[Federal Register Volume 63, Number 85 (Monday, May 4, 1998)]
[Proposed Rules]
[Pages 24467-24473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10432]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed
Rules
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DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 1
USDA Freedom of Information Act Regulations
AGENCY: Department of Agriculture.
ACTION: Proposed rule.
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SUMMARY: This proposed revision of the Department of Agriculture
Freedom of Information Act (FOIA) regulations provides substantive and
administrative changes to conform to the requirements of the Electronic
FOIA Amendments of 1996, Pub. L. 104-231. It also provides guidance to
the Department of Agriculture on implementation of this amended law.
DATES: Comments must be received by June 3, 1998.
ADDRESSES: Mail comments concerning this proposal to Andrea Fowler,
FOIA Officer, Office of Communications, U.S. Department of Agriculture,
Washington, DC 20250, or deliver them to room 536A, Jamie L. Whitten
Federal Building, 1400 Independence Ave., SW, Washington, DC. Comments
received may be reviewed between the hours of 9 am-4 pm Monday through
Friday.
FOR FURTHER INFORMATION CONTACT:
Andrea E. Fowler, Office of Communications, (202) 720-8164.
SUPPLEMENTARY INFORMATION:
Background Information
On October 2, 1996, President Clinton signed into law the
Electronic FOIA Amendments of 1996, Pub. L. 104-231. The amendments to
the FOIA address electronic records in the text of the statute for the
first time. The amendments include provisions that address the
availability of ``reading room'' material by electronic
telecommunication means, volume estimation, format of disclosure,
marking of deletions, electronic searches, and the expedited processing
of FOIA requests. In addition, the amendments extend the time limit for
responding to an initial FOIA request from ten to twenty days, modify
the requirements for reporting Freedom of Information activities to
Congress, and clarify the extent to which an agency may extend the time
within which it will respond to a FOIA request or appeal.
USDA, therefore, is revising its FOIA regulations to implement
these statutory amendments. In addition, USDA is reorganizing,
renumbering, and making clarifying and stylistic changes to its FOIA
regulations. USDA is not revising Appendix A to the FOIA regulations at
this time.
The following provisions in the revised regulations will implement
the Electronic FOIA Amendments:
1. Section 1.4 incorporates a new provision to implement 5 U.S.C.
552(a)(2)(D), which creates a new category of records to receive
``reading room'' treatment: documents released in response to a FOIA
request that may become the subject of subsequent requests for
substantially the same records. 5 U.S.C. 552(a)(2)(D).
2. Section 1.4 also incorporates a new requirement that reading
room records created on or after November 1, 1996, be made available to
the public by ``computer telecommunications'' or other ``electronic
means.'' 5 U.S.C. 552(a)(2).
3. Section 1.4 also incorporates a requirement that each agency
maintain an index of FOIA processed records and make the index
available on-line. 5 U.S.C. 552(a)(2).
4. Section 1.4 also incorporates a revision to require that each
agency maintain reference material or a guide for requesting records or
information from the agency. The guide must include an index of all
major information systems of the agency, a description of major
information and record locator systems, and a handbook for obtaining
various types and categories of public information from the agency,
both through FOIA requests and through other means. The guide should be
made publicly available in agency reading rooms and through an
electronic site, as well as upon request. 5 U.S.C. 552(g).
5. Section 1.7 increases the time limit to respond to an initial
FOIA request from ten to twenty working days. 5 U.S.C. 552(a)(6)(D).
6. Section 1.8 provides for ``multitrack'' processing of FOIA
requests, based on the amount of work or time (or both) that is
involved in processing them. 5 U.S.C. 552(a)(6)(D).
7. Section 1.9 adds a requirement that each agency consider
requests for ``expedited processing'' and grant such requests where the
requester shows an imminent threat to life or physical safety or an
urgency to inform the public about federal government activity. 5
U.S.C. 552(a)(6)(E).
8. Section 1.15 incorporates a new provision requiring that each
agency make reasonable efforts to maintain its records in forms or
formats that are reproducible for purposes of the FOIA. 552(a)(3)(B).
9. Section 1.15 incorporates a new requirement that each agency
make reasonable efforts to search for records in electronic form or
format, except when such efforts would interfere significantly with the
operation of the agency's automated information system. 5 U.S.C.
552(a)(3)(C).
10. Section 1.15 incorporates a new requirement that each agency
indicate, on the released portion of a redacted record, the amount of
information that has been deleted from a record, unless including that
indication would harm an interest protected by an applicable exemption.
