PART 1303—PUBLIC INFORMATION AND REQUESTS Authority: 5 U.S.C. 301, 5 U.S.C. 552 as amended, Executive Order 12600 (3 CFR 1988 Comp., p. 235) Source: 70 FR 47080, Aug. 12, 2005, unless otherwise noted. § 1303.101 Scope. This part sets forth the policies and procedures of the U.S. Nuclear Waste Technical Review Board (Board) regarding public access to documents under the Freedom of Information Act (FOIA), 5 U.S.C. 552. The provisions in the Act shall take precedence over any part of the Board's regulations in conflict with the Act. This part gives the procedures the public may use to inspect and obtain copies of Board records under the FOIA, including administrative procedures which must be exhausted before a request invokes the jurisdiction of an appropriate United States District Court for the Board's failure to respond to a proper request within the statutory time limits, for a denial of Board records or challenges to the adequacy of a search, or for denial of fee waiver. § 1303.102 Definitions. For words used in this part, unless the context varies otherwise, singular includes the plural, plural includes the singular, present tense includes the future tense, and words of one gender include the other gender. (a)(1) Agency records—include materials that are in the control of the Board and associated with Board business, as follows: (i) Materials produced by the Board. (ii) Materials produced a consultant for the Board. (iii) Materials distributed by presenters at a Board meeting. (2) All references to records, include both the entire record, or any part of the record. (b) Board—The U.S. Nuclear Waste Technical Review Board. (c) Chairman—The Chairman of the Board as designated by the President. (d) Designated FOIA Officer—The person named by the Board to administer the Board's activities in regard do the regulations in this part. The FOIA Officer also shall be: (1) The Board officer having custody of, or responsibility for, agency records in the possession of the Board. (2) The Board officer having responsibility for authorizing or denying production of records from requests filed under the Freedom of Information Act. (e) Executive Director—The chief operating officer of the Board. (f) Member—An individual appointed to serve on the Board by the President of the United States. (g) Days—Standard working days, excluding weekends and federal holidays. § 1303.103 Public reading area. (a) A public reading area is available at the Board office located at 2300 Clarendon Blvd., Suite 1300, Arlington, Virginia 22201. To use the reading area, contact the Director of Administration by: (1) Letter to the address in this paragraph (a): (2) Telephone: 703-235-4473; (3) A request to the Board's Web site at http://www.nwtrb.gov (4) Fax: 703-532-4495. (b) Documents also may be requested through the Board's Web site or by letter or fax. Please ensure that the records sought are clearly described. Materials produced by the Board are in the public domain unless otherwise noted. (c) Many Board records are available electronically at the Board's Web site ( http://www.nwtrb.gov (d) Records of the Board available for inspection and copying include: (1) The rules and regulations of the Board. (2) Statements of policy adopted by the Board. (3) Board reports to the U.S. Congress and the U.S. Secretary of Energy. (4) Board correspondence with Congress and the Department of Energy (DOE). (5) Transcripts of Board meetings. (6) Biographical information about current Board members. (7) Copies of records released in response to FOIA requests. (e) The cost of copying information available in the Board office shall be imposed in accordance with the provisions of § 1303.108. § 1303.104 Board records exempt from public disclosure. 5 U.S.C. 552 provides that the requirements of the FOIA do not apply to matters that are: (a) Specifically authorized under the criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and in fact are properly classified pursuant to such an executive order. (b) Related solely to the internal personnel rules and practices of the Board. (c) Specifically exempted from disclosure by another federal statute, provided that such statute: (1) Requires that records be withheld from the public in such a manner that leaves no discretion on the issue; or (2) Establishes criteria for withholding or refers to particular types of matters to be withheld. (d) Trade secrets, and commercial or financial information obtained from a person and privileged or confidential. (e) Interagency or intra-agency memoranda or letters that would not be available by law to a party other than an agency in litigation with the Board. (f) Personnel, medical, or similar files that disclosing would constitute a clearly unwarranted invasion of personal privacy. (g) Records or information compiled for law enforcement purposes. Buy only to the extent that the production of such law enforcement records or information: (1) Could reasonably be expected to interfere with enforcement proceedings: (2) Would deprive a person of a right to a fair trial or an impartial adjudication; (3) Could reasonably be expected to constitute an unwarranted invasion of personal