[Federal Register Volume 61, Number 105 (Thursday, May 30, 1996)]
[Proposed Rules]
[Pages 27031-27036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13469]
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ARMS CONTROL AND DISARMAMENT AGENCY
22 CFR Part 602
Freedom of Information Policy and Procedures
AGENCY: Arms Control and Disarmament Agency.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The United States Arms Control and Disarmament Agency (ACDA)
proposes to revise and restate in their entirety its rules that govern
the availability and release of information. By clarifying these rules,
this proposal will help the public to interact better with ACDA and is
part of ACDA's effort to update and streamline its regulations. ACDA
invites comments from interested groups and members of the public on
the proposed regulations.
DATES: To be considered, comments must be delivered by mail or in
person to the address, or faxed to the telephone number, listed below
by 5:00 p.m. on Monday, July 8, 1996.
ADDRESSES: Comments should be directed to the Office of the General
Counsel, United States Arms Control and Disarmament Agency, Room 5635,
320 21st Street, N.W., Washington, DC 20451; FAX (202) 647-0024.
Comments will be available for inspection between 8:15 a.m. and 5:00
p.m. at the same address.
FOR FURTHER INFORMATION CONTACT:
Frederick Smith, Jr., United States Arms Control and Disarmament
Agency, Room 5635, 320 21st Street, N.W., Washington, DC 20451,
telephone (202) 647-3596.
SUPPLEMENTARY INFORMATION: ACDA proposes to update, clarify,
reorganize, and streamline its rules regarding the availability and
release of information under the Freedom of Information Act, as
amended. ACDA does not intend these rules to materially affect current
ACDA standards, policies, or procedures.
Regulatory Flexibility Act Certification
It is hereby certified that the proposed rule will not have a
significant economic impact on a substantial number of small entities.
Accordingly, a regulatory flexibility analysis is not required.
Executive Order 12866 Determination
ACDA has determined that the proposed rule is not a significant
regulatory action within the meaning of section 3(f) of that Executive
Order.
Paperwork Reduction Act Statement
The proposed rule is not subject to the provisions of the Paperwork
Reduction Act because it does not contain any information collection
requirements within the meaning of that Act.
Unfunded Mandates Act Determination
ACDA has determined that the proposed rule will not result in
expenditures by state, local, and tribal governments, or by the private
sector, of more than $100 million in any one year. Accordingly, a
budgetary impact statement is not required under section 202 of the
Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532.
List of Subjects in 22 CFR Part 602
Freedom of Information Act.
The Proposed Regulations
ACDA proposes to revise 22 CFR Part 602 to read as follows:
PART 602--FREEDOM OF INFORMATION POLICY AND PROCEDURES
Subpart A--Basic Policy
Sec.
602.1 Scope of part.
602.2 Definitions.
602.3 General policy.
[[Page 27032]]
Subpart B--Procedure for Requesting Records
602.10 Requests for records.
602.11 Requests in person.
602.12 Availability of records at the ACDA Office of Public
Affairs.
602.13 Copies of records.
602.14 Records of other agencies, governments and international
organizations.
602.15 Overseas requests.
602.16 Responses and time limits on requests.
602.17 Time extensions.
602.18 Inability to comply with requests.
602.19 Predisclosure notification for confidential commercial
information.
Subpart C--Fees
602.20 Fees for records search, review, copying, certification, and
related services.
602.21 Waiver or reduction of fees.
602.22 [Reserved]
602.23 GPO and free publications.
602.24 Method of payment.
Subpart D--Denials of Records
602.30 Denials.
602.31 Exemptions.
Subpart E--Review of Denials of Records
602.40 Procedure for appealing initial determinations to withhold
records.
602.41 Decision on appeal.
Subpart F--Annual Report to the Congress
602.50 Requirements for annual report.
Authority: 5 U.S.C. 552; 22 U.S.C. 2581; and 31 U.S.C. 9701.
