Title 40

SECTION 1850.2

1850.2 Definitions.

§ 1850.2 Definitions.

(a) 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.

(b) Confidential Commercial Information means commercial or financial information, obtained by the Council from a submitter, that may contain information exempt from release under Exemption 4 of FOIA, 5 U.S.C. 552(b)(4).

(d) Days, unless stated as “calendar days,” are business days and do not include Saturday, Sunday, or federal holidays.

(e) Direct costs means those expenses the Council actually incurs in searching for and duplicating (and, in the case of commercial requesters, reviewing) documents in response to a request made under § 1850.5. 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) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space and heating or lighting of the facility in which the documents are stored.

(f) Duplication means the making a copy of a document, or other information contained in it, necessary to respond to a FOIA request. Copies may take the form of paper, microfilm, audio-visual materials, or electronic records, among others. The Council 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.

(g) 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.

(h) Fee category means one of the three categories that agencies place requesters in for the purpose of determining whether a requester will be charged fees for search, review and duplication. The three fee categories are:

(1) Commercial requesters;

(2) Non-commercial scientific or educational institutions or news media requesters; and

(3) All other requesters.

(i) Fee waiver means the waiver or reduction of processing fees if a requester can demonstrate that certain statutory standards are satisfied, including that the information is in the public interest and is not requested for a commercial interest.

(j) FOIA Public Liaison means an agency official who is responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.

(k) News means information about current events or that would be of current interest to the public.

(l) Noncommercial scientific institution means 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.

(m) Perfected request means a written FOIA request that meets all of the criteria set forth in § 1850.5.

(n) Reading room means a location where records are available for review pursuant to 5 U.S.C. 552(a)(2).

(o) Records under the FOIA include all Government records, regardless of format, medium or physical characteristics, and electronic records and information, audiotapes, videotapes, Compact Disks, DVDs, and photographs.

(p) Records Management Officer means the person designated by the Executive Director of the Council to oversee all aspects of the Council's records management program, including FOIA.

(q) Representative of the news media, or news media requester, means any person or entity organized and operated to publish or broadcast news to the public that actively gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes the work to an audience. Examples of news-media entities are television or radio stations broadcasting to the public at large, and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public including news organizations that disseminate solely on the Internet. To be in this category, a requester must not be seeking the requested records for a commercial use. A request for records that supports the news-dissemination function of the requester shall not be considered to be for a commercial use. A “freelance journalist” shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would be the clearest proof, but the Council shall also look to the past publication record of a requester in making this determination. The Council's decision to grant a requester media status will be made on a case-by-case basis based upon the requester's intended use of the material.

(r) Requester means any person, partnership, corporation, association, or foreign or State or local government, which has made a request to access a Council record under FOIA.

(s) Requester category means one of the three categories in which agencies place requesters to determine whether the agency will charge a requester fees for search, review, and duplication. The categories include commercial requesters, non-commercial scientific or educational institutions or news media requesters, and all other requesters.

(t) 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. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting it and marking any applicable exemptions. Review costs are recoverable even if a record ultimately is not disclosed. Review time includes time spent obtaining and considering any formal objection to disclosure made by a business submitter under § 1850.12 but does not include time spent resolving general legal or policy issues regarding the application of exemptions.

(u) Search means the process of looking for and retrieving documents or information that is responsive to a request. Search time includes page-by-page or line-by-line identification of information within documents and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format.

(v) Submitter means any person or entity from whom the Council obtains confidential commercial information, directly or indirectly.

(w) Unusual circumstances include situations in which the Council must:

(1) Search for and collect the requested agency records from field facilities or other establishments that are separate from the office processing the request;

(2) Search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are the subject of a single request; or

(3) Consult with another Federal agency having a substantial interest in the determination of the FOIA request.