privacy; (4) Could reasonably be expected to disclose the identity of any confidential source, including a State, local, or foreign agency or authority, or any private institution which furnished information on a confidential basis, and in the case of a record or information compiled by a criminal law enforcement agency in the course of a criminal investigation or by an agency conducting a lawful security intelligence investigation, information furnished by a confidential source; (5) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or (6) Could reasonably be expected to endanger the life or physical safety of any individual. (h) Contained in or related to examination, operating, or condition reports, prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions. (i) Geological and geophysical information and data, including maps, concerning wells. § 1303.105 Requests for Board records. (a) A written FOIA request must be submitted. You may: (1) Write: NWTRB Designated FOIA Officer, 2300 Clarendon Boulevard, Suite 1300, Arlington, VA 22201; (2) Send an e-mail request to [email protected] (3) Fax: 703-235-4495. (b) When making a request for records about a person, Privacy Act regulations also may apply. Please check the regulations for additional requirements before submitting a request. When making a request for records about someone other than yourself, you must include either: (1) Written authorization signed by the person permitting you to see the records; or (2) Proof that the individual is deceased (e.g., a death certificate or an obituary). (c) A request will be considered received for purposes of § 1303.107 on the date that it is received by the Board's FOIA office. For prompt handling, write “Freedom of Information Act Request” on the letter and envelope or in the subject line of the Web request or fax. (d) Each request must clearly describe the desired records in sufficient detail to enable Board personnel to locate them with reasonable effort. Response to requests may be delayed if the records are not clearly described. (e) Whenever possible, requests should include specific information about each record sought, such as date, title or name, author, recipient, and subject. (f) If the FOIA Officer determines that the request does not clearly describe the records sought, he or she will either advise you of the additional needed to locate the record or otherwise state why the request is insufficient. The requestor will then be given the opportunity to provide additional information or to modify their request. (g) Submitting a FOIA request shall be considered a commitment by the requestor to pay all applicable fees required under § 1303.108 unless the requestor seeks a waiver of fees. When making a request, you may specify a willingness to pay fees up to a specific amount. (h) The FOIA does not require the Board to: (1) Compile or create records solely for the purpose of satisfying a request for records. (2) Provide records not yet in existence, even if such records may be expected to come into existence at some time in the future. (3) Restore records destroyed or otherwise disposed of, except that the FOIA Officer must notify the requestor that the records have been destroyed or otherwise disposed of. § 1303.106 Responsibility, form, and content of responses. The Board's Executive Director of his/her designated FOIA Officer is authorized to grant or deny any request for a record and determine appropriate fees. When determining which records are responsive to a request, the Board will include only records in its possession as of the date of the search. (a) If no records are responsive to the request, the FOIA Officer will notify the requestor in writing. (b) When a FOIA Officer denies a request in whole or in part he/she will notify the requestor in writing. The response will be signed by the FOIA Officer and will include: (1) The name and title or position of the person making the denial; (2) A brief statement of the reasons for the denial, including the FOIA exemption(s) that the FOIA Officer has relied on the denying the request; and (3) A statement that the denial may be appealed under § 1303.114 and a description of the requirements of that section. (c) Consultations and referrals. (d) Notice of referral. (e) Timing of responses to requests sent to other agencies. (f) Agreements on consultations and referrals. § 1303.107 Timing of responses to requests. (a) General. (b) Acknowledgement of requests. (c) Granting requests. (d) Unusual circumstances: (1) If the statutory time limits for processing a request cannot be met because of “usual circumstances” as defined in the FOIA, the Board shall promptly notify the requestor in writing, explaining the circumstances and giving the date by which the request can be completed or if the Board cannot complete the request. If the extension is for more than 10 working days, the Board shall provide the requestor with an opportunity either to: (i) Modify the request so that it can be processed within the time limits; or (ii) Arrange an alternative time period for processing the original request. (2) If the Board believes that multiple requests submitted by a requestor or by