Federal Register / Vol. 65, No. 92 / Thursday, May 11, 2000 / Proposed Rules 30369

and threshold of regulation exemption

requests for the same uses. The rule

therefore imposes no additional costs on

producers or consumers.

B. Small Entity Analysis

FDA has examined the economic

implications of this companion

proposed rule as required by the

Regulatory Flexibility Act (5 U.S.C.

601–612). If a rule has a significant

economic impact on a substantial

number of small entities, the Regulatory

Flexibility Act requires agencies to

analyze regulatory options that would

lessen the economic effect on the rule

on small entities. The agency certifies

that this companion proposed rule will

not have a significant impact on a

substantial number of small entities.

This companion proposed rule will

permit notifiers under the new

notification process for FCS to claim the

same categorical exclusions from the

requirement of an EA that are currently

applicable for food additive petitions

and threshold of regulation exemption

requests for the same uses. The

proposed rule will not result in any

additional costs to any firm. Therefore,

this proposed rule will not have a

significant impact on a substantial

number of small entities.

IV. Paperwork Reduction Act of 1995

FDA tentatively concludes that this

companion proposed rule contains no

collection of information. Therefore,

clearance by the Office of Management

and Budget under the Paperwork

Reduction Act of 1995 is not required.

V. Environmental Impact

The agency has determined under 21

CFR 25.30(h) that this action is of a type

that does not individually or

cumulatively have a significant effect on

the human environment. Therefore,

neither an environmental assessment

nor an environmental impact statement

is required.

VI. Comments

Interested persons may, by July 24,

2000, submit to the Dockets

Management Branch (address above)

written comments regarding this

proposal. This comment period runs

concurrently with the comment period

for the direct final rule. Two copies of

any comment are to be submitted,

except that individuals may submit one

copy. Comments are to be identified

with the docket number found in

brackets in the heading of this

document. Received comments may be

seen in the Dockets Management Branch

between 9 a.m. and 4 p.m., Monday

through Friday. All received comments

will be considered as comments

regarding the direct final rule and this

proposed rule. In the event the direct

final rule is withdrawn, all comments

received will be considered comments

on this proposed rule.

List of Subjects in 21 CFR Part 25

Environmental impact statements,

Foreign relations, Reporting and

recordkeeping requirements.

Therefore, under the Federal Food,

Drug, and Cosmetic Act and under

authority delegated to the Commissioner

of Food and Drugs, it is proposed that

21 CFR part 25 be amended as follows:

PART 25—ENVIRONMENTAL IMPACT

CONSIDERATIONS

1. The authority citation for 21 CFR

part 25 continues to read as follows:

Authority: 21 U.S.C. 321–393; 42 U.S.C.

262, 263b–264; 42 U.S.C. 4321, 4332; 40 CFR

parts 1500–1508; E.O. 11514, 35 FR 4247, 3

CFR, 1971 Comp., p. 531–533 as amended by

E.O. 11991, 42 FR 26967, 3 CFR, 1978 Comp.,

p. 123–124 and E.O. 12114, 44 FR 1957, 3

CFR, 1980 Comp., p. 356–360.

2. Section 25.20 is amended by

revising paragraph (i) to read as follows:

§ 25.20 Actions requiring preparation of an

environmental assessment.

* * * * *

(i) Approval of food additive petitions

and color additive petitions, approval of

requests for exemptions for

investigational use of food additives, the

granting of requests for exemption from

regulation as a food additive under

§ 170.39 of this chapter, and allowing

notifications submitted under 21 U.S.C.

348(h) to become effective, unless

categorically excluded in § 25.32(b), (c),

(i), (j), (k), (l), (o), (q), or (r).

* * * * *

3. Section 25.32 is amended by

revising paragraphs (i), (j), (k), (q), and

(r) to read as follows:

§ 25.32 Foods, food additives, and color

additives.

* * * * *

(i) Approval of a food additive

petition or GRAS affirmation petition,

the granting of a request for exemption

from regulation as a food additive under

§ 170.39 of this chapter, or allowing a

notification submitted under 21 U.S.C.

348(h) to become effective, when the

substance is present in finished foodpackaging material at not greater than 5

percent-by-weight and is expected to

remain with finished food-packaging

material through use by consumers or

when the substance is a component of

a coating of a finished food-packaging

material.

(j) Approval of a food additive

petition or GRAS affirmation petition,

the granting of a request for exemption

from regulation as a food additive under

§ 170.39 of this chapter, or allowing a

notification submitted under 21 U.S.C.

348(h) to become effective, when the

substance is to be used as a component

of a food-contact surface of permanent

or semipermanent equipment or of

another food-contact article intended for

repeated use.

(k) Approval of a food additive

petition, color additive petition, or

GRAS affirmation petition, or allowing

a notification submitted under 21 U.S.C.

348(h) to become effective, for

substances added directly to food that

are intended to remain in food through

ingestion by consumers and that are not

intended to replace macronutrients in

food.

* * * * *

(q) Approval of a food additive

petition, the granting of a request for

exemption from regulation as a food

additive under § 170.39 of this chapter,

or allowing a notification submitted

under 21 U.S.C. 348(h) to become

effective for a substance registered by

the Environmental Protection Agency

under FIFRA for the same use requested

in the petition, request for an

exemption, or notification.

