVA will consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose the requested information.
    (g) Notice of intent to disclose. Whenever TVA decides to disclose 
information over the objection of a submitter, TVA will provide the 
submitter written notice, which will include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed or copies of 
the records as TVA intends to release them; and
    (3) A specified disclosure date, which must be a reasonable time 
after the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, TVA will promptly notify the submitter.
    (i) Requester notification. TVA will notify the 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

[[Page 41516]]

files a lawsuit to prevent the disclosure of the information.


Sec.  1301.9  Appeals.

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determinations to TVA's office designated to receive FOIA 
appeals (FOIA Appeals Office). Examples of adverse determinations are 
provided in Sec.  1301.6(e) of this subpart. Requesters can submit 
appeals by mail to TVA FOIA Appeals Official, Tennessee Valley 
Authority, 400 W. Summit Hill Drive (WT 7C), Knoxville, TN 37902-1401. 
The requester must make the appeal in writing and to be considered 
timely it must be postmarked within 90 calendar days after the date of 
the initial response. The appeal should clearly identify the agency 
determination that is being appealed and the assigned request number. 
To facilitate handling, the requester should mark both the appeal 
letter and envelope ``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. (1) The TVA Chief FOIA Officer and 
FOIA Appeals Official or designee will act on all appeals under this 
section.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (3) On receipt of any appeal involving classified information, the 
Chief FOIA Officer and FOIA Appeals Official will take appropriate 
action to ensure compliance with applicable classification rules.
    (c) Decisions on appeals. TVA will provide its decision on an 
appeal in writing. A decision that upholds TVA's determination in whole 
or in part must contain a statement that identifies the reasons for the 
affirmance, including any FOIA exemptions applied. The decision must 
provide the requester with notification of the statutory right to file 
a lawsuit and will inform the requester of the dispute resolution 
services offered by the Office of Government Information Services 
(OGIS) of the National Archives and Records Administration as a non-
exclusive alternative to litigation. If TVA's decision is remanded or 
modified on appeal, TVA will notify the requester of that determination 
in writing. TVA will then further process the request in accordance 
with that appeal determination and will respond directly to the 
requester.
    (d) Engaging in dispute resolution services provided by OGIS. 
Dispute resolution is a voluntary process. If TVA agrees to participate 
in the dispute resolution services provided by OGIS, it will actively 
engage as a partner to the process in an attempt to resolve the 
dispute.
    (e) When appeal is required. Before seeking review by a court of 
TVA's adverse determination, a requester generally must first submit a 
timely administrative appeal.


Sec.  1301.10  Preservation of records.

    TVA will preserve all correspondence pertaining to the requests 
that it receives under this subpart, as well as copies of all requested 
records, until disposition or destruction is authorized pursuant to 
title 44 of the United States Code or the General Records Schedule 4.2 
of the National Archives and Records Administration. TVA will not 
dispose of or destroy records while they are the subject of a pending 
request, appeal, or lawsuit under the FOIA.


Sec.  1301.11  Fees.

