34606 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules

access panels or doors. Stands, ladders, or

platforms may be required to gain proximity

to the area being checked.’’

Alternative Methods of Compliance

(b) An alternative method of compliance or

adjustment of the compliance time that

provides an acceptable level of safety may be

used if approved by the Manager, Seattle

Aircraft Certification Office (ACO), FAA,

Transport Airplane Directorate. Operators

shall submit their requests through an

appropriate FAA Principal Maintenance

Inspector, who may add comments and then

send it to the Manager, Seattle ACO.

Note 3: Information concerning the

existence of approved alternative methods of

compliance with this AD, if any, may be

obtained from the Seattle ACO.

Special Flight Permits

(c) Special flight permits may be issued in

accordance with sections 21.197 and 21.199

of the Federal Aviation Regulations (14 CFR

21.197 and 21.199) to operate the airplane to

a location where the requirements of this AD

can be accomplished.

Issued in Renton, Washington, on May 24,

2000.

Donald L. Riggin,

Acting Manager, Transport Airplane

Directorate, Aircraft Certification Service.

[FR Doc. 00–13568 Filed 5–30–00; 8:45 am]

BILLING CODE 4910–13–P

DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Parts 4, 4a and 4b

[Docket No. 990723201–9201–01]

RIN 0605–AA14

Public Information, Freedom of

Information and Privacy

AGENCY: Department of Commerce.

ACTION: Notice of proposed rulemaking.

SUMMARY: This document sets forth

proposed revisions of Department of

Commerce (Department) regulations

regarding the Freedom of Information

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

declassification and public availability

of national security information. It

contains new provisions implementing

the Electronic Freedom of Information

Act (EFOIA) Amendments of 1996,

reflects the principles established by

President Clinton and Attorney General

Reno in their FOIA Policy Memoranda

of October 4, 1993, incorporates

updated cost figures to be used in

charging fees, and streamlines and

clarifies the regulations. The proposed

PA revisions update and clarify certain

provisions, and make technical changes.

The proposed revisions of the

regulations regarding declassification

and public availability of national

security information implement

Executive Order 12958, and streamline

and clarify the regulations.

DATES: Comments must be received on

or before June 30, 2000.

ADDRESSES: Address all comments

concerning this proposed rule to

Andrew W. McCready, AttorneyAdvisor, U.S. Department of Commerce,

Office of the Assistant General Counsel

for Administration, Room 5875, 14th

and Constitution Avenue, NW.,

Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT:

Andrew W. McCready, 202–482–8044.

SUPPLEMENTARY INFORMATION: The

Department issued a proposed rule to

revise its FOIA and PA regulations on

February 21, 1996 (61 FR 6585–6587),

but will not issue that rule in final form

because of the subsequent passage of the

Electronic Freedom of Information Act

(EFOIA) Amendments of 1996 (Pub. L.

104–231). Relevant portions of that

proposed rule are incorporated into the

proposed rule below.

The proposed amendment to 15 CFR

part 4 adds new provisions to

implement the EFOIA Amendments of

1996. New provisions implementing the

amendments are found at § 4.2(b)

(electronic reading rooms), § 4.6(b)

(timing of responses), § 4.6(d)

(multitrack processing), § 4.6(e)

(expedited processing), § 4.7(a), (b)(3)

(deletion marking and estimation of

volume of information withheld),

§ 4.11(b)(3) (format of disclosure), and

§ 4.11(b)(8) (electronic searches).

Proposed revisions of the

Department’s fee schedule are at § 4.11.

The duplication charge will increase

from $.07 to $.15 per page. Section

4.1(a) includes a new statement of

discretionary disclosure policy, which

reflects the principles established by

President Clinton and Attorney General

Reno in their FOIA Memoranda of

October 4, 1993.

The Department proposes to remove

part 4b, which contains the

Department’s PA regulations, and to

incorporate revised PA provisions as a

new subpart B to part 4. The proposed

subpart B expands the list of PA officers

to include all FOIA officers; changes the

official responsible for adjudicating PA

appeals of denials of requests for access,

correction, and amendment from the

General Counsel to the Assistant

General Counsel for Administration;

and streamlines and clarifies the

regulations.

Appendix A to part 4 is being

removed. Appendix B and C are being

redesignated as appendices A and B to

part 4, and are being revised to include

updated addresses and telephone

numbers of public inspection facilities,

and updated addresses for requests for

records under the FOIA and PA.

Appendices A and C to part 4b are being

removed, and appendix B is being

redesignated as appendix C to part 4.