Subpart A--Basic Policy
Sec. 602.1 Scope of part.
This part 602 establishes the policies, responsibilities and
procedures for release to members of the public of records which are
under the jurisdiction of the U.S. Arms Control and Disarmament Agency.
Sec. 602.2 Definitions.
As used throughout this part, the following terms have the meanings
set forth in this section:
(a) The term Agency and the acronym ACDA stand for the U.S. Arms
Control and Disarmament Agency.
(b) The term records includes all books, papers, maps, photographs,
or other documentary materials, regardless of physical form or
characteristics, made or received by the Agency in pursuance of Federal
law or in connection with the transaction of public business and
preserved or appropriate for preservation by the Agency or its
legitimate successor as evidence of the organization, functions,
policies, decisions, procedures, operations, or other activities of the
Government or because of the informational value of data contained
therein. Library or museum material made or acquired solely for
reference or exhibition purposes is not included within the definition
of the term ``records.''
(c) Deputy Director means the Deputy Director of the Agency.
(d) The acronym FOIA stands for the Freedom of Information Act, as
amended (5 U.S.C. 552).
Sec. 602.3 General policy.
(a) In accordance with section 2 of the Arms Control and
Disarmament Act, as amended (22 U.S.C. 2551), it is the policy of ACDA
to carry out as one of its primary functions the dissemination and
coordination of public information concerning arms control,
nonproliferation, and disarmament.
(b) In compliance with the FOIA, ACDA will make available upon
request by members of the public to the fullest extent practicable all
Agency records under its jurisdiction, as described in the FOIA, except
to the extent that they may be exempt from disclosure under the FOIA
and Sec. 602.31.
Subpart B--Procedure for Requesting Records
Sec. 602.10 Requests for records.
(a) A written request for records should be addressed to: FOIA
Officer, U.S. Arms Control and Disarmament Agency, 320 21st Street,
N.W., Washington, DC 20451. To facilitate processing, the letter of
request and envelope should be conspicuously marked ``FOIA request.''
(b) The request should identify the desired record or reasonably
describe it. The identification should be as specific as possible so
that a record can be found readily. Blanket requests or requests for
``the entire file of'' or ``all matters relating to'' a specified
subject will not be accepted. The Agency will make any reasonable
effort to assist the requester in sharpening the request to eliminate
extraneous and unwanted materials and to keep search and copying fees
to a minimum.
(c) If a fee is chargeable under subpart C of this part for search
or duplication costs incurred in connection with a request for an
Agency record, the request should include the anticipated fee or should
ask for a determination of such fee. Any chargeable fee must be paid in
full prior to issuance of requested materials. The method of payment is
described in Sec. 602.24.
Sec. 602.11 Requests in person.
A member of the public may request an Agency record by making an
appointment to apply in person between the hours of 8:30 a.m. and 4:00
p.m. at the ACDA Office of Public Affairs, 320 21st Street, N.W.,
Washington, DC 20451. Form ACDA-21, Public Information Service Request,
is available at the ACDA Office of Public Affairs for the convenience
of members of the public in requesting Agency records.
Sec. 602.12 Availability of records at the ACDA Office of Public
Affairs.
(a) A current index identifying all available records is kept on
file at the ACDA Office of Public Affairs. Copies of this index may be
obtained free upon request.
(b) In addition, the ACDA Office of Public Affairs will maintain or
have available, unless authorized to be withheld, certain types of
unclassified records, including but not necessarily limited to the
following:
(1) A copy of the ACDA Manual and other Agency regulations,
including a copy of title 22 of the Code of Federal Regulations (CFR)
and any other title of the CFR in which Agency regulations have been
published;
(2) Copies of arms control and disarmament treaties or agreements
in force;
(3) Research contracts between the Agency and universities or other
non-Government organizations; and
(4) Reimbursable agreements with other Government agencies.
