[Federal Register Volume 59, Number 237 (Monday, December 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30497]
[[Page Unknown]]
[Federal Register: December 12, 1994]
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DEPARTMENT OF ENERGY
10 CFR Part 1004
RIN 1901-AA62
Freedom of Information
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) amends its regulations
concerning its policies on disclosure of information. The purpose of
this rulemaking is to state the agency's policy on contractor records
requested under the Freedom of Information Act (FOIA).
EFFECTIVE DATE: January 11, 1995.
FOR FURTHER INFORMATION CONTACT: Abel Lopez, Office of General Counsel,
GC-80, U.S. Department of Energy, 1000 Independence Avenue SW.,
Washington, DC 20585, (202) 586-8618.
SUPPLEMENTARY INFORMATION: The Freedom of Information Reform Act of
1986, Pub. L. No. 99-570, 100 Stat. 3207-49, requires that each agency
promulgate regulations to establish procedures and guidelines to
process requests received under FOIA. This final rule amends DOE's FOIA
regulation and supersedes DOE Order 1700.1 to state the DOE policy on
access to contractor records.
Under existing law, information becomes part of the agency's
records only when the Government either created or obtained the
information and has control over the information at the time of a FOIA
request. See, e.g., Department of Justice v. Tax Analysts, 492 U.S.
136, 142-145 (1989). The Supreme Court has reasoned that FOIA imposes
no obligations on agencies to create or retain records and that use of
federal funds and the Government's potential access to records do not
necessarily transform records into ``agency records'' subject to FOIA,
unless the agency in fact obtains the records. Forsham v. Harris, 445
U.S. 169, 180-186 (1980), Kissinger v. Reporters Committee for Freedom
of the Press, 445 U.S. 136, 151-153 (1980).
Nonetheless, as reflected in DOE Order 1700.1, DOE's past policy,
however, has been to disclose information owned by DOE, whether or not
the Government has actual possession of the information at the time of
the request. Under DOE Order 1700.1, moreover, records not owned by DOE
pursuant to a contract are disclosed under FOIA only if the DOE has
possession of them.
The court in Committee to Bridge the Gap v. Department of Energy,
No. CV 90-3568-ER (C.D. Cal. Oct 15, 1991), held that the DOE's policy
on contractor records constitutes a substantive rule under the
Administrative Procedure Act, and, therefore, DOE's treatment of
contractor records should be promulgated through formal notice and
comment rulemaking. Thus, this final rule supersedes DOE Order 1700.1
and establishes DOE's policy to provide for more public access to
information than is mandated by existing law.
On October 23, 1991, DOE published in the Federal Register (56 FR
55036), a proposal to amend the regulations that included a statement
of the DOE policy on contractor records. The proposed policy provided
that, with certain exceptions, contractor records that were the
property of the Government were subject to disclosure under FOIA,
whether or not DOE had possession of the documents at the time of a
request. Forty-three comments were received by the agency on the
proposed policy. The comments criticizing the proposed policy on
contractor records broke into the two groups. One group of commentors
took exception to the proposed DOE contractor records policy because it
extended the scope of documents available under FOIA beyond that which
is required by existing case law to include records not in the
possession of DOE. These commentors stated that, regardless of
ownership, DOE should apply FOIA only to records in the possession of
DOE in order to protect the confidentiality of certain information. The
second group of commentors opined that since government funds are
expended to create contractor records, all such records should be made
available to the public under FOIA.
DOE has reviewed all the comments and has determined to adopt the
contractor records policy proposed in October 1991 as modified below as
a final rule. Although DOE appreciates the views of both groups of
commentors regarding access to contractor records, the contractor
records policy adopted by DOE promotes openness in government and
continues to provide the public access to DOE contractor records. Some
members of the public commented that the proposed rule would subject
the public's right of access to contractor records to the vicissitudes
of DOE's policies regarding contractual provisions on ownership of
records. However, DOE's management and operating contracts provide that
most records acquired or generated by the contractor in its performance
of the contract are the property of the government. Additionally, the
government has a general right to inspect, copy, and audit records
acquired or generated by the contractor in connection with contract
performance, including those records not owned by the government. The
new rule makes clear that even were a requested record not owned under
the contract by the government, DOE can exercise its contractual rights
to acquire possession of the record if necessary to maximize public
disclosure of records concerning health, safety, and the environment.
The new policy also recognizes the necessity to maintain the
confidentiality of certain privileged and commercially sensitive
information to protect legitimate contractor interests and the
integrity of the Government's operations. The contractor records policy
adopted today is not intended to affect any records management
responsibilities of a DOE contractor under the Records Disposal Act, 44
U.S.C. Sec. 3301.