5 U.S.C. 552(b).
11. Section 1.15 incorporates a requirement for each agency to make
a reasonable effort to estimate the volume of matter being withheld,
when entire records, or entire pages are withheld, and provide the
estimate to the requester. 5 U.S.C. 552(a)(6)(F).
12. Section 1.15 requires that each agency provide records in any
form or format requested, if the record is readily reproducible by the
agency in the form or format requested. 5 U.S.C. 552(a)(3)(B).
13. Section 1.16 requires each agency to notify a requester of
``unusual circumstances'' that require additional time for processing a
request, and offer the requester the opportunity to limit scope of the
request, or arrange an alternative time frame for processing, or both.
5 U.S.C. 552(a)(6)(B)(I).
14. Section 1.16 incorporates a new provision to limit the
conditions under which an agency backlog of FOIA requests may be
considered an ``exceptional circumstance'' justifying a longer
processing time. ``Exceptional circumstances'' will not include a delay
that results from a predictable agency
[[Page 24468]]
workload of FOIA requests, unless the agency demonstrates reasonable
progress in reducing its backlog of pending requests. 552(a)(6)(C)(ii).
15. Section 1.20 modifies the content, timetable, and procedure for
filing the annual FOIA report. The annual reporting period will change
from a calendar year to a fiscal year. 5 U.S.C. 552(e).
Revised Section
1. Section 1.4, Implementing regulations for the Office of the
Secretary, has been incorporated into Sec. 1.25.
Removed Section
1. Section 1.5(e), which allows oral FOIA requests, has been
removed in order to ensure that agencies maintain accountability and
are able to track requests and process them in the order of receipt
within each agency.
List of Subjects in 7 CFR Part 1
Administrative practice and procedure, Freedom of information,
Privacy.
Accordingly, it is proposed to revise 7 CFR, part 1, subpart A
except Appendix A, to read as follows:
PART 1--ADMINISTRATIVE REGULATIONS
Supbart A--Offical Records
Sec.
1.1 Purpose and scope.
1.2 Policy.
1.3 Agency implementing regulations.
1.4 Public access to certain materials.
1.5 Requests for records.
1.6 Aggregating requests.
1.7 Agency response to requests for records.
1.8 Multitrack processing.
1.9 Expedited processing.
1.10 Search services.
1.11 Review services.
1.12 Handling information from a private business.
1.13 Date of receipt of requests or appeals.
1.14 Appeals.
1.15 General provisions respecting release of records.
1.16 Extension of administrative deadlines.
1.17 Failure to meet administrative deadlines.
1.18 Fee schedule.
1.19 Exemptions and discretionary release.
1.20 Annual report.
1.21 Compilation of new records.
1.22 Authentication.
1.23 Records in formal adjudication proceedings.
1.24 Preservation of records.
1.25 Implementing regulations for the Office of the Secretary and
the Office of Communications.
Appendix A--Fee Schedule
Subpart A--Official Records
Authority: 5 U.S.C. 301, 552; 7 U.S.C. 3125a; 31 U.S.C. 9701;
and 7 CFR 2.28(b)(7)(viii).
Sec. 1.1 Purpose and scope.
This subpart establishes policy, procedures, requirements, and
responsibilities for administration and coordination of the Freedom of
Information Act (``FOIA''), 5 U.S.C. 552, pursuant to which any person
may obtain official records. It also provides rules pertaining to the
disclosure of records pursuant to compulsory process. This subpart also
serves as the implementing regulations (referred to in Sec. 1.3,
``Agency implementing regulations'') for the Office of the Secretary
(the immediate offices of the Secretary, Deputy Secretary, Under
Secretaries and Assistant Secretaries) and for the Office of
Communications. The Office of Communications has the primary
responsibility for implementation of the FOIA in the Department of
Agriculture (``USDA'' or ``Department''). The term ``agency'' or
``agencies'' is used throughout this subpart to include both USDA
program agencies and staff offices.
Sec. 1.2 Policy.
(a) Agencies of USDA shall comply with the time limits set forth in
the FOIA and in this subpart for responding to and processing requests
and appeals for agency records, unless there are unusual circumstances
within the meaning of 5 U.S.C. 552(a)(6)(B) and Sec. 1.16(b). An agency
shall notify a requester in writing whenever it is unable to respond to
or process a request or appeal within the time limits established by
the FOIA.
(b) All agencies of the Department shall comply with the fee
schedule provided as appendix A to this subpart, with regard to the
charging of fees for providing copies of records and related services
to requesters.
Sec. 1.3 Agency implementing regulations.
(a) Each agency of the Department shall promulgate regulations
setting forth the following:
(1) The location and hours of operation of the agency office or
offices where members of the public may gain access to those materials
required by 5 U.S.C. 552(a)(2) and Sec. 1.4 to be made available for
public inspection and copying.