The proposed amendment to 15 CFR

part 4a implements Executive Order

12958; eliminates the requirement that

the Department’s Office of Security

coordinate with the Office of the

Assistant General Counsel for

Administration with respect to

declassification and FOIA matters; and

streamlines and clarifies the regulations.

It has been determined that this rule

is significant under Executive Order

12866.

This rule does not contain a

‘‘collection of information’’ as defined

by the Paperwork Reduction Act.

In accordance with the Regulatory

Flexibility Act (5 U.S.C. 605(b)), the

Chief Counsel for Regulation has

certified to the Chief Counsel for

Advocacy of the Small Business

Administration that this rule will not

have a significant economic impact on

a substantial number of small entities.

Under the FOIA, agencies may recover

only the direct costs of searching for,

reviewing, and duplicating the records

processed for requesters. Thus, the fees

the Department assesses are ordinarily

nominal. Further, the number of ‘‘small

entities’’ that make FOIA requests is

relatively small compared to the number

of individuals who make such requests.

List of Subjects

15 CFR Part 4

Administrative practice and

procedure, Freedom of Information,

Privacy, Public information.

15 CFR Part 4a

Administrative practice and

procedure, Classified information.

15 CFR Part 4b

Privacy.

For the reasons stated in the

preamble, the Department of Commerce

proposes to amend 15 CFR Subtitle A as

set forth below:

1. Revise Part 4 to read as follows:

PART 4—DISCLOSURE OF

GOVERNMENT INFORMATION

Subpart A—Freedom of Information Act

Sec.

4.1 General.

4.2 Public reference facilities.

4.3 Records under the FOIA.

4.4 Requirements for making requests.

4.5 Responsibility for responding to

requests.

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules 34607

4.6 Time limits and expedited processing.

4.7 Responses to requests.

4.8 Classified information.

4.9 Business Information.

4.10 Appeals from initial determinations or

untimely delays.

4.11 Fees.

Subpart B—Privacy Act

4.21 Purpose and scope.

4.22 Definitions.

4.23 Procedures for making inquiries.

4.24 Procedures for making requests for

records.

4.25 Disclosure of requested records to

individuals.

4.26 Special procedures: Medical records.

4.27 Procedures for making requests for

correction or amendment.

4.28 Agency review of requests for

correction or amendment.

4.29 Appeal of initial adverse agency

determination on correction or

amendment.

4.30 Disclosure of record to person other

than the individual to whom it pertains.

4.31 Fees.

4.32 Penalties.

4.33 General exemptions.

4.34 Specific exemptions.

Appendix A to Part 4—Freedom of

Information Public Inspection Facilities,

and Addresses for Requests for Records

Under the Freedom of Information Act

and Privacy Act, and Requests for

Correction or Amendment Under the

Privacy Act

Appendix B to Part 4—Officials Authorized

to Deny Requests for Records Under the

Freedom of Information Act and

Requests for Correction or Amendment

under the Privacy Act

Appendix C to Part 4—Systems of Records

Noticed by Other Federal Agencies and

Applicable to Records of the Department,

and Applicability of this Part Thereto

Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5

U.S.C. 552a; 5 U.S.C. 553; 44 U.S.C. 3101,

3717; Reorganization Plan No. 5 of 1950.

Subpart A—Freedom of Information

Act

§ 4.1 General.

(a) The information in this part is

furnished for the guidance of the public

and in compliance with the

requirements of the Freedom of

Information Act (FOIA), as amended (5

U.S.C. 552). This part sets forth the

procedures the Department of

Commerce (Department) and its

components follow to make publicly

available the materials and indices

specified in 5 U.S.C. 552(a)(2) and

records requested under 5 U.S.C.

552(a)(3). Information routinely

provided to the public as part of a

regular Department activity (for

example, press releases issued by the

Office of Public Affairs) may be

provided to the public without

following this part. The Department’s

policy is to make discretionary

disclosures of records or information

exempt from disclosure under the FOIA

whenever disclosure would not

foreseeably harm an interest protected

by a FOIA exemption, but this policy

does not create any right enforceable in

court.

(b) As used in this subpart,

component means any office, division,

bureau or other unit of the Department

listed in Appendix A to this part.

§ 4.2 Public reference facilities.

