[Federal Register Volume 61, Number 162 (Tuesday, August 20, 1996)]
[Rules and Regulations]
[Pages 43002-43008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20880]
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UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT
22 CFR Part 212
Public Information
AGENCY: United States Agency for International Development.
ACTION: Final rule.
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SUMMARY: These amendments make technical revisions to the Agency's
Freedom of Information Act Regulations as set forth in 5 U.S.C. 553(d).
EFFECTIVE DATE: August 20, 1996.
FOR FURTHER INFORMATION CONTACT:
Willette L. Smith, Customer Outreach and Oversight Staff, Office of
Administrative Services, 703/516-1849, Fax 703/516-1894.
SUPPLEMENTARY INFORMATION: Revisions and updated have been made to the
following sections of 22 of Chapter II of Title 22: (a) 212.25--change
of addresses for Public Reading Room; (b) 212.33 procedure for making
requests for agency's records; (c) 212.34 procedures for responding to
requests for records; (d) 212.35 (b) revised method of calculating
processing fees and 212.35(e) added an appeal rights to fee waiver
decision; 212.36 change appeal time period and update address of
Appeal's Officer; 212.38 revised Agency's predisclosure notification
procedures for processing request for confidential commercial
information.
This rule is not a major rule for the purposes of Executive Order
12291 of February 17, 1981. As required by the Regulatory Flexibility
Act, it is hereby certified that this rule will not have a significant
impact on small business entities.
List of Subjects in 22 CFR Part 212
Freedom of information.
For the reasons set forth in the preamble, Part 212 of Chapter II
of Title 22 of the Code of Federal Regulations is revised to read as
follows:
PART 212--PUBLIC INFORMATION
Subpart A--General
Sec.
212.1 Statement of policy.
Subpart B--Publication in the Federal Register
212.11 Materials to be published.
212.12 Effect of nonpublication.
212.13 Incorporation by reference.
Subpart C--Availability of Information for Public Inspection and
Copying
212.21 Public records.
212.22 Protection of personal privacy.
212.23 Current index.
212.24 Effect of noncompliance.
212.25 Procedures for obtaining materials under this subpart.
Subpart D--Access to Agency Records
212.31 Availability of agency records.
212.32 Identification of records.
212.33 Procedure for making requests.
212.34 Procedures for responding to requests for records.
212.35 Schedule of fees and methods of payment for services
rendered.
212.36 Denial of request for access to records.
212.37 Procedures for agency consideration of appeals.
212.38 Predisclosure notification procedures for confidential
commercial information.
Subpart E--Exemptions From Disclosure
212.41 Exemptions from publication and disclosure requirements of
subparts B, C, and D.
212.42 Exemption from 5 U.S.C. 552.
Subpart F--Opening of Records for Nonofficial Research Purposes.
212.51 General Policy
Authority: 22 U.S.C. 2381(a).
Subpart A--General
Sec. 212.1 Statement of policy.
(a) It is the policy of the United States Agency for International
Development (hereinafter ``USAID'' or ``the Agency'') that information
about its objectives and operations be freely available to the public
in accordance with the provisions of the Freedom of Information Act
(``FOIA''), 5 U.S.C. 552, as amended; the President's Memorandum for
Heads of Departments and Agencies regarding the FOIA, 29 Weekly Comp.
Pres. Doc. 1999 (October 4, 1993); and the Attorney General's
Memorandum of the same title and date. The Director, Office of
Administrative Services, Bureau for Management, or his/her designee, is
responsible on behalf of the Agency for administration of the
provisions of the regulations set forth in this part.
(b) In addition, concerning the International Cooperation and
Development Agency (``IDCA''), pursuant to executive order and
delegations of authority USAID is responsible not only for management
of its own affairs but also for those of IDCA. The policy of IDCA in
the FOIA area has been determined by USAID to be identical to that of
USAID, as stated in this section. Therefore, all policies and
procedures set forth in this part apply equally to IDCA as to USAID;
and it is intended that references in this part to ``USAID'' or ``the
Agency'' shall, wherever appropriate, include or mean a reference to
IDCA. Accordingly, all IDCA FOIA-related matters shall be referred to
and processed by USAID staff under this part as though they were USAID
matters.
