[Code of Federal Regulations]
[Title 13, Volume 1]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 13CFR400.107]

[Page 599-606]
 
                TITLE 13--BUSINESS CREDIT AND ASSISTANCE
 
            CHAPTER IV--EMERGENCY STEEL GUARANTEE LOAN BOARD
 
PART 400--EMERGENCY STEEL GUARANTEE LOAN PROGRAM--Table of Contents
 
                       Subpart B--Board Procedures
 
Sec. 400.107  Freedom of Information Act.

    (a) Definitions. All terms used in this section which are defined in 
5 U.S.C. 551 or 5 U.S.C. 552 shall have the same meaning in this 
section. In addition the following definitions apply to this section:
    (1) FOIA, as used in this section, means the ``Freedom of 
Information Act,'' as amended, 5 U.S.C. 552.
    (2) Commercial use request means a request from or on behalf of one 
who seeks information for a use or purpose that furthers the commercial, 
trade, or profit interests of the requester or the person on whose 
behalf the request is made.
    (3) Direct costs mean those expenditures that the Board actually 
incurs in searching for, reviewing, and duplicating documents in 
response to a request made under paragraph (c) of this section. Direct 
costs include, for example, the labor costs of the employee performing 
the work (the basic rate of pay for the employee, plus 16 percent of 
that rate to cover benefits). 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.
    (4) Duplication means the process of making a copy of a document in 
response to a request for disclosure of

[[Page 600]]

records or for inspection of original records that contain exempt 
material or that otherwise cannot be inspected directly. Among others, 
such copies may take the form of paper, microfilm, audiovisual 
materials, or machine-readable documentation (e.g., magnetic tape or 
disk).
    (5) Educational institution means a preschool, a public or private 
elementary or secondary school, or an institution of undergraduate 
higher education, graduate higher education, professional education, or 
an institution of vocational education that operates a program of 
scholarly research.
    (6) Noncommercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis (as that term is used in 
this section) and which is operated solely for the purpose of conducting 
scientific research, the results of which are not intended to promote 
any particular product or industry.
    (7) News means information about current events or that would be of 
current interest to the public. Examples of news media entities include, 
but are not limited to, television or radio stations broadcasting to the 
public at large, and publishers of newspapers and other periodicals (but 
only in those instances when they can qualify as disseminators of 
``news'') who make their products available for purchase or subscription 
by the general public. ``Freelance'' journalists may be regarded as 
working for a news organization if they can demonstrate a solid basis 
for expecting publication through that organization, even though not 
actually employed by it.
    (8) Representative of the news media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the general public.
    (9) Review means the process of examining documents, located in 
response to a request for access, to determine whether any portion of a 
document is exempt information. It includes doing all that is necessary 
to excise the documents and otherwise to prepare them for release. 
Review does not include time spent resolving general legal or policy 
issues regarding the application of exemptions.
    (10) Search means the process of looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification within documents. Searches may be done manually or by 
computer.
    (b) Records available for public inspection and copying--(1) Types 
of records made available. The information in this section is furnished 
for the guidance of the public and in compliance with the requirements 
of the Freedom of Information FOIA, as amended (5 U.S.C. 552)(FOIA). 
This section sets forth the procedures the Board follows to make 
publicly available the materials specified in 5 U.S.C. 552(a)(2). These 
materials shall be made available for inspection and copying at the 
Board's Freedom of Information Office pursuant to 5 U.S.C. 552(a)(2). 
Information routinely provided to the public as part of a regular Board 
activity (for example, press releases) may be provided to the public 
without following this section.
    (2) Reading room procedures. Information available under this 
section is available for inspection and copying, from 9:00 a.m. to 5:00 
p.m. weekdays, at the Freedom of Information Office of the Board, Steel 
Guarantee Loan Board, U.S. Department of Commerce, Washington, DC 20230.
    (3) Electronic records. Information available under this section 
that was created on or after November 1, 1996, shall also be available 
on the Board's website found at http://elb.osec.doc.gov and at http://
elb.commerce.gov.
    (c) Records available to the public on request--(1) Types of records 
made available. All records of the Board that are not available under 
paragraph (b) of this section shall be made available upon request, 
pursuant to the procedures in this section and the exceptions set forth 
in the FOIA. The Board's policy is to make 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.
    (2) Procedures for requesting records. A request for records shall 
reasonably describe the records in a way that enables the Board's staff 
to identify and