    (a) In general. (1) TVA will charge for processing requests under 
the FOIA in accordance with the provisions of this section and with the 
OMB Guidelines. For purposes of assessing fees, the FOIA establishes 
three categories of requesters:
    (i) Commercial use requesters;
    (ii) Non-commercial scientific or educational institutions or news 
media requesters; and
    (iii) All other requesters.
    (2) Different fees are assessed depending on the category. 
Requesters may seek a fee waiver. TVA will consider requests for fee 
waivers in accordance with the requirements in paragraph (k) of this 
section. To resolve any fee issues that arise under this section, TVA 
may contact a requester for additional information. TVA will ensure 
that searches, review, and duplication are conducted in the most 
efficient and the least expensive manner. TVA ordinarily will collect 
all applicable fees before sending copies of records to a requester. 
Requesters must pay fees by check or money order made payable to the 
Tennessee Valley Authority, or by another method as determined by TVA.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. TVA's decision to place a requester in the commercial use 
category will be made on a case-by-case basis based on the requester's 
intended use of the information. TVA will notify requesters of their 
placement in this category.
    (2) Direct costs are those expenses that TVA incurs in searching 
for and duplicating (and, in the case of commercial use requests, 
reviewing) records in order to respond to a FOIA request. For example, 
direct costs include the salary of the employee performing the work 
(i.e., the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating computers and other 
electronic equipment, such as photocopiers and scanners. Direct costs 
do not include overhead expenses such as the costs of space, and of 
heating or lighting a facility.
    (3) Duplication is reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is made in connection with his or her role at the 
educational institution. TVA may seek verification from the requester 
that the request is in furtherance of scholarly research and TVA will 
advise requesters of their placement in this category.
    Example 1. A request from a professor of geology at a university 
for records relating to soil erosion, written on letterhead of the 
Department of Geology, would be presumed to be from an educational 
institution.
    Example 2. A request from the same professor of geology seeking 
drug information from the Food and Drug Administration in furtherance 
of a murder mystery he is writing would not be presumed to be an 
institutional request, regardless of whether it was written on 
institutional stationery.
    Example 3. A student who makes a request in furtherance of their 
coursework or other school-sponsored activities and provides a copy of 
a course syllabus or other reasonable documentation to indicate the 
research purpose for the request, would qualify as part of this fee 
category.
    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(1) 
of this section and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. A requester in this 
category must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are 
sought to further scientific research and are not for a commercial use. 
TVA will advise

[[Page 41517]]

requesters of their placement in this category.
    (6) Representative of the news media is any person or entity that 
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 that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast ``news'' 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. A request for records supporting the news-dissemination 
function of the requester will not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity will be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, agencies 
can also consider a requester's past publication record in making this 
determination. TVA will advise requesters of their placement in this 
category.
    (7) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (8) Review is 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 the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential commercial information submitter under Sec.  
1301.7 of this subpart, but it does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (c) Charging fees. In responding to FOIA requests, TVA will charge 
the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section. Because the fee amounts 
provided below already account for the direct costs associated with a 