(2) Information regarding the publication and distribution (by sale
or otherwise) of indexes and supplements to indexes that are maintained
in accordance with the requirements of 5 U.S.C. 552(a)(2) and
Sec. 1.4(c);
(3) The title and mailing address of the official or officials of
the agency authorized to receive requests for records submitted in
accordance with Sec. 1.5(a), and to make determinations regarding
whether to grant or deny such requests. Authority to make such
determinations includes authority to:
(i) Extend the 20 working days administrative deadline for reply
pursuant to Sec. 1.16;
(ii) Make discretionary releases pursuant to Sec. 1.19(b); and
(iii) Make determinations regarding the charging of fees pursuant
to appendix A to this subpart;
(4) The title and mailing address of the official of the agency who
is authorized to receive appeals submitted in accordance with
Sec. 1.4(e) and to make determinations regarding whether to grant or
deny such appeals. Authority to determine appeals includes authority
to:
(i) Extend the 20 working days administrative deadline for reply
pursuant to Sec. 1.16 (to the extent the maximum extension authorized
by Sec. 1.16(c) was not used with regard to the initial request);
(ii) Make discretionary releases pursuant to Sec. 1.19(b); and
(iii) Make determinations regarding the charging of fees pursuant
to appendix A to this subpart; and
(5) Other information which would be of concern to a person wishing
to request records from that agency in accordance with this subpart.
Sec. 1.4 Public access to certain materials.
(a) In accordance with 5 U.S.C. 552(a)(2), each agency within the
Department shall make the following materials available for public
inspection and copying (unless they are promptly published and copies
offered for sale):
(1) Final opinions, including concurring and dissenting opinions,
as well as orders, made in the adjudication of cases;
(2) Those statements of policy and interpretation which have been
adopted by the agency and are not published in the Federal Register;
(3) Administrative staff manuals and instructions to staff that
affect a member of the public;
(4) Copies of all records, regardless of form or format, which have
been released pursuant to a FOIA request under 5 U.S.C. 552(a)(3), and
which because of the nature of their subject matter, have become or are
likely to become the subject of subsequent requests for substantially
the same records. Agencies shall decide on a case by case basis whether
records fall into
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this category, based on the following factors;
(i) Previous experience with similar records;
(ii) The particular characteristics of the records involved,
including their nature and the type of information contained in them;
and
(iii) The identity and number of requesters and whether there is
widespread media, historical, academic, or commercial interest in the
records.
(5) A general index of the records referred to in paragraph (a)(4)
of this section.
(b) Records encompassed within paragraphs (a)(1) through (a)(5) of
this section created on or after November 1, 1996, shall be made
available to the public by computer telecommunications or, if computer
telecommunications means have not been established by the agency, by
other electronic means.
(c) Each agency of the Department shall maintain and make available
for public inspection and copying current indexes providing identifying
information regarding any matter issued, adopted, or promulgated after
July 4, 1967, and required by paragraph (a) of this section to be made
available or published. Each agency shall publish and make available
for distribution copies of such indexes and supplements to such indexes
at least quarterly, unless it determines by notice published in the
Federal Register that publication would be unnecessary and
impracticable. After issuance of such notice, each agency shall provide
copies of any index upon request at a cost not to exceed the direct
cost of duplication.
(d) Each agency is responsible for preparing reference material or
a guide for requesting records or information from that agency. This
guide shall also include an index of all major information systems, and
a description of major information and record locator systems.
(e) Each agency shall also prepare a handbook for obtaining
information from that agency. The handbook should be a short, simple
explanation to the public of what the FOIA is designed to do, and how a
member of the public can use it to access government records. The
handbook should be available on paper and through electronic means, and
it should identify how a requester can access agency Freedom of
Information Act annual reports. Similarly, the annual reports should
refer to the handbook and how to obtain it.
(f) It is appropriate to make frequently requested records
available in accordance with paragraph (a)(4) of this section in
situations where public access in a timely manner is important, and it
is not intended to apply where there may be a limited number of
requests over a short period of time from a few requesters. Agencies
may remove a record from this access medium when the appropriate
officials determine that it is unlikely there will be substantial
further requests for that document.
Sec. 1.5 Requests for records.
(a) Any person who wishes to inspect or obtain copies of any record
of any agency of the Department shall submit a request in writing and
address the request to the official designated in regulations
promulgated by that agency. The requester may ask for a fee waiver. All
such requests for records shall be deemed to have been made pursuant to
the Freedom of Information Act, regardless of whether the request
specifically mentions the Freedom of Information Act. To facilitate
processing of a request, the requester should place the phrase ``FOIA
REQUEST'' in capital letters on the front of the envelope or on the
cover sheet of the fax transmittal.
