63934 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Rules and Regulations 

additional information or 

documentation.

(2) A consumer might provide a law 

enforcement report similar to the report 

in paragraph (c)(1) of this section but 

certain important information such as 

the consumer’s date of birth or Social 

Security number may be missing 

because the consumer chose not to 

provide it. The information furnisher or 

consumer reporting agency could accept 

this report, but it would be reasonable 

to require that the consumer provide the 

missing information. 

(3) A consumer might provide a law 

enforcement report generated by an 

automated system with a simple 

allegation that an identity theft occurred 

to support a request for a tradeline block 

or cessation of information furnishing. 

In such a case, it would be reasonable 

for an information furnisher or 

consumer reporting agency to ask that 

the consumer fill out and have notarized 

the Commission’s ID Theft Affidavit or 

a similar form and provide some form 

of identification documentation. 

(4) A consumer might provide a law 

enforcement report generated by an 

automated system with a simple 

allegation that an identity theft occurred 

to support a request for an extended 

fraud alert. In this case, it would not be 

reasonable for a consumer reporting 

agency to require additional 

documentation or information, such as 

a notarized affidavit.

■ 2. Add Part 613 to read as follows:

PART 613—DURATION OF ACTIVE 

DUTY ALERTS

Sec. 

613.1 Duration of active duty alerts.

Authority: Pub. L. 108–159, sec. 112(a); 15 

U.S.C. 1681c–1.

§ 613.1 Duration of active duty alerts. 

The duration of an active duty alert 

shall be twelve months.

■ 3. Add Part 614 to read as follows:

PART 614—APPROPRIATE PROOF OF 

IDENTITY

Sec. 

614.1 Appropriate proof of identity.

Authority: Pub. L. 108–159, sec. 112(b).

§ 614.1 Appropriate proof of identity. 

(a) Consumer reporting agencies shall 

develop and implement reasonable 

requirements for what information 

consumers shall provide to constitute 

proof of identity for purposes of sections 

605A, 605B, and 609(a)(1) of the Fair 

Credit Reporting Act. In developing 

these requirements, the consumer 

reporting agencies must: 

(1) Ensure that the information is 

sufficient to enable the consumer 

reporting agency to match consumers 

with their files; and 

(2) Adjust the information to be 

commensurate with an identifiable risk 

of harm arising from misidentifying the 

consumer. 

(b) Examples of information that 

might constitute reasonable information 

requirements for proof of identity are 

provided for illustrative purposes only, 

as follows: 

(1) Consumer file match: The 

identification information of the 

consumer including his or her full name 

(first, middle initial, last, suffix), any 

other or previously used names, current 

and/or recent full address (street 

number and name, apt. no., city, state, 

and zip code), full 9 digits of Social 

Security number, and/or date of birth. 

(2) Additional proof of identity: 

copies of government issued 

identification documents, utility bills, 

and/or other methods of authentication 

of a person’s identity which may 

include, but would not be limited to, 

answering questions to which only the 

consumer might be expected to know 

the answer.

By direction of the Commission. 

Donald S. Clark, 

Secretary.

[FR Doc. 04–24589 Filed 11–2–04; 8:45 am] 

BILLING CODE 6750–01–P

DEPARTMENT OF STATE

22 CFR Part 171

[Public Notice 4841] 

RIN 1400–AB85

Availability of Information to the Public

AGENCY: State Department.

ACTION: Final rule.

SUMMARY: This rule makes final the 

Department’s proposed rule published 

on March 31, 2004. The rule revises the 

Department’s regulations governing 

access by the public to information that 

is under the control of the Department 

in order to reflect changes in the 

provisions of basic underlying laws and 

executive orders pertaining to access to 

information (i.e., the Freedom of 

Information Act, the Privacy Act, 

Executive Order 12958 on National 

Security Information, the Ethics in 

Government Act) and in the 

Department’s procedures since the last 

revision of the Department’s regulations 

on this subject. The Department 

received one non-substantive comment, 

and proposes no changes to the 

proposed rule. The proposed rule is 

therefore issued as final.

EFFECTIVE DATE: This rule is effective on 

November 3, 2004.

ADDRESSES: Persons wishing to make 

requests for information under these 

regulations should address such 

requests to: Margaret P. Grafeld, 

Director, Office of Information Programs 

and Services, U.S. Department of State, 

SA–2, 515 22nd St., NW., Washington, 

DC 20522–6001. Tel: 202–261–8300; 

FAX: 202–261–8590. 

Persons with access to the Internet 

may also view this notice by going to 

the regulations.gov Web site at http://

www.regulations.gov/index.cfm.

FOR FURTHER INFORMATION CONTACT:

Margaret P. Grafeld, Director, Office of 

Information Programs and Services, U.S. 

Department of State, SA–2, 515 22nd 

St., NW., Washington, DC 20522–6001. 

Tel: 202–261–8300; FAX: 202–261–

8590.

SUPPLEMENTARY INFORMATION: The 

Department’s proposed rule was 

published as Public Notice 4653 at 69 

FR 16841–16853 on March 31, 2004, 

with a 90-day public comment period. 

The Department received one nonsubstantive comment regarding Reading 

Room hours of operation, which was 

satisfied by the availability of the 

Department’s FOIA Web site 24 hours a 

day. Additionally, while the Department 

does not accept FOIA requests via email, we are beginning to accept 

requests via our Web site. 

The Freedom of Information Act 

(FOIA), the Privacy Act (PA), and 

certain portions of the Ethics in 

Government Act and Executive Order 

12958, as amended, provide for access 

by the public to records of executive 

branch agencies, subject to certain 

restrictions and exemptions. 22 CFR 

part 171 sets forth the Department’s 

regulations implementing the access 

provisions of those statutes and the 

Executive Order. Since the last 

publication of the regulations in the 

1980’s, there have been significant 

changes in the law governing access to 

government information by the public, 

particularly with respect to the FOIA 

and the Executive Order. In addition, 

certain court decisions have been 

rendered that affect such access 

provisions. 

A major revision of the Freedom of 

Information Act was enacted in 1996, 

the so-called Electronic Freedom of 

Information Act. The changes effected 

by the Electronic Freedom of 

Information Act amendments of 1996 

included provisions with respect to the 

form in which agencies are required to 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Rules and Regulations 63935

provide requested information, 

circumstances that warrant exceptions 

to time limits on responding to requests, 

situations in which expedited 

processing of requests is warranted, and 

certain reporting requirements. In the 

case of the requests by the public for 

declassification of national security 

information, several executive orders 

have been promulgated since the 

Department regulations were last 

amended. Executive Order 12958, 

issued in 1995 and most recently and 

most substantially amended by 

Executive Order 13292 of March 28, 

2003, effected changes in the provisions 

governing mandatory declassification 

review as well as access to agency 

records by historical researchers and 

certain former government personnel. 

The final regulations take account of 

these changes and other changes in the 

law, principally by way of court 

decisions, as well as changes in the 

Department’s procedures designed to 

implement them.

List of Subjects in 22 CFR Part 171

Administrative practice and 

procedure, Confidential business 

information, Freedom of information, 

Privacy.

■ Chapter 1 of Title 22 of the Code of 

Federal Regulations is amended by 

revising part 171 to read as follows:

PART 171—AVAILABILITY OF 

INFORMATION AND RECORDS TO 

THE PUBLIC

Subpart A—General Policy and Procedures 

Sec. 

171.1 Availability of information. 

171.2 Types of records maintained. 

171.3 Public reading room. 

171.4 Electronic reading room. 

171.5 Requests for information—types and 

how made. 

171.6 Archival records.

Subpart B—Freedom of Information Act 

Provisions 

171.10 Purpose and scope. 

171.11 Definitions. 

171.12 Processing requests. 

171.13 Business information. 

171.14 Fees to be charged—general. 

171.15 Fees to be charged—categories of 

requesters. 

171.16 Miscellaneous fee provisions. 

171.17 Waiver or reduction of fees.

Subpart C—Executive Order 12958 

Provisions 

171.20 Definitions. 

171.21 Declassification review. 

171.22 Appeals. 

171.23 Declassification in the public 

interest. 

171.24 Access by historical researchers and 

certain former government personnel. 

171.25 Applicability of other laws.

Subpart D—Privacy Act Provisions 

171.30 Purpose and scope. 

171.31 Definitions. 

171.32 Request for access to records. 

171.33 Request to amend or correct records. 

171.34 Request for an accounting of record 

disclosures. 

171.35 Denials of requests; appeals. 

171.36 Exemptions.

Subpart E—Ethics in Government 

Provisions 

171.40 Purpose and scope. 

171.41 Covered employees. 

171.42 Requests and identifying 

information. 

171.43 Time limits and fees. 

171.44 Improper use of reports.

Subpart F—Appeals Procedures 

171.50 Appeals of denials of expedited 

processing. 

171.51 Appeals of denials of fee waivers or 

reductions. 

171.52 Appeals of denials of access to, 

declassification of, amendment of, or 

accounting of disclosures of records.

Authority: 22 U.S.C. 552, 552a; Ethics in 

Government Act of 1978, Pub. L. 95–521, 92 

Stat. 1824, as amended; E.O. 12958, as 

amended, 60 FR 19825, 3 CFR, 1995 Comp., 

p. 333; E.O. 12600, 52 FR 23781, 3 CFR, 1987 

Comp., p. 235.

Subpart A—General Policy and 

Procedures

§ 171.1 Availability of information. 

Records of the Department of State 

shall be made available to the public 

upon request made in compliance with 

the access procedures established in this 

part, except for any records exempt by 

law from disclosure. Any request for 

records must describe the information 

sought in such a way (see § 171.5(c)) 

that an employee of the Department of 

State who is familiar with the subject 

area of the request can locate the records 

with a reasonable amount of effort. The 

sections that follow govern the response 

of the Department to requests for 

information under the Freedom of 

Information Act, the Privacy Act, 

Executive Order 12958, and the Ethics 

in Government Act. Regulations at 22 

CFR 172.1–9 govern the response of the 

Department to subpoenas, court orders, 

and certain other requests for testimony 

of Department officials or disclosure of 

Department records in litigation to 

which the Department is not a party.

