Revision of Tennessee Valley Authority Freedom of Information Act Regulations and Implementation of Electronic Freedom of Information Act Amendments of 1996

TENNESSEE VALLEY AUTHORITY

18 CFR Part 1301

Revision of Tennessee Valley Authority Freedom of Information Act

Regulations and Implementation of Electronic Freedom of Information Act

Amendments of 1996

AGENCY: Tennessee Valley Authority.

ACTION: Proposed rule.

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SUMMARY: These proposed revisions incorporate TVA's former Freedom of

Information Act (FOIA) regulations, as revised herein, and contain new

provisions implementing the Electronic Freedom of Information Act

(EFOIA) of 1996. Additionally, the regulations include updated cost

figures to be used in calculating and charging fees.

DATES: Submit comments on or before October 8, 1998.

ADDRESSES: Address all comments concerning this proposed rule to Wilma

H. McCauley, FOIA Officer, Tennessee Valley Authority, 1101 Market

Street (WR 4Q), Chattanooga, Tennessee 37402.

FOR FURTHER INFORMATION: Wilma H. McCauley, FOIA Officer, Tennessee

Valley Authority, 1101 Market Street (WR 4Q), Chattanooga, Tennessee

37402-2801, telephone number (423) 751-2523.

SUPPLEMENTARY INFORMATION: These proposed revisions will revise TVA's

existing regulations to reflect the provisions of Public Law 104-231,

the EFOIA, to provide the public access to government information and

records maintained in an electronic format, lengthen the time limits

for responding to FOIA requests as prescribed by the EFOIA, provide for

expedited processing of certain requests, establish electronic reading

rooms, provide for multi-track processing of requests, and provide for

an agency reference guide on FOIA. Additionally, the proposed

regulations have been revised to include updated cost figures used in

calculating and charging fees. The duplication charge will remain the

same at ten cents per page, while document search and review charges

will increase to $14.90 per hour for clerical time and $34.30 per hour

for professional and managerial time.

Regulatory Flexibility Act Certification

We certify that these rules will not have a significant economic

impact on a substantial number of small entities because these rules

affect primarily individuals, not small entities, and for the most part

simply implement the language of the EFOIA amendments. There is no

reason to believe that the revised rules will impose any costs on FOIA

requesters beyond those nominal costs imposed under TVA's former rules.

Further, the ``small entities'' that make FOIA requests, as compared

with individual requesters and other requesters, are relatively few in

number.

List of Subjects in 18 CFR Part 1301

Freedom of Information, Privacy, Sunshine Act.

For the reasons stated in the preamble, TVA proposes to amend 18

CFR Part 1301 as follows:

Part 1301--PROCEDURES

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.

2. Subpart A of Part 1301 is revised to read as follows:

Subpart A--Freedom of Information Act

Sec.

1301.1 General provisions.

1301.2 Public reading rooms.

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 Business information.

1301.9 Appeals.

1301.10 Fees.

1301.11 Other rights and services.

Subpart A--Freedom of Information Act

Sec. 1301.1 General provisions

This subpart contains the rules that TVA follows in processing

requests for records under the Freedom of Information Act (FOIA), 5

U.S.C. 552. These rules should be read together with the FOIA, which

provides additional information about access to records maintained by

TVA. Requests made by individuals for records about themselves under

the Privacy Act of 1974, 5 U.S.C. 552a, which are processed under

subpart B of this part, are processed under this subpart also.

Information routinely provided to the public as part of a regular TVA

activity (for example, press releases) may be provided to the public

without the need for a FOIA request under this subpart. As a matter of

policy, TVA makes discretionary disclosures of records or information

exempt from disclosure under the FOIA whenever disclosure would not

foreseeably harm an interest protected by a FOIA exemption, but this

policy does not create any right enforceable in court.

Sec. 1301.2 Public reading rooms.