(c) Copies of records available to the public may be inspected by a
requester in the ACDA Office of Public Affairs during the business
hours stated in Sec. 602.11. Copies of records made available for
inspection may not be removed by any requester from the ACDA Office of
Public Affairs.
Sec. 602.13 Copies of records.
(a) The Agency will provide copies of requested records of the same
type and quality that it would provide to personnel of another U.S.
Government agency in the course of official business. It will not
accept requests for special types of copying processes or for special
standards of quality of reproduction.
(b) Copies of records requested will be reproduced as promptly as
possible and mailed to the requester. Chargeable fees will be
determined according to the schedule set forth in subpart C of this
part. The FOIA Officer is authorized to limit copies of each requested
record to ten or fewer when there exists an extraordinary demand for
the number of available copies or when requirements place excessive
demands on the Agency's copying facilities.
[[Page 27033]]
Sec. 602.14 Records of other agencies, governments and international
organizations.
(a) Requests for records that were originated by or are primarily
the concern of another U.S. Government department or agency shall be
forwarded to the particular department or agency involved, and the
requester notified in writing.
(b) Requests for records that have been furnished to the Agency by
foreign governments or by international organizations will not normally
be released unless the organization or government concerned has
indicated that the particular information should or may be made public.
Where international organizations or foreign governments concerned have
not made such a determination, the requester will be so advised, and if
possible, furnished the address to which the request may be sent.
Sec. 602.15 Overseas requests.
Pursuant to the general policy outlined in Sec. 602.3, ACDA has
made arrangements to provide the United States Information Agency
(USIA) with material for dissemination abroad, such as information on
official U.S. positions on arms control and disarmament policy.
Requests originating in an area served by a USIA office which are
received at Agency headquarters, will be referred to USIA when
appropriate for direct response to the requester.
Sec. 602.16 Responses and time limits on requests.
(a) The FOIA requires an initial determination on a request for an
Agency record to be made within ten working days after receipt of the
request.
(b) If it is determined that the requested record (or portions
thereof) will be made available, the requested material will be
forwarded promptly after the initial determination, provided any
applicable fee has been paid in full.
(c) If prior to making an initial determination it is anticipated
that the costs chargeable for a request will amount to more than $25.00
or more than the amount of the payment accompanying the request,
whichever is larger, the requester shall be promptly notified of the
total amount of the anticipated fee or such portion thereof as can
readily be estimated. In these instances, an advance deposit in the
estimated amount of the search, review, and copying costs may be
required. The request for an advance deposit shall extend an offer to
the requester to consult with Agency personnel in order to reformulate
the request in a manner that will reduce the fee, yet still meet the
needs of the requester.
(d) In instances where the Agency has requested an advance deposit,
the date of receipt of the deposit will be considered as the request
date which begins the period of response by the Agency.
(e) Receipt of a request for Agency records will be determined by
the time and date the request is received.
(f) Where an obvious delay in receipt of a request has occurred,
such as in cases where the requester has failed to address the request
properly, or where a delay has been caused in the mails, the Agency
will dispatch to the requester an acknowldgement of the receipt of the
request.
Sec. 602.17 Time extensions.
(a) In unusual circumstances, the time limit for an initial or
final determination may be extended, but not to exceed a total of ten
working days in the aggregate in the processing of any specific request
for an Agency record.
(b) ``Unusual circumstances'' means, but only to the extent
reasonably necessary to the proper processing of the particular case:
(1) The need to search for and collect the requested records from
other establishments that are physically separate from ACDA
headquarters;
(2) 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
(3) 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.
Sec. 602.18 Inability to comply with requests.
(a) When a request cannot be fulfilled, the requester will be so
informed with reasons, and any fees returned after deduction of
applicable search costs. Such reasons may include, but are not limited
to the following:
(1) Insufficient or vague identifying information which makes
identification or location of the record impossible;
(2) No such record in existence;
(3) Record available for purchase from the Government Printing
Office or elsewhere; or
(4) Records destroyed pursuant to the Records Disposal Act.