§ 171.2 Types of records maintained. 

Most of the records maintained by the 

Department pertain to the formulation 

and execution of U.S. foreign policy. 

Certain records that pertain to 

individuals are also maintained such as 

applications for U.S. passports, 

applications for visas to enter the U.S., 

records on consular assistance given 

abroad by U.S. Foreign Service posts to 

U.S citizens, and records on Department 

employees. Further information on the 

types of records maintained by the 

Department may be obtained by 

reviewing the records disposition 

schedules which are available through 

the Department’s Web site: http://

www.state.gov or directly at the FOIA 

home page: http://foia.state.gov.

§ 171.3 Public reading room. 

A reading room providing public 

access to certain Department of State 

material is located in the Department of 

State, SA–2, 515 22nd Street, NW., 

Washington, DC. The reading room 

contains material pertaining to access to 

information under the Freedom of 

Information Act, Privacy Act, E.O. 

12958 and includes those statutes, 

regulations, guidelines, and other items 

required to be made available to the 

public under 5 U.S.C. 552(a)(2). Also 

available in the reading room are 

microfiches of records released by the 

Department pursuant to requests under 

the Freedom of Information Act and 

compilations of documents reviewed 

and released in certain special projects. 

The reading room is open during normal 

Department weekday working hours, 

8:15 a.m. to 5 p.m. There are no fees for 

access by the public to this room or the 

material contained therein, but fees 

shall be assessed for the duplication of 

materials maintained in the reading 

room at the rate of 15 cents per page and 

$2.00 per microfiche card. Fees for 

copies made by other methods of 

reproduction or duplication, such as 

tapes, printouts, or CD–ROM, shall be 

the actual cost of producing the copies, 

including operator time. Persons 

wishing to use their own copying 

equipment must request approval in 

advance from the Department’s 

Information and Privacy Coordinator, 

U.S. Department of State, SA–2, 515 

22nd Street, NW., Washington, DC 

20522–6001. The use of such equipment 

must be consistent with security 

regulations of the Department and is 

subject to the availability of personnel 

to monitor such copying.

§ 171.4 Electronic reading room. 

The Department has established a site 

on the Internet with most of the same 

records and reference materials that are 

available in the public reading room. 

This site also contains information on 

accessing records under the FOIA and 

the Privacy Act. The site is a valuable 

source that is easily accessed by the 

public by clicking on ‘‘FOIA’’ at the 

Department’s Web site at http://

www.state.gov or directly at the FOIA 

home page at http://foia.state.gov. 

63936 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Rules and Regulations 

Included on the FOIA home page are 

links to other sites where Department 

information may be available. The 

Department’s Privacy Act systems of 

records and the various records 

disposition schedules may be found on 

the Department’s FOIA home page 

under ‘‘Reference Materials.’’

§ 171.5 Requests for information—types 

and how made. 

(a) Requests for records in accordance 

with this chapter may be made by mail 

addressed to the Information and 

Privacy Coordinator, U.S. Department of 

State, SA–2, 515 22nd Street, NW., 

Washington, DC 20522–6001. Facsimile 

requests under the FOIA only may be 

sent to: (202) 261–8579. E-mail requests 

cannot be accepted at this time. 

Requesters are urged to indicate clearly 

on their requests the provision of law 

under which they are requesting 

information. This will facilitate the 

processing of the request by the 

Department. In any case, the 

Department will process the request 

under the provision of law that provides 

the greatest access to the requested 

records. 

(b) Requests may also be made by the 

public in person from 8:15 a.m. to 5 

p.m. at the Department of State, SA–2, 

515 22nd Street, NW., Washington, DC. 

(c) Although no particular request 

format is required, it is essential that a 

request reasonably describe the 

Department records that are sought. The 

burden of adequately identifying the 

record requested lies with the requester. 

Requests should be specific and include 

all pertinent details about the request. 

For FOIA requests, the request should 

include the subject, timeframe, any 

individuals involved, and reasons why 

the Department is believed to have 

records on the subject of the request. For 

Privacy Act requests, the request should 

state the type of records sought, the 

complete name and date and place of 

birth of the subject of the request, and 

the timeframe for the records. An 

original signature is required. See

§ 171.12(b) for guidance regarding third 

party requests. Individuals may seek 

assistance regarding any aspect of their 

requests from the Chief, Requester 

Liaison Division, (202) 261–8484. 

(d) While every effort is made to 

guarantee the greatest possible access to 

all requesters regardless of the specific 

statute under which the information is 

requested, the following guidance is 

provided for individuals in requesting 

records: 

(1) Freedom of Information Act.

Requests for documents concerning the 

general activities of government and of 

the Department of State in particular 

(see subpart B of this part). 

(2) E.O. 12958. Requests for 

mandatory review and declassification 

of specific Department records and 

requests for access to such records by 

historical researchers and certain former 

government officials (see subpart C of 

this part).

(3) Privacy Act. Requests from U.S. 

citizens or legal permanent resident 

aliens for records that pertain to them 

and that are maintained by the 

Department under the individual’s 

name or personal identifier (see subpart 

D of this part). 

(4) Ethics in Government Act.

Requests for the financial Disclosure 

Statements of Department Employees 

covered by this Act (see subpart E of 

this part). 

(e) First-in/first-out processing. As a 

general matter, information access 

requests are processed in the order in 

which they are received. However, if the 

request is specific and the search can be 

narrowed, it may be processed more 

quickly. 

(f) Cut-off date. In determining which 

records are responsive to a request, the 

Department ordinarily will include only 

records in its possession as of the date 

the search for responsive documents is 

initiated, unless the requester has 

specified an earlier time frame. 

(g) Records previously withheld or in 

litigation. Requests shall not be 

processed for records that have been 

reviewed and withheld within the past 

two years or whose withholding is the 

subject of litigation.

§ 171.6 Archival records. 

The Department ordinarily transfers 

records to the National Archives when 

they are 25 years old. Accordingly, 

requests for records 25 years old or 

older should be addressed to: Archives 

II, 8601 Adelphi Road, National 

Archives at College Park, MD 20470–

6001.

Subpart B—Freedom of Information 

Act Provisions

§ 171.10 Purpose and scope. 

This subpart contains the rules that 

the Department follows under the 

Freedom of Information Act (FOIA), 5 

U.S.C. 552. The rules should be read 

together with the FOIA which provides 

additional information about access to 

records and contains the specific 

exemptions that are applicable to 

withholding information. Privacy Act 

records determined to be exempt from 

disclosure under the Privacy Act are 

processed as well under the FOIA and 

are subject to this subpart.

§ 171.11 Definitions. 

As used in this subpart, the following 

definitions shall apply: 

(a) Freedom of Information Act or 

FOIA means the statute codified at 5 

U.S.C. 552, as amended. 

(b) Department means the United 

States Department of State, including its 

field offices and Foreign Service posts 

abroad; 

(c) Agency means any executive 

department, military department, 

Government corporation, Government 

controlled corporation, or other 

establishment in the executive branch of 

the government (including the 

Executive Office of the President), or 

any independent regulatory agency; 

(d) Information and Privacy 

Coordinator means the Director of the 

Department’s Office of Information 

Programs and Services (IPS) who is 

responsible for processing requests for 

access to information under the FOIA, 

the Privacy Act, E.O. 12958, and the 

Ethics in Government Act; 

(e) Record means all information 

under the control of the Department, 

including information created, stored, 

and retrievable by electronic means, 

regardless of physical form or 

characteristics, made in or received by 

the Department and preserved as 

evidence of the organization, functions, 

policies, decisions, procedures, 

operations or other activities of the 

Department or because of the 

informational value of the data 

contained therein. It includes records of 

other Government agencies that have 

been expressly placed under the control 

of the Department upon termination of 

those agencies. It does not include 

personal records created primarily for 

the personal convenience of an 

individual and not used to conduct 

Department business and not integrated 

into the Department’s record keeping 

system or files. It does not include 

records that are not already in existence 

and that would have to be created 

specifically to meet a request. However, 

information available in electronic form 

shall be searched and compiled in 

response to a request unless such search 

and compilation would significantly 

interfere with the operation of the 

Department’s automated information 

systems. 

(f) Control means the Department’s 

legal authority over a record, taking into 

account the ability of the Department to 

use and dispose of the record as it sees 

fit, to legally determine the disposition 

of a record, the intent of the record’s 

creator to retain or relinquish control 

over the record, the extent to which 

Department personnel have read or 

relied upon the record, and the degree 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Rules and Regulations 63937

to which the record has been integrated 

into the Department’s record keeping 

system or files. 

(g) Direct costs means those costs the 

Department incurs in searching for, 

duplicating, and, in the case of 

commercial requests, reviewing 

documents in response to a FOIA 

request. The term does not include 

overhead expenses. 

(h) Search costs means those costs the 

Department incurs in looking for, 

identifying, and retrieving material, in 

paper or electronic form, that is 

responsive to a request, including pageby-page or line-by-line identification of 

material within documents. The 

Department shall attempt to ensure that 

searching for material is done in the 

most efficient and least expensive 

manner so as to minimize costs for both 

the Department and the requester. 

(i) Duplication costs means those 

costs the Department incurs in copying 

a requested record in a form appropriate 

for release in response to a FOIA 

request. Such copies may take the form 

of paper copy, microfiche, audio-visual 

materials, or machine-readable 

electronic documentation (e.g., disk or 

CD-ROM), among others. 