TVA maintains a public electronic reading room accessible in its

Corporate Libraries at 400 Summit Hill Drive, Knoxville, TN 37902-1499

and 1101 Market Street, Chattanooga, TN 37402-2801. This electronic

reading room contains the records that the FOIA requires to be made

regularly available for public inspection and copying. Each TVA

organization is responsible for determining which of the records it

generates are required to be made available in this way and for

ensuring that those records are available in TVA's reading room. TVA's

FOIA Officer will maintain a current subject-matter index of TVA's

reading room records. The index will be updated regularly, at least

quarterly, with respect to newly included records.

Sec. 1301.3 Requirements for making requests.

(a) How made and addressed. You may make a request for records of

TVA by writing to the Tennessee Valley Authority, TVA FOIA Officer,

Enterprise Document Management (EDM), 1101 Market Street (WR 4Q),

Chattanooga, TN 37402-2801. You may find TVA's ``Guide to Information

About TVA''--which is available electronically at TVA's World Wide Web

site, and is available in paper form as well--helpful in making your

request. For additional information about the FOIA, you may refer

directly to the statute. If you are making a request for records about

yourself, see Subpart B Privacy Act for additional requirements. If you

are making a request for records about another individual, either a

written authorization signed by that individual permitting disclosure

of those records to you or proof that that individual is deceased (for

example, a copy of a death certificate or an obituary) will help the

processing of your request. Your request will be considered received as

of the date it is received by the FOIA Officer. For the quickest

possible handling, you should mark both your request letter and the

envelope ``Freedom of Information Act Request.''

(b) Descriptions of records sought. You must describe the records

that you seek in enough detail to enable TVA personnel to locate them

with a reasonable amount of effort. Whenever possible, your request

should include specific information about each record sought, such as

the date, title or name, author, recipient, and subject matter of the

record. If known, you should include any file designations or

descriptions for the records that you want. As a general rule, the more

specific you are about the records or type of records that you want,

the more likely TVA will be able to locate those records in response to

your request. If TVA determines that your request does not reasonably

describe records, it shall tell you either what additional information

is needed or why your request is otherwise insufficient. TVA shall also

give you an opportunity to discuss your request so that you may modify

it to meet the requirements of this section. If your request does not

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reasonably describe the records you seek, the agency's response to your

request may be delayed.

(c) Agreement to pay fees. If you make a FOIA request, it shall be

considered an agreement by you to pay all applicable fees charged under

section 1301.11, up to $25.00, unless you seek a waiver of fees. TVA's

FOIA Officer will confirm this agreement in an acknowledgement letter.

When making a request, you may specify a willingness to pay a greater

or lesser amount.

Sec. 1301.4 Responsibility for responding to requests.

(a) 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 will include only records in

its possession as of the date the request is received by the FOIA

Officer. If any other date is used, the FOIA Officer shall inform the

requester of that date.

(b) Authority to grant or deny requests. TVA's FOIA Officer, or the

FOIA Officer's designee, is authorized to grant or deny any request for

a TVA record.

(c) Consultations and referrals. When the FOIA Officer receives a

request for a record in TVA's possession, the FOIA Officer shall

determine whether another agency of the Federal Government is better

able to determine whether the record is exempt from disclosure under

the FOIA and, if so, whether it should be disclosed as a matter of

administrative discretion. If the FOIA Officer determines that TVA is

not best able to process the record, the FOIA Officer shall either:

(1) Respond to the request regarding that record, after consulting

with the agency best able to determine whether to disclose it and with

any other agency that has a substantial interest in it; or

(2) Refer the responsibility for responding to the request

regarding that record to the agency that originated the record (but

only if that agency is subject to the FOIA). Ordinarily, the agency

that originated a record will be presumed to be best able to determine

whether to disclose it.

(d) Notice of referral. Whenever TVA refers all or any part of the

responsibility for responding to a request to another agency, it

ordinarily shall notify the requester of the referral and inform the

requester of the name of each agency to which the request has been

referred and of the part of the request that has been referred.

(e) Timing of responses to consultations and referrals. All

consultations and referrals will be handled according to the date the

FOIA request initially was received by the FOIA Officer, not any later

date.