requestors acting in concert constitute a single request that would otherwise involve unusual circumstances, and if the requests involve clearly related matters, they may be aggregated. Multiple requests involving unrelated matters will not be aggregated. (e) Expedited processing: (1) Requests and appeals shall be taken out of order and given expedited processing whenever it is determined that they involve: (i) Circumstances that could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (ii) An urgency to inform the public about an actual or alleged activity if made by a person primarily engaged in disseminating information. (2) Requests for expedited processing may be made either at the time of the initial request or at a later time. (3) Requests for expedited processing must include a statement explaining in detail the basis for requesting expedited processing. For example, a requestor under § 1303.108 must demonstrate that their professional activity involves news reporting or otherwise disseminating information to the public, although this need not be their sole occupation. A requestor also must establish a particular urgency to inform the public about government activity involved in the request, beyond the public's right to know about government activity generally. (4) Within 10 calendar days of receipt of a request for expedited processing, the Board shall decide whether to grant the request and notify the requestor of its decision. If a request for expedited treatment is granted, the request shall be processed as soon as practicable. If a request for expedited processing is denied, an appeal of that decision shall be acted on expeditiously. § 1303.108 Fees. (a) General. (b) Definitions for this section: (1) Commercial use request—A request from, or on behalf of, a person who seeks information for a purpose that furthers their commercial, trade, or profit interests including furthering those interests through litigation. The Board shall try to determine the use to which a record will be put. When the Board believes that a request is for commercial use either because of the nature of the request or because the Board has cause to doubt the stated use, the Board shall ask the requestor for clarification. (2) Direct costs—Expenses that the Board incurs in searching for, duplicating, and, for some requests, reviewing records in response to a FOIA. Direct costs include the full salary of the employee performing the work and the cost of duplication of the records. Overhead expenses, such as the costs of space, heating, and lighting, are not included. (3) Duplication—Making a copy of a record or the information in the record, to respond to a FOIA. Copies can be in paper, microform, electronic, or other format. The Board shall honor a requestor's preference for format if the record is readily reproducible in that format at a reasonable cost. (4) Educational institution—A public or private school, an undergraduate, graduate, professional or vocational school, that has a program of scholarly research. For a request to be in this category, a requestor must show that the request is authorized by and made under the auspices of the qualifying institution and that the records will be used for scholarly research. (5) Noncommercial scientific institution—An institution that is not operated on a commercial basis, as defined in paragraph (b)(1) of this section and is operated solely for conducting scientific research that does not promote any particular product or industry. For a request to be in this category, the requestor must show that the request is authorized by and made under the auspices of the qualifying institution and that the records will be used to further scientific research. (6) Representative of the news media—Any person actively reporting for an entity that provides news to the public. The term “news” means information about current events or of current interest to the public. Examples include: Television and radio stations broadcasting to the public; and publishers of periodicals who make their news products available to the general public. For freelance journalists to be regarded as working for a news organization, they must demonstrate a sold basis for expecting publication through that organization. The Board may use a publication contract or past publication records to make their determination. The requestor must not be seeking records for a commercial use; however, a request solely supporting the news-dissemination function is not considered a commercial use. (7) Review—Examining a record to determine whether any part of its is exempt from disclosure, and processing a record for disclosure. Review costs are recoverable even if a record is to disclosed. Review time includes time spent considering any formal objection to disclosure made by a business submitter under paragraph (c)(3) of this section but does not include time spent resolving general legal or policy issues regarding the application of exemptions. (8) Search—The process of looking for and retrieving records, including page-by-page or line-by-line identification of information within records and reasonable efforts to locate and retrieve