(j) Review costs means costs the 

Department incurs in examining a 

record to determine whether and to 

what extent the record is responsive to 

the FOIA request and the extent to 

which it may be disclosed to the 

requester. It does not include costs of 

resolving general legal or policy issues 

that may be raised by a request. 

(k) Unusual circumstances. As used 

herein, but only to the extent reasonably 

necessary to the proper processing of 

the particular request, the term 

‘‘unusual circumstances’’ means: 

(1) The need to search for and collect 

the requested records from Foreign 

Service posts or other separate and 

distinct Department offices; 

(2) The need to search for, collect, and 

appropriately examine a voluminous 

amount of separate and distinct records 

that are demanded in a single request; 

or 

(3) The need for consultation with 

another agency having a substantial 

interest in the determination of the 

request or among two or more 

components of the Department that have 

a substantial subject matter interest 

therein. Such consultation shall be 

conducted with all practicable speed. 

(l) Commercial use request means a 

request from or on behalf of one who 

requests information for a use or 

purpose that furthers the commercial, 

trade, or profit interest of the requester 

or the person on whose behalf the 

request is made. In determining whether 

a requester belongs within this category, 

the Department will look at the use to 

which the requester will put the 

information requested. 

(m) Educational institution means a 

preschool, a public or private 

elementary or secondary school, an 

institution of undergraduate or graduate 

higher education, an institution of 

professional education, or an institution 

of vocational education, that operates a 

program or programs of scholarly 

research.

(n) Non-commercial scientific 

institution means an institution that is 

not operated on a ‘‘commercial’’ basis, 

as that term is used in paragraph (l) 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. 

(o) 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. The term news means 

information that is about current events 

or that would be of current interest to 

the public. News media include 

television or radio stations broadcasting 

to the public at large and publishers of 

periodicals (but only in those instances 

when they can qualify as disseminators 

of ‘‘news’’) who make their products 

available for purchase by the general 

public. Freelance journalists may be 

regarded as working for a news 

organization if they can demonstrate, 

such as by past publication, a likelihood 

of publication through a representative 

of the news media, even though not 

actually employed by it. 

(p) All other means an individual or 

organization not covered by a definition 

in paragraphs (l), (m), (n), or (o) of this 

section.

§ 171.12 Processing requests. 

The Information and Privacy 

Coordinator is responsible for acting on 

all initial requests except for requests 

for records coming under the 

jurisdiction of the Bureau of Consular 

Affairs, the Bureau of Diplomatic 

Security, the Bureau of Human 

Resources, the Office of Medical 

Services, and the Office of the Inspector 

General. 

(a) Third party requests. Except for 

requests under the Privacy Act by a 

parent of a minor or by a legal guardian 

(§ 171.32(c)), requests for records 

pertaining to another individual shall be 

processed under the FOIA and must be 

accompanied by a written authorization 

for access by the individual, notarized 

or made under penalty of perjury, or by 

proof that the individual is deceased 

(e.g., death certificate or obituary). 

(b) Expedited processing. Requests 

and appeals shall be taken out of order 

and given expedited treatment 

whenever a requester has demonstrated 

that a ‘‘compelling need’’ for the 

information exists. A request for 

expedited processing may be made at 

the time of the initial request for records 

or at any later time. The request for 

expedited processing shall set forth with 

specificity the facts on which the 

request is based. A notice of the 

determination whether to grant 

expedited processing shall be provided 

to the requester within 10 days of the 

date of the receipt of the request. A 

‘‘compelling need’’ is deemed to exist 

where the requester can demonstrate 

one of the following: 

(1) Failure to obtain requested 

information on an expedited basis could 

reasonably be expected to: Pose an 

imminent threat to the life or physical 

safety of an individual; impair 

substantial due process rights; or harm 

substantial humanitarian interests. 

(2) The information is urgently 

needed by an individual primarily 

engaged in disseminating information in 

order to inform the public concerning 

actual or alleged Federal Government 

activity. News media requesters would 

normally qualify; however, other 

persons must demonstrate that their 

primary activity involves publishing or 

otherwise disseminating information to 

the public, not just a particular segment 

or group. 

(i) Urgently needed. The information 

has a particular value that will be lost 

if not disseminated quickly. Ordinarily 

this means a breaking news story of 

general public interest. Information of 

historical interest only, or information 

sought for litigation or commercial 

activities would not qualify, nor would 

a news media publication or broadcast 

deadline unrelated to the breaking 

nature of the story. 

(ii) Actual or alleged Federal 

Government activity. The information 

concerns some actions taken, 

contemplated, or alleged by or about the 

government of the United States, or one 

of its components or agencies, including 

the Congress. 

(c) Appeal of denial of expedited 

processing. Any denial of a request for 

expedited processing may be appealed 

in accordance with the appeal 

procedure set forth in § 171.50. 

(d) Time limits. The statutory time 

limit for responding to a FOIA request 

or to an appeal from a denial of a FOIA 

request is 20 days. In unusual 

circumstances, as defined in § 171.11(k), 

the time limits may be extended by the 

63938 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Rules and Regulations 

Information and Privacy Coordinator for 

not more than 10 days, excepting 

Saturdays, Sundays, or legal public 

holidays. 

(e) Multitrack processing. The 

Department 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. The Department may provide 

requesters in a slower track an 

opportunity to limit the scope of their 

request in order to qualify for faster 

processing. 

(f) Form or format of response. The 

Department shall provide requested 

records in any form or format sought by 

the requester if the record is readily 

reproducible in that form or format 

through reasonable efforts.

§ 171.13 Business information. 

(a) Business information obtained by 

the Department from a submitter will be 

disclosed under the FOIA only in 

compliance with this section. 

(b) Definitions. For purposes of this 

section: 

(1) Business information means 

information obtained by the Department 

from a submitter that arguably may be 

exempt from disclosure as privileged or 

confidential under Exemption 4 of the 

FOIA. 

(2) Submitter means any person or 

entity from which the Department 

obtains business information. The term 

includes corporations, partnerships, 

sole proprietorships; State, local, and 

tribal governments; and foreign 

governments. 

(c) Designation of business 

information. A submitter of information 

will use good-faith efforts to designate, 

by appropriate markings, either at the 

time of submission or at a reasonable 

time thereafter, any portions of its 

submission that it considers exempt 

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 

Department shall provide a submitter 

with prompt written notice of a FOIA 

request or administrative appeal of a 

denial of such a request that seeks its 

information whenever required under 

paragraph (e) of this section, except as 

provided in paragraph (f) of this section, 

in order to give the submitter an 

opportunity to object to disclosure of 

any specified portion of that 

information. The notice shall either 

describe the information requested or 

include copies of the requested records 

or record portions containing the 

information. 

(e) When notice is required. Notice 

shall be given to a submitter whenever: 

(1) The information has been 

designated in good faith by the 

submitter as information considered 

protected from disclosure under 

Exemption 4; or 

(2) The Department has reason to 

believe that the information may not be 

protected from disclosure under 

Exemption 4.

(f) When notice is not required. The 

notice requirements of paragraphs (d) 

and (e) of this section shall not apply if: 

(1) The Department 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 12600; or 

(4) The designation made by the 

submitter under paragraph (c) of this 

section appears obviously frivolous—

except that, in such a case, the 

Department shall, within a reasonable 

time prior to a specified disclosure date, 

give the submitter written notice of any 

final decision to disclose the 

information. 

(g) Opportunity to object to disclosure.

The Department 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 

in the notice. If a submitter has any 

objection to disclosure, a detailed 

written statement in support of the 

objection must be submitted. 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 a 

submitter under this paragraph may 

itself be subject to disclosure under the 

FOIA. 

(h) Notice of intent to disclose. The 

Department shall consider a submitter’s 

objections and specific grounds for 

nondisclosure in deciding whether to 

disclose business information. 

Whenever the Department decides to 

disclose business information over the 

objection of a submitter, it shall give the 

submitter written notice, which shall 

include: 

(1) A statement of the reason why 

each of the submitter’s disclosure 

objections was not sustained; 

(2) A description of the information to 

be disclosed; and 

(3) A specified disclosure date, which 

shall be a reasonable time subsequent to 

the notice. 

(i) Notice of lawsuit. Whenever a 

requester files a lawsuit seeking to 

compel the disclosure of information, 

the Department shall promptly notify 

the submitter. 

(j) Notice to requester. Whenever the 

Department provides a submitter with 

notice and an opportunity to object to 

disclosure under paragraph (d) of this 

section, the Department shall also notify 

the requester. Whenever the Department 

notifies a submitter of its intent to 

disclose requested information under 

paragraph (h) of this section, the 

Department shall also notify the 

requester. Whenever a submitter files a 

lawsuit seeking to prevent the 

disclosure of business information, the 

Department shall notify the requester.

§ 171.14 Fees to be charged—general. 

The Department shall seek to charge 

fees that recoup the full allowable direct 

costs it incurs in processing a FOIA 

request. It shall use the most efficient 

and least costly methods to comply with 

requests for documents made under the 

FOIA. The Department will not charge 

fees to any requester, including 

commercial use requesters, if the cost of 

collecting a fee would be equal to or 

greater than the fee itself. With the 

exception of requesters seeking 

documents for a commercial use, the 

Department will provide the first two 

hours of search time and the first 100 

pages of duplication without charge. By 

making a FOIA request, the requester 

shall be considered to have agreed to 

pay all applicable fees up to $25.00 

unless a fee waiver has been granted. 

(a) Searches for responsive records. If 

the Department estimates that the search 

costs will exceed $25.00, the requester 

shall be so notified. Such notice shall 

offer the requester the opportunity to 

confer with Department personnel with 

the object of reformulating the request to 

meet the requester’s needs at a lower 

cost. The request shall not be processed 

further unless the requester agrees to 

pay the estimated fees. 