[[Page 601]]

produce the records with reasonable effort and without unduly burdening 
or significantly interfering with any of the Board's operations. The 
request shall be submitted in writing to the Secretary of the Board, 
Steel Guarantee Loan Board, U.S. Department of Commerce, Washington, DC 
20230; or sent by facsimile to the Secretary of the Board. The request 
shall be clearly marked FREEDOM OF INFORMATION ACT REQUEST.
    (3) Contents of request. The request shall contain the following 
information:
    (i) The name and address of the requester, and the telephone number 
at which the requester can be reached during normal business hours;
    (ii) Whether the requested information is intended for commercial 
use, or whether the requester represents an educational or noncommercial 
scientific institution, or news media;
    (iii) A statement agreeing to pay the applicable fees, or a 
statement identifying any fee limitation desired, or a request for a 
waiver or reduction of fees that satisfies paragraph (f) of this 
section.
    (d) Processing requests--(1) Priority of responses. The date of 
receipt for any request, including one that is addressed incorrectly or 
that is referred to the Board by another agency, is the date the 
Secretary of the Board actually receives the request. The Secretary of 
the Board shall normally process requests in the order they are 
received. However, in the Secretary of the Board's discretion, the Board 
may use two or more processing tracks by distinguishing between simple 
and more complex requests based on the number of pages involved, or some 
other measure of the amount of work and/or time needed to process the 
request, and whether the request qualifies for expedited processing as 
described in paragraph (d)(2), of this section. When using multitrack 
processing, the Secretary of the Board may provide requesters in the 
slower track(s) with an opportunity to limit the scope of their requests 
in order to qualify for faster processing. The Secretary of the Board 
shall contact the requester by telephone or by letter, whichever is most 
efficient in each case.
    (2) Expedited processing. (i) A person may request expedited access 
to records by submitting a statement, certified to be true and correct 
to the best of that person's knowledge and belief, that demonstrates a 
compelling need for the records, as defined in 5 U.S.C. 552(a)(6)(E)(v).
    (ii) The Secretary of the Board shall notify a requester of the 
determination whether to grant or deny a request for expedited 
processing within ten working days of receipt of the request. If the 
Secretary of the Board grants the request for expedited processing, the 
Board shall process the request for access to information as soon as 
practicable. If the Secretary of the Board denies a request for 
expedited processing, the requester may file an appeal pursuant to the 
procedures set forth in paragraph (e) of this section, and the Board 
shall respond to the appeal within twenty days after the appeal was 
received by the Board.
    (3) Time limits. The time for response to requests shall be 20 
working days, except:
    (i) In the case of expedited treatment under paragraph (d)(2) of 
this section;
    (ii) Where the running of such time is suspended for payment of fees 
pursuant to paragraph (f)(2)(ii) of this section;
    (iii) Where the estimated charge is less than $250, and the 
requester does not guarantee payment pursuant to paragraph (f)(2)(i) of 
this section; or
    (iv) In unusual circumstances, as defined in 5 U.S.C. 
552(a)(6)(B)(iii), the time limit may be extended for a period of time 
not to exceed 10 working days as provided by written notice to the 
requester, setting forth the reasons for the extension and the date on 
which a determination is expected to be dispatched; or such alternative 
time period as mutually agreed to by the Secretary of the Board and the 
requester when the Secretary of the Board notifies the requester that 
the request cannot be processed in the specified time limit.
    (4) Response to request. In response to a request that satisfies 
paragraph (c) of this section, an appropriate search shall be conducted 
of records in the custody and control of the Board on the date of 
receipt of the request, and