(r) Approval of a food additive

petition, color additive, GRAS

affirmation petition, or allowing a

notification submitted under 21 U.S.C.

348(h) to become effective for a

substance that occurs naturally in the

environment, when the action does not

alter significantly the concentration or

distribution of the substance, its

metabolites, or degradation products in

the environment.

Dated: January 24, 2000.

Margaret M. Dotzel,

Acting Associate Commissioner for Policy.

[FR Doc. 00–11750 Filed 5–10–00; 8:45 am]

BILLING CODE 4160–01–F

OVERSEAS PRIVATE INVESTMENT

CORPORATION

22 CFR Part 706

RIN 3420–ZA00

Information Disclosure

AGENCY: Overseas Private Investment

Corporation.

ACTION: Proposed rule.

SUMMARY: This proposed rule revises the

Overseas Private Investment

Corporation’s (‘‘OPIC’’) Freedom of

Information Act (‘‘FOIA’’) regulations by

30370 Federal Register / Vol. 65, No. 92 / Thursday, May 11, 2000 / Proposed Rules

making substantive and administrative

changes. These revisions are intended to

supersede OPIC’s current FOIA

regulations, located at this Part. The

proposed rule incorporates the FOIA

revisions contained in the Electronic

Freedom of Information Act

Amendments of 1996 (‘‘EFOIA’’),

conforms OPIC’s regulations to current

OPIC FOIA practices, and converts the

regulations to a plain English format.

The proposed rule also reflects the

disclosure principles established by the

President and the Attorney General in

their FOIA Policy Memorandum of

October 4, 1993. Finally, the proposed

rule adds a notice to OPIC’s business

submitters concerning access to OPIC

records that have been transferred to the

legal custody and control of the

National Archives of the United States

(‘‘National Archives’’).

DATES: Comments must be received by

June 12, 2000; however, late filed

comments will be considered to the

extent practicable.

ADDRESSES: Mail or hand-deliver

comments to Laura A. Naide, FOIA

Director, Overseas Private Investment

Corporation, 1100 New York Avenue,

N.W., Washington, D.C. 20527, fax them

to Ms. Naide at (202) 408–0297, or send

them by electronic mail to

lnaid@opic.gov. Please send comments

by only one method. Comments will be

available for review upon request.

FOR FURTHER INFORMATION CONTACT:

Laura A. Naide, FOIA Director, (202)

336–8426, or Eli H. Landy, FOIA

Counsel, (202) 336–8418.

SUPPLEMENTARY INFORMATION: This

revision of Part 706 incorporates

changes to the language and structure of

the regulations and adds new provisions

to implement the EFOIA (Pub. L. 104–

231). New provisions implementing the

amendments are found at § 706.12

(defining ‘‘search’’ to include electronic

searches), § 706.21 (electronic reading

room), § 706.31 (format of disclosure),

§ 706.32 (timing of responses), and

§ 706.33 (material withheld). OPIC is

already complying with these statutory

requirements; this proposed revision

serves as OPIC’s formal codification of

the applicable law and its practice.

Under the EFOIA, an agency may

provide by regulation for multiple

‘‘tracks’’ in responding to FOIA

requests, depending upon the amount of

time and work entailed in responding to

different kinds of requests (‘‘multitrack

processing’’). OPIC has decided not to

propose multitrack processing. Because

OPIC receives a limited number of FOIA

requests each year and is able to

respond to the great majority of them on

a timely basis, OPIC does not need to

provide separate processing tracks for

more complicated versus simpler FOIA

requests.

Proposed revisions of OPIC’s fee

schedule can be found at § 706.34. The

duplication charge will remain fifteen

cents per page, while the document

search and review charges will increase

to $16 and $35 per hour, respectively.

The amount at or below which OPIC

will not charge a fee is set at $15.

This revision also notifies OPIC’s

business submitters of the Federal

Records Act requirement that OPIC

transfer legal custody and control of

certain records to the National Archives

pursuant to applicable federal records

schedules.

Public Law 96–354, ‘‘Regulatory

Flexibility Act’’ (5 U.S.C. 601)

Pursuant to the Regulatory Flexibility

Act, 5 U.S.C. 601 et seq., the head of

OPIC has certified that this regulation,

as promulgated, will not have a

significant economic impact on a

substantial number of small entities.

The proposed rule implements the

FOIA, a statute concerning the release of

federal records, and does not

economically impact Federal

Government relations with the private

sector. Further, under the FOIA,

agencies may recover only the direct

costs of searching for, reviewing, and

duplicating the records processed for

requesters. Based on OPIC’s experience,

these fees are nominal.

Executive Order 12866

This proposed rule has been drafted

and reviewed in accordance with

Executive Order 12866, section 1(b),

Principles of Regulation. The Office of

Management and Budget has

determined that this proposed rule is a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

Regulatory Planning and Review, and,

accordingly, that Office has reviewed

this rule.

Unfunded Mandates Reform Act of

1995

This regulation will not result in the

expenditure by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100,000,000 or more

in any one year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This proposed rule is not a major rule

as defined by section 804 of the Small

Business Regulatory Enforcement

Fairness Act of 1996. This regulation

will not result in an annual effect on the

economy of $100,000,000 or more; a

major increase in costs or prices; or

significant adverse effects on

competition, employment, investment,

productivity, innovation, or on the

ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

List of Subjects in 22 CFR Part 706

Confidential business information,

Freedom of information.