(c) All records of USAID shall be made available to the public upon
compliance with the procedures established in Sec. 212.33, except to
the extent a determination is made to withhold a record exemptible
under 5 U.S.C. 552(b). Such a determination shall be made pursuant to
procedures set forth in Sec. 212.36, 212.37 and 212.38.
(d) The term ``record'' as used in this part includes all books,
papers, maps, photographs, or other documentary material or copies
thereof, regardless of physical form or characteristics, made in or
received by USAID (including its missions or offices abroad), and
preserved as evidence of its organization, functions, policies,
decisions, procedures, operations, or other activities. The term does
not include copies of the records of other U.S. Government agencies,
foreign governments, international organizations, or non-governmental
entities which do not evidence organization, functions, policies,
decisions, procedures, operations, or activities of USAID.
Subpart B--Publication in the Federal Register
Sec. 212.11 Materials to be published.
(a) USAID separately states and currently publishes in the Federal
Register for the information and guidance of the public:
(1) Descriptions of its central and field organization and the
established places
[[Page 43003]]
at which, the officers from whom, and the methods whereby, the public
may secure information, make submittals or requests, or obtain
decisions;
(2) Statements of the general course and method by which its
functions are channelled and determined, including the nature and
requirements for all formal and informal procedures available;
(3) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations;
(4) Substantive rules of general applicability adopted as
authorized by law, and statements of general policy or interpretations
of general applicability formulated and adopted by USAID; and
(5) Every amendment, revision or repeal of the material listed in
this section.
(b) USAID Public Notice No. 1 and the USAID Regulations published
in chapter II of Title 22 and in subtitle A, Chapter 7 of Title 41 of
the Code of Federal Regulations implement the provisions of this
section.
Sec. 212.12 Effect of nonpublication.
The materials referenced in Sec. 212.11 shall not be binding upon
or otherwise adversely affect a person unless either
(a) The materials were in fact published in the Federal Register or
(b) The person otherwise had actual and timely notice of the
content of such materials.
Sec. 212.13 Incorporation by reference.
For purposes of this subpart B, USAID matters which are reasonably
available to the class of persons affected thereby are deemed to be
published in the Federal Register when they have been incorporated by
reference therein with the approval of the Director of the Federal
Register.
Subpart C--Availability of Information for Public Inspection and
Copying
Sec. 212.21 Public records.
In accordance with this subpart, USAID makes the following
information and materials available for public inspection and copying:
(a) All final opinions (including concurring and dissenting
options), and all orders made in the adjudication of the cases:
(b) those statements of policy and interpretations which have been
adopted by the Agency and are not published in the Federal Register;
and
(c) Administrative staff manuals and instructions to staff that
affect any member of the public.
Sec. 212.22 Protection of personal privacy.
To the extent required to prevent a clearly unwarranted invasion of
personal privacy, USAID may delete identifying details when USAID makes
available or publishes an opinion, statement of policy, interpretation,
or staff manual or instruction. USAID will, in each such case, explain
in writing the justification for the deletion.
Sec. 212.23 Current index.
USAID maintains and makes available for public inspection and
copying a current index providing identifying information for the
public as to any matter which has been issued, adopted, or promulgated
after July 4, 1967, and which is required by Sec. 212.21 to be made
available or published. Publication of an index is deemed both
unnecessary and impractical. However, copies of the index are
available, upon request, for a fee based on the direct cost of
duplication.
Sec. 212.24 Effect of noncompliance.
No final order, opinion, statement of policy, interpretation, or
staff manual or instruction that affects any member of the public will
be relied upon, used, or cited as precedent by USAID against any
private party unless it has been indexed and either made available or
published as provided by this subpart, or unless that private party
shall have actual and timely notice of the terms thereof.
Sec. 212.25 Procedures for obtaining materials under this subpart.
(a) The materials required to be made available for public
inspection and copying in accordance with this subpart are available to
members of the public at USAID's Public Reading Room, Room 1113, 1621
North Kent Street, Rosslyn, Virginia 22209, which is open from 9 a.m.
to 5 p.m., Monday through Friday, except on holidays. All such
materials are available in electronic form (disks) only; to a
reasonable degree, assistance will be provided in use of necessary
equipment.
