This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

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new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

18635 

Vol. 76, No. 65 

Tuesday, April 5, 2011 

ADMINISTRATIVE CONFERENCE OF 

THE UNITED STATES 

1 CFR Part 304 

Disclosure of Records or Information 

AGENCY: Administrative Conference of 

the United States. 

ACTION: Final rule. 

SUMMARY: The Administrative 

Conference of the United States (ACUS 

or the Conference) is promulgating 

updated rules identifying its procedures 

for disclosure of records under the 

Freedom of Information Act and its 

procedures for protection of privacy and 

access to individual records under the 

Privacy Act of 1974. 

DATES: Effective April 5, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Shawne C. McGibbon, General Counsel, 

at 202–480–2088 or 

smcgibbon@acus.gov. 

SUPPLEMENTARY INFORMATION: ACUS was 

established by the Administrative 

Conference Act, 5 U.S.C. 591–96. 

Following the loss of its funding in 

1995, ACUS ceased operations. In 1996, 

its prior regulations (including Part 304) 

were eliminated. 61 FR 3539 (1996). 

Congress has now reauthorized and 

refunded ACUS, which has now 

reinitiated operations. These regulations 

provide the agency’s procedures for 

disclosure of records, as required by the 

Freedom of Information Act (FOIA), 5 

U.S.C. 552, as amended, and its 

procedures for protection of privacy and 

access to individual records, as required 

by the Privacy Act of 1974, 5 U.S.C. 

552a, as amended. These regulations 

also reflect the principles established by 

President Obama’s Presidential 

Memoranda on ‘‘Transparency and Open 

Government’’ and ‘‘Freedom of 

Information Act’’ issued on January 21, 

2009 and Attorney General Holder’s 

Memorandum on ‘‘The Freedom of 

Information Act (FOIA)’’ issued on 

March 19, 2009. Additionally, the 

regulations reflect the Conference’s 

commitment to providing the fullest 

possible disclosure of records to the 

public. The proposed rule was 

published in the Federal Register on 

January 11, 2011 (76 FR 1542) for public 

comments. 

Public Comment 

ACUS received a single set of 

comments from one person, which 

suggested numerous technical 

corrections or clarifications, most of 

which were accepted and incorporated 

into the final rule. The final rule 

provides that, in general, e-mail may be 

used by requesters and the agency for 

submission of requests or agency 

responses. The more significant 

suggestions were addressed as follows. 

The commenter suggested revising the 

procedure for handling appeals to 

ensure that a requester who receives an 

adverse determination on either a FOIA 

or Privacy Act request will always have 

a right to an administrative appeal. We 

have revised this provision to preserve 

appeal rights within the agency. 

We have also accepted the 

commenter’s suggestion to modify the 

fees section, so as to permit agency 

discretionary waivers where 

appropriate. 

The commenter suggested that we 

omit multi-track processing because the 

agency is very small. We have retained 

the option of using more than one track 

to enable more efficient processing of 

simple requests. 

Required Reviews 

a. Paperwork Reduction Act 

ACUS has determined that the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq., does not apply because 

these regulations do not contain any 

information collection requirements. 

b. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA), 

5 U.S.C. 601 et seq., requires agencies to 

perform regulatory flexibility analyses 

when promulgating rules through notice 

and comment procedures. ACUS has 

determined that these regulations do not 

have a significant economic impact on 

a substantial number of small entities. 

Under the FOIA, agencies may recover 

only the direct costs of searching for, 

reviewing and duplicating the records 

processed for certain categories of 

requesters. The Conference’s proposed 

fee structure is in accordance with 

Department of Justice guidelines and 

based upon OMB fee schedules, which 

calculate costs based on the category of 

requester and kind of employee 

duplicating the records. Under the 

Privacy Act, agencies may recover the 

cost of duplication only. The agency 

will provide free duplication and search 

time (up to a certain amount) in certain 

cases. Where anticipated fees exceed 

$50, an opportunity is given to the 

requester to refine the request in order 

to lower cost. Thus, fees assessed by 

ACUS are nominal. The agency certifies 

that these regulations will not have a 

significant economic impact on a 

substantial number of small entities 

within the meaning of the RFA. 

c. Unfunded Mandates Reform Act 

For purposes of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

chapter 25, subchapter II), these 

regulations will not significantly or 

uniquely affect small governments and 

would not result in increased 

expenditures by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(as adjusted for inflation). 

d. Executive Order 12866 

In issuing these regulations, ACUS 

has adhered to the regulatory 

philosophy and the applicable 

principles of regulation as set forth in 

Section 1 of Executive Order 12866, 

Regulatory Planning and Review, 58 FR 

51735. These regulations have not been 

reviewed by the Office of Management 

and Budget under the Executive Order 

since they are not a significant 

regulatory action within the meaning of 

the Executive Order. 

List of Subjects in 1 CFR Part 304 

Administrative practice and 

procedure, Freedom of information, 

Privacy. 

For the reasons stated in the 

preamble, under the authority at 5 

U.S.C. 552, 552a, and 591–96, the 

Administrative Conference of the 

United States amends 1 CFR Chapter III 

to add part 304 as set forth below: 

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18636 Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Rules and Regulations 

PART 304—DISCLOSURE OF 

RECORDS OR INFORMATION 

Subpart A—Procedures for Disclosure of 

Records Under the Freedom of Information 

Act 

Sec. 

304.1 General provisions. 

304.2 Public reading room. 

304.3 Requirements for making requests. 

304.4 Responsibility for responding to 

requests. 

304.5 Timing of responses to requests. 

304.6 Responses to requests. 

304.7 Business information. 

304.8 Appeals. 

304.9 Fees. 

304.10 Preservation of records. 

304.11 Other rights and services. 

Subpart B—Protection of Privacy and 

Access to Individual Records Under the 

Privacy Act of 1974 

304.20 General provisions. 

304.21 Requests for access to records. 

304.22 Responsibility for responding to 

requests for access to records. 

304.23 Responses to requests for access to 

records. 

304.24 Appeals from denials of requests for 

access to records. 

304.25 Requests for amendment or 

correction of records. 

304.26 Requests for an accounting of record 

disclosures. 

304.27 Fees. 

304.28 Notice of court-ordered and 

emergency disclosures. 

304.29 Security of systems of records. 

304.30 Contracts for the operation of record 

systems. 

304.31 Use and collection of social security 

numbers and other information. 

304.32 Employee standards of conduct. 

304.33 Preservation of records. 

304.34 Other rights and services. 

Subpart A—Procedures for Disclosure 

of Records Under the Freedom of 

Information Act 

Authority: 5 U.S.C. 552, 591–96. 

§ 304.1 General provisions. 

(a) This subpart contains the rules 

that the Administrative Conference of 

the United States (‘‘ACUS’’ or ‘‘the 

agency’’) follows in processing requests 

for disclosure of records under the 

Freedom of Information Act (‘‘FOIA’’ or 

‘‘the Act’’), 5 U.S.C. 552, as amended, 

and in meeting its responsibilities under 

the Act. Note that electronic records are 

treated as records for the purposes of the 

FOIA. These rules should be read 

together with the text of the FOIA itself, 

which provides additional information 

about access to records maintained by 

the agency. They also may be read in 

conjunction with the agency’s ‘‘Freedom 

of Information Act Reference Guide,’’ 

which provides basic information about 

use of the Act in relation to the agency’s 

records. Requests made by individuals 

for access to records about themselves 

under the Privacy Act of 1974, 5 U.S.C. 

552a (2006 & Supp. II 2008), which are 

processed under subpart B of this part, 

are also processed under this subpart. 

The agency will automatically process 

the request under both provisions in 

order to provide the maximum possible 

records to the requester. Information 

routinely provided to the public as part 

of a regular agency activity (for example, 

press releases or recommendations 

adopted by the agency pursuant to the 

Administrative Conference Act, 5 U.S.C. 

591 et seq.) may be provided to the 

public without following this subpart. 

(b) As a matter of policy, ACUS makes 

discretionary disclosures of records or 

information exempt from disclosure 

under the FOIA whenever it is 

determined that disclosure would not 

foreseeably harm an interest protected 

by a FOIA exemption, but this policy 

does not create any right enforceable in 

court. 

(c) The agency has designated its 

General Counsel as its Chief FOIA 

Officer, who has agency-wide 

responsibility for efficient and 

appropriate compliance with the FOIA 

and these implementing regulations. 