(f) Agreements regarding consultations and referrals. TVA may make

agreements with other agencies to eliminate the need for consultations

or referrals for particular types of records.

Sec. 1301.5 Timing of responses to requests.

(a) In general, TVA ordinarily shall respond to requests according

to their order of receipt and placement in an appropriate processing

track, as follows.

(b) Multi-track processing procedures. 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, including a consideration of the number of pages

involved. If TVA places a request in a track other than Track 1, it

will advise requesters of the limits of its faster track(s). TVA may

provide requesters in its tracks 2 and 3 with an opportunity to limit

the scope of their requests in order to qualify for faster processing

within the specified limits of TVA's faster track(s). When doing so,

TVA may contact the requester either by telephone or by letter,

whichever is most efficient in each case.

(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 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 Sec. 1301.5(c), 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

Governmental 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 Tract 3.

(3) Tract 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 cases will take the longest to process.

(c) Unusual circumstances. (1) Where the time limits for processing

a request cannot be met because of unusual circumstances and TVA

determines to extend the time limits on that basis, TVA shall as soon

as practicable notify the requester in writing of the unusual

circumstances and of the date by which processing of the request can be

expected to be completed. Where the extension is for more than ten

working days, TVA shall provide the requester with an opportunity

either to modify the request so that it may be processed within the

time limits or to arrange an alternative time period with TVA for

processing the request or a modified request. As used in this

paragraph, `unusual circumstances' means, but only to the extent

reasonably necessary to the proper processing of the particular

requests:

(i) 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;

(ii) 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

(iii) 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.

(2) When TVA reasonably believes that multiple requests submitted

by a requester, or by a group of requesters acting in concert,

constitute a single request that would otherwise involve unusual

circumstances, and the requests involve clearly related matters, they

may be aggregated, as defined in Sec. 1301.10(h). Multiple requests by

a requester involving unrelated matters will not be aggregated.

(d) Expedited processing. (1) Requests and appeals will be taken

out of order and given expedited treatment whenever TVA determines that

they involve:

(i) Circumstances in which the lack of expedited treatment could

reasonably be expected to pose an imminent threat to the life or

physical safety of an individual;

(ii) An urgency to inform the public about an actual or alleged

federal government activity, if made by a person 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 exist possible questions about the

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government's integrity which affect public confidence.

(2) A request for expedited processing may be made at the time of

the initial request for records or at any later time. For a prompt

determination, a request for expedited processing must be sent to and

received by TVA's FOIA Officer.

(3) A requester who seeks expedited processing must submit a

statement, certified to be true and correct to the best of that

person's knowledge and belief, explaining in detail the basis for

requesting expedited processing. For example, a requester within the

category in paragraph (d)(1)(ii) of this section, if not a full-time

member of the news media, must establish that he or she is a person

whose main professional activity or occupation is information

dissemination, though it need not be his or her sole occupation. A

requester within the category in paragraph (d)(1)(ii) of this section

also must establish a particular urgency to inform the public about the

government activity involved in the request, beyond the public's right

to know about government activity generally. The formality of

certification may be waived as a matter of administrative discretion.

(4) Within ten calendar days of receipt of a request for expedited

processing, TVA's FOIA Officer shall decide whether to grant it and

shall notify the requester of the decision. If a request for expedited

treatment is granted, the request shall be given priority and shall be

processed as soon as practicable. If a request for expedited processing

is denied, any appeal of that decision shall be acted upon

expeditiously.

Sec. 1301.6 Responses to requests.

(a) Acknowledgements of requests. On receipt of a request, the FOIA

Officer ordinarily shall send an acknowledgement letter to the

requester which shall confirm the requester's agreement to pay fees

under section 1301.10 and provide an assigned request number for

further reference.