(b) A request must reasonably describe the records to enable agency
personnel to locate them with reasonable effort. Where possible, a
requester should supply specific information regarding dates, titles,
names of individuals, names of offices, and names of agencies or other
organizations that may help identify the records. If the request
relates to a matter in pending litigation, the requester should
identify the court and its location.
(c) If an agency determines that a request does not reasonably
describe the records, the agency shall inform the requester of this
fact and extend the requester an opportunity to clarify the request or
to confer promptly with knowledgeable agency personnel to attempt to
identify the records the requester is seeking. The ``date of receipt''
in such instances, for purposes of Sec. 1.13, shall be the date of
receipt of the amended or clarified request.
(d) If a requester for records or a fee waiver made under this
subpart is denied, the requester shall have the right to appeal the
denial. Requesters also may appeal agency determinations of a
requester's status for purposes of fee levels under Sec. 5 of appendix
A to this subpart. All appeals must be in writing and addressed to the
official designated in regulations promulgated by the agency which
denied the request. To facilitate processing of an appeal, the
requester should place the phrase ``FOIA APPEAL'' in capital letters on
the front of the envelope or on the cover sheet of the fax transmittal.
(e) Requests that are not addressed to a specific agency in USDA,
or which pertain to more than one USDA agency, or which are sent to the
wrong agency of USDA, should be forwarded to the Department's FOIA
Officer in the Office of Communications, U.S. Department of
Agriculture, Washington, DC 20250.
(f) The Department FOIA Officer will determine which agency or
agencies should process the request, and, where necessary, refer the
request to the appropriate agency or agencies. The Department FOIA
Officer will also notify the requester of the referral and of the name
of each agency to which the request has been referred.
(g) A request will be properly received when it is in the
possession of the component agency that has responsibility for
maintaining the requested records.
(h) Each agency shall develop and maintain a record of all written
requests and appeals received in that agency. The record shall include
the names of the requester; a brief summary of the information
requested; whether the request or appeal was granted, denied, or
partially denied; the exemption from mandatory disclosure under 5
U.S.C. 552(b) upon which any denial was based; and the amount of any
fees associated with the request or appeal.
Sec. 1.6 Aggregating requests.
When an agency reasonably believes that a requester, or a group of
requesters acting in concert, is attempting to break a request down
into a series of requests for the purpose of evading the assessment of
fees, the agency may aggregate any such requests and charge
accordingly. One element that may be considered in determining whether
such a belief would be reasonable is the brevity of the time period
during which the requests have been made.
Sec. 1.7 Agency response to requests for records.
(a) 5 U.S.C. 552(a)(6)(A)(l) provides that each agency of the
Department to which a request for records or a fee waiver is submitted
in accordance with Sec. 1.5(a) shall inform the requester of its
determination concerning that request within 20 working days of its
date of receipt (excepting Saturdays, Sundays, and legal public
holidays), plus any extension authorized under Sec. 1.16. If the agency
determines to grant the request, it shall inform the requester of any
conditions surrounding the granting of the request (e.g., payment of
fees) and the approximate date upon which the agency will provide the
requested records. If the agency grants only a portion of the request,
it shall treat the
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portion not granted as a denial, and make a reasonable effort to
estimate the volume of the records denied and provide this estimate to
the requester, unless providing such an estimate would harm an interest
protected by an exemption of the FOIA. If the agency determines to deny
the request in part or in whole, it shall immediately inform the
requester of that decision and provide the following:
(1) The reasons for the denial;
(2) The name and title or position of each person responsible for
denial of the request;
(3) The requester's right to appeal such denial and the title and
address of the official to whom such appeal is to be addressed; and
(4) The requirement that such appeal be made within 45 days of the
date of the denial.
(b) If the reason for not fulfilling a request is that the records
requested are in the custody of another agency outside USDA, other than
in the permanent custody of the National Archives and Records
Administration (``NARA''), the agency shall inform the requester of
this fact and shall forward the request to that agency or Department
for processing in accordance with its regulations. If the records are
in the permanent custody of NARA, the agency shall so inform the
requester. Information about obtaining access to records at NARA may be
obtained through the NARA Archival Information Locator (NAIL) Database
at http://www/nara.gov/nara.nail.html, or by calling NARA at (301) 713-
6800. If the agency has no knowledge of requested records or if no
records exist, the agency shall notify the requester of that fact.
Sec. 1.8 Multitrack processing.