For the reasons stated in the

preamble, OPIC proposes to revise 22

CFR Part 706 to read as follows:

PART 706—INFORMATION

DISCLOSURE

Subpart A—General

Sec.

706.11 General provisions.

706.12 Definitions.

Subpart B—Procedures for Obtaining

Publicly Available Records

706.21 What types of OPIC records are

publicly available, and how do I obtain

access to or copies of these records?

Subpart C—Procedures for Obtaining

Records Under the FOIA

706.31 How do I request copies of or access

to OPIC records that are not otherwise

available to the public?

706.32 When will I receive a response to

my FOIA request?

706.33 How will OPIC respond to my FOIA

request?

706.34 What, if any, fees will I be charged?

706.35 When will OPIC reduce or waive

fees?

706.36 How may I appeal a partial or total

denial of records?

Subpart D—Rights of Submitters of

Confidential Business Information

706.41 How should business submitters

designate business information in

materials submitted to OPIC?

706.42 When will OPIC notify business

submitters of a pending FOIA request?

706.43 Who will OPIC notify if a FOIA civil

lawsuit is filed?

706.44 What happens to business

information contained in OPIC records

transferred to the National Archives of

the United States?

Authority: 5 U.S.C. 552; 44 U.S.C. 2901, et

seq.; Executive Order 12600, 52 FR 23781, 3

CFR, 1987 Comp., p. 235.

Subpart A—General

§ 706.11 General provisions.

(a) Purpose. The purpose of this part

is to help interested parties obtain

access to the Overseas Private

Investment Corporation’s (OPIC’s)

Federal Register / Vol. 65, No. 92 / Thursday, May 11, 2000 / Proposed Rules 30371

records. Many OPIC records may be

accessed by the public without filing a

formal request under the Freedom of

Information Act (FOIA). Records that

are not routinely available, however,

must be requested under the FOIA. This

part also informs OPIC’s business

submitters of their right to be notified of

a request for disclosure of business

information and to object to such

disclosure. Finally, this part provides

information about FOIA requests for

records that OPIC has transferred to the

National Archives of the United States

(National Archives).

(b) Policy. OPIC’s policy is to make its

records available to the public to the

greatest extent possible, in keeping with

the spirit of the FOIA. This policy

includes providing reasonably

segregable information from documents

that also contain information that may

be withheld under the FOIA. However,

implementation of this policy also

reflects OPIC’s view that the soundness

and viability of many of its programs

depend in large measure upon full and

reliable commercial, financial, technical

and business information received from

applicants for assistance and that the

willingness of those applicants to

provide such information depends on

OPIC’s ability to hold it in confidence.

Consequently, except as provided by

applicable law and this part,

information provided to OPIC in

confidence will not be disclosed

without the submitter’s consent.

(c) Scope. This part applies to all

agency records in OPIC’s possession and

control. This part does not compel OPIC

to create records or to ask outside

parties to provide documents in order to

satisfy a FOIA request. OPIC may,

however, in its discretion and in

consultation with a FOIA requester,

create a new record as a partial or

complete response to a FOIA request. In

responding to requests for information,

OPIC will consider only those records

within its possession and control as of

the date of the request. This regulation

does not apply to requests for records

under the Privacy Act, 5 U.S.C. 552a.

OPIC regulations governing such

requests are located at 22 CFR part 707.

(d) OPIC Internet site. OPIC maintains

an Internet site at www.opic.gov. This

site contains information on OPIC

functions, activities, programs, and

transactions. OPIC encourages all

prospective requesters of information,

whether under FOIA or otherwise, to

visit its Internet site prior to submitting

a request.

(e) OPIC address. OPIC is located at

1100 New York Avenue, N.W.,

Washington, D.C. 20527. All

correspondence should be sent to this

address.

§ 706.12 Definitions.

For purposes of this part, the

following definitions shall apply:

All other requesters. Requesters other

than commercial use requesters,

educational and non-commercial

scientific requesters, or representatives

of the news media.

Business information. Trade secrets

and confidential or privileged

commercial or financial information

obtained from any person, including,

but not necessarily limited to,

information contained in individual

case files relating to such activities as

insurance, loans and loan guaranties.

Business submitter. Any person that

provides business information to OPIC.

Educational institution. A preschool,

a public or private elementary or

secondary school, an institution of

undergraduate or graduate higher

education, or an institution of

professional or vocational education.

FOIA. The Freedom of Information

Act, as amended, 5 U.S.C. 552.

Non-commercial scientific institution.

An institution that is operated for the

purpose of conducting scientific

research, the results of which are not

intended to promote any particular

product or industry, and that is not

operated solely for purposes of

furthering a business, trade, or profit

interest.

OPIC. The Overseas Private

Investment Corporation.

Person. An individual, partnership,

corporation, association, or

organization, other than a federal

government agency.

Record. All papers, memoranda, or

other documentary material, or copies

thereof, regardless of physical form or

characteristics, created or received by

OPIC and within OPIC’s possession and

control. Record does not include

publications that are available to the

public through the Federal Register,

sale or free distribution.

Redaction. The process of removing

non-disclosable material from a record

so that the remainder may be released.