(1) Manual searches. The Department 

will charge at the salary rate (i.e., basic 

pay plus 16 percent of basic pay) of the 

employee making the search. 

(2) Computer searches. The 

Department will charge at the actual 

direct cost of providing the service. This 

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will include the cost of operating the 

central processing unit (CPU) for that 

portion of operating time that is directly 

attributable to searching for records 

responsive to a FOIA request and 

operator/programmer salary attributable 

to the search. 

(b) Review of records. Only requesters 

who are seeking documents for 

commercial use may be charged for time 

spent reviewing records to determine 

whether they are releasable. Charges 

may be assessed for the initial review 

only; i.e., the review undertaken the first 

time the Department analyzes the 

applicability of a specific exemption to 

a particular record or portion of a 

record. 

(c) Duplication of records. Records 

shall be duplicated at a rate of $.15 per 

page. For copies prepared by computer, 

such as tapes or printouts, the 

Department shall charge the actual cost, 

including operator time, of production 

of the tape or printout. For other 

methods of reproduction or duplication, 

the Department shall charge the actual 

direct costs of producing the document. 

If the Department estimates that the 

duplication costs will exceed $25.00, 

the requester shall be so informed. The 

request shall not be processed further 

unless the requester agrees to pay the 

estimated fees. 

(d) Other charges. The Department 

shall recover the full costs of providing 

services such as those enumerated 

below: 

(1) Certifying that records are true 

copies (see part 22 of this chapter); 

(2) Sending records by special 

methods such as express mail, overnight 

courier, etc.

(f) Payment shall be in the form either 

of a personal check or bank draft drawn 

on a bank in the United States, or a 

postal money order. Remittances shall 

be made payable to the order of the 

Treasury of the United States and 

mailed to the Information and Privacy 

Coordinator. 

(g) A receipt for fees paid will be 

given upon request. Refund of fees paid 

for services actually rendered will not 

be made.

§ 171.15 Fees to be charged—categories 

of requesters. 

Under the FOIA, there are four 

categories of requesters: Commercial use 

requesters, educational and noncommercial scientific institutions, 

representatives of the news media, and 

all other requesters. The fees for each of 

these categories are: 

(a) Commercial use requesters. When 

the Department receives a request for 

documents for commercial use as 

defined in § 171.11(l), it will assess 

charges that recover the full direct costs 

of searching for, reviewing for release, 

and duplicating the record sought. 

Commercial use requesters are not 

entitled to two hours of free search time 

or 100 free pages of reproduction of 

documents. The Department may 

recover the cost of searching for and 

reviewing records even if there is 

ultimately no disclosure of records (see

§ 171.16(b)). 

(b) Educational and non-commercial 

scientific institution requesters. The 

Department shall provide documents to 

requesters in this category for the cost 

of reproduction alone, excluding 

charges for the first 100 pages. To be 

eligible for inclusion in this category, a 

requester must show that the request is 

being made as authorized by and under 

the auspices of a qualifying institution, 

as defined in § 171.11(m) and (n), and 

that the records are not sought for a 

commercial use, but are sought in 

furtherance of scholarly (if the request is 

from an educational institution) or 

scientific (if the request is from a noncommercial scientific institution) 

research.

(c) Representatives of the news media.

The Department shall provide 

documents to requesters in this category 

for the cost of reproduction alone, 

excluding charges for the first 100 

pages. To be eligible for inclusion in 

this category, a requester must meet the 

criteria in § 171.11(o), and the request 

must not be made for a commercial use. 

A request for records supporting the 

news dissemination function of the 

requester shall not be considered to be 

a commercial use request. 

(d) All other requesters. The 

Department shall charge requesters who 

do not fit into any of the categories 

above fees that recover the full 

reasonable direct cost of searching for 

and reproducing records that are 

responsive to the request, except that 

the first 100 pages of reproduction and 

the first two hours of search time shall 

be furnished without charge.

§ 171.16 Miscellaneous fee provisions. 

(a) Charging interest. The Department 

shall begin assessing interest charges on 

an unpaid bill starting on the 31st day 

following the day on which the bill was 

sent. The fact that the fee has been 

received by the Department within the 

thirty-day grace period, even if not 

processed, shall stay the accrual of 

interest. Interest will be at the rate 

prescribed in 31 U.S.C. 3717 and shall 

accrue from the date of the billing. 

(b) Charges for unsuccessful search or 

if records are withheld. The Department 

may assess charges for time spent 

searching, even if it fails to locate the 

records or if the records located are 

determined to be exempt from 

disclosure. 

(c) Advance payment. The 

Department may not require a requester 

to make an advance payment, i.e., 

payment before work is commenced or 

continued on a request, unless: 

(1) It estimates or determines that 

allowable charges that a requester may 

be required to pay are likely to exceed 

$250. In such a case, the Department 

shall notify the requester of the likely 

cost and obtain satisfactory assurance of 

full payment where the requester has a 

history of prompt payment of FOIA fees, 

or shall require an advance payment of 

an amount up to the full estimated 

charges in the case of requesters with no 

history of payment; or 

(2) A requester has previously failed 

to pay within 30 days of the date of the 

billing a fee charged. In such a case, the 

Department shall require the requester 

to pay the full amount previously owed 

plus any applicable interest and to make 

an advance payment of the full amount 

of the estimated fee before the 

Department begins to process a new or 

pending request from that requester. If 

a requester has failed to pay a fee 

charged by another U.S. Government 

agency in an information access case, 

the Department may require proof that 

such fee has been paid before processing 

a new or pending request from that 

requester. 

(3) When the Department acts under 

paragraph (c)(1) or (2) of this section, 

the administrative time limits 

prescribed in the FOIA, 5 U.S.C. 

552(a)(6) (i.e., 20 working days from 

receipt of initial requests and 20 

working days from receipt of appeals 

from initial denial, plus permissible 

extensions of these time limits), will 

begin only after the Department has 

received fee payments described in 

paragraphs (c)(1) and (2) of this section. 

(d) Aggregating requests. When the 

Department reasonably believes that a 

requester, or a group of requesters acting 

in concert, has submitted multiple 

requests involving related matters solely 

to avoid payment of fees, the 

Department may aggregate those 

requests for purposes of assessing 

processing fees. 

(e) Effect of the Debt Collection Act of 

1982 (Pub. L. 97–365). The Department 

shall comply with provisions of the 

Debt Collection Act, including 

disclosure to consumer reporting 

agencies and use of collection agencies, 

where appropriate, to effect repayment.

§ 171.17 Waiver or reduction of fees. 

(a) Fees otherwise chargeable in 

connection with a request for disclosure 

63940 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Rules and Regulations 

of a record shall be waived or reduced 

where it is determined 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. 

(1) In order to determine whether 

disclosure of the information is in the 

public interest because it is likely to 

contribute significantly to public 

understanding of the operations or 

activities of the government, the 

Department will consider the following 

four factors: 

(i) The subject of the request, i.e., 

whether the subject of the requested 

records concerns the operations or 

activities of the government; 

(ii) The informative value of the 

information to be disclosed, i.e., 

whether the disclosure is likely to 

contribute to an understanding of 

government operations or activities; 

(iii) The contribution to an 

understanding of the subject by the 

general public likely to result from 

disclosure, i.e., whether disclosure of 

the requested information will 

contribute to public understanding, 

including whether the requester has 

expertise in the subject area as well as 

the intention and ability to disseminate 

the information to the public; and 

(iv) The significance of the 

contribution to public understanding, 

i.e., whether the disclosure is likely to 

contribute significantly to public 

understanding of government operations 

or activities. 

(2) In order to determine whether 

disclosure of the information is not 

primarily in the commercial interest of 

the requester, the Department will 

consider the following two factors: 

(i) The existence and magnitude of a 

commercial interest, i.e., whether the 

requester has a commercial interest that 

would be furthered by the requested 

disclosure; and, if so, 

(ii) The primary interest in disclosure, 

i.e., whether the magnitude of the 

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. 

(b) The Department may refuse to 

consider waiver or reduction of fees for 

requesters (persons or organizations) 

from whom unpaid fees remain owed to 

the Department for another information 

access request. 

(c) Where only some of the records to 

be released satisfy the requirements for 

a waiver or reduction of fees, a waiver 

or reduction shall be granted for only 

those records. 

(d) The Department’s decision to 

refuse to waive or reduce fees may be 

appealed in accordance with § 171.51.

Subpart C—Executive Order 12958 

Provisions

§ 171.20 Definitions. 

As used in this subpart, the following 

definitions shall apply: 

(a) Agency means any executive 

branch agency, as defined in 5 U.S.C. 

105, any military department, as defined 

by 5 U.S.C. 102, and any other entity 

within the executive branch that comes 

into possession of classified 

information. 

(b) Classified information means 

information that has been determined 

pursuant to E.O. 12958 or any 

predecessor order on national security 

information to require protection against 

unauthorized disclosure and is marked 

to indicate its classified status when in 

documentary form.

(c) Declassification means the 

authorized change in the status of 

information from classified information 

to unclassified information. 

(d) Department means the U.S. 

Department of State, including its field 

offices and Foreign Service posts 

abroad. 

(e) FOIA means the Freedom of 

Information Act, 5 U.S.C. 552. 

(f) Foreign government information

means: 

(1) Information provided to the 

United States Government by a foreign 

government or governments, an 

international organization of 

governments, or any element thereof, 

with the expectation that the 

information, the source of the 

information, or both, are to be held in 

confidence; 

(2) Information produced by the 

United States pursuant to or as a result 

of a joint arrangement with a foreign 

government or governments, or an 

international organization of 

governments, or any element thereof, 

requiring that the information, the 

arrangement, or both, are to be held in 

confidence; or 

(3) Information received and treated 

as foreign government information 

under the terms of a predecessor 

executive order. 