The General Counsel has designated the 

agency’s Deputy General Counsel as its 

FOIA Public Liaison. 

§ 304.2 Public reading room. 

(a) ACUS maintains a public reading 

room that affords access to the records 

that the FOIA requires it to make 

regularly available for public inspection 

and copying even in the absence of a 

FOIA request, including a current 

subject-matter index of its reading room 

records that will be updated quarterly 

with respect to newly included records. 

(b) ACUS also makes all reading room 

records that have been created by the 

agency regularly available to the public 

electronically on its Web site (http:// 

www.acus.gov). 

§ 304.3 Requirements for making requests. 

(a) How made and addressed. You 

may make a request for records by 

sending an e-mail message addressed to 

info@acus.gov, or by using the FOIA 

Request form on the ACUS Web site at 

http://www.acus.gov/foia. You may also 

send a written request letter to the 

agency either by mail addressed to FOIA 

Public Liaison, Administrative 

Conference of the United States, 1120 

20th Street, NW., South Lobby, Suite 

706, Washington, DC 20036, or by fax 

delivery to (202) 386–7190. For the 

quickest possible handling of a mail 

request, you should mark both your 

request letter and the envelope 

‘‘Freedom of Information Act Request.’’ 

(You may find the agency’s ‘‘Freedom of 

Information Act Reference Guide’’— 

which is available on its Web site and 

in paper form—helpful in making your 

request.) If you are making a request for 

records about yourself, see § 304.21(d) 

for additional requirements. If you are 

making a request for records about 

another individual, then either a written 

authorization signed by that individual 

permitting disclosure of those records to 

you or proof that that individual is 

deceased (for example, a copy of a death 

certificate or an obituary notice) will 

help the processing of your request. 

Your request will be considered 

received as of the date upon which it is 

logged in as received by the agency’s 

FOIA Public Liaison. 

(b) Description of records sought. You 

must describe the records that you seek 

in enough detail to enable agency 

personnel to locate them with a 

reasonable amount of effort. Whenever 

possible, your request should include 

specific information about each record 

sought, such as the date, title or name, 

author, recipient, and subject matter of 

the record. If known, you should 

include any file designations or similar 

descriptions for the records that you 

want. As a general rule, the more 

specific you are about the records or 

type of records that you want, the more 

likely that the agency will be able to 

locate those records in response to your 

request. If the agency determines that 

your request does not reasonably 

describe records, then it will tell you 

either what additional information is 

needed or why your request is otherwise 

insufficient. It also will give you an 

opportunity to discuss your request by 

telephone so that you may modify it to 

meet the requirements of this section. 

Additionally, if your request does not 

reasonably describe the records you 

seek, the agency’s response to it may be 

delayed as an initial matter. 

(c) Agreement to pay fees. When you 

make a FOIA request, it will be 

considered to be an agreement by you to 

pay all applicable fees charged under 

§ 304.9, up to $50.00, unless you 

specifically request a waiver of fees. The 

agency ordinarily will confirm this 

agreement in an acknowledgment letter. 

When making a request, you may 

specify a willingness to pay a greater or 

lesser amount. Your agreement will not 

prejudice your ability to seek a waiver 

or reduction of any applicable fee at a 

later time. 

§ 304.4 Responsibility for responding to 

requests. 

(a) In general. The agency will be 

responsible for responding to a request 

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Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Rules and Regulations 18637 

in all respects, except in the case of a 

referral to another agency as is 

described in paragraphs (b), (c), and (d) 

of this section. In determining which 

records are responsive to a request, the 

agency ordinarily will include only 

records in its possession and control as 

of the date upon which it begins its 

search for them. If any other date is 

used, the agency will inform the 

requester of that date. 

(b) Consultations and referrals. When 

the agency receives a request for a 

record in its possession and control, it 

will determine whether another agency 

of the Federal Government is better able 

to determine whether the record is 

exempt from disclosure under the FOIA 

and, if so, whether it should be 

disclosed as a matter of administrative 

discretion. If the agency determines that 

it is best able to process the record in 

response to the request, then it will do 

so. If the agency determines that it is not 

best able to process the record, then it 

will either: 

(1) Respond to the request regarding 

that record, after consulting with the 

agency that is best able to determine 

whether to disclose it and with any 

other agency that has a substantial 

interest in it; or 

(2) Refer the responsibility for 

responding to the request regarding that 

record to another agency that originated 

the record (but only if that agency is 

subject to the FOIA). Ordinarily, the 

agency that originated a record will be 

presumed to be best able to determine 

whether to disclose it. 

(c) Notice of referral. When the agency 

refers all or any part of the 

responsibility for responding to a 

request to another agency, it ordinarily 

will notify the requester of the referral 

and inform the requester of the name of 

the agency to which the request has 

been referred and of the part of the 

request that has been referred. 

(d) Timing of responses to 

consultations and referrals. All 

consultations and referrals will be 

handled according to the date upon 

which the FOIA request initially was 

received by the first agency, and not any 

later date. 

(e) Agreements regarding 

consultations and referrals. The agency 

may make agreements with other 

agencies designed to eliminate the need 

for consultations or referrals regarding 

particular types of records. 

§ 304.5 Timing of responses to requests. 

(a) In general. The agency ordinarily 

will respond to requests according to 

their order of receipt. 

(b) Multi-track processing. The agency 

may use two or more processing tracks 

by distinguishing between simple and 

more complex requests based on the 

amount of work and/or time needed to 

process the request, including according 

to the number of pages involved. If it 

does so, then it will advise requesters in 

its slower track(s) of the limits of its 

faster track(s) and may provide 

requesters in its slower track(s) with an 

opportunity to limit the scope of their 

requests in order to qualify for faster 

processing within the specified limits of 

its faster track(s). The agency will 

contact the requester by telephone, 

e-mail or letter, whichever is most 

efficient, in each case. 

(c) Unusual circumstances. (1) Where 

the statutory time limits for processing 

a request cannot be met because of 

‘‘unusual circumstances,’’ as defined in 

the FOIA, and the agency determines to 

extend the time limits on that basis, it 

will as soon as practicable notify the 

requester in writing of the unusual 

circumstances and of the date by which 

processing of the request can be 

expected to be completed. Where the 

extension is for more than ten business 

days, it will provide the requester with 

an opportunity either to modify the 

request so that it may be processed 

within the time limits or to arrange an 

alternative time period processing the 

request or a modified request. 

(2) Where the agency reasonably 

believes that multiple requests 

submitted by a requester, or by a group 

of requesters acting in concert, 

constitute a single request that would 

otherwise involve unusual 

circumstances, and the requests involve 

clearly related matters, they may be 

aggregated. Multiple requests involving 

unrelated matters will not be aggregated. 

(d) Expedited processing. (1) Requests 

and appeals will be taken out of order 

and given expedited treatment 

whenever it is determined that they 

involve: 

(i) 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; 

(ii) An urgency to inform the public 

concerning actual or alleged federal 

government activity, if made by a 

person primarily engaged in 

disseminating information; or 

(iii) Other circumstances as 

determined by the agency. 

(2) A request for expedited processing 

may be made at the time of the initial 

request for records (i.e., as part of the 

initial request) or at any later time. 

(3) 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. For 

example, a requester within the category 

in paragraph (d)(1)(ii) of this section, if 

not a full-time member of the news 

media, must establish that he or she is 

a person whose main professional 

activity or occupation is information 

dissemination, though it need not be his 

or her sole occupation. That requester 

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 by the agency as a matter 

of administrative discretion. 

(4) Within ten calendar days of its 

receipt of a request for expedited 

processing, the agency will decide 

whether to grant it and will notify the 

requester of the decision. If a request for 

expedited treatment is granted, then the 

request will be given priority and will 

be processed as soon as practicable. If a 

request for expedited processing is 

denied, then any appeal of that decision 

will be acted on expeditiously. 

§ 304.6 Responses to requests. 

(a) Acknowledgments of requests. On 

receipt of a request, if the agency cannot 

provide the requested information 

within two business days, then an 

acknowledgment letter or e-mail 

message will be sent to the requester 

that will confirm the requester’s 

agreement to pay fees under § 304.3(c) 

and will provide a request tracking 

number for further reference. Requesters 

may use this tracking number to 

determine the status of their request— 

including the date of its receipt and the 

estimated date on which action on it 

will be completed—by calling the 

agency’s FOIA Public Liaison at (202) 

480–2080. In some cases, the agency 

may seek further information or 

clarification from the requester. 