(b) Requests for materials which are available under this subpart
should follow the procedures under Sec. 212.33(a) of this part.
(c) The direct costs of any necessary duplication will be charged
in accordance with the fee schedule set forth in Sec. 212.35.
(d) USAID Missions and offices in countries abroad are not
responsible for the maintenance of the index and materials available
under this subpart. However, insofar as they do have these materials,
they will make them available to citizens of the United States who are
present in their respective countries upon application made either or
in person in writing to the USAID Director, or other principal USAID
officer, c/o American Embassy in the applicable country.
Subpart D--Access to Agency Records
Sec. 212.31 Availability of agency records.
Upon receiving a request which reasonably describes a USAID record,
and which is made in accordance with the provisions of this subpart,
USAID will make such records, except the following, promptly available
to the requesting party:
(a) Matters published in the Federal Register pursuant to subpart
B;
(b) Matters made available to the public pursuant to subpart C; and
(c) Matters exempt from disclosure pursuant to Sec. 212.41 or
Sec. 241.42 of this part.
Sec. 212.32 Identification of records.
The request for a record by a member of the public must contain a
reasonably specific description of the particular record sought so that
a USAID officer who is familiar with the subject matter of the request
may be able to locate the record with a reasonable amount of effort. A
description that includes as much information as possible, such as the
subject matter, format, approximate date and, where pertinent, the name
of the country or person involved, will facilitate the search for the
requested record.
Sec. 212.33 Procedure for making requests.
(a) Requests for records, other than records available at the
Public Reading Room identified in Sec. 212.24(a), may be made by a
member of the public in writing only to the Chief, Customer Outreach
and Oversight Staff, Room 1113, SA-16, Agency for International
Development, Department of State, 320 21st Street, N.W., Washington,
D.C. 20523-1608. The request and the envelope must be plainly marked
``FOIA Request.'' Requests may be made orally, that is, in person, only
for records and materials available at the Public Reading Room.
(b) Requests for records may be made directly to a USAID mission or
office abroad only by a citizen of the United States who is present in
that country and must be by written application to the USAID Director
(or other principal USAID officer), care of the American Embassy in
that country. Any such written request and its envelope must be plainly
marked ``FOIA Request.''
(c) Only signed original (as opposed to electronically transmitted)
requests are acceptable for procedures pursuant
[[Page 43004]]
to paragraphs (a) and (b) of this section. Telephoned requests, or in-
person requests other than to the Public Reading Room, cannot be
accepted. If a written request not properly marked ``FOIA Request'' on
both the letter and envelope is thereby delayed in reaching the Chief,
Office of Customer Outreach and Oversight Staff, such request will not
be deemed received by USAID until actually received by that official.
In the event of such a delay, the person making the request will be
furnished a notice of the effective date of receipt.
Sec. 212.34 Procedures for responding to requests for records.
(a) Upon receipt by the Chief, Office of Customer Outreach and
Oversight Staff, of a reasonably specific request made pursuant to
Sec. 212.33 of this part, a maximum of ten working days will normally
be taken to determine to what extent the Agency can provide the
information requested. Upon the making of that determination, the
person making the request will be promptly so informed. Copies of the
releasable documents will be made available promptly thereafter upon
receipt of applicable fees and charges as set forth in Sec. 212.35.
(b)(1) In unusual circumstances, USAID may not be able to determine
the availability of the requested documents within ten working days, in
which event the person making the request will be informed by written
notice of the delay, the reasons for the delay and the date on which a
determination may be expected. In this context, the term ``unusual
circumstances'' refers to the following situations:
(i) When there is a need to search for and collect the requested
records from field facilities or other establishments that are separate
from the office processing the request;
(ii) When there is a need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct records which are
sought in a single request; or
(iii) When there is a need for consultation (which will be
conducted with all practicable speed) with another agency having a
substantial interest in the determination of the request or among two
or more components of the Agency, each having substantial subject-
matter interest therein.
(2) The maximum time in making a determination of availability, in
the event of such unusual circumstances, will be twenty working days
from receipt of the request. In the event that only part of the
permissible ten working days extension is used, then USAID reserves the
right, if necessary, to use any remainder of such time for the
determination of an appeal, if one is made.