(g) Information means any knowledge 

that can be communicated or 

documentary material, regardless of its 

physical form or characteristics that is 

owned by, produced by or for, or is 

under the control of the United States 

Government. 

(h) Mandatory declassification review

means the process by which specific 

classified information is reviewed for 

declassification pursuant to a request 

under § 171.21. 

(i) National Security means the 

national defense or foreign relations of 

the United States. 

(j) Certain former government 

personnel includes former officials of 

the Department of State or other U.S. 

Government agencies who previously 

have occupied policy-making positions 

to which they were appointed by the 

President under 3 U.S.C. 105(a)(2)(A) or 

by the Vice President under 3 U.S.C. 

106(a)(1)(A). It does not include former 

Foreign Service Officers as a class or 

persons who merely received 

assignment commissions as Foreign 

Service Officers, Foreign Service 

Reserve Officers, Foreign Service Staff 

Officers and employees. 

(k) Senior Agency Official means the 

Under Secretary of State for 

Management.

§ 171.21 Declassification review. 

(a) Scope. All information classified 

under E.O. 12958 or predecessor orders 

shall be subject to declassification 

review upon request by a member of the 

public or a U.S. government employee 

or agency with the following exceptions: 

(1) Information originated by the 

incumbent President or, in the 

performance of executive duties, the 

incumbent Vice President; the 

incumbent President’s White House 

staff or, in the performance of executive 

duties, the incumbent Vice President’s 

staff; committees, commissions, or 

boards appointed by the incumbent 

President; other entities within the 

Executive Office of the President that 

solely advise and assist the incumbent 

President; 

(2) Information that is the subject of 

litigation; 

(3) Information that has been 

reviewed for declassification within the 

past two years; and 

(4) Information exempted from search 

and review under the Central 

Intelligence Agency Information Act. 

(b) Requests. Requests for mandatory 

declassification review should be 

addressed to the Information and 

Privacy Coordinator at the address given 

in Sec. 171.5. E-mail requests are not 

accepted at this time. 

(c) Mandatory declassification review 

and the FOIA. A mandatory 

declassification review request is 

separate and distinct from a request for 

records under the FOIA. When a 

requester submits a request under both 

mandatory declassification review and 

the FOIA, the Department shall require 

the requester to elect review under one 

process or the other. If the requester 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Rules and Regulations 63941

fails to make such election, the request 

will be under the process that would 

result in the greatest disclosure unless 

the information requested is subject to 

only mandatory declassification review. 

(d) Description of information sought.

In order to be processed, a request for 

declassification review must describe 

the document or the material containing 

the information sought with sufficient 

specificity to enable the Department to 

locate the document or material with a 

reasonable amount of effort. Whenever a 

request does not sufficiently describe 

the material, the Department shall notify 

the requester that no further action will 

be taken unless additional description 

of the information sought is provided. 

(e) Refusal to confirm or deny 

existence of information. The 

Department may refuse to confirm or 

deny the existence or nonexistence of 

requested information whenever the fact 

of existence or nonexistence is itself 

classified. 

(f) Processing. In responding to 

mandatory declassification review 

requests, the Department shall make a 

review determination as promptly as 

possible and notify the requester 

accordingly. When the requested 

information cannot be declassified in its 

entirety, the Department shall release all 

meaningful portions that can be 

declassified and that are not exempt 

from disclosure on other grounds (see 

§ 171.25). 

(g) Other agency information. When 

the Department receives a request for 

information in its possession that was 

originally classified by another agency, 

it shall refer the request and the 

pertinent information to the other 

agency for processing unless that agency 

has agreed that the Department may 

review such information for 

declassification on behalf of that agency. 

The Department may, after consultation 

with the other agency, inform the 

requester of the referral unless 

association of the other agency with the 

information is itself classified. 

(h) Foreign government information.

In the case of a request for material 

containing foreign government 

information, the Department, if it is also 

the agency that initially received the 

foreign government information, shall 

determine whether the information may 

be declassified and may, if appropriate, 

consult with the relevant foreign 

government on that issue. If the 

Department is not the agency that 

initially received the foreign 

government information, it shall refer 

the request to the original receiving 

agency for direct response to the 

requester. 

(i) Cryptologic and intelligence 

information. Mandatory declassification 

review requests for cryptologic 

information shall be processed in 

accordance with special procedures 

established by the Secretary of Defense, 

and such requests for information 

concerning intelligence activities or 

intelligence sources and methods shall 

be processed in accordance with special 

procedures established by the Director 

of Central Intelligence.

§ 171.22 Appeals. 

Any denial of a mandatory 

declassification review request may be 

appealed to the Department’s Appeals 

Review Panel in accordance with 

§ 171.52. A denial by the Appeals 

Review Panel of a mandatory 

declassification review appeal may be 

further appealed to the Interagency 

Security Classification Appeals Panel.

§ 171.23 Declassification in the public 

interest. 

It is presumed that information that 

continues to meet classification 

requirements requires continued 

protection. In exceptional cases, 

however, the need to protect such 

information may be outweighed by the 

public interest in disclosure of the 

information, and in these cases the 

information should be declassified. 

When such questions arise, they shall be 

referred to the senior Department 

official with Top Secret authority 

having primary jurisdiction over the 

information in question. That official, 

after consultation with the Assistant 

Secretary for Public Affairs, will 

determine whether the public interest in 

disclosure outweighs the damage to 

national security that reasonably could 

be expected from disclosure. If the 

determination is made that the 

information should be declassified and 

disclosed, that official will make such a 

recommendation to the Secretary or the 

senior agency official who shall make 

the decision on declassification and 

disclosure. This provision does not 

amplify or modify the substantive 

criteria or procedures for classification 

or create any substantive or procedural 

right subject to judicial review.

§ 171.24 Access by historical researchers 

and certain former government personnel. 

(a) The restriction in E.O. 12958 and 

predecessor orders on limiting access to 

classified information to individuals 

who have a need-to-know the 

information may be waived, under the 

conditions set forth below, for persons 

who: 

(1) Are engaged in historical research 

projects; 

(2) Have served as Presidential or Vice 

Presidential appointees as defined in 

§ 171.20(j), or 

(3) Served as President or Vice 

President. 

(b) Requests by such persons must be 

submitted in writing to the Information 

and Privacy Coordinator at the address 

set forth in § 171.5 and must include a 

general description of the records 

sought, the time period covered by the 

request, and an explanation why access 

is sought. Requests for access by such 

requesters may be granted if: 

(1) The Secretary or the Senior 

Agency Official determines in writing 

that access is consistent with the 

interests of national security; 

(2) The requester agrees in writing to 

safeguard the information from 

unauthorized disclosure or compromise; 

(3) The requester submits a statement 

in writing authorizing the Department to 

review any notes and manuscripts 

created as a result of access; 

(4) The requester submits a statement 

in writing that any information obtained 

from review of the records will not be 

disseminated without the express 

written permission of the Department;

(c) If a requester uses a research 

assistant, the requester and the research 

assistant must both submit a statement 

in writing acknowledging that the same 

access conditions set forth in paragraph 

(b)(4) of this section apply to the 

research assistant. Such a research 

assistant must be working for the 

applicant and not gathering information 

for publication on his or her own behalf. 

(d) Access granted under this section 

shall be limited to items the appointee 

originated, reviewed, signed, or received 

while serving as a Presidential or Vice 

Presidential appointee or as President or 

Vice President. 

(e) Such requesters may seek 

declassification and release of material 

to which they have been granted access 

under this section through either the 

FOIA or the mandatory declassification 

review provisions of E.O. 12958. Such 

requests shall be processed in the order 

received, along with other FOIA and 

mandatory declassification review 

requests, and shall be subject to the fees 

applicable to FOIA requests.

§ 171.25 Applicability of other laws. 

Exemptions from disclosure set forth 

in the Freedom of Information Act, the 

Privacy Act, and other statutes or 

privileges protecting information from 

disclosure recognized in discovery or 

other such litigation-related procedures 

may be applied to withhold information 

declassified under the provisions of this 

subpart.

63942 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Rules and Regulations 

Subpart D—Privacy Act Provisions

§ 171.30 Purpose and scope. 

This subpart contains the rules that 

the Department follows under the 

Privacy Act of 1974, 5 U.S.C. 552a. 

These rules should be read together 

with the Privacy Act, which provides 

additional information about records 

maintained on individuals. The rules in 

this subpart apply to all records in 

systems of records maintained by the 

Department that 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 

Department. If any records retrieved 

pursuant to an access request under the 

Privacy Act are found to be exempt from 

disclosure under that Act, they will be 

processed for possible disclosure under 

the Freedom of Information Act (FOIA), 

5 U.S.C. 552. No fees shall be charged 

for access to or amendment of Privacy 

Act records.

§ 171.31 Definitions. 

As used in this subpart, the following 

definitions shall apply: 

(a) Department means the United 

States Department of State, including its 

field offices and Foreign Service posts 

abroad. 

(b) Individual means a citizen of the 

United States or an alien lawfully 

admitted for permanent residence. 

(c) Maintain includes maintain, 

collect, use, or disseminate. 

(d) Record means any item, collection, 

or grouping of information about an 

individual that is maintained by the 

Department, including, but not limited 

to education, financial transactions, 

medical history, and criminal or 

employment history, that contains the 

individual’s name or the identifying 

number, symbol, or other identifying 

particular assigned to the individual, 

such as a finger or voice print or 

photograph. 

(e) System of Records means a group 

of any records under the control of the 

Department from which information is 

retrieved by the name of the individual 

or by some identifying number, symbol, 

or other identifying particular assigned 

to an individual. 

(f) Control has the meaning set forth 

in § 171.11(f) 

(g) Information and Privacy 

Coordinator has the meaning set forth in 

§ 171.11(d). 

(h) DS is the abbreviation for the 

Bureau of Diplomatic Security of the 

U.S. Department of State. 