Representative of the news media. A

person actively gathering information

on behalf of an entity organized and

operated to publish or broadcast news to

the public. Freelance journalists shall

qualify as representatives of the news

media when they can demonstrate that

a request is reasonably likely to lead to

publication.

Request. Any request made to OPIC

under the FOIA.

Requester. Any person making a

request.

Review. The examination of a record

located in response to a request in order

to determine whether any portion of the

record is exempt from disclosure.

Review also includes processing any

record for disclosure—for example,

doing all that is necessary to redact and

prepare the record for disclosure.

Review also includes time spent

considering any formal objection to

disclosure made by a business

submitter, but does not include time

spent resolving general legal or policy

issues regarding the application of

exemptions.

Search. The process of looking for and

retrieving records or information

responsive to a request. It includes pageby-page or line-by-line identification of

information within records and also

includes reasonable efforts to locate and

retrieve information from records

maintained in electronic form or format.

Working days. All calendar days

excluding Saturdays, Sundays, Federal

Government holidays, and any other

day on which OPIC is not open for

business.

Subpart B—Procedures for Obtaining

Publicly Available Records

§ 706.21 What types of OPIC records are

publicly available, and how do I obtain

access to or copies of these records?

(a) Electronic access. (1) Many OPIC

records are readily available to the

public by electronic access, including

OPIC’s Annual Report, OPIC’s Program

Handbook, OPIC press releases, and

application forms for OPIC assistance.

Persons seeking information are

encouraged to visit OPIC’s Internet site

at: www.opic.gov.

(2) Records relating to OPIC’s FOIA

program, including records required by

the FOIA to be made electronically

available, records which have been the

subject of frequent FOIA requests, and

OPIC’s annual FOIA Report are

available in OPIC’s Electronic Reading

Room. OPIC’s Electronic Reading Room

may be accessed through the ‘‘FOIA’’

link on OPIC’s Internet site at:

www.opic.gov. The Electronic Reading

Room also contains an index of records

available electronically. Generally, only

records created after November 1, 1996

are available electronically.

(b) Offline access. Publicly-available

OPIC materials are readily available on

OPIC’s Internet site at www.opic.gov. If

you do not have access to the Internet,

you may obtain many of the same

materials by contacting one or more of

the sources listed as follows:

(1) General information. General

information (e.g., OPIC’s Annual Report,

OPIC’s Program Handbook, and

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application forms for OPIC assistance)

are available from OPIC’s Information

Officer. To obtain access to or copies of

these records, call (202) 336–8400 and

ask to be connected with the

Information Officer or write to the

Information Officer.

(2) Claims information. OPIC’s

Department of Legal Affairs maintains

public information files relating to the

determination of claims filed under

OPIC’s political risk insurance contracts

and a list of all claims resolved by cash

settlements or guaranties. To obtain

access to or copies of these records, call

(202) 336–8400 and ask to be connected

with the Claims Assistant in Legal

Affairs or write to the Claims Assistant,

Department of Legal Affairs.

(3) Materials concerning OPIC’s Board

of Directors. The Corporate Secretary

maintains public information files

containing the minutes of the public

portions of Board of Directors meetings,

as well as public-releasable Board

resolutions. To obtain access to or

copies of these records, call (202) 336–

8400 and ask to be connected with the

Corporate Secretary or write to the

Corporate Secretary.

(4) Press releases. OPIC’s Press Office

maintains copies of OPIC’s press

releases. To obtain access to or copies of

these records, call (202) 336–8400 and

ask to be connected with the Press

Office or write to the Press Office.

(5) Reading room material. Pursuant

to the FOIA, OPIC maintains certain

documents for public inspection and

photocopying, including documents

that have been the subject of frequent

FOIA requests. To obtain access to or

copies of these records, call (202) 336–

8400 and ask to be connected with the

FOIA Director or write to the FOIA

Director. OPIC maintains an index of

FOIA reading room records, which is

updated regularly.

Subpart C—Procedures for Obtaining

Records Under the FOIA

§ 706.31 How do I request copies of or

access to OPIC records that are not

otherwise available to the public?

(a) Submitting a request. To request

records that are not otherwise available

to the public, submit a written request

to OPIC’s FOIA Director either by mail,

by hand delivery, or by facsimile

transmission to (202) 408–0297. You

must sign your request, or it must be

signed on your behalf, and the request

must state that you are requesting

records under the FOIA. Your request is

considered received by OPIC upon

actual receipt by OPIC’s FOIA Director.

(b) Format. Although FOIA requests

do not need to follow a specific format,

you must include the following

information:

(1) You must reasonably describe the

records you seek. This means that you

must provide enough detail to enable

OPIC personnel to locate the records

with a reasonable amount of effort.

Whenever possible, your request should

include specific information about each

record sought, such as the date, title or

name, author, recipient, and subject

matter of the record. Any request that

does not reasonably describe the records

sought will not be considered received

by OPIC until the request is clarified.

OPIC will make reasonable efforts to

contact you to clarify your request, as

necessary.

(2) You must state the format (e.g.,

paper, computer disk, etc.) in which you

would like OPIC to provide the

requested records. If you don’t state a

preference, you will receive any

released records in the format most

convenient to OPIC.

(3) You must include your mailing

address and telephone number.