(c) If a request is made to USAID for material that is controlled
or held by another agency, the person making the request will be
immediately notified that USAID does not have or control the requested
material and he/she will be advised of the name of the controlling
agency and of the address from which the material may be requested,
unless the other agency has, by public regulation, delegated the
release authority to USAID. If release authority has been delegated,
USAID will follow the procedures authorized by the delegation in
determining whether to release the information. If a request for
material is referred to USAID from another agency, the time period for
determination of release of the information will not start until the
request is received by the Chief, Office of Customer Outreach and
Oversight Staff; and the person making the request will be immediately
notified of the referral and of the date the request was received in
USAID. USAID will not accept referral of requests unless and until the
Chief, Customer Outreach and Oversight Staff, or his/her designee,
determines that the material requested is actually within the scope and
control of the release authority of USAID.
(d) If only a part of a record is exempt from disclosure, then any
reasonably segregable portion of such record will be furnished after
deletion of the portions which are exempt, provided that the segregable
portion constitutes an intelligible record which is not distorted out
of context or contradictory to the substance of the entire record
before segregation.
Sec. 212.35 Schedule of fees and method of payment for services
rendered.
(a) Definitions. (1) Direct costs means those expenditures which
the Agency actually incurs in searching for and duplicating (and in the
case of commercial requesters, reviewing) documents in order to respond
to a FOIA request.
(2) Search includes all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within documents. Line-by-line search will
not be done when duplicating an entire document would prove the less
expensive and quicker method of complying with a request. (``Search''
for this purpose is distinguished from ``review'' (see paragraph (a)(4)
of this section).
(3) Duplication refers to the process of making a copy of a
document available to the FOIA requester. Copies can take the form of
paper copy, microfilm or audiovisual materials (among others) and will
be in a form that is reasonably usable by requesters.
(4) Review refers to the process of examining documents located in
response to a commercial use request (see paragraph (a)(5) of this
section) to determine whether any portion of any document located is
permitted to be withheld. It also includes processing any documents for
disclosure, e.g., doing all that is necessary to redact those documents
of exempt material and otherwise preparing them for release. Review
does not include time spent resolving general legal or policy issues
regarding the application of exemptions.
(5) Commercial use request refers to a request from or on behalf of
one who seeks information for a use or purpose that is related to
commerce, trade, or the profit interest of the requester or of the
person on whose behalf the request is made. In determining whether a
requester properly belongs in this category, the Agency will determine
the use to which a requester will put the documents requested. Where
the Agency has reasonable cause to doubt the use to which a requester
will put the records sought, or where that use is not clear from the
request itself, the Agency may seek additional clarification before
assigning the request to a specific category.
(6) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education which operates a program or programs of scholarly research.
(7) Non-commercial scientific institution refers to an institution
that is not operated on a ``commercial'' basis as that term is
referenced in paragraph (a)(5) of 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.
(8) Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that would be of current interest to
the public. Examples of news media entities include television or radio
stations broadcasting to the public at large, and publishers of
periodicals (but only in those instances when they can
[[Page 43005]]
qualify as disseminators of ``news'' who make their products available
for purchase or subscription by the general public). These examples are
not intended to be all-inclusive. Moreover, as traditional methods of
news delivery evolve (e.g., electronic dissemination of newspapers
through telecommunications services), such alternative media would be
included in this category. In the case of ``freelance'' journalists,
they may be regarded as working for a news organization if they can
demonstrate a sound basis for expecting publication through such an
organization, even though not actually employed by it. A publication
contract would be the clearest evidence, but the Agency may also look
to the past publication record of the requester in making this
determination.
(b) Fees to be charged. The following specific fees shall be
applicable with respect to services rendered to members of the public
under this part:
(1) Commercial use requesters. Fees are intended to cover the full
estimated direct costs of researching for, reviewing for release, and
duplicating the records requested. Search costs are computed based on
the following formula: hours spent by Agency personnel, whatever their
grade and location, and rounded up to the nearest full hour, and
including locality pay for Washington-based personnel only, at the
basic annual rate then payable to U.S. Government employees at the GS-
9/Step 4 level, times 1.17 (to factor in related benefits) and divided
by 2080 (hours per work year). Review costs are computed based on the
same formula but, instead, using the rate then payable to employees at
the GS-13/Step 4 level. Duplicating costs are $0.20 per page. Search
costs will be assessed even though no records may be found or even if,
after review, there is no disclosure of records.