(i) OIG is the abbreviation for the 

Office of the Inspector General of the 

U.S. Department of State.

§ 171.32 Request for access to records. 

(a) Description of records sought. All 

requests for access to a record must 

reasonably describe the System of 

Records and the individual’s record 

within the system in sufficient detail to 

permit identification of the requested 

record. At a minimum, requests should 

include the individual’s full name 

(including maiden name, if appropriate) 

and any other names used, present 

mailing address and ZIP Code, date and 

place of birth, and any other 

information that might help in 

identifying the record. Helpful data 

includes the approximate time period of 

the record and the circumstances that 

give the individual reason to believe 

that the Department of State maintains 

a record under the individual’s name or 

personal identifier. In certain instances, 

it may be necessary for the Department 

to request additional information from 

the requester, either to ensure a full 

search, or to ensure that a record 

retrieved does in fact pertain to the 

individual. 

(b) Verification of personal identity.

The Department will require reasonable 

identification of individuals requesting 

records under the Privacy Act to ensure 

that records are disclosed only to the 

proper persons. Requesters must state 

their full name, current address, date 

and place of birth, and, at the 

requester’s option, social security 

number. The request must be signed, 

and the requester’s signature must be 

either notarized or submitted under 

penalty of perjury (28 U.S.C. 1746) as a 

substitute for notarization. If the 

requester seeks records under another 

name the requester has used, a 

statement, under penalty of perjury, that 

the requester has also used the other 

name must be included. 

(c) Third party access. The 

Department shall allow third party 

access to records under certain 

conditions: 

(1) Parents. Upon presentation of 

documentation of the parental 

relationship, a parent of a minor (an 

unmarried person under the age of 18) 

may, on behalf of the minor, request 

records pertaining to the minor and the 

Department may, in its discretion, 

disclose such records to the parent to 

the extent determined by the 

Department to be appropriate in the 

circumstances of the case. In any case, 

minors may request such records on 

their own behalf. 

(2) Guardians. A guardian of a minor 

or of an individual who has been 

declared by a court to be incompetent 

may act for and on behalf of the minor 

or the incompetent individual upon 

presentation of appropriate 

documentation of the guardian 

relationship. 

(3) Authorized representatives or 

designees. When an individual wishes 

to authorize another person or persons 

access to his or her records, the 

individual shall submit, in addition to 

the identifying information described in 

paragraph (b) of this section, a signed 

statement, either notarized or made 

under penalty of perjury, authorizing 

and consenting to access by a 

designated person or persons. Such 

requests shall be processed under the 

FOIA (see § 171.12). 

(d) Records relating to civil actions.

Nothing in this subpart entitles an 

individual to access to any information 

compiled in reasonable anticipation of a 

civil action or proceeding. 

(e) Time limits. The Department will 

acknowledge the request promptly and 

furnish the requested information as 

soon as possible thereafter. 

(f) Information on amending records.

At the time the Department grants 

access to a record, it will also furnish 

guidelines for requesting amendment of 

a record. These guidelines may also be 

obtained by writing to the Information 

and Privacy Coordinator at the address 

given in § 171.5. The guidelines are also 

available in the reading room described 

in § 171.3 and in the electronic reading 

room described in § 171.4.

§ 171.33 Request to amend or correct 

records. 

(a) An individual has the right to 

request that the Department amend a 

record pertaining to the individual that 

the individual believes is not accurate, 

relevant, timely, or complete. 

(b) Requests to amend records must be 

in writing and mailed or delivered to 

the Information and Privacy 

Coordinator, at the address given in 

§ 171.5, who will coordinate the review 

of the request with the appropriate 

offices of the Department. The 

Department will require verification of 

personal identity as provided in 

§ 171.32(b) before it will initiate action 

to amend a record. Amendment requests 

should contain, as a minimum, 

identifying information needed to locate 

the record in question, a description of 

the specific correction requested, and an 

explanation of why the existing record 

is not accurate, relevant, timely, or 

complete. The requester should submit 

as much pertinent documentation, other 

information, and explanation as 

possible to support the request for 

amendment. 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Rules and Regulations 63943

(c) All requests for amendments to 

records will be acknowledged within 10 

days (excluding Saturdays, Sundays, 

and legal public holidays). 

(d) In reviewing a record in response 

to a request to amend, the Department 

shall review the record to determine if 

it is accurate, relevant, timely, and 

complete. 

(e) If the Department agrees with an 

individual’s request to amend a record, 

it shall: 

(1) Advise the individual in writing of 

its decision; 

(2) Amend the record accordingly; 

and 

(3) If an accounting of disclosure has 

been made, advise all previous 

recipients of the record of the 

amendment and its substance. 

(f) If the Department denies, in whole 

or in part, the individual’s amendment 

request, it shall advise the individual in 

writing of its decision, of the reason 

therefore, and of the individual’s right 

to appeal the denial in accordance with 

§ 171.52.

§ 171.34 Request for an accounting of 

record disclosures. 

(a) How made. Except where 

accountings of disclosures are not 

required to be kept, as set forth in 

paragraph (b) of this section, an 

individual has a right to request an 

accounting of any disclosure that the 

Department has made to another person, 

organization, or agency of any record 

about an individual. This accounting 

shall contain the date, nature, and 

purpose of each disclosure as well as 

the name and address of the recipient of 

the disclosure. Any request for 

accounting should identify each 

particular record in question and may 

be made by writing directly to the 

Information and Privacy Coordinator at 

the address given in § 171.5. 

(b) Where accountings not required.

The Department is not required to keep 

an accounting of disclosures in the case 

of: 

(1) Disclosures made to employees 

within the Department who have a need 

for the record in the performance of 

their duties; 

(2) Disclosures required under the 

FOIA; 

(3) Disclosures made to another 

agency or to an instrumentality of any 

governmental jurisdiction under the 

control of or within the United States 

for authorized civil or criminal law 

enforcement activities pursuant to a 

written request from such agency or 

instrumentality specifying the activities 

for which the disclosures are sought and 

the portions of the records sought.

§ 171.35 Denials of requests; appeals. 

If the Department denies a request for 

access to Privacy Act records, for 

amendment of such records, or for an 

accounting of disclosure of such 

records, the requester shall be informed 

of the reason for the denial and of the 

right to appeal the denial to the Appeals 

Review Panel in accordance with 

§ 171.52.

§ 171.36 Exemptions. 

Systems of records maintained by the 

Department are authorized to be 

exempted from certain provisions of the 

Privacy Act under both general and 

specific exemptions set forth in the Act. 

In utilizing these exemptions, the 

Department is exempting only those 

portions of systems that are necessary 

for the proper functioning of the 

Department and that are consistent with 

the Privacy Act. Where compliance 

would not appear to interfere with or 

adversely affect the law enforcement 

process, and/or where it may be 

appropriate to permit individuals to 

contest the accuracy of the information 

collected, e.g., public source materials, 

the applicable exemption may be 

waived, either partially or totally, by the 

Department or the OIG, in the sole 

discretion of the Department or the OIG, 

as appropriate. 

(a) General exemptions. (1) 

Individuals may not have access to 

records maintained by the Department 

that were provided by another agency 

that has determined by regulation that 

such information is subject to general 

exemption under 5 U.S.C. 552a(j)(1). If 

such exempt records are the subject of 

an access request, the Department will 

advise the requester of their existence 

and of the name and address of the 

source agency, unless that information 

is itself exempt from disclosure. 

(2) The systems of records maintained 

by the Bureau of Diplomatic Security 

(STATE–36), the Office of the Inspector 

General (STATE–53), and the 

Information Access Program Records 

system (STATE–35) are subject to 

general exemption under 5 U.S.C. 

552a(j)(2). All records contained in 

record system STATE–36, Security 

Records, are exempt from all provisions 

of the Privacy Act except sections (b), 

(c)(1) and (2), (e)(4)(A) through (F), 

(e)(6), (7), (9), (10), and (11), and (i) to 

the extent to which they meet the 

criteria of section (j)(2). These 

exemptions are necessary to ensure the 

effectiveness of the investigative, 

judicial, and protective processes. All 

records contained in STATE–53, records 

of the Inspector General and Automated 

Individual Cross-Reference System, are 

exempt from all of the provisions of the 

Privacy Act except sections (b), (c)(1) 

and (2), (e)(4)(A) through (F), (e)(6), (7), 

(9), (10), and (11), and (i) to the extent 

to which they meet the criteria of 

section (j)(2). These exemptions are 

necessary to ensure the proper functions 

of the law enforcement activity, to 

protect confidential sources of 

information, to fulfill promises of 

confidentiality, to prevent interference 

with the enforcement of criminal laws, 

to avoid the disclosure of investigative 

techniques, to avoid the endangering of 

the life and safety of any individual, to 

avoid premature disclosure of the 

knowledge of potential criminal activity 

and the evidentiary bases of possible 

enforcement actions, and to maintain 

the integrity of the law enforcement 

process. All records contained in the 

Information Access Program Records 

system (STATE–35) are exempt from all 

of the provisions of the Privacy Act 

except sections (b), (c)(1) and (2), 

(e)(4)(A) through (F), (e)(6), (7), (9), (10), 

and (11), and (i) to the extent to which 

they meet the criteria of section (j)(2). 

These exemptions are necessary to 

ensure the protection of law 

enforcement information retrieved from 

various sources in response to 

information access requests. 

(b) Specific exemptions. Portions of 

the following systems of records are 

exempted from 5 U.S.C. 552a (c)(3), (d), 

(e)(1), and (4), (G), (H), and (I), and (f). 

The names of the systems correspond to 

those published in the Federal Register

by the Department. 

(1) Exempt under 5 U.S.C. 552a(k)(1).

The reason for invoking this exemption 

is to protect material required to be kept 

secret in the interest of national defense 

and foreign policy. 