(a) The Department maintains public

reference facilities (listed in Appendix

A to this part) that contain the records

the FOIA requires to be made regularly

available for public inspection and

copying; furnish information and

otherwise assist the public concerning

Department operations under the FOIA;

and receive and process requests for

records under the FOIA. Each

component of the Department is

responsible for determining which of its

records are required to be made

available for public inspection and

copying, and for making those records

available either in its own public

reference facility or in the Department’s

Central Reference and Records

Inspection Facility. Each component

shall maintain and make available for

public inspection and copying a current

subject-matter index of its public

inspection facility records. Each index

shall be updated regularly, at least

quarterly, with respect to newly

included records. In accordance with 5

U.S.C. 552(a)(2), the Department has

determined that it is unnecessary and

impracticable to publish quarterly or

more frequently and distribute copies of

the index and supplements thereto.

(b) Components shall also make

public inspection facility records

created by the Department on or after

November 1, 1996 available

electronically through the Department’s

World Wide Web site (http://

www.doc.gov). Information available at

the site shall include:

(1) Each component’s index of its

public inspection facility records, which

indicates which records are available

electronically; and

(2) The general index referred to in

paragraph (c)(3) of this section.

(c) The Department maintains and

makes available for public inspection

and copying:

(1) A current index providing

identifying information for the public as

to any matter that is issued, adopted, or

promulgated after July 4, 1997, and that

is retained as a record and is required

to be made available or published.

Copies of the index are available upon

request after payment of the direct cost

of duplication;

(2) Copies of records that have been

released and that the agency determines,

because of their subject matter, have

become or are likely to become the

subject of subsequent requests for

substantially the same records;

(3) A general index of the records

described in paragraph (c)(2) of this

section;

(4) Final opinions and orders,

including concurring and dissenting

opinions made in the adjudication of

cases;

(5) Those statements of policy and

interpretations that have been adopted

by the component and are not published

in the Federal Register; and

(6) Administrative staff manuals and

instructions to staff that affect a member

of the public.

§ 4.3 Records under the FOIA.

(a) Records under the FOIA include

all Government records, regardless of

format, medium or physical

characteristics, and include electronic

records and information, audiotapes,

videotapes, and photographs.

(b) There is no obligation to create,

compile, or obtain from outside the

Department a record to satisfy a FOIA

request. With regard to electronic data,

the issue of whether records are created

or merely extracted from an existing

database is not always apparent. When

responding to FOIA requests for

electronic data where creation of a

record or programming becomes an

issue, the Department shall undertake

reasonable efforts to search for the

information in electronic format.

(c) Department officials may, upon

request, create and provide new

information pursuant to user fee

statutes, such as the first paragraph of

15 U.S.C. 1525, or in accordance with

authority otherwise provided by law.

This is outside the scope of the FOIA.

(d) Components shall preserve all

correspondence pertaining to the

requests they receive under this subpart,

as well as copies of all requested

records, until disposition or destruction

is authorized by Title 44 of the United

States Code or the National Archives

and Records Administration’s General

Records Schedule 14. Components shall

not dispose of records while they are the

subject of a pending request, appeal, or

lawsuit under the FOIA.

§ 4.4 Requirements for making requests.

(a) A request for records of the

Department which are not customarily

made available to the public as part of

the Department’s regular informational

services must be in writing, and shall be

34608 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules

processed under the FOIA, regardless

whether the FOIA is mentioned in the

request. Requests should be sent to the

Department component identified in

Appendix A to this part that maintains

those records (records the FOIA requires

to be made regularly available for public

inspection and copying are addressed in

§ 4.2(c)). If the proper component

cannot be determined, the request

should be addressed to the central

facility identified in Appendix A to this

part. The central facility will forward

the request to the component(s) it

believes most likely to have the

requested records. For the quickest

handling, the request letter and

envelope should be marked ‘‘Freedom

of Information Act Request.’’ For

requests for records about oneself, § 4.24

contains additional requirements. For

requests for records about another

individual, either a written

authorization signed by that individual

permitting disclosure of those records to

the requester or proof that that

individual is deceased (for example, a

copy of a death certificate or an

obituary) facilitates processing the

request.

(b) The records requested must be

described in enough detail to enable

Department personnel to locate them

with a reasonable amount of effort.

Whenever possible, a request should

include specific information about each

record sought, such as the date, title or

name, author, recipient, and subject

matter of the record, and the name and

location of the office where the record

is located. Also, if records about a court

case are sought, the title of the case, the

court in which the case was filed, and

the nature of the case should be

included. If known, any file

designations or descriptions for the

requested records should be included.

In general, the more specifically the

request describes the records sought, the

greater the likelihood that the

Department will locate those records. If

a component determines that a request

does not reasonably describe records, it

shall inform the requester what

additional information is needed or why

the request is otherwise insufficient.

The component also shall give the

requester an opportunity to discuss the

request so that it may be modified to

meet the requirements of this section.

§ 4.5 Responsibility for responding to

requests.

