[Federal Register Volume 64, Number 183 (Wednesday, September 22, 1999)]
[Proposed Rules]
[Pages 51275-51277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24491]
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OFFICE OF NATIONAL DRUG CONTROL POLICY
21 CFR Part 1401
RIN 3201-ZA02
Freedom of Information Act
AGENCY: Office of National Drug Control Policy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Office of National Drug Control Policy proposes this rule
to comply with the Electronic Freedom of Information Act. The proposed
rule defines records as defined in the Act, establishes an electronic
reading room, institutes an expedited process for handling requests and
conforms to the statutory time limitations for a response.
DATES: Submit comments on or before November 22, 1999.
ADDRESSES: Send comments to Executive Office of the President, Office
of National Drug Control Policy, Office of Legal Counsel, Attention
General Counsel, Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Daniel R. Petersen, (202) 395-6745.
SUPPLEMENTARY INFORMATION: This proposed rule is not a major rule for
the purposes of Executive Order 12866. As required by the Regulatory
Flexibility Act, ONDCP certifies that this proposed rule would not have
a significant impact on small business entities.
List of Subjects in 21 CFR Part 1401
Freedom of information, Organization and functions (Government
agencies).
For the reasons stated in the preamble, the Office of National Drug
Control Policy proposes to revise 21 CFR part 1401 to read as follows:
PART 1401--PUBLIC AVAILABILITY OF INFORMATION
Sec.
1401.1 Purpose.
1401.2 The Office of National Drug Control Policy--organization and
functions.
1401.3 Definitions.
1401.4 Access to information.
1401.5 How to request records.
1401.6 Expedited process.
1401.7 Prompt response.
1401.8 Extension of time.
1401.9 Appeals.
1401.10 Fees to be charged--general.
1401.11 Fees to be charged--miscellaneous provisions.
1401.12 Fees to be charged--categories of requesters.
1401.13 Waiver or reduction of fees.
Authority: 5 U.S.C. 552.
Sec. 1401.1 Purpose.
The purpose of this part is to prescribe rules, guidelines and
procedures to implement the Freedom of Information Act (FOIA), as
amended, 5 U.S.C. 552.
Sec. 1401.2 The Office of National Drug Control Policy--organization
and functions.
(a) The Office of National Drug Control Policy (ONDCP) was created
by the Anti-Drug Abuse Act of 1988, 21 U.S.C. 1501 et seq., and
reestablished under 21 U.S.C. 1701 et seq. The mission of ONDCP is to
coordinate the anti-drug efforts of the various agencies and
departments of the Federal government, to consult with States and
localities and assist their anti-drug efforts, to conduct a national
media campaign, and to annually promulgate the National Drug Control
Strategy.
(b) ONDCP is headed by the Director of National Drug Control
Policy. The Director is assisted by a Deputy Director of National Drug
Control Policy, a Deputy Director for Supply Reduction, a Deputy
Director for Demand Reduction, and a Deputy Director for State and
Local Affairs.
(c) Offices within ONDCP include Chief of Staff, and the Offices of
Legal Counsel, Strategic Planning, Legislative Affairs, Programs Budget
and Evaluation, Supply Reduction, Demand Reduction, Public Affairs,
State and Local Affairs, and the Financial Management Office.
(d) The Office of Public Affairs is responsible for providing
information to the press and to the general public. If members of the
public have general questions about ONDCP that can be answered by
telephone, they may call the Office of Public Affairs at (202) 395-
6618. This number should not be used to make FOIA requests. All oral
requests for information under FOIA will be rejected.
Sec. 1401.3 Definitions.
For the purpose of this part:
(a) All the terms defined in the Freedom of Information Act apply.
(b) Commercial-use request means a request from or on behalf of one
who seeks information for a cause or purpose that furthers the
commercial, trade or profit interests of the requester or the person or
institution on whose behalf the request is made. In determining whether
a requester properly belongs in this category, ONDCP will consider the
intended use of the information.
(c) Direct costs means the expense actually expended to search,
review, or duplicate in response to a FOIA request. For example, direct
costs include 116% of the salary of the employee performing work and
the actual costs incurred while operating equipment.
(d) Duplicate means the process of making a copy of a document.
Such copies may take the form of paper, microform, audio-visual
materials, or machine-readable documentation. ONDCP will provide a copy
of the material in a form that is usable by the requester.