(b) Grants of requests. Ordinarily, the 

agency will have twenty business days 

from when a request is received to 

determine whether to grant or deny the 

request. Once the agency makes such a 

determination, it will immediately 

notify the requester in writing. The 

agency will inform the requester in the 

notice of any fee charged under § 304.9 

and will disclose records to the 

requester promptly upon payment of 

any applicable fee. Records disclosed in 

part will be marked or annotated to 

show the amount of information 

deleted, unless doing so would harm an 

interest protected by an applicable 

exemption. The location of the 

information deleted also will be 

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18638 Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Rules and Regulations 

indicated on the record, if technically 

feasible. 

(c) Adverse determinations of 

requests. Whenever the agency makes 

an adverse determination denying a 

request in any respect, it will notify the 

requester of that determination in 

writing. Adverse determinations, or 

denials of requests, consist of: A 

determination to withhold any 

requested record in whole or in part; a 

determination that a requested record 

does not exist or cannot be located; a 

determination that a record is not 

readily reproducible in the form or 

format sought by the requester; a 

determination that what has been 

requested is not a record subject to the 

FOIA; a determination on any disputed 

fee matter, including a denial of a 

request for a fee waiver; and a denial of 

a request for expedited treatment. The 

denial letter will include: 

(1) The name and title or position of 

the person responsible for the denial; 

(2) A brief statement of the reason(s) 

for the denial, including any FOIA 

exemption(s) applied by the agency in 

denying the request; 

(3) An estimate of the volume of 

records or information withheld, in 

number of pages or in some other 

reasonable form of estimation. This 

estimate does not need to be provided 

if the volume is otherwise indicated 

through deletions on records disclosed 

in part, or if providing an estimate 

would harm an interest protected by an 

applicable exemption; and 

(4) An indication on the released 

portion of a record of each exemption 

applied, at the place at which it was 

applied, if technically feasible. 

(5) A statement that the denial may be 

appealed under § 304.8(a) and a 

description of the requirements of 

§ 304.8(a). 

§ 304.7 Business information. 

(a) In general. Business information 

obtained by the agency will be disclosed 

under the FOIA only under this section 

and in accordance with Executive Order 

12,600, 3 CFR part 235 (1988). 

(b) Definitions. For purposes of this 

section: 

(1) ‘‘Business information’’ means 

privileged or confidential commercial or 

financial information obtained by the 

agency from a submitter that may be 

protected from disclosure under 

Exemption 4 of the FOIA. 

(2) ‘‘Submitter’’ means any person or 

entity from whom the agency obtains 

business information, either directly or 

indirectly. The term includes 

corporations; state, local, and tribal 

governments; and foreign governments. 

(c) Designation of business 

information. A submitter of business 

information will use good-faith efforts to 

designate, by appropriate markings, 

either at the time of submission or at a 

reasonable time thereafter, any and all 

portion(s) of its submission that it 

considers to be protected from 

disclosure under Exemption 4. These 

designations will expire ten years after 

the date of the submission unless the 

submitter requests, and provides 

justification for, a longer designation 

period. 

(d) Notice to submitters. The agency 

will provide a submitter with prompt 

written notice of a FOIA request or 

administrative appeal that seeks its 

business information wherever required 

under paragraph (e) of this section, 

except as provided in paragraph (h) of 

this section, in order to give the 

submitter an opportunity to object to 

disclosure of any specified portion of 

that information under paragraph (f) of 

this section. The notice will either 

describe the business information 

requested or include copies of the 

requested records or record portions 

containing the information. When 

notification of a voluminous number of 

submitters is required, notification may 

be made by posting or publishing the 

notice in a place reasonably likely to 

accomplish it. 

(e) Where notice is required. Notice 

will be given to a submitter wherever: 

(1) The information has been 

designated in good faith by the 

submitter as information considered 

protected from disclosure under 

Exemption 4; or 

(2) The agency has reason to believe 

that the information may be protected 

from disclosure under Exemption 4. 

(f) Opportunity to object to disclosure. 

The agency will allow a submitter a 

reasonable time to respond to the notice 

described in paragraph (d) of this 

section and will specify that time period 

within the notice. If a submitter has any 

objection to disclosure, it is required to 

submit a detailed written statement. The 

statement must specify all grounds for 

withholding any portion of the 

information under any exemption of the 

FOIA and, in the case of Exemption 4, 

it must show why the information is a 

trade secret or commercial or financial 

information that is privileged or 

confidential. In the event that a 

submitter fails to respond to the notice 

within the time specified in it, the 

submitter will be considered to have no 

objection to disclosure of the 

information. Information provided by 

the submitter that is not received by the 

agency until after its disclosure decision 

has been made will not be considered 

by the agency. Information provided by 

a submitter under this paragraph may 

itself be subject to disclosure under the 

FOIA. 

(g) Notice of intent to disclose. The 

agency will consider a submitter’s 

objections and specific grounds for 

nondisclosure in deciding whether to 

disclose business information. 

Whenever the agency decides to 

disclose business information over the 

objection of a submitter, it will give the 

submitter written notice, which will 

include: 

(1) A statement of the reason(s) why 

each of the submitter’s disclosure 

objections was not sustained; 

(2) A description of the business 

information to be disclosed; and 

(3) A specified disclosure date, which 

will be a reasonable time subsequent to 

the notice. 

(h) Exceptions to notice requirements. 

The notice requirements of paragraphs 

(d) and (g) of this section will not apply 

if: 

(1) The agency determines that the 

information should not be disclosed; 

(2) The information lawfully has been 

published or has been officially made 

available to the public; 

(3) Disclosure of the information is 

required by statute (other than the 

FOIA) or by a regulation issued in 

accordance with the requirements of 

Executive Order 12,600; or 

(4) The designation made by the 

submitter under paragraph (c) of this 

section appears obviously frivolous— 

except that, in such a case, the agency 

will, within a reasonable time prior to 

a specified disclosure date, give the 

submitter written notice of any final 

decision to disclose the information. 

(i) Notice of FOIA lawsuit. Whenever 

a requester files a lawsuit seeking to 

compel the disclosure of business 

information, the agency will promptly 

notify the submitter. 

(j) Corresponding notice to requesters. 

Whenever the agency provides a 

submitter with notice and an 

opportunity to object to disclosure 

under paragraph (d) of this section, it 

will also notify the requester(s). 

Whenever the agency notifies a 

submitter of its intent to disclose 

requested information under paragraph 

(g) of this section, it will also notify the 

requester(s). Whenever a submitter files 

a lawsuit seeking to prevent the 

disclosure of business information, the 

agency will notify the requester(s). 

§ 304.8 Appeals. 

(a) Appeals of adverse 

determinations. If you are dissatisfied 

with the response to your request, you 

may appeal an adverse determination 

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Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Rules and Regulations 18639 

denying your request, in any respect, to 

the Chairman of the agency. You must 

make your appeal in writing, by e-mail 

or letter, and it must be received by the 

agency within 60 days of the date of the 

agency’s response denying your request. 

Your appeal should provide reasons and 

supporting information as to why the 

initial determination was incorrect. The 

appeal should clearly identify the 

particular determination (including the 

assigned request number, if known) that 

you are appealing. For the quickest 

possible handling of a mail request, you 

should mark your appeal ‘‘Freedom of 

Information Act Appeal.’’ The Chairman 

or his or her designee will act on the 

appeal, except that an appeal ordinarily 

will not be acted on if the request 

becomes a matter of FOIA litigation. 

(b) Responses to appeals. The 

decision on your appeal will be made by 

e-mail or letter, ordinarily within 20 

business days of receipt of your appeal. 

A decision affirming an adverse 

determination in whole or in part will 

contain a statement of the reason(s) for 

the affirmance, including any FOIA 

exemption(s) applied, and will inform 

you of the FOIA provisions for court 

review of the decision. (You also may be 

aware of the mediation services that are 

offered by the Office of Government 

Information Services (‘‘OGIS’’) of the 

National Archives and Records 

Administration—see http:// 

www.archives.gov/ogis/—as a nonexclusive alternative to FOIA litigation.) 

If the adverse determination is reversed 

or modified on appeal, in whole or in 

part, then you will be notified in a 

written decision and your request will 

be reprocessed in accordance with that 

appeal decision. 

(c) When appeal is required. As a 

general rule, if you wish to seek review 

by a court of any adverse determination, 

you must first appeal it in a timely 

fashion under this section. 

§ 304.9 Fees. 