Board of Appellate Review Records. 

STATE–02.

Congressional Correspondence. 

STATE–43. 

Congressional Travel Records. 

STATE–44. 

Coordinator for the Combating of 

Terrorism Records. STATE–06. 

External Research Records. STATE–

10. 

Extradition Records. STATE–11. 

Foreign Assistance Inspection 

Records. STATE–48. 

Human Resources Records. STATE–

31. 

Information Access Programs Records. 

STATE–35. 

Intelligence and Research Records. 

STATE–15. 

International Organizations Records. 

STATE–17. 

Law of the Sea Records. STATE–19. 

Legal Case Management Records. 

STATE–21. 

Munitions Control Records. STATE–

42. 

63944 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Rules and Regulations 

Overseas Citizens Services Records. 

STATE–05. 

Overseas Records. STATE–25. 

Passport Records. STATE–26. 

Personality Cross-Reference Index to 

the Secretariat Automated Data Index 

Records. STATE–28. 

Personality Index to the Central 

Foreign Policy Records. STATE–29. 

Personnel Payroll Records. STATE–

30. 

Records of the Inspector General and 

Automated Individual Cross-Reference 

System. STATE–53. 

Records of the Office of the Assistant 

Legal Adviser for International Claims 

and Investment Disputes. STATE–54. 

Rover Records. STATE–41. 

Records of Domestic Accounts 

Receivable. STATE–23. 

Records of the Office of White House 

Liaison. STATE–34. 

Board of Appellate Review Records. 

STATE–02. 

Refugee Records. STATE–59. 

Refugee Data Center Processing 

Records. STATE–60. 

Security Records. STATE–36. 

Visa Records. STATE–39. 

(2) Exempt under 5 U.S.C. 

552(a)(k)(2). The reasons for invoking 

this exemption are to prevent 

individuals that are the subject of 

investigation from frustrating the 

investigatory process, to ensure the 

proper functioning and integrity of law 

enforcement activities, to prevent 

disclosure of investigative techniques, 

to maintain the confidence of foreign 

governments in the integrity of the 

procedures under which privileged or 

confidential information may be 

provided, and to fulfill commitments 

made to sources to protect their 

identities and the confidentiality of 

information and to avoid endangering 

these sources and law enforcement 

personnel. 

Board of Appellate Review Records. 

STATE–02. 

Coordinator for the Combating of 

Terrorism Records. STATE–06. 

Extradition Records. STATE–11. 

Foreign Assistance Inspection 

Records. STATE–48. 

Garnishment of Wages Records. 

STATE–61. 

Information Access Program Records. 

STATE–35. 

Intelligence and Research Records. 

STATE–15. 

Munitions Control Records. STATE–

42. 

Overseas Citizens Services Records. 

STATE–05. 

Overseas Records. STATE–25. 

Passport Records. STATE–26. 

Personality Cross Reference Index to 

the Secretariat Automated Data Index. 

STATE–28. 

Personality Index to the Central 

Foreign Policy Records. STATE-29. 

Records of the Inspector General and 

Automated Individual Cross-Reference 

System. STATE–53. 

Security Records. STATE–36. 

Visa Records. STATE–39. 

(3) Exempt under 5 U.S.C. 

552(a)(k)(3). The reason for invoking 

this exemption is to preclude 

impairment of the Department’s 

effective performance in carrying out its 

lawful protective responsibilities under 

18 U.S.C. 3056 and 22 U.S.C. 4802. 

Extradition Records. STATE–11. 

Information Access Programs Records. 

STATE–35. 

Intelligence and Research Records. 

STATE–15. 

Overseas Citizens Services Records. 

STATE–05. 

Overseas Records. STATE–25. 

Passport Records. STATE–26. 

Personality Cross-Reference Index to 

the Secretariat Automated Data Index. 

STATE–28. 

Personality Index to the Central 

Foreign Policy Records. STATE–29. 

Security Records. STATE–36. 

Visa Records. STATE–39. 

(4) Exempt under 5 U.S.C. 552a(k)(4).

The reason for invoking this exemption 

is to avoid needless review of records 

that are used solely for statistical 

purposes and from which no individual 

determinations are made. 

Foreign Service Institute Records. 

STATE–14. 

Human Resources Records. STATE–

31. 

Information Access Programs Records. 

STATE–35. 

Personnel Payroll Records. STATE–

30. 

Security Records. STATE–36. 

(5) Exempt under 5 U.S.C. 552a(k)(5).

The reasons for invoking this exemption 

are to ensure the proper functioning of 

the investigatory process, to ensure 

effective determination of suitability, 

eligibility, and qualification for 

employment and to protect the 

confidentiality of sources of 

information. 

Equal Employment Opportunity 

Records. STATE–09. 

Foreign Assistance Inspection 

Records. STATE–48. 

Foreign Service Grievance Board 

Records. STATE–13. 

Human Resources Records. STATE–

31. 

Information Access Programs Records. 

STATE–35. 

Legal Adviser Attorney Employment 

Application Records. STATE–20. 

Overseas Records. STATE–25. 

Personality Cross-Reference Index to 

the Secretariat Automated Data Index 

Records. STATE–28. 

Records of the Inspector General and 

Automated Individual Cross-Reference 

System. STATE–53.

Records of the Office of White House 

Liaison. STATE–34. 

Rover Records. STATE–41. 

Security Records. STATE–36. 

Senior Personnel Appointments 

Records. STATE–47. 

(6) Exempt under 5 U.S.C. 552(k)(6).

The reasons for invoking this exemption 

are to prevent the compromise of testing 

or evaluation material used solely to 

determine individual qualifications for 

employment or promotion and to avoid 

giving unfair advantage to individuals 

by virtue of their having access to such 

material. 

Foreign Service Institute Records. 

STATE–14. 

Human Resources Records. STATE–

31. 

Information Access Programs Records. 

STATE–35. 

Security Records. STATE–36. 

(7) Exempt under 5 U.S.C. 552a(k)(7).

The reason for invoking this exemption 

is to prevent access to material 

maintained from time to time by the 

Department in connection with various 

military personnel exchange programs. 

Overseas Records. STATE–25. 

Human Resources Records. STATE–

31. 

Information Access Programs Records. 

STATE–35. 

Personality Cross-Reference Index to 

the Secretariat Automated Data Index 

Records. STATE–28. 

Personality Index to the Central 

Foreign Policy Records. STATE–29.

Subpart E—Ethics in Government Act 

Provisions

§ 171.40 Purpose and scope. 

This subpart sets forth the regulations 

under which persons may request 

access to the public financial disclosure 

reports of employees of the Department 

as well as limits to such requests and 

use of such information. The Ethics in 

Government Act 1978, as amended, and 

the Office of Government Ethics 

implementing regulations, 5 CFR part 

2634, require that high-level Federal 

officials disclose publicly their personal 

financial interests.

§ 171.41 Covered employees. 

(a) Officers and employees (including 

special Government employees as 

defined in 18 U.S.C. 202) whose 

positions are classified at grades GS–16 

and above of the General Schedule, or 

the rate of basic pay for which is fixed, 

other than under the General Schedule, 

at a rate equal to or greater than the 

120% of the minimum rate of basic pay 

for GS–15 of the General Schedule; 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Rules and Regulations 63945

(b) Officers or employees in any other 

positions determined by the Director of 

the Office of Government Ethics to be of 

equal classification to GS–16; 

(c) Employees in the excepted service 

in positions that are of a confidential or 

policy-making character, unless by 

regulation their positions have been 

excluded by the Director of the Office of 

Government Ethics; 

(d) The designated agency official 

who acts as the Department’s Ethics 

Officer; 

(e) Incumbent officials holding 

positions referred to above if they have 

served 61 days or more in the position 

during the preceding calendar year. 

(f) Officials who have terminated 

employment from a position referred to 

above and who have not accepted 

another such position within 30 days of 

such termination.

§ 171.42 Requests and identifying 

information. 

Requests for access to public financial 

disclosure reports of covered employees 

should be made in writing to the 

Information and Privacy Coordinator at 

the address given in § 171.5 setting 

forth: 

(a) The name and/or position title of 

the Department of State official who is 

the subject of the request, 

(b) The time period covered by the 

report requested, 

(c) A completed Office of Government 

Ethics request form, OGE Form 201, 

October, 1999. This form may be 

obtained by writing to the Information 

and Privacy Coordinator or by visiting 

the Public Reading Room described in 

§ 171.3 or http://www.usoge.gov.

§ 171.43 Time limits and fees. 

(a) Reports shall be made available 

within thirty (30) days from receipt of 

a request by the Department. The 

Department does not charge a fee for a 

single copy of a public financial report. 

However, the Department will charge 

for additional copies of a report at a rate 

of 15 cents per page plus the actual 

direct cost of mailing the reports. 

However, the Department will not 

charge for individual requests if the 

total charge would be $10.00 or less. 

(b) A report shall be retained by the 

Department and made available to the 

public for a period of six (6) years after 

receipt of such report. After such a six 

year period, the report shall be 

destroyed, unless needed in an ongoing 

investigation, except that those reports 

filed by individuals who are nominated 

for office by the President to a position 

that requires the advice and consent of 

the Senate, and who subsequently are 

not confirmed by the Senate, will be 

retained and made available for a oneyear period, and then destroyed, unless 

needed in an ongoing investigation.

§ 171.44 Improper use of reports. 

(a) The Attorney General may bring a 

civil action against any person who 

obtains or uses a financial disclosure 

report: 

(1) For any unlawful purpose; 

(2) For any commercial purpose, other 

than for news or community 

dissemination to the general public; 

(3) For determining or establishing the 

credit rating of any individual; 

(4) For use, directly or indirectly, in 

the solicitation of money for any 

political, charitable, or other purpose. 