[[Page 602]]

a review made of any responsive information located. The Secretary of 
the Board shall notify the requester of:
    (i) The Secretary of the Board's determination of the request and 
the reasons therefor;
    (ii) The information withheld, and the basis for withholding; and
    (iii) The right to appeal any denial or partial denial, pursuant to 
paragraph (e) of this section.
    (5) Referral to another agency. To the extent a request covers 
documents that were created by, obtained from, classified by, or is in 
the primary interest of another agency, the Secretary of the Board may 
refer the request to that agency for a direct response by that agency 
and inform the requester promptly of the referral. The Secretary of the 
Board shall consult with another Federal agency before responding to a 
requester if the Board receives a request for a record in which:
    (i) Another Federal agency subject to the FOIA has a significant 
interest, but not the primary interest; or
    (ii) Another Federal agency not subject to the FOIA has the primary 
interest or a significant interest. Ordinarily, the agency that 
originated a record will be presumed to have the primary interest in it.
    (6) Providing responsive records. (i) A copy of records or portions 
of records responsive to the request shall be sent to the requester by 
regular U.S. mail to the address indicated in the request, unless the 
requester elects to take delivery of the documents at the Board's 
Freedom of Information Office or makes other acceptable arrangements, or 
the Secretary of the Board deems it appropriate to send the documents by 
another means. The Secretary of the Board shall provide a copy of the 
record in any form or format requested if the record is readily 
reproducible in that form or format, but the Secretary of the Board need 
not provide more than one copy of any record to a requester.
    (ii) The Secretary of the Board shall provide any reasonably 
segregable portion of a record that is responsive to the request after 
deleting those portions that are exempt under the FOIA or this section.
    (iii) Except where disclosure is expressly prohibited by statute, 
regulation, or order, the Secretary of the Board may authorize the 
release of records that are exempt from mandatory disclosure whenever 
the Board or designated Board members determine that there would be no 
foreseeable harm in such disclosure.
    (iv) The Board is not required in response to the request to create 
records or otherwise to prepare new records.
    (7) Prohibition against disclosure. Except as provided in this part, 
no officer, employee, or agent of the Board shall disclose or permit the 
disclosure of any unpublished information of the Board to any person 
(other than Board officers, employees, or agents properly entitled to 
such information for the performance of official duties), unless 
required by law.
    (e) Appeals. (1) Any person denied access to Board records requested 
under paragraph (c) of this section, denied expedited processing under 
paragraph (d) of this section, or denied a waiver of fees under 
paragraph (f) of this section may file a written appeal within 30 
calendar days after the date of such denial with the Board. The written 
appeal shall prominently display the phrase FREEDOM OF INFORMATION ACT 
APPEAL on the first page, and shall be addressed to the General Counsel 
of the Board, Steel Guarantee Loan Board, U.S. Department of Commerce, 
Washington, DC 20230; or sent by facsimile to the General Counsel of the 
Board. The appeal shall include a copy of the original request, the 
initial denial, if any, and a statement of the reasons why the requested 
records should be made available and why the initial denial was in 
error.
    (2) The General Counsel of the Board shall make a determination 
regarding any appeal within 20 working days of actual receipt of the 
appeal, and the determination letter shall notify the appealing party of 
the right to seek judicial review in event of denial.
    (f) Fee schedules; waiver of fees--
    (1) Fee schedule. The fees applicable to a request for records 
pursuant to paragraph (c) of this section are set forth in the uniform 
fee schedule at the end of this paragraph (f).