(b) Inability to comply with requests shall be processed the same
as denials of records, i.e., notification to the requester shall be in
writing, shall set forth the reasons therefor, shall be signed by the
name and title of the FOIA Officer, and shall include an explanation of
the requester's right to appeal, including the address to which an
appeal may be directed.
Sec. 602.19 Predisclosure notification for confidential commercial
information.
(a) When notification is required. If a request under the FOIA
seeks a record that contains information submitted by a person or
entity outside the Federal government that arguably is exempt from
disclosure under exemption 4 of the FOIA because disclosure could
reasonably be expected to cause substantial competitive harm, the
Agency shall notify the submitter that such a request has been made
whenever:
(1) The submitter has made a good faith designation of information,
less than ten years old, as confidential commercial or financial
information, or
(2) The Agency has reason to believe that disclosure of the
information could reasonably be expected to cause substantial
competitive harm.
(b) Notification to submitter. The notice to the submitter shall
either describe the exact nature of the business information requested
or provide copies of the records or portions of records containing the
information. The notice shall afford the submitter a reasonable period
of time, based on the amount and/or complexity of the information,
within which to object to disclosure.
(c) Objection by submitter. Any objection by a submitter to
disclosure must be made in writing and sent to: FOIA Officer, U.S. Arms
Control and Disarmament Agency, 320 21st Street, N.W., Washington, DC
20451. It should identify the portion(s) of the information to which
disclosure is objected, and should include a detailed statement of all
claimed grounds for withholding any of the information under the FOIA
and, in the case of exemption 4, an explanation of why the information
constitutes a trade secret or commercial or financial information that
is privileged and confidential, including a specification of any claim
of competitive or other business harm that would result from
disclosure.
(d) Notification to requester. The Agency shall notify the
requester in writing when any notification to a submitter is made
pursuant to paragraph (a) of this section.
(e) When notification is not required. Notification to a submitter
is not required if:
(1) The Agency determines that the information requested should not
be disclosed;
(2) Disclosure is required by statute (other than FOIA) or by
regulation; or
[[Page 27034]]
(3) The information has previously been lawfully published or
officially made available to the public.
(f) Notice of intent to disclose. If the Agency determines that
despite the objection of the submitter the requested information should
be disclosed, in whole or in part, it shall notify both the requester
and the submitter of the decision and shall provide to the submitter in
writing:
(1) A brief explanation of why the submitter's objections were not
sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date that provides a reasonable period
of time between receipt of the notice and the disclosure date.
(g) Notice of lawsuit. (1) Whenever a requester brings legal action
to compel disclosure of information covered by paragraph (a) of this
section, the Agency shall promptly notify the submitter in writing.
(2) Whenever a submitter brings legal action to prevent disclosure
of information covered by paragraph (a) of this section, the Agency
shall promptly notify the requester in writing.
Subpart C--Fees
Sec. 620.20 Fees for records search, review, copying, certification,
and related services.
The fees for search, review, and copying services for Agency
records under the FOIA or the Privacy Act are as follows:
(a) When documents are requested for commercial use, requesters
will be assessed the full direct costs for searching for, reviewing for
release, and copying the records sought. A ``commercial use'' request
refers to 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) Requesters from educational and noncommercial scientific
institutions will be assessed only copying costs.
(c) Requesters who are representatives of the news media (persons
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public) will be assessed only copying
costs.
(d) All other requesters will be assessed fees which recover the
full and reasonable direct cost of searching for, reviewing for
release, and copying records that are responsive to the request.
(e) Requesters from educational and noncommercial scientific
institutions, representatives of the news media, and all other
noncommercial users, will not be assessed for the first 100 pages of
copying or the first two hours of search time. Commercial use
requesters will not be entitled to these free services.