(a)When an agency has a significant number of requests, the nature
of which precludes a determination within 20 working days, the requests
may be processed in a multitrack processing system, based on the date
of receipt, the amount of work and time involved in processing the
request, and whether the request qualifies for expedited processing.
(b) Agencies may establish as many processing tracks as
appropriate; processing within each track shall be based on a first-in,
first-out concept, and rank-ordered by the date of receipt of the
request.
(c) Agencies may provide a requester whose request does not qualify
for the fastest track an opportunity to limit the scope of the request
in order to qualify for the fastest track. This multitrack processing
system does not lessen agency responsibility to exercise due diligence
in processing requests in the most expeditious manner possible.
(d) Agencies shall process requests in each track on a ``first-in,
first-out'' basis, unless there are unusual circumstances as set forth
in Sec. 1.16, or the requester is entitled to expedited processing as
set forth in Sec. 1.9.
Sec. 1.9 Expedited processing.
(a) A requester may apply for expedited processing at the time of
the initial request for records. Within ten calendar days of its
receipt of a request for expedited processing, an agency shall decide
whether to grant it, and shall notify the requester of the decision.
Once the determination has been made to grant expedited processing, an
agency shall process the request as soon as practicable. If a request
for expedited processing is denied, the agency shall act expeditiously
on any appeal of that decision.
(b) A request or appeal will be taken out of order and given
expedited treatment whenever the agency determines that the requester
has established either of the following criteria:
(1) 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; or
(2) An urgency to inform the public about an actual or alleged
federal government activity, if made by an individual primarily engaged
in disseminating information. Representatives of the news media would
normally qualify as individuals primarily engaged in disseminating
information; however, other requesters must demonstrate that their
primary activity involves publishing or otherwise disseminating
information to the public as a whole, and not just a particular segment
or group. ``Urgency'' contemplates that the information has a
particular value that will be lost if not disseminated quickly.
Ordinarily this means a breaking news story of general public interest.
Information of historical interest only or information sought for
litigation or commercial activities would not meet the test of urgency,
nor would a news media publication or broadcast deadline unrelated to
the news breaking nature of the information.
(c) A requester who seeks expedited processing must provide a
written statement that the requester has certified to be true and
correct to the best of the requester's knowledge, explaining in detail
the basis for requesting expedited processing. The agency will not
consider the request to have been received unless accompanied by a
written, certified statement, and will be under no obligation to
consider the request for expedited processing until it receives such a
written, certified statement.
(d) The same procedures apply to requests for expedited processing
of administrative appeals.
Sec. 1.10 Search services.
Search services are services of agency personnel--clerical or
professional--used in trying to find the records, that are responsive
to a request. Search services includes both manual and electronic
searches and time spend examining records for the purpose of fining
information that is within the scope of the request. Search services
also include services to transport personnel to places of record
storage, or records to the location of personnel for the purpose of the
search, if such services are reasonably necessary.
Sec. 1.11 Review services.
(a) Review services are services of agency personnel--clerical or
professional--in examining records, both paper and electronic, located
in response to a request that is for a commercial use (as specified in
Sec. 6 of appendix A to this subpart) to determine whether any portion
of any record located is exempt from mandatory disclosure.
(b) Review services include processing any records for disclosure,
e.g., doing all that is necessary to redact exempt portions and
otherwise prepare records for release.
(c) Review services do not include the time spent resolving general
legal or policy issues regarding the application of exemptions.
Sec. 1.12 Handling information from a private business.
Each USDA agency is responsible for making the final determination
with regard to the disclosure or nondisclosure of information in agency
records that has been submitted by a business. When, in the course of
responding to an FOIA request, an agency cannot readily determine
whether the information obtained from a person is privileged or
confidential business information, the policy of USDA is to obtain and
consider the views of the submitter of the information and to provide
the submitter an opportunity to object to any decision to disclose the
information. If a request (including a subpoena duces tecum as
described in Sec. 1.215) is received in USDA for
[[Page 24471]]
information that has been submitted by a business, the agency shall:
(a) Provide the business information submitter with prompt
notification of a request for that information (unless it is readily
determined by the agency that the information requested should not be
disclosed or, on the other hand, that the information is not exempt by
law from disclosure). Afford business information submitters reasonable
time in which to object to the disclosure of any specified portion of
the information. The submitter must explain fully all grounds upon
which disclosure is opposed. For example, if the submitter maintains
that disclosure is likely to cause substantial harm to its competitive
position, the submitter must explain item-by-item why disclosure would
cause such harm. Information provided by a business submitter pursuant
to this paragraph may itself be subject to disclosure under FOIA;
(b) Notify the requester of the need to inform the submitter of a
request for submitted business information;
(c) Determine whether the requested records are exempt from
disclosure or must be released;
(d) Provide business information submitters with notice of any
determination to disclose such records prior to the disclosure date, in
order that the matter may be considered for possible judicial
intervention; and
(e) Notify business information submitters promptly of all
instances in which FOIA requesters bring suit seeking to compel
disclosure of submitted information.