(2) Educational and non-commercial scientific institution
requester. The Agency will provide documents to requesters in this
category for the cost of duplication alone ($0.20 per page), excluding
charges for the first 100 pages. To be eligible for inclusion in this
category, requesters must show that a request is being made under the
auspices of a qualifying institution and that the records are sought in
furtherance of scholarly research, if the request is from an
educational institution or scientific research, if the request is from
a non-commercial scientific institution. Requesters eligible for free
search must (as with all FOIA requesters) reasonably describe the
records sought.
(3) Requesters who are representatives of the news media. The
Agency will provide documents to requesters in this category for the
cost of reproduction alone ($0.20 per page), excluding charges for the
first 100 pages. To be eligible for inclusion in this category a
requester must meet the criteria in paragraph (a)(8) of this section,
and his/her request must not be made for commercial use. In reference
to this class of requesters, a request for records supporting the news
dissemination function of the requester shall not be considered to be a
request that is for a commercial use. Requesters eligible for free
search must also reasonably describe the records sought.
(4) All other requesters. The Agency will charge requesters who do
not fit into any of the categories in paragraphs (b) (1), (2), and (3)
of this section fees which recover the full direct cost of search, and
for reproducing records that are responsive to the request, except that
the first 100 pages and the first two hours of search time shall be
furnished without charge. The hourly rates outlined in paragraph (b)(1)
of this section will prevail. Requesters must reasonably describe the
records sought. Moreover, requests from subjects for records filed in
the Agency's Privacy Act System of Records will continue to be treated
under the fee provisions of the Privacy Act of 1975 except that the
first 100 pages of reproduction will be furnished without charge.
(c) Non-payment of fees. (1) The Agency will begin assessing
interest charges on the thirty-first day following the day on which the
requester is advised of the fee charge. Interest will be at the rate
prescribed in 31 U.S.C. 3717.
(2) Where a requester has previously failed to copy a fee charged
in a timely fashion (i.e. within thirty days of the billing date), the
Agency will require the requester to pay the full amount owed plus any
applicable interest as provided in paragraph (c)(1) of this section,
and to make an advance payment of the full amount of the remaining
estimated fee before the Agency begins to process a new request or
continues processing a then-pending request from the requester.
(3) When the Agency acts under paragraph (c) (1) or (2) of this
section the administrative time limits prescribed in subsection (a)(6)
of the FOIA (i.e., ten working days from receipt of initial request and
twenty working days from receipt of appeals from initial denial plus
permissible extensions of these time limits) will begin only after the
Agency has received fee payments described in this section.
(d) Advance payments or confirmation. Where USAID estimates or
determines that allowable charges to a requester are likely to exceed
$250, USAID will require a requester to make an advance payment of the
entire estimated charges before continuing to process the request.
Where the estimated charges are in the $25-$250 range, then USAID in
its discretion, before processing the request, may require either--
(1) An advance deposit of the entire estimated charges or (2)
Written confirmation of the requester's willingness, when billed, to
pay such charges.
(e) Waiving or reducing fee. In accordance with section (4)(A)(ii)
of the FOIA, the Agency will furnish documents without charge or at
reduced charges if disclosure of the information is ``in the public
interest'' in that such disclosure 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. A requester may at any time, up to a period not to
exceed thirty days from the final USAID decision concerning his/her
request, request such waiver or reduction of fee by letter addressed to
the Chief, Customer Outreach and Oversight Staff; such request shall
address the above criteria for waiver. Such request will initially be
decided by the Chief, Customer Outreach and Oversight Staff, or his/her
designee; such decision will normally be made, and the requester so
advised, within ten working days of its receipt. The requester, if
dissatisfied with that decision, may appeal pursuant to the same
procedures as apply under Sec. 212.36 and Sec. 212.37 of this part.