(b) The court in which such action is 

brought may assess a civil penalty not 

to exceed $10,000 against any person 

who obtains or uses the reports for these 

prohibited purposes. Such remedy shall 

be in addition to any other remedy 

available under statutory or common 

law.

Subpart F—Appeal Procedures

§ 171.50 Appeal of denials of expedited 

processing. 

(a) A denial of a request for expedited 

processing may be appealed to the Chief 

of the Requester Liaison Division of the 

office of the Information and Privacy 

Coordinator at the address given in 

§ 171.5 within 30 days of receipt of the 

denial. Appeals should contain as much 

information and documentation as 

possible to support the request for 

expedited processing in accordance 

with the criteria set forth in § 171.12(b) 

(b) The Requester Liaison Division 

Chief will issue a final decision in 

writing within ten (10) days from the 

date on which the office of the 

Information and Privacy Coordinator 

receives the appeal.

§ 171.51 Appeals of denials of fee waivers 

or reductions. 

(a) A denial of a request for a waiver 

or reductions of fees may be appealed to 

the Chief of the Requester of Liaison 

Division of the Office of the Information 

and Privacy Coordinator at the address 

given in § 171.5 within 30 days of 

receipt of the denial. Appeals should 

contain as much information and 

documentation as possible to support 

the request for fee waiver or reduction 

in accordance with the criteria set forth 

in § 171.17.

(b) The Requester Liaison Division 

Chief will issue a final decision in 

writing within 30 days from the date on 

which the office of the Information and 

Privacy Coordinator receives the appeal.

§ 171.52 Appeal of denial of access to, 

declassification of, amendment of, 

accounting of disclosures of, or challenge 

to classification of records. 

(a) Right of administrative appeal.

Except for records that have been 

reviewed and withheld within the past 

two years or are the subject of litigation, 

any requester whose request for access 

to records, declassification of records, 

amendment of records, accounting of 

disclosures of records, or any authorized 

holder of classified information whose 

classification challenge has been 

denied, has a right to appeal the denial 

to the Department’s Appeals Review 

Panel. This appeal right includes the 

right to appeal the determination by the 

Department that no records responsive 

to an access request exist in Department 

files. Privacy Act appeals may be made 

only by the individual to whom the 

records pertain. 

(b) Form of appeal. There is no 

required form for an appeal. However, it 

is essential that the appeal contain a 

clear statement of the decision or 

determination by the Department being 

appealed. When possible, the appeal 

should include argumentation and 

documentation to support the appeal 

and to contest the bases for denial cited 

by the Department. The appeal should 

be sent to: Chairman, Appeals Review 

Panel, c/o Information and Privacy 

Coordinator/Appeals Officer, at the 

address given in § 171.5. 

(c) Time limits. The appeal should be 

received within 60 days of the date of 

receipt by the requester of the 

Department’s denial. The time limit for 

response to an appeal begins to run on 

the day that the appeal is received. The 

time limit (excluding Saturdays, 

Sundays, and legal public holidays) for 

agency decision on an administrative 

appeal is 20 days under the FOIA 

(which may be extended for up to an 

additional 10 days in unusual 

circumstances) and 30 days under the 

Privacy Act (which the Panel may 

extend an additional 30 days for good 

cause shown). The Panel shall decide 

mandatory declassification review 

appeals as promptly as possible. 

(d) Notification to appellant. The 

Chairman of the Appeals Review Panel 

shall notify the appellant in writing of 

the Panel’s decision on the appeal. 

When the decision is to uphold the 

denial, the Chairman shall include in 

his notification the reasons therefore. 

The appellant shall be advised that the 

decision of the Panel represents the 

final decision of the Department and of 

the right to seek judicial review of the 

Panel’s decision, when applicable. In 

mandatory declassification review 

appeals, the Panel shall advise the 

63946 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Rules and Regulations 

requester of the right to appeal the 

decision to the Interagency Security 

Classification Appeals Panel under 

§ 3.5(d) of E.O. 12958. 

(e) Procedures in Privacy Act 

amendment cases. (1) If the Panel’s 

decision is that a record shall be 

amended in accordance with the 

appellant’s request, the Chairman shall 

direct the office responsible for the 

record to amend the record, advise all 

previous recipients of the record of the 

amendment and its substance if an 

accounting of disclosure has been made, 

and so advise the individual in writing. 

(2) If the Panel’s decision is that the 

request of the appellant to amend the 

record is denied, in addition to the 

notification required by paragraph (d) of 

this section, the Chairman shall advise 

the appellant: 

(i) Of the right to file a concise 

statement of the reasons for disagreeing 

with the decision of the Department; 

(ii) Of the procedures for filing the 

statement of disagreement; 

(iii) That any statement of 

disagreement that is filed will be made 

available to anyone to whom the record 

is subsequently disclosed, together with, 

at the discretion of the Department, a 

brief statement by the Department 

summarizing its reasons for refusing to 

amend the record; 

(iv) That prior recipients of the 

disputed record will be provided a copy 

of any statement of disagreement, to the 

extent that an accounting of disclosures 

was maintained. 

(3) If the appellant files a statement 

under paragraph (e)(2) of this section, 

the Department will clearly annotate the 

record so that the fact that the record is 

disputed is apparent to anyone who 

may subsequently have access to the 

record. When information that is the 

subject of a statement of dispute filed by 

an individual is subsequently disclosed, 

the Department will note that the 

information is disputed and provide a 

copy of the individual’s statement. The 

Department may also include a brief 

summary of reasons for not amending 

the record when disclosing disputed 

information. Copies of the Department’s 

statement shall be treated as part of the 

individual’s record for granting access; 

however, it will not be subject to 

amendment by an individual under 

these regulations.

Dated: October 29, 2004. 

Lee R. Lohman, 

Deputy Assistant Secretary for Records and 

Publishing Services, Bureau of 

Administration, Department of State.

[FR Doc. 04–24581 Filed 11–2–04; 8:45 am] 

BILLING CODE 4710–24–P

POSTAL SERVICE

39 CFR Part 20

Discontinuance of Volume Discount 

Availability for IPA and ISAL Mailers

AGENCY: Postal Service.

ACTION: Final rule.

SUMMARY: This final rule deletes 

International Mail Manual (IMM) 

292.212, 292.213, and 293.75, which 

authorized mailers who spent $2 

million or more combined on 

International Priority Airmail (IPA) and 

International Surface Air Lift (ISAL) in 

the preceding Postal Service fiscal year 

to receive discounted postage rates.

EFFECTIVE DATE: November 3, 2004.

FOR FURTHER INFORMATION CONTACT: Rick 

Klutts, 202–268–7268.

SUPPLEMENTARY INFORMATION: On July 

28, 2004, the Postal Service published 

for comment in the Federal Register (69 

FR 45002–45003) a proposed rule to 

delete standards that authorize postage 

discounts for mailers who spend $2 

million or more combined on 

International Priority Airmail (IPA) and 

International Surface Air Lift (ISAL) in 

the preceding Postal Service fiscal year. 

The Postal Service proposed to 

discontinue these discounts due to 

recent Postal Service reviews of costs for 

providing these services. These cost 

reviews identified increases in 

transportation, terminal dues, and other 

costs that have all risen while published 

rates for IPA and ISAL have remained 

static since 2001. When costs rise above 

the rate we are charging, we are obliged 

to adjust prices and discounts (in this 

case IPA and ISAL) so they are not 

subsidized by other domestic or 

international product offerings. These 

changes do not affect the standards for 

existing or prospective customers who 

use IPA or ISAL mail and participate or 

would like to participate in the 

International Customized Mail (ICM) 

service agreement program as defined in 

IMM 297. 

The Postal Service requested 

comments on the proposed rule by 

August 18, 2004. Comments were 

received from two parties, one who 

voiced opposition to the proposal, and 

one whose comment was outside the 

scope of the proposed rule. 

An industry organization respondent 

questioned the rationale for the proposal 

and requested a more detailed cost 

analysis; this commenter also cited a 

1998 report to Congress that states there 

is adequate cost coverage for these 

products. In addition, the commenter 

suggested a correlation between the 

proposed discontinuance of volume 

discounts and International Customized 

Mail (ICM) agreements. As pointed out 

in the supplementary information, the 

Postal Service is obligated to offer its 

services at a rate that covers both 

average attributable cost and 

institutional cost. When costs rise above 

the rate we are charging, adjustments to 

prices and discounts (in this case IPA 

and ISAL) are required so they are not 

subsidized by other domestic or 

international product offerings. 

Moreover, since 1998, transportation 

costs, terminal dues costs, and other 

costs have risen while published rates 

for IPA and ISAL have remained static 

since 2001. 

The other comment was made by an 

international mailer who enters mail 

under an ICM agreement. The mailer 

stated that IPA was a very good service 

and they did not want to lose their 

current discount. Since this proposed 

rule does not address ICMs, this 

comment falls outside the scope of this 

rulemaking and therefore will not be 

addressed at this time. Additionally, 

nothing in this change precludes this 

mailer from entering IPA and ISAL 

mailings under their existing ICM 

agreement. 

For the reasons discussed above, the 

Postal Service adopts the following 

amendments to the International Mail 

Manual, which is incorporated by 

reference in the Code of Federal 

Regulations. See 39 CFR Part 20.1.

List of Subjects in 39 CFR Part 20

International postal service, Foreign 

relations.

PART 20—[AMENDED]

■ 1. The authority citation for 39 CFR 

part 20 continues to read as follows:

Authority: 5 U.S.C. 552(a); 39 U.S.C. 401, 

404, 407 and 408.

■ 2. Amend the International Mail 

Manual as set forth below: 

International Mail Manual (IMM)

* * * * *

2 Conditions for Mailing

* * * * *

290 Commercial Services

* * * * *

292 International Priority Airmail 

Service

* * * * *

292.2 Postage 

292.21 Rates

* * * * *