(f) The search and review hourly fees will be based upon employee
grade levels in order to recoup the full, allowable direct costs
attributable to their performance of these functions.
(g) The fee for paper copy reproduction will be $.20 per page.
(h) The fee for duplication of computer tape or printout
reproduction or other reproduction (e.g., microfiche) will be the
actual cost, including operator time.
(i) If the cost of collecting any fee would be equal to or greater
than the fee itself, it will not be assessed.
(j) A fee may be charged for searches that are not productive and
for searches for records or parts of records that subsequently are
determined to be exempt from disclosure.
(k) Interest charges may be assessed on any unpaid bill starting on
the 31st day following the day on which the billing was sent, at the
rate prescribed in 31 U.S.C. 3717 and will accrue from the date of
billing. The Debt Collection Act, including disclosure to consumer
reporting agencies and the use of collection agencies, will be utilized
to encourage payment where appropriate.
(l) If search charges are likely to exceed $25.00, the requester
will be notified of the estimated fees unless the requester's
willingness to pay whatever fee is assessed has been provided in
advance.
(m) An advance payment (before work is commenced or continued on a
request) may be required if the charges are likely to exceed $250.00.
Requesters who have previously failed to pay a fee in a timely fashion
(i.e., within 30 days of the date of billing) may be required to pay
this amount plus any applicable interest (or demonstrate that the fee
has been paid) and then make an advance payment of the full amount of
the estimated fee before the new or pending request is processed.
Sec. 602.21 Waiver or reduction of fees.
Documents shall be furnished without any charge or at a charge
reduced below the fees set forth in Sec. 602.20 if disclosure of the
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. The following six factors will be employed
in determining when such fees shall be waived or reduced:
(a) The subject of the request: Whether the subject of the
requested records concerns ``the operations or activities of the
government;''
(b) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities;
(c) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the information will contribute to the ``public understanding;''
(d) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities;
(e) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(f) The primary interest in disclosure: Whether the magnitude of
the 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.''
Sec. 602.22 [Reserved]
Sec. 602.23 GPO and free publications.
(a) The index of records available in the Agency's Office of Public
Affairs will list the sales offices of records published by the
Government Printing Office (GPO). The Agency will refer each requester
to the appropriate sales office and refund any fee payments
accompanying the request. Published records out of print at the GPO may
be copied by the Agency for the requester at the requester's expense in
accordance with the fee schedule established for copying service. In
some instances the Agency may have extra copies of out of print GPO
records. These extra copies will be provided to requesters at the
printed GPO price.
(b) The Agency makes some publications or records available to the
public without charge. These regulations neither change that practice
nor require payment of a fee by a requester unless the original stock
has been exhausted and copying services are necessary to satisfy a
request.
Sec. 602.24 Method of payment.
(a) Payment may be in the form of cash, a personal check or bank
draft drawn on a bank in the United States, or a postal money order.
Remittances shall be made payable to the Treasury
[[Page 27035]]
of the United States and mailed or delivered to the FOIA Officer, U.S.
Arms Control and Disarmament Agency, 320 21st Street, N.W., Washington,
DC 20451. Cash should not be sent by mail.
(b) A receipt for fees paid will be given upon request.
Subpart D--Denials of Records
Sec. 602.30 Denials.
(a) Requests for inspection or copies of records may be denied
where the information or record is exempt from disclosure for reasons
stated in Sec. 602.31.
(b) Denials shall be in writing, shall set forth the reasons
therefor, shall be signed by the FOIA Officer and shall include an
explanation of the requester's right to appeal, including the address
to which an appeal may be directed.
Sec. 602.31 Exemptions.