(b) Grants of requests. Ordinarily, TVA shall have twenty business

days from when a request is received to determine whether to grant or

deny the request. Once TVA makes a determination to grant a request in

whole or in part, it shall notify the requester in writing. The FOIA

Officer shall inform the requester in the notice of any fee charged

under section 1301.10 and shall disclose records to the requester

promptly on payment of any applicable fee, if the fee is equal to or

more than $100. If the fee is less than $100, the FOIA officer shall

disclose the records along with a statement of the fee. Records

disclosed in part shall be marked or annotated to show the amount of

information deleted unless doing so would harm an interest protected by

an applicable exemption. The location of the information deleted also

shall be indicated on the record, if technically feasible.

(c) Adverse determinations of requests. If TVA makes an adverse

determination denying a request in any respect, they shall notify the

requester of that determination in writing. Adverse determinations, or

denials of requests, consist of: a determination to withhold any

requested record in whole or in part; a determination that a requested

record does not exist or cannot be located; a determination that a

record is not readily reproducible in the form or format sought by the

requester; a determination that what has been requested is not a record

subject to the FOIA; a determination on any disputed fee matter,

including a denial of a request for a fee waiver; and a denial of a

request for expedited treatment. The denial letter shall be signed by

the FOIA Officer or the FOIA Officer's designee, and shall include:

(1) The name and title or position of the person responsible for

the denial;

(2) A brief statement of the reason(s) for the denial, including

any FOIA exemption applied by TVA in denying the request;

(3) An estimate of the volume of records or information withheld,

in number of pages or in some other reasonable form of estimation. This

estimate does not need to be provided if the volume is otherwise

indicated through deletions on records 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 section

1301.9 and a description of the requirements of section 1301.9.

Sec. 1301.7 Exempt records.

(a) Records available. TVA's records will be made available for

inspection and copying upon request as provided in this section, except

that records 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

TVA;

(3) Specifically exempted from disclosure by statute;

(4) Trade secrets and commercial or financial information obtained

from any person and privileged or confidential;

(5) Inter-agency or intra-agency memorandums or letters which would

not be available by law to a private party in litigation with TVA,

including without limitation records relating to control and accounting

for special nuclear material and to the physical security plans for the

protection of TVA's nuclear facilities;

(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 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, operation, or condition

reports prepared by, on behalf of, or for the use of any agency

responsible for the regulation or supervision of financial institution;

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 reasonably 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; all

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nonexempt records relating to bids between the time of bid opening and

award; and all nonexempt records relating to 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 Business information.

(a) In general. Business information obtained by TVA from a

submitter will be disclosed under the FOIA only under this section.

(b) Definitions. For purposes of this section:

(1) Business information means commercial or financial information

obtained by TVA from a submitter that may be protected from disclosure

under Exemption 4 of the FOIA.

(2) Submitter means any person or entity from whom TVA obtains

business information, directly or indirectly. The term includes

corporations; state and local governments; and foreign governments.

(c) Designation of business information. A submitter of business

information will use good-faith efforts to designate, by appropriate

markings, either at the time of submission or at a reasonable time

thereafter, any portions of its submission that it considers to be

protected from disclosure under Exemption 4. These designations will

expire ten years after the date of the submission unless the submitter

requests, and provides justification for, a longer designation period.

(d) Notice to submitters. TVA shall provide a submitter with prompt

written notice of a FOIA request or administrative appeal that seeks

its business information wherever required under paragraph (e) of this

section, except as provided in paragraph (h) of this section, in order

to give the submitter an opportunity to object to disclosure of any

specified portion of that information under paragraph (f) of this

section. The notice shall either describe the business information

requested or include copies of the requested records or record portions

containing the information. When notification of a voluminous number of

submitters is required, notification may be made by posting or

publishing the notice in a place reasonably likely to accomplish

notification of submitters.

(e) Where notice is required. Notice shall be given to a submitter

wherever:

(1) The information has been designated in good faith by the

submitter as information considered protected from disclosure under

Exemption 4; or

(2) TVA has reason to believe that the information may be protected

from disclosure under Exemption 4.