(a) In general. The agency will charge 

for processing requests under the FOIA 

in accordance with paragraph (c) of this 

section, except where fees are limited 

under paragraph (d) of this section, 

where a waiver or reduction of fees is 

granted under paragraph (k) of this 

section, or where the agency’s FOIA 

staff waives fees in whole or in part 

because they are deemed to be 

inappropriate or unreasonable—and in 

some cases the agency may seek further 

information or clarification from the 

requester for this purpose. The agency 

ordinarily will collect all applicable fees 

before sending copies of requested 

records to a requester. Requesters must 

pay fees by check or money order made 

payable to the Treasury of the United 

States. 

(b) Definitions. For purposes of this 

section: 

(1) ‘‘Commercial use request’’ means a 

request from or on behalf of a person 

who seeks information for a use or 

purpose that furthers his or her 

commercial, trade, or profit interests, 

including furthering those interests 

through litigation. The agency will 

determine, whenever reasonably 

possible, the use to which a requester 

will put the requested records. When it 

appears that the requester will put the 

records to a commercial use, either 

because of the nature of the request 

itself or because the agency has 

reasonable cause to doubt a requester’s 

stated use, the agency will provide the 

requester a reasonable opportunity to 

submit further clarification. 

(2) ‘‘Direct costs’’ means those 

expenses that an agency actually incurs 

in searching for and duplicating (and, in 

the case of commercial use requests, 

reviewing) records to respond to a FOIA 

request. Direct costs include, for 

example, the salary of the employee 

performing the work (the basic rate of 

pay for the employee, plus 16 percent of 

that rate to cover benefits) and the cost 

of operating duplication machinery. Not 

included in direct costs are overhead 

expenses such as the costs of space and 

heating or lighting of the facility in 

which the records are kept. 

(3) ‘‘Duplication’’ means the making of 

a copy of a record, or of the information 

contained in it, necessary to respond to 

a FOIA request. Copies can take the 

form of paper, audiovisual materials, or 

electronic records, among others. The 

agency will honor a requester’s 

specified preference of form or format of 

disclosure if the record is readily 

reproducible with reasonable efforts in 

the requested form or format. 

(4) ‘‘Educational institution’’ means a 

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 of scholarly research. To 

qualify under this category, a requester 

must show that the request is authorized 

by and is made under the auspices of a 

qualifying institution and that the 

records are not sought for a commercial 

use but are sought to further scholarly 

research. 

(5) ‘‘Noncommercial scientific 

institution’’ means an institution that is 

not operated on a ‘‘commercial’’ basis, as 

that term is defined in paragraph (b)(1) 

of this section, and that is operated 

solely for the purpose of conducting 

scientific research the results of which 

are not intended to promote any 

particular product or industry. To 

qualify under this category, a requester 

must show that the request is authorized 

by and is made under the auspices of a 

qualifying institution and that the 

records are not sought for a commercial 

use but are sought to further scientific 

research. 

(6) ‘‘Representative of the news 

media,’’ or ‘‘news-media requester,’’ 

means any person or entity that gathers 

information of potential interest to a 

segment of the public, uses its editorial 

skills to turn the raw materials into a 

distinct work, and distributes that work 

to an audience. For this purpose, 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 are television or 

radio stations broadcasting to the public 

at large and publishers of periodicals 

(but only if such entities qualify as 

disseminators of ‘‘news’’) who make 

their products available for purchase by 

or subscription by or free distribution to 

the general public. These examples are 

not all-inclusive. Moreover, as methods 

of news delivery evolve (for example, 

the adoption of the electronic 

dissemination of newspapers through 

telecommunications services), such 

alternative media shall be considered to 

be news-media entities. A freelance 

journalist shall be regarded as working 

for a news-media entity if the journalist 

can demonstrate a solid basis for 

expecting publication through that 

entity, whether or not the journalist is 

actually employed by the entity. A 

publication contract would present a 

solid basis for such an expectation; the 

agency may also consider the past 

publication record of the requester in 

making such a determination. To qualify 

under this category, a requester must 

not be seeking the requested records for 

a commercial use. A request for records 

supporting the news-dissemination 

function of the requester will not be 

considered to be for a commercial use. 

(7) ‘‘Review’’ means the examination 

of a record located in response to a 

request in order to determine whether 

any portion of it is exempt from 

disclosure. It also includes processing 

any record for disclosure—for example, 

doing all that is necessary to redact it 

and prepare it for disclosure. Review 

costs are recoverable even if a record 

ultimately is not disclosed. Review time 

includes time spent considering any 

formal objection to disclosure made by 

a business submitter under § 304.7 but 

does not include time spent resolving 

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general legal or policy issues regarding 

the application of exemptions. 

(8) ‘‘Search’’ means the process of 

looking for and retrieving records or 

information responsive to a request. It 

includes page-by-page or line-by-line 

identification of information within 

records and also includes reasonable 

efforts to locate and retrieve information 

from records maintained in electronic 

form or format. The agency will conduct 

searches in the most efficient and least 

expensive manner reasonably possible. 

For example, it will not search on a lineby-line basis where duplicating an 

entire document would be quicker and 

less expensive. 

(c) Fees charged. In responding to 

FOIA requests, the agency will charge 

the following fees unless a waiver or 

reduction of fees has been granted under 

paragraph (k) of this section: 

(1) Search. (i) Search fees will be 

charged for all requests (other than 

requests made by educational 

institutions, noncommercial scientific 

institutions, or representatives of the 

news media) subject to the limitations of 

paragraph (d) of this section. The agency 

may charge for time spent searching 

even if it does not locate any responsive 

record or if it withholds the record(s) 

located as entirely exempt from 

disclosure. 

(ii) For each quarter hour spent by 

clerical personnel in searching for and 

retrieving a requested record, the fee 

will be $5.00. Where a search and 

retrieval cannot be performed entirely 

by clerical personnel (for example, 

where the identification of records 

within the scope of a request requires 

the use of professional personnel) the 

fee will be $10.00 for each quarter hour 

of search time spent by professional 

personnel. Where the time of managerial 

personnel is required, the fee will be 

$15.00 for each quarter hour of time 

spent by those personnel. 

(iii) For computer searches of records, 

requesters will be charged the direct 

costs of conducting the search, although 

certain requesters (as provided in 

paragraph (d)(1) of this section) will be 

charged no search fee and certain other 

requesters (as provided in paragraph 

(d)(3) of this section) will be entitled to 

the cost equivalent of two hours of 

manual search time without charge. 

These direct costs will include the costs 

of operator/programmer salary 

apportionable to the search. 

(2) Duplication. Duplication fees will 

be charged to all requesters, subject to 

the limitations of paragraph (d) of this 

section. For a paper photocopy of a 

record (no more than one copy of which 

need be supplied), the fee will be ten 

cents per page. For copies produced by 

computer, such as tapes, disks, or 

printouts, the agency will charge the 

direct costs, including operator time, of 

producing the copy. For other forms of 

duplication, the agency will charge the 

direct costs of that duplication. 

(3) Review. Review fees will be 

charged to requesters who make a 

commercial use request. Review fees 

will be charged only for the initial 

record review, when the agency 

determines whether an exemption 

applies to a particular record or record 

portion at the initial request level. No 

charge will be made for review at the 

administrative appeal level regarding an 

exemption already applied. However, 

records or record portions withheld 

under an exemption that is 

subsequently determined not to apply 

may be reviewed again to determine 

whether any other exemption not 

previously considered applies; the costs 

of that review are chargeable where it is 

made necessary by such a change of 

circumstances. Review fees will be 

charged at the same rates as those used 

for a search under paragraph (c)(1)(ii) of 

this section. 

(d) Limitations on charging fees. (1) 

No search fee will be charged for 

requests by educational institutions, 

noncommercial scientific institutions, 

or representatives of the news media. 

(2) No search fee or review fee will be 

charged for a quarter-hour period unless 

more than half of that period is required 

for search or review. 

(3) Except for requesters seeking 

records for a commercial use, the agency 

will provide without charge: 

(i) The first 100 pages of duplication 

(or the cost equivalent); and 

(ii) The first two hours of search (or 

the cost equivalent). 

(4) Whenever a total fee calculated 

under paragraph (c) of this section is 

$20.00 or less for any request, no fee 

will be charged. 

(5) The provisions of paragraphs (d)(3) 

and (4) of this section work together. 

This means that for requesters other 

than those seeking records for a 

commercial use, no fee will be charged 

unless the cost of search in excess of 

two hours plus the cost of duplication 

in excess of 100 pages totals more than 

$20.00. 