information from records maintained in electronic form. The Board shall ensure that searches are done in the most efficient and least expensive way that is reasonably possible. (c) Fees. (1) Search (ii) For each quarter hour spent by clerical personnel in searching for and retrieving a requested record, the fee will be $5. If a search and retrieval requires the use of professional personnel the fee will be $8 for each quarter hour. If the time of managerial personnel is required, the fee will be $10 for each quarter hour. (iii) For computer searches of records, requestors will be charged the direct costs of conducting the search, although certain requestors (see § 1303.109(a)) will be charged no search fee and certain other requestors (see § 1303.109(b)) will be entitled to two hours of manual search time without charge. Direct costs include the cost of operating a computer for the search time for requested records and the operator salary for the search. (2) Duplication. (3) Review. § 1303.109 Restrictions on charging fees. (a) When determining search or review fees: (1) No search or review fee shall be charged for requests by educational institutions, noncommercial scientific institutions, and representatives of the news media. (2) The Board shall provide without charge, to all but commercial users. (i) The first 100 pages of black and white duplication (or the cost equivalent); and (ii) The first two hours of search by a clerical staff member (or the cost equivalent). (3) When the total fee for a request will be $14.00 or less for any request, no fee shall be charged. (b) The Provisions of paragraphs (a)(2) and (a)(3) of this section work together. All requestors seeking records for a non-commercial use shall not be charged unless the total cost for the request exceeds by more than $14.00, the cost of a two hour clerical search, plus the cost of duplication over the 100 page exemption. § 1303.110 Notice of anticipated fees. (a) General. (b) Charges for other services. (c) Charging interest. (d) Aggregating requests. (e) Advance payments. § 1303.111 Requirements for waiver or reduction of fees. (a) Records shall be furnished without charge or at a reduced charge if the Board determined that: (1) Disclosure is in the public interest and the information is likely to contribute significantly to public understanding of the activities of the government; and (2) Disclosure is not primarily in the commercial interest of the requestor. (b) In determining whether the first requirement is met, the Board shall consider: (1) Subject: Do the requested records concern identifiable activities of the federal government? (2) Informative value: Will the disclosure contribute to an understanding of government activities? Do records contain information on activities “likely to contribute” to an increased public understanding? If the information or similar information is already in the public domain, the record(s) would not increase the public's understanding. (3) Would the disclosure contribute to the understanding of a reasonably broad audience, as opposed to the individual understanding of the requestor? A requestor's expertise in the subject and intention to convey information to the public shall be considered. Being a valid representative of the news media shall satisfy this consideration. (4) Is the disclosure likely to contribute significantly to public understanding of government activities? The level of understanding after the disclosure versus that before the disclosure must be enhanced to a significant extent. However, the Board shall not make value judgments about whether information contributing to public understanding of government activities is important enough to release. (c) In determining whether the second requirement is met, the Board shall consider: (1) The existence and extent of the commercial interest: Would a commercial interest be substantially furthered by the disclosure? The Board shall consider the commercial interest (see paragraph (a)(2) of this section) of either the requestor or of any person on whose behalf they may be acting that would be furthered by the disclosure. During the administrative process, requestors shall be given an opportunity to provide additional information about this concern. (2) The primary interest for disclosure: Whether the commercial interest of the requestor is sufficiently large in comparison to the public interest, that disclosure is “primarily in the commercial interest of the requestor.” A fee waiver is justified if the public interest standard under paragraph (b) of this section is satisfied and if that public interest is greater than any commercial interest. The Board shall presume that when news media requestors satisfy this standard, primarily the public interest is served. (d) If only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted only for those records. (e) Requests for a waiver or a reduction of fees must address the factors listed in paragraphs (a) and (b) of this section only as they apply to each request. The Board also shall consider their administrative resources when responding to requests and may negotiate with the requestor to find the best way to