[[Page 603]]

    (i) Search. (A) Search fees shall be charged for all requests--other 
than requests made by educational institutions, noncommercial scientific 
institutions, or representatives of the news media--subject to the 
limitations of paragraph (f)(1)(iv) of this section. The Secretary of 
the Board shall charge for time spent searching even if no responsive 
record is located or if the Secretary of the Board withholds the 
record(s) located as entirely exempt from disclosure.
    Search fees shall be the direct costs of conducting the search by 
the involved employees.
    (B) For computer searches of records, requesters will be charged the 
direct costs of conducting the search, although certain requesters (as 
provided in paragraph (f)(3) of this section will be charged no search 
fee and certain other requesters (as provided in paragraph (f)(3)) are 
entitled to the cost equivalent of two hours of manual search time 
without charge. These direct costs include the costs, attributable to 
the search, of operating a central processing unit and operator/
programmer salary.
    (ii) Duplication. Duplication fees will be charged to all 
requesters, subject to the limitations of paragraph (f)(1)(iv) of this 
section. For a paper photocopy of a record (no more than one copy of 
which need be supplied), the fee shall be 15 cents per page. For copies 
produced by computer, such as tapes or printouts, the Secretary of the 
Board shall charge the direct costs, including operator time, of 
producing the copy. For other forms of duplication, the Secretary of the 
Board will charge the direct costs of that duplication.
    (iii) Review. Review fees shall be charged to requesters who make a 
commercial use request. Review fees shall be charged only for the 
initial record review--the review done when the Secretary of the Board 
determines whether an exemption applies to a particular record at the 
initial request level. No charge will be made for review at the 
administrative appeal level for an exemption already applied. However, 
records 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, and the costs of that review are 
chargeable. Review fees shall be the direct costs of conducting the 
review by the involved employees.
    (iv) Limitations on charging fees. (A) No search fee will be charged 
for requests by educational institutions, noncommercial scientific 
institutions, or representatives of the news media.
    (B) 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.
    (C) Whenever a total fee calculated under this paragraph is $25 or 
less for any request, no fee will be charged.
    (D) 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 totals more 
than $25.
    (2) Payment procedures. All persons requesting records pursuant to 
paragraph (c) of this section shall pay the applicable fees before the 
Secretary of the Board sends copies of the requested records, unless a 
fee waiver has been granted pursuant to paragraph (f)(6) of this 
section. Requesters must pay fees by check or money order made payable 
to the Treasury of the United States.
    (i) Advance notification of fees. If the estimated charges are 
likely to exceed $25, the Secretary of the Board shall notify the 
requester of the estimated amount, unless the requester has indicated a 
willingness to pay fees as high as those anticipated. Upon receipt of 
such notice, the requester may confer with the Secretary of the Board to 
reformulate the request to lower the costs. The processing of the 
request shall be suspended until the requester provides the Secretary of 
the Board with a written guarantee that payment will be made upon 
completion of the processing.
    (ii) Advance payment. The Secretary of the Board shall require 
advance payment of any fee estimated to exceed $250. The Secretary of 
the Board shall also require full payment in advance where a requester 
has previously failed to pay a fee in a timely fashion. If an advance 
payment of an estimated fee exceeds the actual total fee by $1 or more, 
the difference shall be refunded

[[Page 604]]