(f) Opportunity to object to disclosure. TVA will allow a submitter

a reasonable time to respond to the notice described in paragraph (d)

of this section. If a submitter has any objection to disclosure, it is

required to submit a detailed written statement. The statement must

specify all grounds for withholding any portion of the information

under any exemption of the FOIA and, in the case of Exemption 4, it

must show why the information is a trade secret or commercial or

financial information that is privileged or confidential. In the event

that a submitter fails to respond to the notice within the time

specified in it, the submitter will be considered to have no objection

to disclosure of the information. Information provided by the submitter

that is not received by TVA until after its disclosure decision has

been made shall not be considered by TVA. Information provided by a

submitter under this paragraph may itself be subject to disclosure

under the FOIA.

(g) Notice of intent to disclose. TVA shall consider a submitter's

objections and specific grounds for nondisclosure in deciding whether

to disclose business information. Whenever TVA decides to disclose

business information over the objection of a submitter, TVA shall give

the submitter written notice, which shall include:

(1) A statement of the reason(s) why each of the submitter's

disclosure objections was not sustained;

(2) A description of the business information to be disclosed, and

(3) A specified disclosure date, which shall be a reasonable time

subsequent to the notice.

(h) Exceptions to notice requirements. The notice requirements of

paragraphs (d) and (g) of this section shall not apply if:

(1) TVA determines that the information should not be disclosed;

(2) The information lawfully has been published or has been

officially made available to the public;

(3) Disclosure of the information is required by statute (other

than the FOIA) or by applicable regulation; or

(4) The designation made by the submitter under paragraph (c) of

this section appears obviously frivolous-except that, in such a case,

the component shall, within a reasonable time prior to a specified

disclosure date, give the submitter written notice of any final

decision to disclose the information.

(i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit

seeking to compel the disclosure of business information, TVA shall

promptly notify the submitter.

(j) Corresponding notice to requesters. Whenever TVA provides a

submitter with notice and an opportunity to object to disclosure under

paragraph (d) of this section, TVA shall also notify the requester(s).

Whenever TVA notifies a submitter of its intent to disclose requested

information under paragraph (g) of this section, TVA shall also notify

the requester(s). Whenever a submitter files a lawsuit seeking to

prevent the disclosure of business information, TVA shall notify the

requester(s).

Sec. 1301.9 Appeals.

(a) Appeals of adverse determinations. If you are dissatisfied with

TVA's response to your request, you may appeal an adverse determination

denying your request, in any respect, to TVA's FOIA Appeal Official,

the Senior Manager, Administrative Services, Tennessee Valley

Authority, 400 Summit Hill Drive (ET 6M), Knoxville, TN 37902-1499. You

must make your appeal in writing and it must be received by the Senior

Manager within 30 days of the date of the letter denying your request.

Your appeal letter may include as much or as little related information

as you wish, as long as it clearly identifies the TVA determination

(including the assigned request number, if known) that you are

appealing. An adverse determination by the TVA Appeal Official will be

the final action of TVA.

(b) Responses to appeals. The decision on your appeal will be made

in writing within 20 days (excluding Saturdays, Sundays, and legal

holidays) after an appeal is received. A decision affirming an adverse

determination in whole or in part shall contain a statement of the

reason(s) for the affirmance, including any FOIA exemption(s) applied,

and will inform you of the FOIA provisions for court review of the

decision. If the adverse determination is reversed or modified on

appeal, in whole or in part, you will be notified in a written decision

and your request will be reprocessed in accordance with that appeal

decision.

(c) When appeal is required. If you wish to seek review by a court

of any adverse determination, you must first appeal it under this

section.

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Sec. 1301.10 Fees.