(a) In general. Except as stated in

paragraph (b) of this section, the proper

component of the Department to

respond to a request for records is the

component that first receives the request

and has responsive records, or the

component to which the central facility

identified in Appendix A to this part

assigns responsibility for responding to

the request, based on which component

it believes has the majority of

responsive records. In determining

records responsive to a request, a

component shall include only those

records within the component’s

possession and control as of the date it

receives the request.

(b) Consultations and referrals. If a

component receives a request for a

record in its possession in which

another Federal agency subject to the

FOIA has the primary interest, the

component shall refer the record to that

agency for direct response to the

requester. A component shall consult

with another Federal agency before

responding to a requester if the

component receives a request for a

record in which another Federal agency

subject to the FOIA has a significant

interest, but not the primary interest; or

another Federal agency not subject to

the FOIA has the primary interest or a

significant interest. Ordinarily, the

agency that originated a record will be

presumed to have the primary interest

in it (see § 4.8 for additional information

about referrals of classified

information).

(c) Notice of referral. Whenever a

component refers a document to another

Federal agency for direct response to the

requester, it ordinarily shall notify the

requester in writing of the referral and

inform the requester of the name of the

agency to which the document was

referred.

(d) Timing of responses to

consultations and referrals. All

consultations and referrals shall be

handled according to the date the FOIA

request was received by the first Federal

agency.

(e) Agreements regarding

consultations and referrals. Components

may make agreements with other

Federal agencies to eliminate the need

for consultations or referrals for

particular types of records.

§ 4.6 Time limits and expedited

processing.

(a) In general. Components ordinarily

shall respond to requests according to

their order of receipt.

(b) Initial response and appeal.

Subject to paragraph (c)(1) of this

section, an initial response shall be

made within 20 working days (i.e.,

excluding Saturdays, Sundays, and days

on which Federal offices are closed) of

the receipt of a request for a record

under this part by the proper

component identified in accordance

with § 4.5(a), and an appeal shall be

decided within 20 working days of its

receipt by the Office of the General

Counsel.

(c) Unusual circumstances. (1) In

unusual circumstances as specified in

paragraph (c)(2) of this section, an

official listed in Appendix B to this part

may extend the time limits in paragraph

(b) of this section by notifying the

requester in writing as soon as

practicable of the unusual

circumstances and of the date by which

processing of the request is expected to

be completed. Extensions of time for the

initial determination and extensions on

appeal may not exceed a total of ten

working days, unless the requester

agrees to a longer extension, or the

component provides the requester with

an opportunity either to limit the scope

of the request so that it may be

processed within the applicable time

limit, or to arrange an alternative time

frame for processing the request or a

modified request.

(2) As used in this section, unusual

circumstances means, but only to the

extent reasonably necessary to properly

process the particular request:

(i) The need to search for and collect

the requested records from field

facilities or other establishments

separate from the office processing the

request;

(ii) The need to search for, collect,

and appropriately examine a

voluminous amount of separate and

distinct records which are the subject of

a single request; or

(iii) The need for consultation, which

shall be conducted with all practicable

speed, with another component or

Federal agency having a substantial

interest in the determination of the

request.

(3) Unusual circumstances do not

include a delay that results from a

predictable agency workload of

requests, unless the Department

demonstrates reasonable progress in

reducing its backlog of pending

requests. Refusal to reasonably modify

the scope of a request or arrange an

alternate time frame may affect a

requester’s ability to obtain judicial

review.

(4) If a component 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, the

component may aggregate them.

Multiple requests involving unrelated

matters will not be aggregated.

(d) Multitrack processing. (1) A

component may use two or more

processing tracks by distinguishing

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules 34609

between simple and more complex

requests based on the number of pages

involved, or some other measure of the

amount of work and/or time needed to

process the request, and whether the

request qualifies for expedited

processing as described in paragraph (e)

of this section.

(2) A component using multitrack

processing may provide requesters in its

slower track(s) with an opportunity to

limit the scope of their requests in order

to qualify for faster processing. A

component doing so shall contact the

requester by telephone or by letter,

whichever is most efficient in each case.

(e) Expedited processing. (1) Requests

and appeals shall be taken out of order

and given expedited treatment

whenever it is determined they involve:

(i) Circumstances in which the lack of

expedited treatment could reasonably be

expected to pose an imminent threat to

the life or physical safety of an

individual;

(ii) The loss of substantial due process

rights;

(iii) A matter of widespread and

exceptional media interest in which

there exist questions about the

Government’s integrity which affect

public confidence; or

(iv) An urgency to inform the public

about an actual or alleged Federal

Government activity, if made by a

person primarily engaged in

disseminating information.