Sec. 1.13 Date of receipt of requests or appeals.
The date of receipt of a request or appeal shall be the date it is
received in the agency and office responsible for the administrative
processing of FOIA requests or appeals.
Sec. 1.14 Appeals.
(a) Requesters seeking administrative appeal of a denial of a
request for records or denial of a fee waiver must ensure that the
appeal is received by the agency within 45 days of the date of the
denial letter.
(b) Each agency shall provide for review of appeals by an official
different from the official or officials designated to make initial
denials.
(c) 5 U.S.C. 552(a)(6)(A)(ii) provides that each agency in the
Department to which an appeal of a denial is submitted shall inform the
requester of its determination concerning that appeal within 20 working
days (excepting Saturdays, Sundays, and legal public holidays), plus
any extension authorized by Sec. 1.16, of its date of receipt. If the
agency determines to grant the appeal, it shall inform the requester of
any conditions surrounding the granting of the request (e.g., payment
of fees) and the approximate date upon which compliance will be
effected. If the agency grants only a portion of the appeal, it shall
treat the portion not granted as a denial. If it determines to deny the
appeal either in part or in whole, it shall inform the requester of
that decision and of the following:
(1) The reasons for denial;
(2) The name and title or position of each person responsible for
denial of the appeal; and
(3) The right to judicial review of the denial in accordance with 5
U.S.C. 552(a)(4).
(d) Each agency, upon a determination that it wishes to deny an
appeal, shall send a copy of the records requested and of all
correspondence relating to the request to the Assistant General
Counsel, General Law Division, Office of the General Counsel
(``Assistant General Counsel''). When the volume of records is so large
as to make sending a copy impracticable, the agency shall enclose an
informative summary of those records. The agency shall not deny an
appeal until it receives concurrence from the Assistant General
Counsel.
(e) The Assistant General Counsel shall promptly review the matter
(including necessary coordination with the agency) and render all
necessary assistance to enable the agency to respond to the appeal
within the administrative deadline or any extension of the
administrative deadline.
Sec. 1.15 General provisions respecting release of records.
(a) When releasing documents, agencies shall provide the record in
any form or format the requester specifies, if the record is readily
reproducible in that form or format. Agencies shall make reasonable
efforts to maintain their records in forms or formats that are
reproducible. In responding to requests for records, agencies shall
make reasonable efforts to search for records in electronic form or
format, except when such efforts would significantly interfere with the
operation of an agency's automated information system. Such
determinations shall be made on a case by case basis.
(b) In the event a requested record contains some portions that are
exempt from mandatory disclosure and others that are not, the official
responding to the request shall ensure that all reasonably segregable
nonexempt portions are disclosed, and that all exempt portions are
identified according to the specific exemption or exemptions which are
applicable. The amount of deleted information shall be indicated on the
released portion of paper records. Deletions may be marked by use of
brackets or darkened areas indicating removal of information, or by any
other method that would reasonably demonstrate the extent of the
deletion. In the case of electronic deletion, or deletion in
audiovisual or microfiche records, if technically feasible, the amount
of redacted information shall be indicated at the place in the record
where such deletion was made. This may be done by use of brackets,
shaded areas, or some other identifiable technique which will clearly
show the limits of the deleted information.
(c) If, in connection with a request or an appeal, a charge is to
be made in accordance with Sec. 8 of appendix A to this subpart,
agencies shall inform the requester of the fee amount and of the basis
for the charge. Each agency, in accordance with Sec. 8 of appendix A to
this subpart, may require payment of the entire fee, or a portion of
the fee, before it provides the requested records. An agency shall
require full payment of any delinquent fee owed by the requester plus
any applicable interest prior to releasing records on a subsequent
request or appeal. If a requester refuses to remit payment in advance,
an agency may refuse to process the request or appeal with written
notice to that effect forwarded to the requester. The ``date of
receipt'' of an appeal for which advance payment has been required
shall be the date that payment is received.
(d) In the event compliance with the request or appeal involves
inspection of records by the requester rather than providing copies of
the records, the agency response shall include the name, mailing
address, and telephone number of the person to be contacted to arrange
a mutually convenient time for such inspection.