(a) In general, TVA shall charge for processing requests under the

FOIA in accordance with paragraph (c) of this section, except where

fees are limited under paragraph (d) of this section or where a waiver

or reduction of fees is granted under paragraph (k) of this section. If

the applicable fees are $100 or more, TVA ordinarily will collect all

applicable fees before sending copies of requested records to a

requester. If the applicable fees are less than $100, TVA ordinarily

will bill the requester for the fees in the letter responding to the

request and enclosing the requested records. Requesters must pay fees

by check or money order made payable to the Tennessee Valley Authority

(b) Definitions. For purposes of this section:

(1) Commercial use request means a request from or on behalf of a

person who seeks information for a use or purpose that furthers his or

her commercial, trade, or profit interests, which can include

furthering those interests through litigation. TVA shall determine,

whenever reasonably possible, the use to which a requester will put the

requested records. When it appears that the requester will put the

records to a commercial use, either because of the nature of the

request itself or because TVA has reasonable cause to doubt a

requester's stated use, TVA shall provide the requester a reasonable

opportunity to submit further clarification.

(2) Direct costs means those expenses that TVA actually incurs in

searching for and duplicating (and, in the case of commercial use

requests, reviewing) records to respond to a FOIA request. Direct costs

include, for example, the salary of the employee performing the work

(the basic rate of pay for the employee, plus 16 percent of that rate

to cover benefits, unless the fee is a standard TVA fee as set forth in

paragraph (c) of this section) and the cost of operating duplication

machinery. Not included in direct costs are overhead expenses such as

the costs of space and heating or lighting of the facility in which the

records are kept.

(3) Duplication means the making of 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, microform, audiovisual materials, or

electronic records (for example, magnetic tape or disk), among others.

TVA shall honor a requester's specified preference of form or format of

disclosure if the record is readily reproducible with reasonable

efforts in the requested form or format.

(4) Educational institution means a preschool, a public or private

elementary or secondary school, an institution of undergraduate higher

education, an institution of graduate higher education, or an

institution of professional education, or an institution of vocational

education, that operates a program of scholarly research. To be in this

category, a requester must show that the request is authorized by and

is made under the auspices of a qualifying institution and that the

records are not sought for commercial or private use, but are sought to

further scholarly research.

(5) Noncommercial scientific institution means an institution that

is not operated on a ``commercial'' basis, as that term is 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. To be in this

category, a requester must show that the request is authorized by and

is made under the auspices of a qualifying institution and that the

records are not sought for a commercial or private use but are sought

to further scientific research.

(6) Representative of the news media, or news media requester,

means any person actively gathering news for an entity that is

organized and operated to publish or broadcast news to the public. 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 broadcasting to the

public at large and publishers of periodicals (but only in those

instances where they can qualify as disseminators of ``news'') who make

their products available for purchase or subscription by the general

public. For ``freelance'' journalists to be regarded as working for a

news organization, they must demonstrate a solid basis for expecting

publication through that organization. A publication contract would be

the clearest proof, but TVA shall also look to the past publication

record of a requester in making this determination. To be in this

category, a requester must not be seeking the requested records for a

commercial or private use. However, a request for records supporting

the news-dissemination function of the requester shall not be

considered to be for a commercial use.

(7) Review means the examination of a record located in response to

a request in order to determine whether any portion of it is exempt

from disclosure. It also includes processing any record for disclosure-

for example, doing all that is necessary to redact it and prepare it

for disclosure. Review costs are recoverable even if a record

ultimately is not disclosed. Review time includes time spent

considering any formal objection to disclosure made by a business

submitter under section 1301.8, but does not include time spent

resolving general legal or policy issues regarding the application of

exemptions.

(8) Search means the process of looking for and retrieving records

or information responsive to a request. It includes page-by-page or

line-by-line identification of information within records and also

includes reasonable efforts to locate and retrieve information from

records maintained in electronic form or format. TVA shall ensure that

searches are done in the most efficient and least expensive manner

reasonably possible. For example, TVA shall not search line-by-line

where duplicating an entire document would be quicker and less

expensive.

(c) Fees. In responding to a FOIA request, TVA shall charge the

following fees unless a waiver or reduction of fees has been granted

under paragraph (k) of this section:

(1) Search time charges for other than computer searches. For time

spent by clerical employees in searching files, the charge is $14.90

per hour. For time spent by supervisory and professional employees, the

charge is $34.30 per hour.

