PART 1601—PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT Authority: 5 U.S.C. 552. Source: 82 FR 45502, Sept. 29, 2017, unless otherwise noted. Subpart A—Purpose, Scope, and Applicability § 1601.1 Purpose and scope. (a) In general. (b) Definitions. (1) Chairperson (2) Chief FOIA Officer (3) FOIA Officer (4) Record Record (5) Requester § 1601.2 Applicability. (a) In general. (b) Disclosure of requested records. (1) Records specifically authorized under criteria established by an Executive Order (E.O.) to be kept secret in the interest of national defense or foreign policy and which are, in fact, properly classified pursuant to such E.O.; (2) Records related solely to the internal personnel rules and practices of the CSB; (3) Records specifically exempted from disclosure by statute (other than 5 U.S.C. 552(b)) provided that such statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue or that the statute establishes particular criteria for withholding information or refers to particular types of matters to be withheld; and if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to 5 U.S.C. 552(b)(3); (4) Records containing trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) Interagency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the CSB, provided that the deliberative process privilege shall not apply to records created twenty-five (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 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 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) Records contained in or related to examination, operating, or condition reports prepared by, or on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; (9) Geological or geophysical information and data, including maps, concerning wells. (c) Disclosure of segregable nonexempt material. (d) Records available through routine distribution procedures. e.g., Subpart B—Procedures for Requesting and Disclosing Records § 1601.10 Proactive disclosures. (a) In general. http://www.csb.gov/disclaimers/legal-affairs-foia/ http://www.foia.gov/report-makerequest.html. (b) Definitions. (1) Disclose or disclosure (2) FOIA Contact (3) FOIA Public Liaison § 1601.11 Requirements for making requests. (a) General information. http://www.foia.gov/report-makerequest.html, (2) A requester who is making a request for records about himself or herself must comply with the verification of identity requirements described in this section. Requesters must provide either a notarized statement or a statement signed under penalty of perjury stating that the requester is the person they claim to be. This certification is required in order to protect the requester's privacy and to ensure that private information about the requester is not disclosed inappropriately to another individual. (3) Where a request for records pertains to a third party, 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., (b) Addressing requests. (2) For hard copy requests: (3) For electronic requests: [email protected]. (4) A request that is improperly addressed will be deemed to have been received by the CSB on the date that it is actually received by the CSB, or would have been received with the exercise of due diligence, by the FOIA Officer. (c) Description of records sought. (2) To the extent possible, requesters should include specific information that may help the CSB 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. In general, requesters should include as much detail as possible about the specific records or the types of records that they are seeking. Before submitting their requests, requesters may contact the CSB's FOIA Contact or FOIA Public Liaison to discuss the records they seek and to receive assistance in describing the records. (3) If, after receiving a request, the CSB determines that the request does not reasonably describe the records sought, then the CSB must inform the requester 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 CSB's FOIA Contact or with the CSB's FOIA Public Liaison. If a request does not reasonably describe the records sought, the CSB's response to the request may be delayed. (d) Form of records. (e) Contact information. (f) Agreement to pay fees. (g) Types of records not available. (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 future time; or (3) Restore records destroyed or otherwise disposed of, except that the FOIA Officer must notify the requester that the requested records have been destroyed or otherwise disposed of. § 1601.12 Responsibility for responding to requests. (a) In general. (b) Authority to grant or deny requests. (c) Consultation, referral, and coordination. (1) Consultation. (2) Referral. (ii) Whenever the CSB 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. (d) Classified information. (e) Timing of responses to consultations and referrals. (f) Agreements regarding consultations and referrals. (g) No responsive record. § 1601.13 Timing of responses to requests. (a) In general. (b) Definitions. (1) Working day (2) [Reserved] (c) Multitrack processing. (d) Unusual circumstances. http://www.foia.gov/report-makerequest.html. (e) Aggregating requests. (f) Expedited processing. (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; or (iv) A matter of widespread and exceptional media interest in which there exists possible questions about the government's integrity that affect public confidence. (2) A request for expedited processing may be made at any time. Requests based on paragraphs (f)(1)(i) through (iv) of this section must be submitted to the CSB. When making a request for expedited processing of an administrative appeal, the request must be submitted to the CSB's FOIA Appeals Officer in accordance with § 1601.20. (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 (f)(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, the CSB may waive the formal certification requirement. (4) The CSB must notify the requester within ten (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, then 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, then the CSB must act on any appeal of that decision expeditiously. § 1601.14 Responses to requests. (a) In general. (b) Acknowledgments of requests. (c) Estimated dates of completion and interim responses. (d) Grants of requests. (e) Adverse determinations of requests. (f) Content of denial. (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(s) applied by the CSB 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 § 1601.20, and a description of the appeal requirements. (5) A statement notifying the requester of the assistance available from the CSB's FOIA Public Liaison and the dispute resolution services offered by the OGIS. (g) Markings on released documents. (h) Use of record exclusions. (2) When invoking an exclusion, the CSB must maintain an administrative record of the process of invocation and approval of the exclusion by OIP. § 1601.15 Special procedures for confidential commercial information. (a) In general. (b) Definitions. (1) Confidential commercial information (2) Submitter (c) Designation of confidential commercial information. (d) When notice to submitters is required. (i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (ii) The CSB 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 CSB 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. (e) Exceptions to submitter notice requirements. (1) The CSB 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 E.O. 12600 of June 23, 1987; or (4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous. In such case, the CSB must 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. (f) Opportunity to object to disclosure. (2) If a submitter has any objections to disclosure, it should provide the CSB 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 privileged or confidential. Whenever possible, the business submitter's claim of confidentiality should be supported by a statement or certification by an officer or authorized representative of the business submitter. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA. (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. The CSB 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. (g) Analysis of objections. (h) Notice of intent to disclose. (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 the CSB intends to release them; and (3) A specified disclosure date, which must be a reasonable time after the notice. (i) Notice of FOIA lawsuit. (j) Requester notification. Subpart C—Appeals § 1601.20 Processing of appeals. (a) Right of appeal. (b) Definitions. (1) FOIA Appeal (2) FOIA Appeals Officer (c) Requirements for making an appeal. (2) The requester must make the appeal in writing. Requesters can submit appeals by mail or email in accordance with the following requirements herein, which are also listed on the CSB's Web site. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, “Freedom of Information Act Appeal” or “FOIA Appeal.” (i) For hard copy requests: The envelope and the request both should addressed to: FOIA Appeals Officer—FOIA Appeal, Chemical Safety and Hazard Investigation Board, 1750 Pennsylvania Ave. NW., Suite 910, Washington, DC 20006. (ii) For electronic requests: The appeal should addressed to the FOIA Appeals Officer and may be submitted by email to [email protected]. (3) To be considered timely, an appeal must be postmarked, or in the case of electronic submissions, transmitted, within ninety (90) calendar days after the date of the adverse determination that is the subject of the appeal. For purposes of apply the ninety (90) calendar day deadline, the CSB will treat an appeal that is improperly addressed as being received on the date on the date that it is actually received by the CSB, or would have been received with the exercise of due diligence, by the FOIA Appeals Officer. (4) The appeal should clearly identify the adverse determination that is being appealed and the assigned request number. (5) An appeal should also include a copy of the initial request, a copy of the letter denying the request in whole or in part, and a statement of the circumstances, reasons, or arguments advanced in support of disclosure of the requested record. (d) Adjudication of appeals. (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 FOIA Appeals Officer must take appropriate action to ensure compliance with applicable classification rules. (e) Decisions on appeals. (f) Engaging in dispute resolution services provided by OGIS. (g) When appeal is required. Subpart D—Administration § 1601.30 Protection of records. (a) In general. (2) No person may, without permission, remove from the place where it is made available any record made available to him for inspection or copying. Stealing, altering, mutilating, obliterating, or destroying a Federal record, in whole or in part, is a violation of Federal law. (b) [Reserved] § 1601.31 Preservation of records pertaining to requests under this part. The CSB must 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 and the General Records Schedule 4.2 of the National Archives and Records Administration. The CSB must not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA. § 1601.32 Other rights and services. Nothing in this subpart will 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. Subpart E—Fees § 1601.40 Procedures for fees. (a) In general. (b) Definitions. (1) Commercial use request (2) Direct costs i.e., (3) Duplication (4) Educational institution (i) Example 1. (ii) Example 2. (iii) Example 3. (5) Noncommercial scientific institution (6) Representative of the news media news Freelance (7) Review (8) Search (c) Charging fees. (1) Search. (ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be charged as follows: $6.00 for clerical personnel; $11.00 for professional personnel; and $15.00 for managerial personnel. (iii) The CSB must charge the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. The CSB 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 the CSB at a Federal records center operated by the National Archives and Records Administration (NARA), the CSB must charge additional costs in accordance with the Transactional Billing Rate Schedule established by NARA. (2) Duplication. (3) Review. i.e., (d) Restrictions on charging fees. (2)(i) If the CSB fails to comply with the FOIA's time limits in which to respond 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)-(iv). (ii) If the CSB has determined that unusual circumstances as defined by the FOIA apply and the CSB provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit must be excused for an additional ten (10) days. (iii) If the CSB has determined that unusual circumstances as defined by the FOIA apply, and more than 5,000 pages are necessary to respond to the request, the CSB 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. The CSB must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the CSB 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, the CSB may charge all applicable fees incurred in the processing of the request. (iv) If a court has determined that exceptional circumstances exist as 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, the CSB 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 $25.00. (e) Notice of anticipated fees in excess of $25.00. (2) If the CSB 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 non-commercial 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. The CSB is not required to accept payments in installments. Requesters must respond to their fee estimate within thirty (30) working days, or the CSB will assume that the requester is no longer interested in their FOIA request(s), and the case will be administratively closed. (3) If the requester has indicated a willingness to pay some designated amount of fees, but the CSB estimates that the total fee will exceed that amount, the CSB 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. The CSB 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) The CSB must make available its FOIA Public Liaison or anther FOIA professional to assist any requester in reformulating a request to meet the requester's needs at a lower cost. (f) Charges for other services. (g) Charging interest. (h) Aggregating requests. (i) Advance payments. i.e., (2) When the CSB 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. The CSB 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 the CSB within thirty (30) calendar days of the billing date, the CSB may require that the requester pay the full amount due, plus any applicable interest on that prior request, and the CSB may require that the requester make an advance payment of the full amount of any anticipated fee before the CSB begins to process a new request or continues to process a pending request or any pending appeal. Where the CSB 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 the CSB 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 thirty (30) calendar days after the date of the CSB's fee determination, the request will be closed. (j) Other statutes specifically providing for fees. (k) Requirements for waiver or reduction of fees. (2) The CSB must furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that 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. In deciding whether this standard is satisfied the CSB must consider the factors described in paragraphs (k)(2)(i) through (iii) of this section: (i) Disclosure of the requested information would shed light on the operations or activities of the 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. The CSB 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, the CSB must consider the following criteria: (A) The CSB 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 must be given an opportunity to provide explanatory information regarding this consideration. (B) If there is an identified commercial interest, the CSB 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) are satisfied and any commercial interest is not the primary interest furthered by the request. The CSB ordinarily will presume that when a news media requester has satisfied the factors in paragraphs (k)(2)(i) and (ii) of this section, 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 the CSB 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.