(e) Whenever duplication fees, or search fees for unsuccessful
searchers (see Sec. 4(f) of appendix A to this subpart), are
anticipated to exceed $25.00, and the requester has not indicated, in
advance, a willingness to pay fees as high as those anticipated,
agencies shall notify the requester of the amount of the anticipated
fee. If an extensive and therefore costly successful search is
anticipated, agencies also should notify requesters of the anticipated
fees. The notification shall offer the requester the opportunity to
confer with agency personnel to reform the request to meet the
requester's needs at a lower fee. In
[[Page 24472]]
appropriate cases, an advance deposit in accordance with Sec. 8 of
appendix A to this subpart may be required.
Sec. 1.16 Extension of administrative deadlines.
(a) In unusual circumstances as specified in this section, when
additional time is needed to respond to the initial request or to an
appeal, agencies shall acknowledge the request or the appeal in writing
within the 20 working day time period, describe the unusual
circumstances requiring the delay,and indicate the anticipated date for
a substantive response that may not exceed 10 additional working days,
except as provided in the following:
(1) In instances in which the agency, with respect to a particular
request, has extended the response date by 10 additional working days,
if the agency finds that it cannot make a response determination within
the additional 10 working day period, the agency shall notify the
requester and provide the requester an opportunity to limit the scope
of the request to allow the agency to process the request within the
extended time limit, or an opportunity to arrange an alternative time
frame for processing the request or a modified request.
(2) If the requester refuses to reasonably modify the request or
arrange for an alternative time frame for processing the request, the
FOIA provides that such refusal shall be considered as a factor in
determining whether there are exceptional circumstances that warrant
granting additional time for the agency to complete its review of the
records,as set forth in 5 U.S.C. 552(a)(6(C). The term ``exceptional
circumstances'' does not include a delay that results from a
predictable agency backlog, unless the agency demonstrates reasonable
progress in reducing its backlog of pending requests.
(b) As used in this section, ``unusual circumstances'' that may
justify delay are:
(1) 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;
(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 Department or 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 in the request.
Note: consultation regarding policy or legal issues between an
agency and the Office of the General Counsel, Office of
Communications, or the Department of Justice is not a basis for
extension under this section.
(c) The 10-day extension authorized by this section may be divided
between the initial and appellate reviews, but in no event shall the
total extension exceed 10 working days.
(d) Nothing in this section shall preclude the agency and the
requester from agreeing to an extension of time. Any such agreement
should be confirmed in writing and should specify clearly the total
time agreed upon.
Sec. 1.17 Failure to meet administrative deadlines.
In the event an agency fails to meet the administrative deadlines
set forth in Sec. 1.7, or Sec. 1.14, plus any extension authorized by
Sec. 1.16, it shall notify the requester, state the reasons for the
delay, and the date by which it expects to dispatch a determination.
Although the requester may be deemed to have exhausted his or her
administrative remedies under 5 U.S.C. 552(a)(6)(C), the agency shall
continue processing the request as expeditiously as possible and
dispatch the determination when it is reached in the same manner and
form as if it had been reached within the applicable deadline.
Sec. 1.18 Fee schedule.
Pursuant to Sec. 2.28 of this title, the Chief Financial Officer is
delegated authority to promulgate regulations providing for a uniform
fee schedule applicable to all agencies of the Department regarding
requests for records under this subpart. The regulations providing for
a uniform fee schedule are found in appendix A to this subpart.
Sec. 1.19 Exemptions and discretionary release.
(a) All agency records, except those specifically exempted from
mandatory disclosure by one or more provisions of 5 U.S.C. 552(b),
shall be made promptly available to any person submitting a request
under this subpart.
(b) Agencies are authorized in their sole discretion, to make
discretionary releases when such release is not otherwise specifically
prohibited by Executive Order, statute, or regulation.
Sec. 1.20 Annual report.
(a) Each agency of the Department shall compile the following
Freedom of Information Act statistics on a fiscal year basis beginning
October 1, 1997, and report the following information to the Office of
Communications no later than November 30 following the fiscal year's
close:
(1) The number of requests for records received and the number of
requests which were processed;
(2) The number of determinations made not to comply with initial
requests for records made to it under Sec. 1.5(a), and the reasons for
each such determination;
(3) The number of appeals made by persons under Sec. 1.14(b), the
result of such appeals, and the reason for the action upon each appeal
that results in a denial of information;
(4) A complete list of all statutes that the agency relies upon to
authorize the agency to withhold information under 5 U.S.C. 552(b)(3),
a description of whether a court has upheld the decision of the agency
to withhold information under each such statute, and a concise
description of the scope of any information withheld;
(5) The number of requests for records pending before the agency as
of September 30 of the preceding year, and the median number of days
that such requests had been pending before the agency as of that date:
(6) The median number of days taken by the agency to process
different types of requests;
(7) The total amount of fees collected by the agency for processing
requests;
(8) The number of full-time staff of the agency devoted to
processing requests for records under this section, and the total
amount expended by the agency for processing such requests.