(2) Duplication charges. For photostatic reproduction of requested

material which consists of sheets no larger than 8\1/2\ by 14 inches,

the charge is 10 cents per page. For copies produced by computer, such

as tapes or printouts, TVA will charge the direct costs, including

operator time, of producing the copy. For other forms of duplication,

TVA will charge the direct cost of that duplication.

(3) Review charges. Review fees will be charged to requesters who

make a commercial use request. Review fees will be charged only for the

initial record review--in other words, the review done when TVA

determines whether an exemption applies to a particular record or

record portion at the initial request level. No charge will be made for

review at the administrative appeal level for an exemption already

applied. However, record or record portions withheld under an exemption

that is subsequently determined not to apply may be reviewed again to

determine whether any other exemption not previously considered

applies; the costs of that review are chargeable where it is made

necessary by a change of circumstances. Review fees will be

[[Page 47454]]

charged at the same rates as those charged for a search under paragraph

(c)(1) of this section.

(d) Limitations on charging fees. (1) No search fee will be charged

for requests by educational institutions, noncommercial scientific

institutions, or representatives of the news media.

(2) No search fee or review fee will be charged for a quarter-hour

period unless more than half of that period is required for search or

review.

(3) Except for requesters seeking records for a commercial use, TVA

will provide the following without charge:

(i) The first 100 pages of duplication (or the cost equivalent);

and

(ii) The first two hours of search (or the cost equivalent).

(4) No fee is charged to any requester if the cost of collecting

the fee would be equal to or greater than the fee itself.

(5) The provisions of paragraphs (d)(3) and (4) of this section

work together. This means that for requesters other than those seeking

records for a commercial use, no fee will be charged unless the cost of

search in excess of two hours plus the cost of duplication in excess of

100 pages is equal to or greater than the fee itself.

(e) Notice of anticipated fees in excess of $25.00. When TVA

determines or estimates that the fees to be charged under this section

will amount to more than $25.00, TVA shall notify the requester of the

actual or estimated amount of the fees, 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 shall advise

the requester that the estimated fee may be only a portion of the total

fee. In cases in which a requester has been notified that actual or

estimated fees amount to more than $25.00, the request shall not be

considered received and further work shall not be done on it until the

requester agrees to pay the anticipated total fee. Any such agreement

should be documented in writing. A notice under this paragraph will

offer the requester an opportunity to discuss the matter with TVA

personnel in order to reformulate the request to meet the requester's

needs at a lower cost.

(f) Charges for other services. Apart from the other provisions of

this section, when TVA chooses as a matter of administrative discretion

to provide a special service--such as certifying that records are true

copies or sending them by other than ordinary mail--the direct costs of

providing the service ordinarily will be charged.

(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 date of the billing until payment is

received by TVA.

(h) Aggregating requests. When TVA reasonably believes that a

requester or a group of requesters acting together is attempting to

divide a 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. Where requests are separated by

a longer period, TVA will aggregate them only where there exists a

solid basis for determining that aggregation is warranted under all of

the circumstances involved. Multiple requests involving unrelated

matters will not be aggregated.

(i) Advance payments. (1) For requests other than those described

in paragraphs (i) (2) and (3) of this section, TVA shall not require

the requester to make an advance payment--in other words, a payment

made before work is begun or continued on a request. Payment owed for

work already completed (i.e., a prepayment before copies are sent to a

requester) is not an advance payment.

(2) Where TVA determines or estimates that a total fee to be

charged under this section will be more than $250.00, it may require

the requester to make an advance payment of an amount up to the amount

of the entire anticipated fee before beginning to process the request,

except where it receives a satisfactory assurance of full payment from

a requester that has a history of prompt payment.

(3) Where a requester has previously failed to pay a properly

charged FOIA fee to TVA or another agency within 30 days of the date of

billing, TVA may require the requester to pay the full amount due, plus

any applicable interest, and to 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 from that requester.

(4) In cases in which TVA requires advance payment or payment due

under paragraph (i) (2) or (3) of this section, the request shall not

be considered received and further work will not be done on it until

the required payment is received.