(6) In the case of any request on 

which the agency does not comply with 

any of the time limits of the FOIA and 

for which no ‘‘unusual or exceptional 

circumstances’’ exist, as those terms are 

defined by the FOIA, the agency will 

not charge any search fee or, for such 

requests made by educational 

institutions, noncommercial scientific 

institutions, or representatives of the 

news media, will not charge any 

duplication fee. 

(e) Notice of anticipated fees in excess 

of $50.00. When the agency determines 

or estimates that the fees to be charged 

under this section will amount to more 

than $50.00, it will notify the requester 

of the actual or estimated amount of the 

fees, unless the requester has indicated 

a willingness to pay fees as high as 

those anticipated. If only a portion of 

the fee can be estimated readily, the 

agency will advise the requester that the 

estimated fee might be only a portion of 

the total fee. In cases in which a 

requester has been notified that actual 

or estimated fees amount to more than 

$50.00, the request will not be 

considered received and further work 

will not be done on it until the requester 

agrees to pay the total anticipated fee. 

Any such agreement should be 

memorialized in writing. A notice under 

this paragraph will offer the requester 

an opportunity to discuss the matter 

with agency personnel in order to 

reformulate the request to meet the 

requester’s needs at a lower cost. 

(f) Charges for other services. Apart 

from the other provisions of this section, 

when the agency chooses as a matter of 

administrative discretion to provide a 

special service—such as certifying that 

records are true copies or sending them 

by other than ordinary mail—the direct 

costs of providing the service ordinarily 

will be charged. 

(g) Charging interest. The agency may 

charge interest on any unpaid bill 

starting on the 31st day following the 

date of the billing of the requester. 

Interest charges will be assessed at the 

rate provided in 31 U.S.C. 3717 and will 

accrue from the date of the billing until 

payment is received by the agency. The 

agency will follow the provisions of the 

Debt Collection Act of 1982, Public Law 

97–365, 96 Stat. 1749, as amended, and 

regulations pursuant thereto. 

(h) Aggregating requests. Wherever 

the agency reasonably believes that a 

requester or a group of requesters acting 

together is attempting to divide a 

request into a series of requests for the 

purpose of avoiding fees, it may 

aggregate those requests and charge 

accordingly. In so doing, it will presume 

that multiple requests of this type made 

within a 30-day period have been made 

in order to avoid fees. Where requests 

are separated by a longer period, the 

agency will aggregate them only where 

there exists a solid basis for determining 

that aggregation is warranted under all 

the circumstances involved. Multiple 

requests involving unrelated matters 

will not be aggregated. 

(i) Advance payments. (1) For 

requests other than those described in 

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paragraphs (i)(2) and (i)(3) of this 

section, the agency will not require the 

requester to make an advance 

payment—in other words, a payment 

made before work is begun or continued 

on a request. Payment owed for work 

already completed (i.e., a prepayment 

before copies are sent to a requester) is 

not an advance payment. 

(2) Where the agency determines or 

estimates that a total fee to be charged 

under this section will be more than 

$250.00, it may require the requester to 

make an advance payment of an amount 

up to the amount of the entire 

anticipated fee before beginning to 

process the request, except where it 

receives a satisfactory assurance of full 

payment from a requester that has a 

history of prompt payment. 

(3) Where a requester has previously 

failed to pay a properly charged FOIA 

fee to any agency within 30 days of the 

date of billing, the agency may require 

the requester to pay the full amount 

due, plus any applicable interest, and to 

make an advance payment of the full 

amount of any anticipated fee, before it 

begins to process a new request or 

continues to process a pending request 

from that requester. 

(4) In cases in which the agency 

requires advance payment or payment 

due under paragraph (i)(2) or (i)(3) of 

this section, the request will not be 

considered received and further work 

will not be done on it until the required 

payment is received. 

(j) Other statutes specifically 

providing for fees. The fee schedule of 

this section does not apply to fees 

charged under any statute that 

specifically requires an agency to set 

and collect fees for particular types of 

records. In cases in which records 

responsive to requests are maintained 

for distribution by another agency under 

such a statutorily based fee schedule 

program, ACUS will inform the 

requesters of the steps for obtaining 

records from those sources so that they 

may do so most economically. 

(k) Requirements for waiver or 

reduction of fees. (1) Records responsive 

to a request will be furnished without 

charge or at a charge reduced below that 

established under paragraph (c) of this 

section where the agency determines, 

based on all available information, that 

the requester has demonstrated that: 

(i) Disclosure of the requested 

information is in the public interest 

because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

government, and 

(ii) Disclosure of the information is 

not primarily in the commercial interest 

of the requester. 

(2) To determine whether the first fee 

waiver requirement is met, the agency 

will consider the following factors: 

(i) The subject of the request: Whether 

the subject of the requested records 

concerns ‘‘the operations or activities of 

the government.’’ The subject of the 

requested records must concern 

identifiable operations or activities of 

the federal government, with a 

connection that is direct and clear, not 

remote or attenuated. 

(ii) The informative value of the 

information to be disclosed: Whether 

the disclosure is ‘‘likely to contribute’’ to 

an understanding of government 

operations or activities. The disclosable 

portions of the requested records must 

be meaningfully informative about 

government operations or activities in 

order to be ‘‘likely to contribute’’’ to an 

increased public understanding of those 

operations or activities. 

(iii) The contribution to an 

understanding of the subject by the 

public likely to result from disclosure: 

Whether disclosure of the requested 

information will contribute to ‘‘public 

understanding.’’ The disclosure must 

contribute to the understanding of a 

reasonably broad audience of persons 

interested in the subject, as opposed to 

the individual understanding of the 

requester. A requester’s expertise in the 

subject area and ability and intention to 

convey information effectively to the 

public will be considered. It will be 

presumed that a representative of the 

news media satisfies this consideration. 

(iv) The significance of the 

contribution to public understanding: 

Whether the disclosure is likely to 

contribute ‘‘significantly’’ to public 

understanding of government operations 

or activities. The public’s understanding 

of the subject in question, as compared 

to the level of public understanding 

existing prior to the disclosure, must be 

enhanced by the disclosure to a 

significant extent. The agency will not 

make value judgments about whether 

information that would contribute 

significantly to public understanding of 

the operations or activities of the 

government is ‘‘important’’ enough to be 

made public. 

(3) To determine whether the second 

fee waiver requirement is met, the 

agency will consider the following 

factors: 

(i) The existence and magnitude of a 

commercial interest: Whether the 

requester has a commercial interest that 

would be furthered by the requested 

disclosure. The agency will consider 

any commercial interest of the requester 

(with reference to the definition of 

‘‘commercial use’’ in paragraph (b)(1) of 

this section), or of any person on whose 

behalf the requester may be acting, that 

would be furthered by the requested 

disclosure. Requesters will be given an 

opportunity in the administrative 

process to provide explanatory 

information regarding this 

consideration. 

(ii) The primary interest in disclosure: 

Whether any identified commercial 

interest of the requester is sufficiently 

large, in comparison with the public 

interest in disclosure, that disclosure is 

‘‘primarily in the commercial interest of 

the requester.’’ A fee waiver or reduction 

is justified where the public interest 

standard is satisfied and that public 

interest is greater in magnitude than that 

of any identified commercial interest in 

disclosure. The agency ordinarily will 

presume that where a news-media 

requester has satisfied the public 

interest standard, the public interest 

will be the interest primarily served by 

disclosure to that requester. Disclosure 

to data brokers or others who merely 

compile and market government 

information for direct economic return 

will not be presumed primarily to serve 

the public interest. 

(4) Where only some of the records to 

be released satisfy the requirements for 

a waiver of fees, a waiver will be 

granted for those records. 

(5) Requests for the waiver or 

reduction of fees should address the 

factors listed in paragraphs (k)(2) and 

(k)(3) of this section insofar as they 

apply to each request. The agency will 

exercise its discretion to consider the 

cost-effectiveness of its investment of 

administrative resources in this 

decisionmaking process in deciding to 

grant waivers or reductions of fees. 

§ 304.10 Preservation of records. 

(a) The agency will preserve all 

correspondence pertaining to the 

requests that it receives under this 

subpart, as well as copies of all 

requested records, until disposition or 

destruction is authorized by title 44 of 

the United States Code or the National 

Archives and Records Administration’s 

General Records Schedule 14. Records 

will not be disposed of while they are 

the subject of a pending request, appeal, 

or lawsuit under the FOIA. 