(4) You must state your willingness to

pay all costs chargeable under this part

or, alternately, your willingness to pay

fees up to a specified limit. If you

believe that you qualify for a partial or

total fee waiver, you should request a

waiver and provide justification as

required by § 706.35. If your request

does not contain a fee statement or a

request for a fee waiver, OPIC will

advise you of the requirements of this

paragraph (b)(4). If you fail to respond

within ten working days of such

notification, OPIC will not continue to

process your request.

§ 706.32 When will I receive a response to

my FOIA request?

(a) General. The FOIA requires OPIC

to respond within twenty working days

after the date on which OPIC’s FOIA

Director received the request.

(b) Order of processing. Generally,

OPIC responds to FOIA requests in the

order in which they are received.

(c) Extensions. (1) In unusual

circumstances, OPIC may require an

extension of time in which to respond

to your request. OPIC will provide

written notice to you whenever such

unusual circumstances exist. Unusual

circumstances may include: the need to

search for and collect requested records

from storage facilities located outside

OPIC’s premises; the need to search for,

collect, and appropriately examine a

voluminous amount of separate and

distinct records that are requested in a

single request; or the need for

consultation with another agency

having a substantial interest in the

request. If the extension is expected to

exceed ten working days, OPIC will

offer you the opportunity to:

(i) Alter your request so that

processing may be accelerated; or

(ii) Propose an alternative, feasible

time frame for processing the request.

(2) Where OPIC reasonably believes

that multiple requests submitted by a

requester, or by a group of requesters

acting in concert, constitute a single

request that would otherwise involve

unusual circumstances, and the requests

involve clearly related matters, they

may be aggregated for purposes of this

section.

(d) Expedited processing. (1) OPIC

will expedite processing of your FOIA

request if you provide information

indicating that one of the following

factors is present:

(i) Circumstances in which the lack of

expedited treatment could reasonably be

expected to pose an imminent threat to

the life or physical safety of an

individual; or

(ii) An urgent need to inform the

public about an actual or alleged federal

government activity, if the request is

made by a person primarily engaged in

disseminating information.

(2) You may make a request for

expedited processing at the time you

submit your FOIA request or at any later

time. If you make such a request, you

must submit a statement, certified to be

true and correct to the best of your

belief, explaining in detail the basis for

requesting expedited processing. OPIC

will notify you of its determination

concerning your request for expedited

processing within ten days after the date

of your request. You may appeal a

denial of a request for expedited

processing under the provisions at

§ 706.36. OPIC will grant expedited

consideration to any such appeal.

§ 706.33 How will OPIC respond to my

FOIA request?

(a) OPIC response. You will be

notified in writing once OPIC makes a

determination concerning your request.

OPIC will respond by providing the

requested records to you in whole or in

part and/or by denying your request in

whole or in part, or by notifying you

that OPIC will produce or withhold, in

whole or in part, the requested records.

If there are fees owing, OPIC will

respond to you once you have paid the

fees.

(1) Segregable records. If OPIC

determines that part(s) of a record are

exempt from disclosure under the FOIA,

any reasonably segregable part of the

record will be provided to you after

redaction of the exempt material. OPIC

will mark or annotate any such record

to show both the amount and the

Federal Register / Vol. 65, No. 92 / Thursday, May 11, 2000 / Proposed Rules 30373

location of the redacted information

wherever practicable. If segregation

would render the document

meaningless, however, OPIC will

withhold the entire record.

(2) Denials. A denial is a

determination to withhold any

requested record in whole or in part, a

determination that a requested record

cannot be located, or a determination

that what you requested is not a record

subject to the FOIA. If OPIC denies all

or part of your request, you will be

provided:

(i) The name, title, and signature of

the person responsible for the

determination;

(ii) The statutory basis for nondisclosure;

(iii) A statement that the denial may

be appealed under § 706.36 and a brief

description of the requirements of

§ 706.36; and

(iv) If entire documents or document

pages are withheld, an estimated

volume of the amount of material

withheld unless providing such an

estimate would harm an interest

protected by the FOIA exemption under

which the denial is made.

(b) Referrals to other government

agencies. If you request a record in

OPIC’s possession that was created or

classified by another Federal agency,

your request will be referred to that

agency for direct response to you. OPIC

will notify you of any such referral.

§ 706.34 What, if any, fees will I be

charged?

(a) General policy. You will generally

be charged for costs incurred by OPIC in

complying with your FOIA request, in

accordance with paragraph (c) of this

section and as required or permitted by

law. As explained more fully in

paragraph (c) of this section, fees will

vary according to your requester status.

(1) Search fees are $16 per hour.

(2) Review fees are $35 per hour.

(3) Duplication costs are $.15 per page

for photocopying, and direct costs for all

other media (including any operator

time involved).

(b) Anticipated fees. Your FOIA

request must specifically state that all

costs chargeable under this section will

be paid or, alternatively, that they will

be paid up to a specified limit. If your

request makes no reference to

anticipated fees and your request is

expected to involve fees of more than

$25, or OPIC estimates that the fees will

exceed the dollar limit specified in your

request, OPIC will promptly notify you

of the estimated fees.

(c) Uniform Fee Schedule. Fees will

be charged according to your requester

status.

(1) Commercial use requesters.