to the requester. The time period for responding to requests under 
paragraph (d)(4) of this section, and the processing of the request 
shall be suspended until the Secretary of the Board receives the 
required payment.
    (iii) Late charges. The Secretary of the Board may assess interest 
charges when fee payment is not made within 30 days of the date on which 
the billing was sent. Assessment of such interest will commence on the 
31st day following the day on which the billing was sent. Interest is at 
the rate prescribed in 31 U.S.C. 3717.
    (3) Categories of uses. The fees assessed depend upon the fee 
category. In determining which category is appropriate, the Secretary of 
the Board shall look to the identity of the requester and the intended 
use set forth in the request for records. Where a requester's 
description of the use is insufficient to make a determination, the 
Secretary of the Board may seek additional clarification before 
categorizing the request.
    (i) Commercial use requester. The fees for search, duplication, and 
review apply when records are requested for commercial use.
    (ii) Educational, non-commercial scientific institutions, or 
representatives of the news media requesters. The fees for duplication 
apply when records are not sought for commercial use, and the requester 
is a representative of the news media or an educational or noncommercial 
scientific institution, whose purpose is scholarly or scientific 
research. The first 100 pages of duplication, however, will be provided 
free.
    (iii) All other requesters. For all other requests, the fees for 
search and duplication apply. The first two hours of search time and the 
first 100 pages of duplication, however, will be provided free.
    (4) Nonproductive search. Fees for search may be charged even if no 
responsive documents are found. Fees for search and review may be 
charged even if the request is denied.
    (5) Aggregated requests. A requester may not file multiple requests 
at the same time, solely in order to avoid payment of fees. If the 
Secretary of the Board reasonably believes that a requester is 
separating a request into a series of requests for the purpose of 
evading the assessment of fees or that several requesters appear to be 
acting together to submit multiple requests solely in order to avoid 
payment of fees, the Secretary of the Board may aggregate such requests 
and charge accordingly. It is considered reasonable for the Secretary of 
the Board to presume that multiple requests by one requester on the same 
topic made within a 30-day period have been made to avoid fees.
    (6) Waiver or reduction of fees. A request for a waiver or reduction 
of the fees, and the justification for the waiver, shall be included 
with the request for records to which it pertains. If a waiver is 
requested and the requester has not indicated in writing an agreement to 
pay the applicable fees if the waiver request is denied, the time for 
response to the request for documents, as set forth in under paragraph 
(d)(4) of this section, shall not begin until a determination has been 
made on the request for a waiver or reduction of fees.
    (i) Standards for determining waiver or reduction. The Secretary of 
the Board may grant a waiver or reduction of fees where it is determined 
both that disclosure of the information is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operation or activities of the government, and that the 
disclosure of information is not primarily in the commercial interest of 
the requester. In making this determination, the following factors shall 
be considered:
    (A) Whether the subject of the records concerns the operations or 
activities of the government;
    (B) Whether disclosure of the information is likely to contribute 
significantly to public understanding of government operations or 
activities;
    (C) Whether the requester has the intention and ability to 
disseminate the information to the public;
    (D) Whether the information is already in the public domain;
    (E) Whether the requester has a commercial interest that would be 
furthered by the disclosure; and, if so,
    (F) Whether the magnitude of the identified commercial interest of 
the

[[Page 605]]

requester is sufficiently large, in comparison with the public interest 
in disclosure, that disclosure is primarily in the commercial interest 
of the requester.
    (ii) Contents of request for waiver. A request for a waiver or 
reduction of fees shall include a clear statement of how the request 
satisfies the criteria set forth in paragraph (f)(6)(i) of this section.
    (iii) Burden of proof. The burden shall be on the requester to 
present evidence or information in support of a request for a waiver or 
reduction of fees.
    (iv) Determination by Secretary of the Board. The Secretary of the 
Board shall make a determination on the request for a waiver or 
reduction of fees and shall notify the requester accordingly. A denial 
may be appealed to the Board in accordance with paragraph (e) of this 
section.
    (7) Uniform fee schedule.

------------------------------------------------------------------------
                  Service                               Rate
------------------------------------------------------------------------
(i) Manual search.........................  Actual salary rate of
                                             employee involved, plus 16
                                             percent of salary rate.
(ii) Computerized search..................  Actual direct cost,
                                             including operator time.
(iii) Duplication of records:
    (A) Paper copy reproduction...........  $.15 per page
    (B) Other reproduction (e.g., computer  Actual direct cost,
     disk or printout, microfilm,            including operator time.
     microfiche, or microform).
(iv) Review of records (includes            Actual salary rate of
 preparation for release, i.e. excising).    employee conducting review,
                                             plus 16 percent of salary
                                             rate.
------------------------------------------------------------------------