(e) Educational institution means preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, or an institution of vocational education
that operates a program or programs of scholarly research.
(f) Noncommercial scientific institution means an institution that
is not operated on a commercial basis as that term is defined above,
and that is operated solely for the purpose of conducting scientific
research not intended to promote any particular product or industry.
(g) Records and any other terms used in this part in reference to
information includes any information that would be an agency record
subject to the requirements of this part when maintained in any format,
including electronic format.
(h) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. News is information about current
events or information that would be of interest to the public. Examples
of the news media include television or radio stations that broadcast
to the public at large and publishers of news periodicals that
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make their products available to the general public for purchase or
subscription. Freelance journalists may be regarded as working for the
news media where they demonstrate a reasonable basis for expecting
publication through that organization, even though not actually
employed by it.
(i) Request means a letter or other written communication seeking
records or information under FOIA.
(j) Review means the process of examining documents that are
located during a search to determine if any portion should lawfully be
withheld. It is the processing of determining disclosability.
(k) Search means to review, manually or by automated means, agency
records for the purpose of locating those records responsive to a
request.
Sec. 1401.4 Access to information.
The Office of National Drug Control Policy makes available
information pertaining to matters issued, adopted, or promulgated by
ONDCP, that are within the scope of 5 U.S.C. 552(a)(2). A public
reading area and the ONDCP FOIA Handbook are located at http://
www.whitehousedrugpolicy.gov/about/about.html.
Sec. 1401.5 How to request records.
(a) Each request must reasonably describe the record(s) sought
including the type of document, specific event or action, originator of
the record, date or time period, subject matter, location, and all
other pertinent data.
(b) Requests must be received by ONDCP through the mail or by
electronic facsimile transmission. Mailed requests must be addressed to
Executive Office of the President, Office of National Drug Control
Policy, Office of Legal Counsel, Washington, DC 20503. The applicable
fax number is (202) 395-5543.
(c) The words ``FOIA REQUEST'' or ``REQUEST FOR RECORDS'' must be
clearly marked on the cover-letter, letter and envelope. The time
limitations imposed by Sec. 1401.7 will not begin until the Office of
the General Counsel identifies a letter or fax as a FOIA request.
Sec. 1401.6 Expedited process.
(a) Requests and appeals will be given expedited treatment whenever
ONDCP determines either:
(1) 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 occurs and the request is made by a person
primarily engaged in disseminating information.
(b) A request for expedited processing may be made at the time of
the initial request for records or at a later time.
(c) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
person's knowledge and belief, explaining in detail the basis for
requesting expedited processing. A requester within the category in
paragraph (a)(2) of this section also must establish a particular
urgency to inform the public about the government activity involved in
the request, beyond the public's right to know about government
activity generally. The formality of certification may be waived as a
matter of administrative discretion.
(d) Within ten days of receipt of a request for expedited
processing, ONDCP will decide whether to grant it and will notify the
requester of the decision. If a request for expedited treatment is
granted, the request will be given priority and will be processed as
soon as practicable. If a request for expedited processing is denied,
any appeal of that decision will be acted on expeditiously.
Sec. 1401.7 Prompt response.
The General Counsel, or designee, will determine within 20 days
(excepting Saturdays, Sundays and legal public holidays) after the
receipt of a FOIA request whether it is appropriate to grant the
request and will provide written notification to the person making the
request. If the request is denied, the written notification will
include the names of the individuals who participated in the
determination, the reasons for the denial, and that an appeal may be
lodged within the Office of National Drug Control Policy.
Sec. 1401.8 Extension of time.
(a) In unusual circumstances, the Office of General Counsel may
extend the time limit prescribed in Sec. 1401.7 or Sec. 1401.9 by
written notice to the FOIA requester. The notice will state the reasons
for the extension and the date a determination is expected. The
extension period may be divided among the initial request and an appeal
but will not exceed a total of 10 working days (excepting Saturdays,
Sundays, or legal public holidays).
(b) The phrase ``unusual circumstances'' means:
(1) The requested records are located in establishments that are
separated from the office processing the request;
(2) A voluminous amount of separate and distinct records are
demanded in a single request; or
(3) Another agency or two or more components in the same agency
have substantial interest in the determination of the request.