(f) Restrictions on assessing fees. With the exception of
requesters seeking documents for a commercial use, Section (4)(A)(iv)
of the FOIA, as amended, requires agencies to provide the first 100
pages of duplication and the first two hours of search time without
charge. Moreover, this section prohibits agencies from charging fees to
any requester, including commercial use requesters, if the cost of
collecting a fee would be equal to or greater than the fee itself.
These provisions work together so that, except for commercial use
requesters, the Agency will not begin to assess fees until it has
provided such free search and reproduction. For example, for a request
that involved two hours and ten minutes of search time and resulted in
105 pages of documents, the Agency will determine the cost of only ten
minutes of search time and only five pages of reproduction. If this
[[Page 43006]]
cost is equal to or less than the cost of processing the payment
instrument--a figure which the Agency will from time to time review and
determine--then there will be no charge to the requester.
(g) Other provisions--(1) Charges for unsuccessful search. The
Agency will assess charges for time spent searching even if the Agency
fails to locate the records or if records located are determined to be
exempt from disclosure.
(2) Aggregating requesters. When the Agency reasonably believes
that a requester or group of requesters is attempting to break a
request down into a series of requests for the purpose of evading the
assessment of fees, the Agency will aggregate any such requesters and
charge accordingly.
(3) Effect of the Debt Collection Act of 1982 (Public Law 97-365).
The Agency will use the authorities of the Debt Collection Act,
including disclosure to consumer reporting agencies and use of
collection agencies, where appropriate, to encourage repayment.
(4) Remittances. (i) Remittances will be in U.S. Dollars in the
form of either a personal check or bank draft drawn on a bank in the
United States or a money order.
(ii) Remittances shall be made payable to the order of the U.S.
Treasury and mailed to the Chief, Customer Outreach and Oversight
Staff, at the address set forth in Sec. 212.33(a) of this part.
Sec. 212.36 Denial of request for access to records.
(a) If it is determined that the Agency cannot comply with all or
part of a request for records, the person making the request shall be
immediately notified of the determination, the reasons for the
determination, the name and title of each officer responsible for the
denial, and the right of the person to appeal the adverse
determination.
(b) The denial of a request for records may be made, initially,
only by the Chief, Customer Outreach and Oversight Staff, or his/her
designee.
(c) (1) Any person who has been denied access to records pursuant
to this section may appeal the relevant decision not later than thirty
days after the date of the notification of denial or, in the case of a
partial denial, not later than thirty days after the date the
releasable documents are actually furnished to the person making the
request, whichever is later. The appeal shall be in writing addressed
to the Agency's FOIA Appeals Officer, who is:
The Director, Office of Administrative Services, Bureau for
Management, Room 803, SA-2, Agency for International Development,
21st and Virginia Ave., N.W., Washington, D.C., 20523-0217.
(2) In order for the Agency to make a timely response to the
appeal, both the text of the appeal and its envelope must be plainly
marked ``FOIA Appeal''. The appeal must contain a reasonable
description of the record sought and withheld, a copy of the initial
decision to deny access and any other information that will enable the
Appeals Officer to make the final decision.
Sec. 212.37 Procedures for agency consideration of appeals.
(a) Upon receipt of the appeal by the Appeals Officer, a maximum of
twenty working days will normally be taken to decide the appeal. In
unusual circumstances, as defined in Sec. 212.34, the twenty working
days may be extended by ten working days or by the number of days not
used in the original denial of the request.
(b) If the appeal is granted, the person making the appeal shall be
immediately notified and copies of the releasable documents shall be
made available promptly thereafter upon receipt of appropriate fees as
set forth in Sec. 212.35. If the appeal is denied in whole or part, the
person making the request shall be immediately notified of the
decisions and of the provisions for judicial review of the Agency's
denial of the request.
(c) In the event a determination is not issued within the
applicable time limit and the person making the request therefore
chooses to sue the Agency, the Agency-level determination process shall
nonetheless continue.
(d) If an appeal not properly marked ``FOIA Appeal'' on the text of
the appeal and/or envelope is thereby delayed in reaching the Appeals
Officer, it will not be deemed received by the Appeals Officer until
actually received by him/her. In such event, the person making the
appeal will be furnished notice of the effective date of receipt.
Sec. 212.38 Predisclosure notification procedures for confidential
commercial information.