given fee type, agencies should not add any additional costs to charges 
calculated under this section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. TVA will charge search fees for 
all other requesters, subject to the restrictions of paragraph (d) of 
this section. TVA may properly charge for time spent searching even if 
they do not locate any responsive records or if they determine that the 
records are entirely exempt from disclosure.
    (ii) For each hour spent by personnel searching for requested 
records, including electronic searches that do not require new 
programming, the fees will be charged as follows: For time spent by 
clerical employees, the charge is $14.90 per hour. For time spent by 
supervisory and professional employees, the charge is $34.30 per hour.
    (iii) TVA will charge the direct costs associated with conducting 
any search that requires the creation of a new computer program to 
locate the requested records. TVA must notify the requester of the 
costs associated with creating such a program, and the requester must 
agree to pay the associated costs before the costs may be incurred.
    (iv) For requests that require the retrieval of records stored by 
TVA at a Federal records center operated by the National Archives and 
Records Administration (NARA), TVA will charge additional costs in 
accordance with the Transactional Billing Rate Schedule established by 
NARA.
    (2) Duplication. TVA will charge duplication fees to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. TVA must honor a requester's preference for receiving a record 
in a particular form or format where TVA can readily reproduce it in 
the form or format requested. Where photocopies are supplied, TVA will 
provide one copy per request at the cost of 10 cents per page for 
sheets no larger than 8\1/2\ by 14 inches. For copies of records 
produced on tapes, disks, or other media, TVA will charge the direct 
costs of producing the copy, including operator time. Where paper 
documents must be scanned in order to comply with a requester's 
preference to receive the records in an electronic format, the 
requester must also pay the direct costs associated with scanning those 
materials. For other forms of duplication, TVA will charge the direct 
costs.
    (3) Review. TVA will charge review fees to requesters who make 
commercial use requests. Review fees will be assessed in connection 
with the initial review of the record, i.e., the review conducted by 
TVA to determine whether an exemption applies to a particular record or 
portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with an agency's re-review of the records in order 
to consider the use of other exemptions may be assessed as review fees. 
Review fees will be charged at the same rates as those charged for a 
search under paragraph (c)(1)(ii) of this section.
    (d) Restrictions on charging fees. (1) When TVA determines that a 
requester is an educational institution, non-commercial scientific 
institution, or representative of the news media, and the records are 
not sought for commercial use, it will not charge search fees.
    (2)(i) If TVA fails to comply with the FOIA's time limits in 
responding to a request, it may not charge search fees, or, in the 
instances of requests from requesters described in paragraph (d)(1) of 
this section, may not charge duplication fees, except as described in 
paragraphs (d)(2)(ii) through (iv) of this section.
    (ii) If TVA has determined that unusual circumstances, as defined 
by the FOIA, apply and the agency provided timely written notice to the 
requester in accordance with the FOIA, a failure to comply with the 
time limit shall be excused for an additional 10 days.
    (iii) If TVA has determined that unusual circumstances, as defined 
by the FOIA, apply and more than 5,000 pages are necessary to respond 
to the request, TVA may charge search fees, or, in the case of 
requesters described in paragraph (d)(1) of this section, may charge 
duplication fees, if the following steps are taken. TVA must have 
provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA and TVA must have discussed with 
the requester via written mail, email, or telephone (or made not less 
than three good-faith attempts to do so) how the requester could 
effectively limit the scope of the request in accordance with 5 U.S.C. 
552(a)(6)(B)(ii). If this exception is satisfied, TVA may charge all 
applicable fees incurred in the processing of the request.
    (iv) If a court has determined that exceptional circumstances 
exist, as