DOE expects to republish in the Federal Register the remainder of
the revisions proposed as a Final Rule in the near future.
Procedural Information
Executive Order 12866
It has been determined that this action is not a ``significant
regulatory action'' under the Executive Order 12866, ``Regulatory
Planning and Review,'' (58 FR 51735, October 4, 1993). Accordingly,
this action was not subject to review under that executive order by the
Office of Information and Regulatory Affairs of the Office of
Management and Budget.
Executive Order 12612
Executive Order 12612 requires that regulations or rules be
reviewed for direct effects on States, on the relationship between the
national government and the States, or in the distribution of power
among various levels of government. If there are sufficient substantial
direct effects, then Executive Order 12612 requires preparation of a
federalism assessment to be used in all decisions involved in
promulgating or implementing a regulation or rule.
Today's regulatory action does not affect any traditional State
function. There are therefore no substantial effects requiring
evaluation or assessment under Executive Order 12612.
Regulatory Flexibility Analysis
This regulation was reviewed under the Regulatory Flexibility Act,
5 U.S.C. 601 et seq., which requires preparation of a regulatory
flexibility analysis for any regulations that will have a significant
economic impact on a substantial number of small entities. DOE finds
that sections 603 and 604 of that Act do not apply to this rule because
it will not have a significant economic impact on a substantial number
of small entities. Thus the preparation of a regulatory flexibility
analysis is not warranted.
National Environmental Policy Act
There is no impact on the human environment under the regulatory
amendments being issued today. Accordingly, DOE has determined that
this is not a major Federal action on which significant impact upon the
quality of the human environment and, therefore, preparation of an
environmental assessment or an environmental impact statement is not
required and categorically excluded from preparation under the National
Environmental Policy Act pursuant to Appendix A6 of 10 CFR Part 1021.
Paperwork Reduction Act
This rule will not require a collection of information, and,
accordingly, clearance is not required by the Office of Management and
Budget under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et
seq.).
Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2(a)
and (b)(2), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reductions. Agencies are also instructed to
make every effort to ensure that the regulation specifies clearly a
preemptive effect, effect on existing Federal law or regulation, and
retroactive effect; describes any administrative proceedings; and
defines key terms. The DOE certifies that today's final rule meets the
requirements of sections 2(a) and (b)(2) of Executive Order 12778.
List of Subjects in 10 CFR Part 1004
Freedom of Information.
Issued in Washington, DC on December 7, 1994.
Robert R. Nordhaus,
General Counsel.
For the reasons set out in the preamble, chapter X of title 10,
part 1004 of the Code of Federal Regulations is amended as set forth
below.
PART 1004--FREEDOM OF INFORMATION
1. The authority citation for Part 1004 continues to read as
follows:
Authority: 5 U.S.C. 552.
2. Section 1004.3 is amended by revising the section heading,
reserving paragraph (d), and adding paragraph (e) as follows:
Sec. 1004.3 Public reading facilities and policy on contractor
records.
* * * * *
(d) [Reserved]
(e) Contractor Records.
(1) When a contract with DOE provides that any records acquired or
generated by the contractor in its performance of the contract shall be
the property of the Government, DOE will make available to the public
such records that are in the possession of the Government or the
contractor, unless the records are exempt from public disclosure under
5 U.S.C. 552(b)(2).
(2) Notwithstanding paragraph (e)(1) of this section, records owned
by the Government under contract that contain information or technical
data having commercial value as defined in Sec. 1004.3(e)(4) or
information for which the contractor claims a privilege recognized
under federal or state law shall be made available only when they are
in the possession of the Government and not otherwise exempt under 5
U.S.C. 552(b).
(3) The policies stated in this paragraph:
(i) Do not affect or alter contractors' obligations to provide to
DOE upon request any records that DOE owns under contract, or DOE's
rights under contract to obtain any contractor records and to determine
their disposition, including public dissemination; and
(ii) Will be applied by DOE to maximize public disclosure of
records that pertain to concerns about the environment, public health
or safety, or employee grievances.
(4) For purposes of Sec. 1004.3(e)(2), ``technical data and
information having commercial value'' means technical data and related
commercial or financial information which is generated or acquired by a
contractor and possessed by that contractor, and whose disclosure the
contractor certifies to DOE would cause competitive harm to the
commercial value or use of the information or data.
[FR Doc. 94-30497 Filed 12-9-94; 8:45 am]
BILLING CODE 6450-01-P