    (g) Reuest for confidential treatment of business information--(1) 
Submission of request. Any submitter of information to the Board who 
desires confidential treatment of business information pursuant to 5 
U.S.C. 552(b)(4) shall file a request for confidential treatment with 
the Board at the time the information is submitted or a reasonable time 
after submission.
    (2) Form of request. Each request for confidential treatment of 
business information shall state in reasonable detail the facts 
supporting the commercial or financial nature of the business 
information and the legal justification under which the business 
information should be protected. Conclusory statements that release of 
the information would cause competitive harm generally will not be 
considered sufficient to justify confidential treatment.
    (3) Designation and separation of confidential material. All 
information considered confidential by a submitter shall be clearly 
designated ``PROPRIETARY'' or ``BUSINESS CONFIDENTIAL'' in the 
submission and separated from information for which confidential 
treatment is not requested. Failure to segregate confidential commercial 
or financial information from other material may result in release of 
the nonsegregated material to the public without notice to the 
submitter.
    (h) Request for access to confidential commercial or financial 
information.--(1) Request for confidential commercial or financial 
information. A request by a submitter for confidential treatment of any 
business information shall be considered in connection with a request 
for access to that information.
    (2) Notice to the submitter. (i) The Secretary of the Board shall 
notify a submitter who requested confidential treatment of information 
pursuant to 5 U.S.C. 552(b)(4), of the request for access.
    (ii) Absent a request for confidential treatment, the Secretary of 
the Board may notify a submitter of a request for access to submitter's 
business information if the Secretary of the Board reasonably believes 
that disclosure of the information may cause substantial competitive 
harm to the submitter.
    (iii) The notice given to the submitter by mail, return receipt 
requested, shall be given as soon as practicable after receipt of the 
request for access, and shall describe the request and provide the 
submitter seven working days from the date of notice, to submit written 
objections to disclosure of the information. Such statement shall 
specify all grounds for withholding any of the information and shall 
demonstrate why the information which is considered to be commercial or 
financial information, and that the information is a trade secret, is 
privileged or confidential, or that its disclosure is likely to cause 
substantial competitive harm to the submitter. If the submitter fails to 
respond to the notice within the time specified, the submitter will be 
considered to have no

[[Page 606]]

objection to the release of the information. Information a submitter 
provides under this paragraph may itself be subject to disclosure under 
the FOIA.
    (3) Exceptions to notice to submitter. Notice to the submitter need 
not be given if:
    (i) The Secretary of the Board determines that the request for 
access should be denied;
    (ii) The requested information lawfully has been made available to 
the public;
    (iii) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (iv) The submitter's claim of confidentiality under 5 U.S.C. 
552(b)(4) appears obviously frivolous or has already been denied by the 
Secretary of the Board, except that in this last instance the Secretary 
of the Board shall give the submitter written notice of the 
determination to disclose the information at least seven working days 
prior to disclosure.
    (4) Notice to requester. At the same time the Secretary of the Board 
notifies the submitter, the Secretary of the Board also shall notify the 
requester that the request is subject to the provisions of this section.
    (5) Determination by Secretary of the Board. The Secretary of the 
Board's determination whether or not to disclose any information for 
which confidential treatment has been requested pursuant to this section 
shall be communicated to the submitter and the requester immediately. If 
the Secretary of the Board determines to disclose the business 
information over the objection of a submitter, the Secretary of the 
Board shall give the submitter written notice via mail, return receipt 
requested, or similar means, which shall include:
    (i) A statement of reason(s) why the submitter's objections to 
disclosure were not sustained;
    (ii) A description of the business information to be disclosed; and
    (iii) A statement that the component intends to disclose the 
information seven working days from the date the submitter receives the 
notice.
    (6) Notice of lawsuit. The Secretary of the Board shall promptly 
notify any submitter of information covered by this section of the 
filing of any suit against the Board to compel disclosure of such 
information, and shall promptly notify a requester of any suit filed 
against the Board to enjoin the disclosure of requested documents.

[64 FR 57933, Oct. 27, 1999, as amended at 65 FR 70293, Nov. 22, 2000]