(a) In general. Confidential commercial information provided to the
Agency shall not be disclosed pursuant to a FOIA request except in
accordance with this section. For purposes of this section, the
following definitions apply:
(1) Confidential commercial information means records provided to
the Agency by a submitter that arguably contain material exempt from
release under Exemption 4 of FOIA, 5 U.S.C. 552(b)(4), because
disclosure could reasonably be expected to cause substantial
competitive harm.
(2) Submitter means any person or entity who provides confidential
commercial information to the Agency. The term ``submitter'' includes,
but is not limited to, corporations, state governments and foreign
governments.
(b) Notice to submitters. Whenever the Agency receives a FOIA
request for confidential commercial information and, pursuant to
paragraph (c) of this section, the submitter of such information is
entitled to receive notice of that request, then the Agency shall
promptly notify the submitter that it has received the request, unless
such a notice is not required pursuant to paragraph (g) of this
section. The notice shall be in writing and shall either describe the
exact nature of the confidential commercial information requested or
provide a copy of the records or portion of the records containing the
confidential commercial information. The notice shall be addressed to
the submitter and mailed, postage prepaid, first class mail, to the
submitter's last known address. Where notice is required to be given to
a voluminous number of submitters, in lieu of such a mailing the notice
may be posted or published in a manner and place reasonably calculated
to provide notice to the submitters.
(c) When notice is required; related matters. (1) For confidential
commercial information submitted prior to January 1, 1988, the Agency
shall provide a submitter with notice of its receipt of a FOIA request
whenever:
(i) The records are less than ten years old and the information has
been designated by the submitter as confidential commercial
information; or
(ii) The Agency has reason to believe that the disclosure of the
information could reasonably be expected to cause substantial
competitive harm to the submitter thereof.
(2) For confidential commercial information submitted to the Agency
on or after January 1, 1988, the Agency shall provide a submitter with
notice of its receipt of a FOIA request whenever:
(i) The submitter has designated the information as confidential
commercial information pursuant to the requirements of this section; or
(ii) The Agency has reason to believe that the disclosure of the
information could reasonably be expected to cause substantial
competitive harm to the submitter.
(3) Notice of a request for confidential commercial information
falling within paragraph (c)(2)(i) of this section shall be required
for a period of not more than ten years after the date of submission
unless the submitter
[[Page 43007]]
provides reasonable justification for a designation period of greater
duration.
(4) A submitter shall use good-faith efforts to designate by
appropriate markings, either at the time a record is submitted to the
Agency or within a reasonable period of time thereafter, those portions
of the record which it deems to contain confidential commercial
information. The designation shall be accompanied by a certification
made by the submitter, its agent or designee that to the best of the
submitter's knowledge, information and belief, the record does, in
fact, contain confidential commercial information that theretofore has
not been disclosed to the public.
(5) Whenever the Agency provides notice to the submitter in
accordance with paragraph (c) of this section, the Agency shall at the
same time provide written notice to the requester that it is affording
the submitter a reasonable period of time within which to object to the
disclosure, and that, therefore, the Agency may be required to enlarge
the time within which it otherwise would respond to the request.
(d) Opportunity to object to disclosure. To the extent permitted by
law, the notice required by paragraph (c) of this section shall afford
a submitter a reasonable period of time within which the submitter or
its authorized representative may provide the Agency with a written
objection to the disclosure of the confidential commercial information
and demonstrate why the submitter believes that the records contain
confidential commercial information whose disclosure would, probably,
cause substantial competitive injury to the submitter. Except where a
certification already has been made in conformance with the
requirements of paragraph (c)(4) of this section, the objection shall
be accompanied by certification made by the submitter, its agent or
designee, that to the best of the submitter's knowledge, information
and belief, the record does, in fact, contain confidential commercial
information that theretofore has not been disclosed to the public.
Information provided by a submitter pursuant to this paragraph may
itself be subject to disclosure under the FOIA.
(e) Notice of intent to disclose. (1) The Agency shall give careful
consideration to objections made by a submitter pursuant to paragraph
(d) of this section prior to making any administrative determination of
the issue. Whenever the Agency decides to disclose information despite
the objection of a submitter, the Agency shall forward to the submitter
a written notice which shall include:
(i) A statement of the reasons for which a submitter's disclosure
objections were not sustained; and
(ii) A description of the information to be disclosed.