[[Page 41518]]

defined by the FOIA, a failure to comply with the time limits shall be 
excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, TVA 
must provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) No fee will be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $25.
    (e) Notice of anticipated fees in excess of $25.00. (1) When TVA 
determines or estimates that the fees to be assessed in accordance with 
this section will exceed $25.00, TVA will notify the requester of the 
actual or estimated amount of the fees, including a breakdown of the 
fees for search, review or duplication, unless the requester has 
indicated a willingness to pay fees as high as those anticipated. If 
only a portion of the fee can be estimated readily, TVA will advise the 
requester accordingly. If the request is not for noncommercial use, the 
notice will specify that the requester is entitled to the statutory 
entitlements of 100 pages of duplication at no charge and, if the 
requester is charged search fees, two hours of search time at no 
charge, and will advise the requester whether those entitlements have 
been provided.
    (2) If TVA notifies the requester that the actual or estimated fees 
are in excess of $25.00, the request will not be considered received 
and further work will not be completed until the requester commits in 
writing to pay the actual or estimated total fee, or designates some 
amount of fees the requester is willing to pay, or in the case of a 
noncommercial use requester who has not yet been provided with the 
requester's statutory entitlements, designates that the requester seeks 
only that which can be provided by the statutory entitlements. The 
requester must provide the commitment or designation in writing, and 
must, when applicable, designate an exact dollar amount the requester 
is willing to pay. TVA is not required to accept payments in 
installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but TVA estimates that the total fee will 
exceed that amount, TVA will toll the processing of the request when it 
notifies the requester of the estimated fees in excess of the amount 
the requester has indicated a willingness to pay. TVA will inquire 
whether the requester wishes to revise the amount of fees the requester 
is willing to pay or modify the request. Once the requester responds, 
the time to respond will resume from where it was at the date of the 
notification.
    (4) TVA will make available its FOIA Officer or FOIA Public Liaison 
to assist any requester in reformulating a request to meet the 
requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if TVA chooses to do so as a matter of administrative 
discretion, the direct costs of providing the service will be charged. 
Examples of such services include certifying that records are true 
copies, providing multiple copies of the same document, or sending 
records by means other than first class mail.
    (g) Charging interest. TVA may charge interest on any unpaid bill 
starting on the 31st day following the date of billing the requester. 
Interest charges will be assessed at the rate provided in 31 U.S.C. 
3717 and will accrue from the billing date until payment is received by 
TVA. TVA must 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.
    (h) Aggregating requests. When TVA reasonably believes that a 
requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, TVA may aggregate those requests and charge accordingly. 
TVA may presume that multiple requests of this type made within a 30-
day period have been made in order to avoid fees. For requests 
separated by a longer period, TVA will aggregate them only where there 
is a reasonable basis for determining that aggregation is warranted in 
view of all the circumstances involved. Multiple requests involving 
unrelated matters cannot be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i)(2) or (i)(3) of this section, TVA cannot require the 
requester to make an advance payment before work is commenced or 
continued on a request. Payment owed for work already completed (i.e., 
payment before copies are sent to a requester) is not an advance 
payment.
    (2) When TVA determines or estimates that a total fee to be charged 
under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. TVA may elect 
to process the request prior to collecting fees when it receives a 
satisfactory assurance of full payment from a requester with a history 
of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any agency within 30 calendar days of the billing 
date, TVA may require that the requester pay the full amount due, plus 
any applicable interest on that prior request, and TVA may require that 
the requester make an advance payment of the full amount of any 
anticipated fee before TVA begins to process a new request or continues 
to process a pending request or any pending appeal. Where TVA has a 
reasonable basis to believe that a requester has misrepresented the 
requester's identity in order to avoid paying outstanding fees, it may 
require that the requester provide proof of identity.
    (4) In cases in which TVA requires advance payment, the request 
will not be considered received and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within 30 calendar days after the date of TVA's fee 
determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In instances where records responsive 
to a request are subject to a statutorily-based fee schedule program, 
TVA will inform the requester of the contact information for that 
program.
    (k) Requirements for waiver or reduction of fees. (1) Requesters 
may seek a waiver of fees by submitting a written application 
demonstrating how 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 is not primarily in the commercial interest of the requester.
    (2) TVA will furnish records responsive to a request without charge 
or at a reduced rate when it determines, based on all available 
information, that the factors described in paragraphs (k)(2)(i) through 
(iii) of this section are satisfied:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the

[[Page 41519]]

government. The subject of the request must concern identifiable 
operations or activities of the Federal Government with a connection 
that is direct and clear, not remote or attenuated.
    (ii) Disclosure of the requested information is likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (B) The disclosure must 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 the requester's ability and 
intention to effectively convey information to the public must be 
considered. TVA will presume that a representative of the news media 
will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, TVA will consider the following criteria:
    (A) TVA must identify whether the requester has any commercial 
interest that would be furthered by the requested disclosure. A 
commercial interest includes any commercial, trade, or profit interest. 
Requesters will be given an opportunity to provide explanatory 
information regarding this consideration.
    (B) If there is an identified commercial interest, TVA must 
determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (k)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. TVA ordinarily will presume that when a news 
media requester has satisfied factors paragraphs (k)(2)(i) and (ii), 
the request is not primarily in the commercial interest of the 
requester. Disclosure to data brokers or others who merely compile and 
market government information for direct economic return will not be 
presumed to primarily serve the public interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver must be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to TVA and should address the criteria 
referenced above. A requester may submit a fee waiver request at a 
later time so long as the underlying record request is pending or on 
administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester must pay any costs incurred up to the date the fee waiver 
request was received.


Sec.  1301.12  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, 
as of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.

Janet J. Brewer,
Senior Vice President, Chief Communications & Marketing Officer, 
Tennessee Valley Authority.
[FR Doc. 2017-18626 Filed 8-31-17; 8:45 am]
BILLING CODE 8120-08-P