Commercial use requesters will be

charged the cost of all time spent

searching for and reviewing for release

the requested records, and for all

duplication costs.

(2) Educational and non-commercial

scientific institution requesters.

Educational and non-commercial

scientific institution requesters will be

charged only the costs of duplication.

No fee will be charged for the costs of

photocopying the first 100 pages of

documents or for the first $15 of other

media costs. To be eligible for inclusion

in this category, you must show that

your request is being made under the

auspices of a qualifying educational

institution or non-commercial scientific

institution and that the records are

sought in furtherance of scholarly (if the

request is from an educational

institution) or scientific (if the request is

from a non-commercial scientific

institution) research.

(3) Representatives of the news media.

Representatives of the news media will

be charged only the costs of duplication.

No fee will be charged for the costs of

photocopying the first 100 pages of

documents or for the first $15 of other

media costs. To be eligible for inclusion

in this category, you must be a

representative of the news media and

your request must not be made for a

commercial use. A request for records

that supports the news dissemination

function of the requester is not

considered to be a request that is for a

commercial use.

(4) All other requesters. All other

requesters will be charged for the cost

of any search time in excess of two

hours, photocopying any documents in

excess of 100 pages, and any costs in

excess of the first $15 of other media

costs.

(d) Fees for searches that produce no

records. Fees will be charged as

provided in this section even if OPIC’s

search and review does not generate any

disclosable records.

(e) Special services charges. At its

discretion, OPIC may comply with

requests for special services such as

certification of documents or shipping

methods other than regular U.S. mail.

You will be charged the direct costs of

any such services.

(f) Advance payments. Where OPIC

estimates that allowable fees are likely

to exceed $250, you will be required to

make an advance payment of the entire

fee before OPIC continues to process

your request. You will be provided an

opportunity to narrow the scope of your

request if you do not want to pay the

entire amount of the estimated fees.

(g) Restrictions on assessing fees.

With the exception of commercial use

requesters, the FOIA requires agencies

to provide the first 100 pages of

photocopying and the first two hours of

search time to requesters without

charge. Moreover, the FOIA prohibits

agencies from charging fees to any

requester, including commercial use

requesters, if the cost of collecting the

fee would be equal to or greater than the

fee itself. OPIC has determined that its

cost of collecting a FOIA fee is $15. In

implementing these provisions, OPIC

will not begin to assess fees until after

providing the free search and

reproduction, except for commercial use

requesters. For example, for a request

that would involve two hours and ten

minutes of search time and results in

105 pages of documents, OPIC will

determine the cost of only 10 minutes

of search time and only five pages of

reproduction. If this cost is equal to or

less than the cost of collecting the fee,

there will be no charge to the requester.

(h) Failure to pay fees. (1) OPIC will

begin assessing interest charges on the

31st day following the date of billing.

Interest will be at the rate prescribed in

section 3717 of Title 31 of the United

States Code.

(2) If you previously failed to pay a

FOIA fee to OPIC in a timely fashion,

you must pay the full amount owed plus

any applicable interest as provided

above and make an advance payment of

the full amount of the estimated fee

before OPIC processes a new FOIA

request from you.

(3) When OPIC acts under paragraph

(h)(1) or (2) of this section, the

administrative time limits for processing

FOIA requests (i.e. 20 working days

from receipt of initial request and 20

working days from receipt of appeals

plus permissible extensions) will begin

only after OPIC has received full

payment of all applicable fees and

interest.

§ 706.35 When will OPIC waive or reduce

fees?

(a) In accordance with the FOIA’s fee

waiver provisions, OPIC will furnish

documents to you without charge or at

a reduced charge if disclosure of the

information you request 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 your

commercial interest. In determining

whether a fee waiver is appropriate,

OPIC will consider the following

factors:

(1) Whether the subject of the

requested records concerns the

30374 Federal Register / Vol. 65, No. 92 / Thursday, May 11, 2000 / Proposed Rules

operations or activities of the

government;

(2) Whether disclosure of the

requested information is likely to

contribute significantly to public

understanding of government operations

or activities;

(3) Whether you have the intention

and ability to disseminate the

information to the public;

(4) Whether the information is already

in the public domain;

(5) Whether you have a commercial

interest that would be furthered by the

disclosure; and, if so,

(6) Whether the magnitude of your

identified commercial interest is

sufficiently large, in comparison with

the public interest in disclosure, that

disclosure is primarily in your

commercial interest.

(b) Justification. In all cases, you have

the burden of presenting sufficient

evidence or information to justify the

requested fee waiver or reduction.

(c) Inspection. You may come to

OPIC’s offices to inspect any releasable

records that you requested, without

charge to you except for search, review,

and/or duplication fees which are

otherwise payable.

(d) Other provisions. (1) Aggregating

requesters. When OPIC reasonably

believes that a requester or group of

requesters is attempting to break down

a request into a series of requests for the

purpose of evading the assessment of

fees, OPIC will aggregate any such

requesters and charge accordingly.

(2) Remittances. All payments under

this section should be in the form of a

check or a bank draft drawn on a bank

located in the United States.

Remittances shall be made payable to

the order of United States Treasury and

mailed to the OPIC FOIA Director.

§ 706.36 How may I appeal a partial or total

denial of records?