(b) In the event that the agency 

contracts with another agency, entity, or 

person to maintain records for the 

agency for the purposes of records 

management, it will promptly identify 

such records in its ‘‘Freedom of 

Information Reference Guide’’ and 

specify the particular means by which 

request for such records can be made. 

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§ 304.11 Other rights and services. 

Nothing in this subpart shall be 

construed to entitle any person, as of 

right, to any service or to the disclosure 

of any record to which such person is 

not entitled under the FOIA. 

Subpart B—Protection of Privacy and 

Access to Individual Records Under 

the Privacy Act of 1974 

Authority: 5 U.S.C. 552a, 591–96. 

§ 304.20 General provisions. 

(a) Purpose and scope. This subpart 

contains the rules that the 

Administrative Conference of the 

United States (‘‘ACUS’’ or ‘‘the agency’’) 

follows under the Privacy Act of 1974 

(‘‘the Privacy Act’’), 5 U.S.C. 552a, as 

amended, regarding the protection of, 

and individual access to, certain records 

about individuals. These rules should 

be read together with and are governed 

by the Privacy Act itself, which 

provides additional information about 

records maintained on individuals. The 

rules in this subpart apply to all records 

in Privacy Act systems of records 

maintained by the agency, which are 

retrieved by an individual’s name or 

personal identifier. They describe the 

procedures by which individuals may 

request access to records about 

themselves, request amendment or 

correction of those records, and request 

an accounting of disclosures of those 

records by the agency. In addition, the 

agency processes all Privacy Act 

requests for access to records under the 

Freedom of Information Act (‘‘FOIA’’), 5 

U.S.C. 552, as amended, following the 

rules contained in subpart A of this part. 

Thus, all Privacy Act requests will be 

subject to exemptions for access to 

records only applicable under both 

FOIA and the Privacy Act. 

(b) Definitions. As used in this 

subpart: 

(1) ‘‘Request for access to a record’’ 

means a request made under Privacy 

Act, 5 U.S.C. 552a(d)(1). 

(2) ‘‘Request for amendment or 

correction of a record’’ means a request 

made under Privacy Act, 5 U.S.C. 

552a(d)(2). 

(3) ‘‘Request for an accounting’’ means 

a request made under Privacy Act, 5 

U.S.C. 552a(c)(3). 

(4) ‘‘Requester’’ means an individual 

who makes a request for access, a 

request for amendment or correction, or 

a request for an accounting under the 

Privacy Act. 

§ 304.21 Requests for access to records. 

(a) How made and addressed. You 

may make a request for access to a 

record about yourself by appearing in 

person or by sending an e-mail message 

addressed to info@acus.gov. You may 

also send a written request letter to the 

agency either by mail addressed to 1120 

20th Street, NW., South Lobby, Suite 

706, Washington, DC 20036, or by fax 

delivery to (202) 386–7190. For the 

quickest possible handling of a mail 

request, you should mark both your 

request letter and the envelope ‘‘Privacy 

Act Request.’’ 

(b) Description of records sought. You 

must describe the records that you want 

in enough detail to enable agency 

personnel to locate the system of 

records containing them with a 

reasonable amount of effort. Whenever 

possible, your request should describe 

the records sought, the time periods in 

which you believe they were compiled, 

and the name or identifying number of 

each system of records in which you 

believe they are kept. The agency 

publishes a notice in the Federal 

Register that describes its systems of 

records. 

(c) Agreement to pay fees. If you make 

a Privacy Act request for access to 

records, it will be considered an 

agreement by you to pay all applicable 

fees charged under § 304.27, up to 

$50.00. Duplication fees in excess of 

$50.00 are subject to the requirements of 

§ 304.27 of this subpart and the 

notification requirements in § 304.9 of 

subpart A. The agency ordinarily will 

confirm this agreement in an 

acknowledgment letter. When making a 

request, you may specify a willingness 

to pay a greater or lesser amount. 

(d) Verification of identity. When you 

make a request for access to records 

about yourself, you must verify your 

identity. You must state your full name, 

current address, and date and place of 

birth. You must sign your request and 

your signature must either be notarized 

or submitted by you under 28 U.S.C. 

1746, a law that permits statements to 

be made under penalty of perjury as a 

substitute for notarization. In order to 

help the identification and location of 

requested records, you may also, 

entirely at your option, include the last 

four digits of your social security 

number. 

§ 304.22 Responsibility for responding to 

requests for access to records. 

(a) In general. The agency will be 

responsible for responding to a request 

in all respects, except in the case of a 

referral to another agency as is 

described in paragraphs (b), (c), and (d) 

of this section. In determining which 

records are responsive to a request, the 

agency ordinarily will include only 

records in its possession and control as 

of the date upon which it begins its 

search for them. If any other date is 

used, the agency will inform the 

requester of that date. 

(b) Consultations and referrals. When 

the agency receives a request for access 

to a record in its possession and control, 

it will determine whether another 

agency of the Federal Government, is 

better able to determine whether the 

record is exempt from access under the 

Privacy Act. If the agency determines 

that it is the agency best able to process 

the record in response to the request, 

then it will do so. If it determines that 

it is not best able to process the record, 

then it will either: 

(1) Respond to the request regarding 

that record, after consulting with the 

agency that is best able to determine 

whether the record is exempt from 

access and with any other agency that 

has a substantial interest in it; or 

(2) Refer the responsibility for 

responding to the request regarding that 

record to the agency that is best able to 

determine whether it is exempt from 

access, or to another agency that 

originated the record (but only if that 

agency is subject to the Privacy Act). 

Ordinarily, the agency that originated a 

record will be presumed to be best able 

to determine whether it is exempt from 

access. 

(c) Notice of referral. When the agency 

refers all or any part of the 

responsibility for responding to a 

request to another agency, it ordinarily 

will notify the requester of the referral 

and inform the requester of the name of 

the agency to which the request has 

been referred and of the part of the 

request that has been referred. 

(d) Timing of responses to 

consultations and referrals. All 

consultations and referrals will be 

handled according to the date upon 

which the Privacy Act access request 

was initially received by the first 

agency, not any later date. 

(e) Agreements regarding 

consultations and referrals. The agency 

may make agreements with other 

agencies designed to eliminate the need 

for consultations or referrals for 

particular types of records. 

§ 304.23 Responses to requests for access 

to records. 

(a) Acknowledgments of requests. On 

receipt of a request, the agency 

ordinarily will send an acknowledgment 

letter to the requester that will confirm 

the requester’s agreement to pay fees 

under § 304.21(c) and provide an 

assigned request number for further 

reference. In some cases, the agency 

may seek further information or 

clarification from the requester. 

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(b) Grants of requests for access. Once 

the agency makes a determination to 

grant a request for access in whole or in 

part, it will notify the requester in 

writing. The agency will inform the 

requester in the notice of any fee 

charged under § 304.27 and will 

disclose records to the requester 

promptly on payment of any applicable 

fee. If a request is made in person, the 

agency may disclose records to the 

requester directly, in a manner not 

unreasonably disruptive of its 

operations, on payment of any 

applicable fee and with a written record 

made of the grant of the request. If a 

requester is accompanied by another 

person, the requester will be required to 

authorize in writing any discussion of 

the records in the presence of the other 

person. 

(c) Adverse determinations of requests 

for access. Upon making an adverse 

determination denying a request for 

access in any respect, the agency will 

notify the requester of that 

determination in writing. Adverse 

determinations, or denials of requests 

consist of: a determination to withhold 

any requested record in whole or in 

part; a determination that a requested 

record does not exist or cannot be 

located; a determination that what has 

been requested is not a record subject to 

the Privacy Act; a determination on any 

disputed fee matter; and a denial of a 

request for expedited treatment. The 

notification letter will include: 

(1) The name and title or position of 

the person responsible for the denial; 

(2) A brief statement of the reason(s) 

for the denial, including any Privacy 

Act exemption(s) applied in denying the 

request; and 

(3) A statement that the denial may be 

appealed under § 304.24(a) and a 

description of the requirements of 

§ 304.24(a). 

§ 304.24 Appeals from denials of requests 

for access to records. 