The requirements of this part to make Agency records available do
not apply to matters that are:
(a) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense
or foreign policy and are in fact properly classified pursuant to such
Executive Order;
(b) Related solely to the internal personnel rules and practices of
the Agency;
(c) Specifically exempted from disclosure by statute;
(d) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(e) Inter-agency or intra-agency memoranda or letters that would
not be available by law to a private party in litigation with the
Agency;
(f) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(g) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(1) Could reasonably be expected to interfere with enforcement
proceedings;
(2) Would deprive a person of a right to a fair trial or impartial
adjudication;
(3) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(4) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local or foreign agency or
authority or any private institution that 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;
(5) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(6) Could reasonably be expected to endanger the life or physical
safety of any individual.
(h) Contained in or related to examination, operating or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(i) Geological and geophysical information and data, including
maps, concerning wells.
Subpart E--Review of Denials of Record
Sec. 602.40 Procedure for appealing initial determinations to withhold
records.
(a) A member of the public who has requested an Agency record in
accordance with subpart B of this part and who has received an initial
determination that does not comply fully with the request, may appeal
such a determination.
(b) The appeal shall:
(1) Be in writing;
(2) Be initiated within 30 working days of the initial
determination denying the request;
(3) Include a copy of the initial written request, a copy of the
letter of denial, and the requester's reasons for appealing the denial;
and
(4) Be addressed to the Deputy Director, U.S. Arms Control and
Disarmament Agency, 320 21st Street, N.W., Washington, DC 20451.
(c) The 30-day period for appealing a denial begins on the date of
the denial letter. The 30-day limitation may be waived by the Agency
for good cause shown. The Agency will consider any request closed if,
within 30 working days after a complete or partial denial, the
requester fails to appeal the denial.
Sec. 602.41 Decision on appeal.
(a) Review and final determination on an appeal shall be made by
the Deputy Director.
(b) [Reserved]
(c) Review of an appeal shall be made on the submitted record. No
personal appearance, oral argument, or hearing shall be permitted.
(d) The final determination on an appeal from a denial shall be
made by the Deputy Director within 20 working days of receipt of the
appeal by the Agency.
(e) If the final determination is to release the withheld material,
the requester will be notified immediately and the material will be
forwarded promptly in accordance with the procedure described in
Sec. 602.16 for notifications of initial determinations.
(f) If the final determination is to continue to withhold material
in whole or in part, the requester will be notified immediately of the
determination, the reasons therefor, and the right to judicial review.
(g) All decisions will be indexed and available for inspection and
copying in the same manner as other Agency final orders and opinions,
if any, under 5 U.S.C. 552(a)(2).
Subpart F--Annual Report to the Congress
Sec. 602.50 Requirements for annual report.
(a) On or before March 1 of each calendar year, ACDA shall submit a
report covering the preceding calendar year to the Speaker of the House
of Representatives and the President of the Senate for referral to the
appropriate committees of the Congress. The report shall include the
following information:
(1) The number of determinations made by ACDA not to comply with
requests for records made to the Agency under this part and the reasons
for each such determination;
(2) The number of appeals made by persons under subpart E of this
part, the result of such appeals, and the reason for the action upon
each appeal that results in a denial of information;
(3) The names and titles or positions of each person responsible
for the denial of records requested under this part, and the number of
instances of participation for each;
(4) The results of each proceeding conducted pursuant to 5 U.S.C.
552(a)(4)(F), including a report of the disciplinary action taken
against the officer or employee who was primarily responsible for
improperly withholding records or an explanation of why disciplinary
actions was not taken;
(5) A copy of this part 602 and any other rule or regulation made
by ACDA regarding 5 U.S.C. 552;
(6) A copy of the fee schedule and the total amount of fees
collected by ACDA for making records available under this part; and
(7) Such other information as indicates efforts to administer fully
this part.
(b) The FOIA Office will be responsible for preparing the report
for review and submission to the Congress.
[[Page 27036]]
Dated: May 20, 1996.
Mary Elizabeth Hoinkes,
General Counsel.
[FR Doc. 96-13469 Filed 5-29-96; 8:45 am]
BILLING CODE 6820-32-M