(c) Where unusual circumstance exist, ONDCP may provide an
opportunity for amendment of the initial request so that the request
may be timely processed. Refusal by the person to reasonably modify the
request or arrange an alternative time frame shall be considered as a
factor for purposes of 5 U.S.C. 552 (a)(6)(C).
(d) ONDCP may aggregate requests by a requester or a group of
requestors where multiple requests reasonably appear to be a single
request.
Sec. 1401.9 Appeals.
An appeal to the ONDCP must explain in writing the legal and
factual basis for the appeal. It must be received by mail at the
address specified in Section 1401.5 within 30 days of receipt of a
denial. The Director or designee will decide the appeal within 20 days
(excepting Saturdays, Sundays, and legal public holidays). If the
Director or designee deny an appeal in whole or in part, the written
determination will contain the reason for the denial, the names of the
individuals who participated in the determination, and the provisions
for judicial review.
Sec. 1401.10 Fees to be charged--general.
ONDCP will recoup the full allowable costs it incurs in response to
a FOIA request.
(a) Manual search for records. ONDCP will charge 116% of the salary
of the individual(s) making a search.
(b) Computerized search for records. ONDCP will charge 116% of the
salary of the programmer/operator and the apportionable time of the
central processing unit directly attributed to the search.
(c) Review of records. ONDCP will charge 116% of the salary of the
individual(s) conducting a review. Records or portions of records
withheld under an exemption subsequently determined not to apply may be
reviewed to determine the applicability of exemptions not considered.
The cost for a subsequent review is assessable.
(d) Duplication of records. Request for copies prepared by computer
will cost 116% of the apportionable operator time and the cost of the
tape or disk. Other methods of duplication will cost 116% of the salary
of the individual copying the data plus 15 cents per copy of 8\1/2\ x
11 inch original.
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(e) Other charges. ONDCP will recover the costs of providing other
services such as certifying records or sending records by special
methods.
Sec. 1401.11 Fees to be charged--miscellaneous provisions.
(a) Remittance shall be mailed to the Office of Legal Counsel,
ONDCP, Washington DC 20503, and made payable to the order of the
Treasury of the United States on a postal money order or personal check
or bank draft drawn on a bank in the United States.
(b) ONDCP may require advance payment where the estimated fee
exceeds $250, or a requester previously failed to pay within 30 days of
the billing date.
(c) ONDCP may assess interest charges beginning the 31st day of
billing. Interest will be at the rate prescribed in section 3717 of
title 31 of the United States Code and will accrue from the date of the
billing.
(d) ONDCP may assess search charges where records are not located
or where records are exempt from disclosure.
(e) ONDCP may aggregate individual requests and charge accordingly
for requests seeking portions of a document or documents.
Sec. 1401.12 Fees to be charged--categories of requesters.
(a) There are four categories of FOIA requesters: commercial use
requesters; educational and non-commercial scientific institutions;
representatives of the news media; and all other requesters.
(b) The specific levels of fees for each of these categories are:
(1) Commercial use requesters. ONDCP will recover the full direct
cost of providing search, review and duplication services. Commercial
use requesters will not receive free search-time or free reproduction
of documents.
(2) Educational and non-commercial scientific institution
requesters. ONDCP will charge the cost of reproduction, excluding
charges for the first 100 pages. Requesters must demonstrate the
request is authorized by and under the auspices of a qualifying
institution and that the records are sought for scholarly or scientific
research not a commercial use.
(3) Requesters who are representatives of the news media. ONDCP
will charge the cost of reproduction, excluding charges for the first
100 pages. Requesters must meet the criteria in Sec. 1401.3(h), and the
request must not be made for a commercial use. A request that supports
the news dissemination function of the requester shall not be
considered a commercial use.
(4) All other requesters. ONDCP will recover the full direct cost
of the search and the reproduction of records, excluding the first 100
pages of reproduction and the first two hours of search time. Requests
for records concerning the requester will be treated under the fee
provisions of the Privacy Act of 1974, 5 U.S.C. 552a, which permits
fees only for reproduction.
Sec. 1401.13 Waiver or reduction of fees.
Fees chargeable in connection with a request may be waived or
reduced where ONDCP determines that disclosure is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the Government and is
not primarily in the commercial interest of the requester.
Janet Crist,
Chief of Staff.
[FR Doc. 99-24491 Filed 9-21-99; 8:45 am]
BILLING CODE 3180-02-P