(a) Appeals. If you are dissatisfied 

with the response to your request, you 

may appeal an adverse determination 

denying your request, in any respect, to 

the Chairman of the agency. You must 

make your appeal in writing, by e-mail 

or letter, and it must be received by the 

agency within 60 days of the date of the 

denial of your request. Your appeal 

letter should provide reasons and 

supporting information as to why the 

initial determination was incorrect. The 

appeal should clearly identify the 

particular determination (including the 

assigned request number, if known) that 

you are appealing. For the quickest 

possible handling of a mail request, you 

should mark your appeal letter and the 

envelope ‘‘Privacy Act Appeal.’’ The 

Chairman of the agency or his or her 

designee will act on the appeal, except 

that an appeal ordinarily will not be 

acted on if the request becomes a matter 

of FOIA or Privacy Act litigation. 

(b) Responses to appeals. The 

decision on your appeal will be made in 

writing. A decision affirming an adverse 

determination in whole or in part will 

include a brief statement of the reason(s) 

for the affirmance, including any 

exemption applied, and will inform you 

of the Privacy Act provisions for court 

review of the decision. If the adverse 

determination is reversed or modified 

on appeal in whole or in part, then you 

will be notified in a written decision 

and your request will be reprocessed in 

accordance with that appeal decision. 

(c) When appeal is required. As a 

general rule, if you wish to seek review 

by a court of any adverse determination 

or denial of a request, you must first 

appeal it under this section. 

§ 304.25 Requests for amendment or 

correction of records. 

(a) How made and addressed. Unless 

the record is not subject to amendment 

or correction as stated in paragraph (f) 

of this section, you may make a request 

for amendment or correction of an 

ACUS record about yourself by 

following same procedures as in 

§ 304.21. Your request should identify 

each particular record in question, state 

the amendment or correction that you 

want, and state why you believe that the 

record is not accurate, relevant, timely, 

or complete. You may submit any 

documentation that you think would be 

helpful. If you believe that the same 

record is maintained in more than one 

system of records, you should state that. 

(b) Agency responses. Within ten 

business days of receiving your request 

for amendment or correction of records, 

the agency will send you a written 

acknowledgment of its receipt of your 

request. The agency will promptly 

notify you whether your request is 

granted or denied. If the agency grants 

your request in whole or in part, it will 

describe the amendment or correction 

made and will advise you of your right 

to obtain a copy of the corrected or 

amended record, in disclosable form. If 

the agency denies your request in whole 

or in part, it will send you a letter that 

will state: 

(1) The reason(s) for the denial; and 

(2) The procedure for appeal of the 

denial under paragraph (c) of this 

section, including the name and 

business address of the official who will 

act on your appeal. 

(c) Appeals. You may appeal a denial 

of a request for amendment or 

correction in the same manner as a 

denial of a request for access to records 

(see § 304.24(a)) and the same 

procedures will be followed. The agency 

will ordinarily act on the appeal within 

30 business days of receipt of the 

appeal, except that the Chairman of the 

agency may extend the time for 

response for good cause shown. If your 

appeal is denied, you will be advised of 

your right to file a Statement of 

Disagreement as described in paragraph 

(d) of this section and of your right 

under the Privacy Act for court review 

of the decision. 

(d) Statements of Disagreement. If 

your appeal under this section is denied 

in whole or in part, you have the right 

to file a Statement of Disagreement that 

states your reason(s) for disagreeing 

with the agency’s denial of your request 

for amendment or correction. 

Statements of Disagreement must be 

concise, must clearly identify each part 

of any record that is disputed, and 

should be no longer than one typed page 

for each fact disputed. The agency will 

place your Statement of Disagreement in 

the system of records in which the 

disputed record is maintained and will 

mark the disputed record to indicate 

that a Statement of Disagreement has 

been filed and exactly where in the 

system of records it may be found. 

(e) Notification of amendment/ 

correction or disagreement. Within 30 

business days of the amendment or 

correction of a record, the agency will 

notify all persons, organizations, or 

agencies to which it previously 

disclosed the record, if an accounting of 

that disclosure was made, that the 

record has been amended or corrected. 

If an individual has filed a Statement of 

Disagreement, the agency will append a 

copy of it to the disputed record 

whenever the record is disclosed and 

may also append a concise statement of 

its reason(s) for denying the request to 

amend or correct the record. 

(f) Records not subject to amendment 

or correction. The following records are 

not subject to amendment or correction: 

(1) Transcripts of testimony given 

under oath or written statements made 

under oath; 

(2) Transcripts of grand jury 

proceedings, judicial proceedings, or 

quasi-judicial proceedings, which are 

the official record of those proceedings; 

and 

(3) Any other record that originated 

with the courts. 

§ 304.26 Requests for an accounting of 

record disclosures. 

(a) How made and addressed. Except 

where accountings of disclosures are not 

required to be kept (as stated in 

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18644 Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Rules and Regulations 

paragraph (b) of this section), you may 

make a request for an accounting of any 

disclosure that has been made by the 

agency to another person, organization, 

or agency of any record about you. This 

accounting contains the date, nature, 

and purpose of each disclosure, as well 

as the name and address of the person, 

organization, or agency to which the 

disclosure was made. Your request for 

an accounting should identify each 

particular record in question and should 

be made in writing to the agency, 

following the procedures in § 304.21. 

(b) Where accountings are not 

required. The agency is not required to 

provide accountings to you where they 

relate to: 

(1) Disclosures for which accountings 

are not required to be kept (i.e., 

disclosures that are made to officers and 

employees of the agency and disclosures 

required under the FOIA); or 

(2) Disclosures made to law 

enforcement agencies for authorized law 

enforcement activities in response to 

written requests from a duly authorized 

representative of any such law 

enforcement agency specifying portion 

of the record desired and the law 

enforcement activity for which the 

record is sought. 

(c) Appeals. You may appeal a denial 

of a request for an accounting in the 

same manner as a denial of a request for 

access to records (see § 304.24(a)) and 

the same procedures will be followed. 

§ 304.27 Fees. 

The agency will charge fees for 

duplication of records under the Privacy 

Act in the same way in which it charges 

duplication fees under § 304.9 of 

subpart A. No search or review fee may 

be charged for any record under the 

Privacy Act. 

§ 304.28 Notice of court-ordered and 

emergency disclosures. 

(a) Court-ordered disclosures. When a 

record pertaining to an individual is 

required to be disclosed by a court 

order, the agency will make reasonable 

efforts to provide notice of such order to 

the individual. Notice will be given 

within a reasonable time after the 

agency’s receipt of the order, except that 

in a case in which the order is not a 

matter of public record, the notice will 

be given only after the order becomes 

public. This notice will be mailed to the 

individual’s last known address and 

will contain a copy of the order and a 

description of the information 

disclosed. 

(b) Emergency disclosures. Upon 

disclosing a record pertaining to an 

individual made under compelling 

circumstances affecting health or safety, 

the agency will notify that individual of 

the disclosure. This notice will be 

mailed to the individual’s last known 

address and will state the nature of the 

information disclosed; the person, 

organization, or agency to which it was 

disclosed; the date of disclosure; and 

the compelling circumstances justifying 

the disclosure. 

§ 304.29 Security of systems of records. 

(a) Administrative and physical 

controls. The agency will have 

administrative and physical controls to 

prevent unauthorized access to its 

systems of records, to prevent 

unauthorized disclosure of records, and 

to prevent physical damage to or 

destruction of records. The stringency of 

these controls corresponds to the 

sensitivity of the records that the 

controls protect. At a minimum, these 

controls are designed to ensure that: 

(1) Records are protected from public 

view; 

(2) The area in which records are kept 

is supervised during business hours in 

order to prevent unauthorized persons 

from having access to them; 

(3) Records are inaccessible to 

unauthorized persons outside of 

business hours; and 

(4) Records are not disclosed to 

unauthorized persons or under 

unauthorized circumstances in oral, 

written or any other form. 

(b) Restrictive procedures. The agency 

will implement practices and 

procedures that restrict access to records 

to only those individuals within the 

agency who must have access to those 

records in order to perform their duties 

and that prevent inadvertent disclosure 

of records. 

§ 304.30 Contracts for the operation of 

record systems. 

Any approved contract for the 

operation of a record system will 

contain appropriate requirements issued 

by the General Services Administration 

in order to ensure compliance with the 

requirements of the Privacy Act for that 

record system. The contracting officer of 

the agency will be responsible for 

ensuring that the contractor complies 

with these contract requirements. 

§ 304.31 Use and collection of social 

security numbers and other information. 