optimize their resources in responding to the request when deciding whether to grant waivers or reductions of fees. § 1303.112 Denials. (a) When denying a request in any respect, the Board shall notify the requestor of that determination in writing. The types of denials include: (1) Denials of requests, consisting of a determination: (i) To withhold any requested record in whole or in part; (ii) That a requested record does not exist or cannot be located; (iii) That a record is not readily reproducible in the form or format sought; (iv) That what has been requested is not a record subject to the FOIA; and (v) That the material requested is not a Board record (e.g., material produced by another agency or organization). (2) A determination on any disputed fee matter, including a denial of a request for a fee waiver. (3) A denial of a request for expedited processing. (b) The denial letter shall be signed by the Director of Administration, the Deputy Director, or their designee, and shall include all of the following: (1) The name and title of the person responsible for the denial. (2) A brief statement of the reason(s) for the denial, including any FOIA exemptions applied in denying the request. (3) An estimate of the volume of records withheld, in number of pages or in some other reasonable form of estimation. This estimate does not need to be provided if it would harm an interest protected by an applicable exemption. (4) A statement that the denial may be appealed under § 1303.114 and a description of the requirements of § 1303.114. § 1303.113 Business information. (a) In general. (b) Definitions. (1) Business information—commercial or financial records obtained by the Board that may be protected from disclosure under Exemption 4 of the Freedom of Information Act (FOIA). (2) Submitter—any person or entity from which the Board obtains business records, either directly or indirectly. The term includes, but is not limited to, corporations, and state, local, tribal, and foreign governments. (c) Designation of business information. (d) Notice to submitters. (e) Required notice. (1) The submitter has designated that the information is considered protected from disclosure under Exemption 4 of the FOIA; or (2) The Board has reason to believe that the information may be protected from disclosure under Exemption 4 of the FOIA. (f)(1) Objecting to disclosure. (i) All grounds for withholding any of the information under any exemption of the FOIA, and (ii) In the case of Exemption 4, the reason why the information is a trade secret, commercial, or financial information that is privileged or confidential. (2) If a submitter fails to respond to the notice in paragraph (d) of the section within 30 days, the Board shall assume that the submitter has no objection to disclosure. The Board shall not consider information not received by the Board until after a disclosure decision has been made. Information provided by a submitter under this paragraph might itself be subject to disclosure under the FOIA. (g) Notice of intent to disclose. (1) A statement of the reason(s) the submitter's objections were not sustained; (2) A description of the business records to be disclosed; and (3) A specified disclosure date at a reasonable time subsequent to the notice. (h) Exceptions to notice requirements. (1) The Board determines that the information should not be disclosed; (2) The information has been published legally or has been officially made available to the public; (3) Disclosure of the information is required by another statute or by a regulation issued in accordance with Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or (4) The objection made by the submitter under paragraph (f) of this section appears frivolous. In such a case, the Board shall promptly notify the submitter of its decision using the guidelines in paragraph (g) of this section. (i) Notice of FOIA lawsuit. (j) Corresponding notice to requestors. § 1303.114 Appeals. (a)(1) Appeals of adverse determinations. (i) By mail to: U.S. Nuclear Waste Technical Review Board, 2300 Clarendon Boulevard, Suite 1300, Arlington, VA 22201; (ii) By e-mail to: [email protected] (iii) By fax to: 703-235-4495. (2) The appeal must be in writing and must be received within 30 days of the date of the Board's response. The appeal letter, e-mail, or fax may include as much or as little related information as you wish, as long is it clearly identifies the Board determination that you are appealing, including the assigned request number, if known. For prompt handling, please mark your appeal “Freedom of Information Act Appeal.” (b) Responses to appeals. (c) When appeal is required. (d) Denial of appeal. (e) Unacceptable appeals. § 1303.115 Preservation of records. The Board shall preserve all correspondence pertaining to the requests that it receives under this part, as well as copies of all requested records, until disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 14. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit. § 1303.116 Other rights and services. Nothing in this part shall be construed to entitle any person, as a right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.