(a) Procedure. If your request for

records has been denied in whole or in

part, you may file an appeal within

twenty working days following the date

on which you receive OPIC’s denial.

Your appeal should be addressed to

OPIC’s Vice President and General

Counsel. Your appeal is considered

received by OPIC upon actual receipt by

OPIC’s Vice President and General

Counsel. You should clearly mark your

envelope and appeal letter as a

‘‘Freedom of Information Act Appeal.’’

Your appeal letter should reasonably

describe the information or records

requested and any other pertinent facts

and statements.

(b) Response. OPIC’s Vice President

and General Counsel or his/her designee

will render a written decision within

twenty working days after the date of

OPIC’s receipt of the appeal, unless an

extension of up to ten working days is

deemed necessary in accordance with

the procedures set forth in § 706.32. If

your appeal is denied in whole or in

part, the decision will explain OPIC’s

rationale for upholding the denial. If

your appeal is granted in whole or in

part, the information or requested

records will be made available

promptly, provided the requirements of

§ 706.34 regarding payment of fees are

satisfied.

Subpart D—Rights of Submitters of

Confidential Business Information

§ 706.41. How should business submitters

designate business information in materials

submitted to OPIC?

All business submitters should use

good-faith efforts to designate, by

appropriate markings, either at the time

of submission or within a reasonable

amount of time thereafter, any portions

of their submissions that they consider

to be protected from disclosure under

the FOIA. These markings will be

considered by OPIC in responding to a

FOIA request, but such markings will

not be dispositive as to whether the

marked information is ultimately

released.

§ 706.42 When will OPIC notify business

submitters of a pending FOIA request?

(a) Except as provided in paragraphs

(c) and (e) of this section, OPIC’s FOIA

Director will promptly notify a business

submitter in writing that a request for

disclosure has been made for any

business information provided by the

submitter. This notification will

describe the nature and scope of the

request, advise the submitter of its right

to submit written objections in response

to the request, and inform the submitter

of OPIC’s intent to disclose the business

information on the expiration of ten

working days from the date of the

notice. The notice will either describe

the business information requested or

include copies of the requested records.

(b)(1) The business submitter may, at

any time prior to the disclosure date

described in paragraph (a) of this

section, submit to OPIC’s FOIA Director

detailed written objections to the

disclosure of the requested information,

specifying the grounds upon which it

contends that the information should

not be disclosed. In setting forth such

grounds, the submitter should specify,

to the maximum extent feasible, the

basis of its belief that the nondisclosure

of any item of information requested is

mandated or permitted by law. In the

case of information that the submitter

believes to be exempt from disclosure

under subsection (b)(4) of the FOIA, the

submitter shall explain why the

information is considered a trade secret

or commercial or financial information

that is privileged or confidential and

either:

(i) How disclosure of the information

would cause substantial competitive

harm to the submitter; or

(ii) Why the information should be

considered voluntarily submitted and

why it is information that would not

customarily be publicly released by the

submitter.

(2) Information provided by a

business submitter pursuant to

paragraph (b)(1) of this section may

itself be subject to disclosure under the

FOIA.

(c) The period for providing OPIC

with objections to disclosure of

information may be extended by OPIC

upon receipt of a written request for an

extension from the business submitter.

Such written request shall set forth the

date upon which the objections are

expected to be completed and shall

provide reasonable justification for the

extension. OPIC may, in its discretion,

permit more than one extension.

(d) OPIC may sustain or deny the

submitter’s objections, in whole or in

part. If OPIC denies the submitter’s

objections, in whole or in part, OPIC

will promptly notify the business

submitter of its determination at least

five working days prior to release of the

information. The notification will

include:

(1) A statement of the reasons for

OPIC’s decision not to sustain the

business submitter’s objections;

(2) A description of the information to

be disclosed, or a copy thereof; and

(3) A specific disclosure date.

(e) OPIC will not ordinarily notify the

business submitter pursuant to

paragraph (a) of this section if:

(1) OPIC determines that the FOIA

request should be (1) denied;

(2) The disclosure is required by law

(other than pursuant to 5 U.S.C. 552); or

(3) The information has been

published or otherwise made available

to the public, including material

described in § 706.21.

§ 706.43 Who will OPIC notify if a FOIA

civil lawsuit is filed?

Whenever a requester files a lawsuit

seeking to compel the disclosure of

business information, OPIC will

promptly notify any business

submitter(s) that submitted information

at issue in the lawsuit.

Federal Register / Vol. 65, No. 92 / Thursday, May 11, 2000 / Proposed Rules 30375

§ 706.44 What happens to business

information contained in OPIC records

transferred to the National Archives of the

United States?

Pursuant to the Federal Records Act,

44 U.S.C. 2901, et seq., OPIC transfers

legal custody and control of records

with permanent historical value to the

National Archives. These records are

transferred in accordance with OPIC’s

records retention schedules, which are

approved by the Archivist of the United

States. Transfers of project records

generally occur five years after closeout

of the project (e.g., most records are not

transferred to the National Archives

until they are at least 25 years old). If

a FOIA request is made for records that

have been transferred, the National

Archives has the sole authority to

review the records and determine

whether or not to apply FOIA

exemptions. The National Archives is

not required to inform OPIC about the

FOIA request or to seek OPIC’s opinion

on disclosure of the records.