(j) Other fees for TVA published materials. The fee schedule of

this section does not apply to fees charged by TVA for documents,

including maps or reports and the like, which TVA sells to the public

at established prices. Where records responsive to requests are

maintained for distribution and sale by TVA at established prices, TVA

will inform requesters of the steps for obtaining records from those

sources so that they may do so most economically.

(k) Waiver or reduction of fees. (1) Records responsive to a

request will be furnished without charge or at a charge reduced below

that established under paragraph (c) of this section where TVA

determines, based on all available information, that the requester has

documented that:

(i) Disclosure of the requested information is in the public

interest because it is likely to contribute significantly to public

understanding of the operations or activities of the government, and

(ii) Disclosure of the information is not primarily in the

commercial interest of the requester.

(2) To determine whether the first fee waiver requirement is met,

TVA will consider the following factors:

(i) The subject of the request: Whether the subject of the

requested records concerns ``the operations or activities of the

government.'' The subject of the requested records must concern

identifiable operations or activities of the federal government, with a

connection that is direct and clear, not remote or attenuated.

(ii) The informative value of the information to be disclosed:

Whether the disclosure is ``likely to contribute'' to an understanding

of government operations or activities. The disclosable portions of the

requested records must be meaningfully informative about government

operations or activities in order to be ``likely to contribute'' to an

increased public understanding of those operations or activities. The

disclosure of information that already is in the public domain, in

either a duplicative or a substantially identical form, would not be as

likely to contribute to such understanding where nothing new would be

added to the public's understanding.

(iii) The contribution to an understanding of the subject by the

public likely to result from disclosure: Whether disclosure of the

requested information will contribute to ``public understanding.'' 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 and ability and intention to effectively convey

information to the public shall be considered. It shall be presumed

that a representative of the

[[Page 47455]]

news media will satisfy this consideration.

(iv) The significance of the contribution to public understanding:

Whether the disclosure is likely to contribute ``significantly'' to

public understanding of government operations or activities. The

public's understanding of the subject in question, as compared to the

level of public understanding existing prior to the disclosure, must be

enhanced by the disclosure to a significant extent. TVA shall not make

value judgments about whether information that would contribute

significantly to public understanding of the operations or activities

of the government is ``important'' enough to be made public.

(3) To determine whether the second fee waiver requirement is met,

TVA will consider the following factors:

(i) The existence and magnitude of a commercial interest: Whether

the requester has a commercial interest that would be furthered by the

requested disclosure. TVA shall consider any commercial interest of the

requester (with reference to the definition of ``commercial use'' in

paragraph (b) (1) of this section), or of any person on whose behalf

the requester may be acting, that would be furthered by the requested

disclosure. Requesters shall be given an opportunity in the

administrative process to provide explanatory information regarding

this consideration.

(ii) The primary interest in disclosure. Whether any identified

commercial interest of the requester is sufficiently large, in

comparison with the public interest in disclosure, that disclosure is

``primarily in the commercial interest of the requester.'' A fee waiver

or reduction is justified where the public interest standard is

satisfied and that public interest is greater in magnitude than that of

any identified commercial interest in disclosure. TVA ordinarily shall

presume that where a news media requester has satisfied the public

interest standard, the public interest will be the interest primarily

served by disclosure to that requester. Disclosure to data brokers or

others who merely compile and market government information for direct

economic return shall not be presumed to primarily serve the public

interest.

(4) Where only some of the requested records satisfy the

requirements for a waiver of fees, a waiver shall be granted for those

records.

(5) Requests for the waiver or reduction of fees should address the

factors listed in paragraphs (k) (2) and (3) of this section, insofar

as they apply to each request. TVA will exercise their discretion to

consider the cost-effectiveness of their investment of administrative

resources in this decisionmaking process, however, in deciding to grant

waivers or reductions of fees.

Sec. 1301.11 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.

William S. Moore,

Senior Manager, Administrative Services.

[FR Doc. 98-23690 Filed 9-4-98; 8:45 am]

BILLING CODE 8120-08-P