The agency will ensure that 

employees authorized to collect 

information are aware: 

(a) That individuals may not be 

denied any right, benefit, or privilege as 

a result of refusing to provide their 

social security numbers, unless the 

collection is authorized either by a 

statute or by a regulation issued prior to 

1975; 

(b) That individuals requested to 

provide their social security numbers, or 

any other information collected from 

them, must be informed, before 

providing such information, of: 

(1) Whether providing social security 

numbers (or such other information) is 

mandatory or voluntary; 

(2) Any statutory or regulatory 

authority that authorizes the collection 

of social security numbers (or such 

other information); 

(3) The principal purpose(s) for which 

the information is intended to be used; 

(4) The routine uses that may be made 

of the information; and 

(5) The effects, in any, on the 

individual of not providing all or any 

part of the requested information; and 

(c) That, where the information 

referred to above is requested on a form, 

the requirements for informing such 

individuals are set forth on the form 

used to collect the information, or on a 

separate form that can be retained by 

such individuals. 

§ 304.32 Employee standards of conduct. 

The agency will inform its employees 

of the provisions of the Privacy Act, 

including the scope of its restriction 

against disclosure of records maintained 

in a system of records without the prior 

written consent of the individual 

involved, and the Act’s civil liability 

and criminal penalty provisions. Unless 

otherwise permitted by law, an 

employee of the agency will: 

(a) Collect from individuals and 

maintain only the information that is 

relevant and necessary to discharge the 

agency’s responsibilities; 

(b) Collect information about an 

individual directly from that individual 

to the greatest extent practicable when 

the information may result in an adverse 

determination about an individual’s 

rights, benefits, or privileges under 

Federal programs; 

(c) Inform each individual from whom 

information is collected of the 

information set forth in § 304.31(b); 

(d) Ensure that the agency maintains 

no system of records without public 

notice and also notify appropriate 

agency officials of the existence or 

development of any system of records 

that is not the subject of a current or 

planned public notice; 

(e) Maintain all records that are used 

by it in making any determination about 

an individual with such accuracy, 

relevance, timeliness, and completeness 

as is reasonably necessary to ensure 

fairness to the individual in the 

determination; 

(f) Except as to disclosures made to an 

agency or made under the FOIA, make 

reasonable efforts, prior to 

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Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Rules and Regulations 18645 

disseminating any record about an 

individual, to ensure that the record is 

accurate, relevant, timely, and complete; 

(g) Maintain no record describing how 

an individual exercises his or her First 

Amendment rights unless such 

maintenance is expressly authorized by 

statute or by the individual about whom 

the record is maintained or is pertinent 

to and within the scope of an authorized 

law enforcement activity; 

(h) When required by the Privacy Act, 

maintain an accounting in the specified 

form of all disclosures of records by the 

agency to persons, organizations, or 

agencies; 

(i) Maintain and use records with care 

in order to prevent the unauthorized or 

inadvertent disclosure of a record to 

anyone; and 

(j) Notify the appropriate agency 

official of any record that contains 

information that the Privacy Act does 

not permit the agency to maintain. 

§ 304.33 Preservation of records. 

The agency will preserve all 

correspondence pertaining to the 

requests that it receives under this 

subpart, as well as copies of all 

requested records, until disposition or 

destruction is authorized by title 44 of 

the United States Code or the National 

Archives and Records Administration’s 

General Records Schedule 14. Records 

will not be disposed of while they are 

the subject of a pending request, appeal, 

or lawsuit under the Act. 

§ 304.34 Other rights and services. 

Nothing in this subpart shall be 

construed to entitle any person, as of 

right, to any service or to the disclosure 

of any record to which such person is 

not entitled under the Privacy Act. 

Dated: March 30, 2011. 

Shawne C. McGibbon, 

General Counsel. 

[FR Doc. 2011–7976 Filed 4–4–11; 8:45 am] 

BILLING CODE 6110–01–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Part 1303 

[CPSC Docket No. CPSC–2008–0033] 

Third Party Testing for Certain 

Children’s Products; Notice of 

Requirements for Accreditation of 

Third Party Conformity Assessment 

Bodies—Lead Paint 

AGENCY: U.S. Consumer Product Safety 

Commission. 

ACTION: Notice of requirements; revision 

of testing terms. 

SUMMARY: The U.S. Consumer Product 

Safety Commission (‘‘CPSC,’’ 

‘‘Commission,’’ or ‘‘we’’) is amending the 

criteria and process for Commission 

acceptance of accreditation of third 

party conformity assessment bodies for 

testing to the lead paint ban regulations. 

We are taking this action to require 

CPSC and/or ASTM published test 

methods to be referenced by a third 

party conformity assessment body in the 

scope of its accreditation. 

DATES: Effective date: The revised 

requirements are effective April 5, 2011. 

Comment date: Comments in 

response to this notice of requirements 

should be submitted by May 5, 2011. 

Comments on this notice should be 

captioned, ‘‘Third Party Testing for 

Certain Children’s Products; 

Requirements for Accreditation of Third 

Party Conformity Assessment Bodies— 

Lead Paint.’’ 

ADDRESSES: You may submit comments, 

identified by Docket No. CPSC–2008– 

0033, by any of the following methods: 

Electronic Submissions: Submit 

electronic comments in the following 

way: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

To ensure timely processing of 

comments, the Commission is no longer 

accepting comments submitted by 

electronic mail (e-mail) except through 

http://www.regulations.gov. 

Written Submissions: Submit written 

submissions in the following way: 

Mail/Hand delivery/Courier (for 

paper, disk, or CD–ROM submissions) 

preferably in five copies, to: Office of the 

Secretary, U.S. Consumer Product 

Safety Commission, Room 820, 4330 

East West Highway, Bethesda, MD 

20814; telephone (301) 504–7923. 

Instructions: All submissions received 

must include the agency name and 

docket number for this notice. All 

comments received may be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. Do not 

submit confidential business 

information, trade secret information, or 

other sensitive or protected information 

(such as a Social Security Number) 

electronically; if furnished at all, such 

information should be submitted in 

writing. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Robert ‘‘Jay’’ Howell, Assistant Executive 

Director for he Office of Hazard 

Identification and Reduction, U.S. 

Consumer Product Safety Commission, 

4330 East West Highway, Bethesda, MD 

20814; e-mail: rhowell@cpsc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 14(a)(3)(B)(i) of the Consumer 

Product Safety Act (CPSA), as added by 

section 102(a)(2) of the Consumer 

Product Safety Improvement Act of 

2008 (CPSIA), Public Law 110–314, 

directed the CPSC to publish a notice of 

requirements for accreditation of third 

party conformity assessment bodies to 

test children’s products for conformity 

with the Commission’s regulations at 16 

CFR part 1303, Ban of Lead-Containing 

Paint and Certain Consumer Products 

Bearing Lead-Containing Paint (the lead 

paint ban). In the Federal Register of 

September 22, 2008, the Commission 

published a notice of requirements for 

accreditation of third party conformity 

assessment bodies to test children’s 

products for conformity with the lead 

paint ban under 16 CFR part 1303 

(73 FR 54564). 

In response to the September 22, 2008 

notice of requirements, the International 

Laboratory Accreditation Cooperation 

(ILAC) and the American Association 

for Laboratory Accreditation (A2LA) 

submitted letters asking us to specify 

test methods to ensure that accreditation 

bodies are able to determine the 

acceptable technologies and methods for 

lead analyses. The September 22, 2008 

notice of requirements stated that the 

accreditation must be to the 

International Standards Organization 

(ISO)/International Electrotechnical 

Commission (IEC) Standard ISO/IEC 

17025:2005, ‘‘General Requirements for 

the Competence of Testing and 

Calibration Laboratories,’’ and that the 

scope of the accreditation must include 

testing to the requirements of 16 CFR 

part 1303. However, these requirements 

for accreditation did not reference a 

specific test method, although the CPSC 

staff’s test method (CPSC–CH–E1003– 

09) was made available on the CPSC 

Web site at: http://www.cpsc.gov/about/ 

cpsia/CPSC-CH-E1003-09.pdf. 

Therefore, to require certain test 

methods that are acceptable to the CPSC 

for testing for lead in paint, we are 

amending the notice of requirements to 

state that the scope of the third party 

conformity assessment body’s 

accreditation shall specify certain test 

methodologies. 

The Commission is revising the 

September 22, 2008 notice of 

requirements to require reference of 

specific test methods for CPSC 

acceptance of accreditation of third 

party conformity assessment bodies to 

assess conformity with 16 CFR part 

WReier-Aviles on DSKGBLS3C1PROD with RULES