(2) To the extent permitted by law, the notice required to be given
by paragraph (e)(1) of this section shall be provided to the submitter
a reasonable number of days prior to the specific disclosure date.
(3) Whenever the Agency provides notice to the submitter in
accordance with paragraphs (e) (1) and (2) of this section, the Agency
shall at the same time notify the requester
(i) That such a notice has been given and
(ii) Of the proposed date for disclosure.
(f) Notice of lawsuit. When a requester brings suit seeking to
compel the disclosure of information for which notice is required
pursuant to paragraph (c) of this section, the Agency shall promptly
notify the submitter that such suit has been filed.
(g) Exceptions to notice requirements. The notice requirements of
this section shall not apply if:
(1) The Agency determines that the information should not be
disclosed;
(2) The information has been published or has been officially made
available to the public;
(3) Disclosure of the information is required by an Agency rule
that;
(i) Was adopted pursuant to notice and public comment;
(ii) Specifies narrow classes of records submitted to the Agency
that are to be released under the FOIA; and
(iii) Provides in exceptional circumstances for notice when the
submitter provides written justification, at the time the information
is submitted or a reasonable time thereafter, that disclosure of the
information could reasonably be expected to cause substantial
competitive harm;
(4) For purposes of paragraph (c) of this section, the information
requested was not designated by the submitter as exempt from disclosure
when the submitter had an opportunity to make such designation at the
time of submission of the information or within a reasonable time
thereafter, unless;
(i) The Agency has substantial reason to believe that disclosure of
the information would result in competitive harm; or
(ii) The designation made by the submitter appears obviously
frivolous; except that, in such case, the Agency must provide the
submitter with written notice of any final administrative disclosure
determination within a reasonable number of days prior to the specified
disclosure date.
Subpart E--Exemptions From Disclosure
Sec. 212.41 Exemptions from publication and disclosure requirements of
subparts B, C, and D.
None of the provisions of subparts B, C, and D which provide for
publication and disclosure of certain information and records shall be
applicable 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 and confidential;
(e) Interagency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency 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) Would reasonably be expected to interfere with enforcement
proceedings;
(2) Would deprive a person of a right to a fair trial or an
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 which furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful security
intelligence investigation, information furnished by a confidential
source;
(5) Would disclose techniques and procedure 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
[[Page 43008]]
reports prepared by, on behalf of, or for the use of any agency
responsible for the regulation or supervision of financial
institutions; and
(i) Geological and geophysical information and data (including
maps) concerning wells.
Sec. 212.42 Exemption from 5 U.S.C. 552.
Whenever a request is made which involves access to records
described in paragraph (g) of Sec. 212.41 and the investigation or
proceedings involves a possible violation of criminal law; and there is
reason to believe that the subject of the investigation or proceeding
is not aware of its pendency, and disclosure of the existence of the
records could reasonably be expected to interfere with enforcement
proceedings, the Agency may, during only such time as that
circumstances continues, treat the records as not subject to the
requirements of 5 U.S.C. 552 and this subpart.
Subpart F--Opening of Records for Nonofficial Research Purposes
Sec. 212.51 General policy.
(a) The Agency will open its records on an equitable basis to all
individuals engaged in private research as soon as such action may be
taken without adversely affecting the national security, the
maintenance of friendly relations with other nations, the efficient
operation of the Agency, or the administrative feasibility of servicing
requests for access to such records.
(b) Access for research purposes to the classified foreign policy
records in the Agency's custody will be governed by the regulations of
the Department of State with respect thereto, as set forth in part 6,
chapter II of title II of the Code of Federal Regulations. Application
for such access may be made to the Chief, Customer Outreach and
Oversight Staff, at the address listed in Sec. 212.33(a) of this part.
That officer, or his/her designee, in consultation with the Director,
Historical Office, Department of State, or his/her designee, will
determine the action to be taken and will so advise the researcher.
Dated: July 31, 1996.
Willette L. Smith,
Public Affairs Specialist, Office of Admin. Services.
[FR Doc. 96-20880 Filed 8-19-96; 8:45 am]
BILLING CODE 6116-01-M