Dated: May 3, 2000.

Laura A. Naide,

FOIA Director and Senior Administrative

Counsel.

[FR Doc. 00–11504 Filed 5–10–00; 8:45 am]

BILLING CODE 3210–01–P

DEPARTMENT OF THE TREASURY

Office of the Secretary

31 CFR Part 10

[REG–111835–99]

RIN 1545–AY05

Regulations Governing Practice Before

the Internal Revenue Service

AGENCY: Office of the Secretary,

Treasury.

ACTION: Advance notice of proposed

rulemaking.

SUMMARY: This document provides

advance notice of proposed rulemaking

to amend the regulations governing

practice before the Internal Revenue

Service (IRS), which appear in the Code

of Federal Regulations and in pamphlet

form as Treasury Department Circular

No. 230, Regulations Governing the

Practice of Attorneys, Certified Public

Accountants, Enrolled Agents, Enrolled

Actuaries, and Appraisers before the

IRS. This document also invites

individuals and organizations to submit

comments on revising Circular No. 230

to address general standards of practice

and standards of practice relating to tax

shelters.

DATES: Submit comments on or before

July 5, 2000.

ADDRESSES: Send submissions to:

CC:DOM:CORP:R (REG–111835–99),

room 5226, Internal Revenue Service,

POB 7604, Ben Franklin Station,

Washington, DC 20044. Submissions

may be hand delivered Monday through

Friday between the hours of 8 a.m. and

5 p.m. to: CC:DOM:CORP:R (REG–

111835–99), Courier’s Desk, Internal

Revenue Service, 1111 Constitution

Avenue NW., Washington, DC. Submit

comments and data via electronic mail

(email) to http://www.irs.gov/taxlregs/

regslist.html.

FOR FURTHER INFORMATION CONTACT:

Concerning issues for comment, Richard

Goldstein at (202) 622–7880; concerning

submissions of comments and

delivering comments, Guy Traynor,

(202) 622–7180; (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

I. Background

Section 330 of title 31 of the United

States Code authorizes the Secretary of

the Treasury to regulate the practice of

representatives before the Department

and, after notice and an opportunity for

a proceeding, to suspend or disbar from

practice before the Department those

representatives who are incompetent,

disreputable, or who violate regulations

prescribed under section 330. Pursuant

to section 330, the Secretary has

published the regulations in Circular

No. 230 (31 CFR part 10). These

regulations authorize the Director of

Practice to act upon applications for

enrollment to practice before the IRS, to

institute proceedings for suspension or

disbarment from practice before the IRS,

to make inquiries with respect to

matters under the Director’s

jurisdiction, and to perform such other

duties as are necessary to carry out these

functions.

The regulations have been amended

from time to time to address various

specific issues in need of resolution. For

example, on February 23, 1984, the

regulations were amended to provide

standards for providing opinions used

in tax shelter offerings (49 FR 6719). On

October 17, 1985, the regulations were

amended to conform to legislative

changes requiring the disqualification of

an appraiser who is assessed a penalty

under section 6701 for aiding and

abetting the understatement of a tax

liability (50 FR 42014). The regulations

were most recently amended on June 20,

1994 (59 FR 31523) to provide standards

for tax return preparation, to limit the

use of contingent fees in return or

refund claim preparation, to provide

expedited rules for suspension, and to

clarify or amend certain other items.

On June 15, 1999, the Director of

Practice published an advance notice of

proposed rulemaking (64 FR 31994)

requesting comments on amendments to

the regulations that would take into

account legal developments,

professional integrity and fairness to

practitioners, taxpayer service, and

sound tax administration. The Treasury

Department received several comments

and is currently reviewing them. The

1999 advance notice of proposed

rulemaking contemplated a notice of

proposed rulemaking that would make

general revisions to Circular No. 230.

II. Tax Shelters

Following the release of the advance

notice of proposed rulemaking, the

Treasury Department issued a report on

the proliferation of corporate tax

shelters. See ‘‘The Problem of Corporate

Tax Shelters: Discussion, Analysis and

Legislative Proposals,’’ Department of

the Treasury, July 1999. In February of

this year, the Treasury Department and

the IRS took steps to deter abusive

shelters by publishing temporary

regulations requiring disclosure of

certain transactions by corporate

taxpayers (TD 8877, 65 FR 11205),

registration of confidential corporate tax

shelters (TD 8876, 65 FR 11215), and

maintenance of lists of investors in

certain tax shelters (TD 8875, 65 FR

11211).

In addition, practitioners and

organizations, such as the Section of

Taxation of the ABA, have

recommended that the Treasury

Department revise Circular No. 230 to

raise the standards for providing advice

with respect to corporate tax shelters.

The Treasury Department and the IRS

agree that it is appropriate to review the

standards that should be followed by

practitioners who provide advice with

respect to such transactions.

III. Request for Comments

The Treasury Department and the IRS

invite comments relating to standards of

practice governing tax shelters and other

general matters. The Treasury

Department and the IRS are particularly

interested in receiving comments on the

following matters.

A. Opinion Standards of Circular No.

230

1. Whether the opinion standards in

§ 10.33 (relating to tax opinions

provided for the marketing of tax

shelters) should be revised.

2. Whether Circular No. 230 should

establish standards for tax opinions

other than those provided for in § 10.33