(b) Each agency shall compile the information required by paragraph
(a) of this section for the preceding fiscal year into a report and
submit this report to the Director of Communications, Office of
Communications, no later than November 30 following the fiscal year's
close.
(c) The Director of Communications, Office of Communications, shall
combine the reports from all the agencies within USDA into a
Departmental report, and shall submit to the Attorney General on or
before February 1 of each year in accordance with 5 U.S.C. 552(e).
(d) Each agency shall make the report available to the public
including by computer telecommunications, or if computer
telecommunications means have not been established by the agency, by
other electronic means.
Sec. 1.21 Compilation of new records.
Nothing in 5 U.S.C. 552 or this subpart requires that any agency
create a new record in order to fulfill a request
[[Page 24473]]
for records. However, an agency is required to provide a record in a
form or format specified by a requester, if the record is readily
reproducible by the agency in the form or format requested. Creation of
records may be undertaken voluntarily if the agency determines this
action to be in the public interest or the interest of USDA.
Sec. 1.22 Authentication.
When a request is received for an authenticated copy of a document
which the agency determines to make available to the requesting party,
the agency shall cause a correct copy to be prepared and sent to the
Office of the General Counsel which shall certify the same and cause
the seal of the Department to be affixed, except that the Hearing Clerk
in the Office of Administrative Law Judges may authenticate copies of
documents in the records of the Hearing Clerk and that the Director of
the National Appeals Division may authenticate copies of documents in
the records of the National Appeals Division.
Sec. 1.23 Records in formal adjudication proceedings.
Records in formal adjudication proceedings are on file in the
Hearing Clerk's office, Office of Administrative Law Judges, U.S.
Department of Agriculture, Washington, DC 20250, and shall be made
available to the public.
Sec. 1.24 Preservation of records.
Agencies shall preserve all correspondence relating to the requests
it receives under this subpart, and all records processed pursuant to
such requests, until such time as the destruction of such
correspondence and records is authorized pursuant to Title 44 of the
United States Code, and appropriate records disposition authority
granted by NARA. Under no circumstances shall records be sent to a
Federal Records Center, transferred to the permanent custody of NARA,
or destroyed while they are the subject of a pending request, appeal,
or civil action under the FOIA.
Sec. 1.25 Implementing regulations for the Office of the Secretary and
the Office of Communications
(a) For the Office of the Secretary and for the Office of
Communications, the regulations required by Sec. 1.3 are as follows:
(1) Records available for public inspection and copying may be
obtained in Room 536-A, Jamie L. Whitten Federal Building, USDA,
Washington, DC 20250 during the hours of 9 a.m. to 5 p.m. by prior
appointment;
(2) Any indexes and supplements which are maintained in accordance
with the requirements of 5 U.S.C. 552(a)(2) and Sec. 1.5(b) will also
be available in Room 536-A, Jamie L. Whitten Federal Building, USDA,
Washington, DC 20250 during the hours of 9 a.m. to 5 p.m.;
(3) The person authorized to receive Freedom of Information Act
requests and to determine whether to grant or deny such requests is the
FOIA Officer, Office of Communications, USDA, Washington, DC 20250;
(4) The official authorized to receive appeals from denials of FOIA
requests and to determine whether to grant or deny such appeals is the
Director of Communications, Office of Communications, USDA, Washington,
DC 20250.
(b) The organization and functions of the Office of the Secretary
and the Office of Communications is as follows:
(1) The Office of the Secretary provides the overall policy
guidance and direction of the activities of the Department of
Agriculture. Department-wide policy statements and announcements are
made from this office.
(2) The Office of the Secretary consists of the Secretary, Deputy
Secretary, Under Secretaries, Assistant Secretaries, and other staff
members.
(3) In the absence of the Secretary and the Deputy Secretary,
responsibility for the operation of the Department of Agriculture is as
delegated at part 2, subpart A of this title.
(4) The Office of Communications provides policy direction, review,
and coordination of public information programs of the Department of
Agriculture. The Office of Communications has responsibility for
maintaining the flow of information to the mass communications media,
various constituency groups, and the general public.
(5) The Office of Communications is headed by the Director of
Communications. In the Director's absence, the Office of Communications
is headed by the Deputy Director.
* * * * *
Done at Washington, DC this 13 day of April, 1998.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 98-10432 Filed 5-1-98; 8:45 am]
BILLING CODE 3410-01-M