(2) A request for expedited processing

may be made at the time of the initial

request for records or at any later time.

For a prompt determination, a request

for expedited processing should be sent

to the component listed in Appendix A

to this part that maintains the records

requested.

(3) A requester who seeks expedited

processing must submit a statement,

certified to be true and correct to the

best of that person’s knowledge and

belief, explaining in detail the basis for

requesting expedited processing. For

example, a requester within the category

described in paragraph (e)(1)(iv) of this

section, if not a full-time member of the

news media, must establish that he or

she is a person whose main professional

activity or occupation is information

dissemination, though it need not be his

or her sole occupation. A requester

within the category described in

paragraph (e)(1)(iv) of this section must

also establish a particular urgency to

inform the public about the Government

activity involved in the request, beyond

the public’s right to know about

Government activity generally. The

formality of certification may be waived

as a matter of administrative discretion.

(4) Within ten calendar days of its

receipt of a request for expedited

processing, the proper component shall

decide whether to grant it and shall

notify the requester of the decision. If a

request for expedited treatment is

granted, the request shall be given

priority and processed as soon as

practicable. If a request for expedited

processing is denied, any appeal of that

decision shall be acted on

expeditiously.

§ 4.7 Responses to requests.

(a) Grants of requests. If a component

makes a determination to grant a request

in whole or in part, it shall notify the

requester in writing. The component

shall inform the requester in the notice

of any fee charged under § 4.11 and

disclose records to the requester

promptly upon payment of any

applicable fee. Records disclosed in part

shall be marked or annotated to show

the applicable FOIA exemption(s) and

the amount of information deleted,

unless doing so would harm an interest

protected by an applicable exemption.

The location of the information deleted

shall also be indicated on the record, if

feasible.

(b) Adverse determinations of

requests. If a component makes an

adverse determination regarding a

request, it shall notify the requester of

that determination in writing. An

adverse determination is a denial of a

request in any respect, namely: a

determination to withhold any

requested record in whole or in part; a

determination that a requested record

does not exist or cannot be located; a

determination that a record is not

readily reproducible in the form or

format sought by the requester; a

determination that what has been

requested is not a record subject to the

FOIA (except that a determination

under § 4.11(j) that records are to be

made available under a fee statute other

than the FOIA is not an adverse

determination); a determination against

the requester on any disputed fee

matter, including a denial of a request

for a fee waiver; or a denial of a request

for expedited treatment. Each denial

letter shall be signed by an official listed

in Appendix B to this part, and shall

include:

(1) The name and title or position of

the denying official;

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

for the denial, including applicable

FOIA exemption(s);

(3) An estimate of the volume of

records or information withheld, in

number of pages or some other

reasonable form of estimation. This

estimate need not be provided if the

volume is otherwise indicated through

deletions on records disclosed in part,

or if providing an estimate would harm

an interest protected by an applicable

FOIA exemption; and

(4) A statement that the denial may be

appealed, and a list of the requirements

for filing an appeal under § 4.10(b).

§ 4.8 Classified information.

In processing a request for

information classified under Executive

Order 12958 or any other executive

order concerning the classification of

records, the information shall be

reviewed to determine whether it

should remain classified. Ordinarily the

component or other Federal agency that

classified the information should

conduct the review, except that if a

record contains information that has

been derivatively classified by a

component because it contains

information classified by another

component or agency, the component

shall refer the responsibility for

responding to the request to the

component or agency that classified the

underlying information. Information

determined to no longer require

classification shall not be withheld on

the basis of FOIA Exemption 1 (5 U.S.C.

552(b)(1)). Appeals involving classified

information shall be processed in

accordance with § 4.10(c).

§ 4.9 Business information.

(a) In general. Business information

obtained by the Department from a

submitter will be disclosed under the

FOIA only under this section.

(b) Definitions. For the purposes of

this section:

(1) Business information means

commercial or financial information,

obtained by the Department from a

submitter, which may be protected from

disclosure under FOIA exemption 4 (5

U.S.C. 552(b)(4)).

(2) Submitter means any person or

entity outside the Federal Government

from whom the Department obtains

business information, directly or

indirectly. The term includes

corporations; state, local and tribal

governments; and foreign governments.

(c) Designation of business

information. A submitter of business

information should designate by

appropriate markings, either at the time

of submission or at a reasonable time

thereafter, any portions of its

submission that it considers to be

protected from disclosure under FOIA

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.

34610 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules

(d) Notice to submitters. A component

shall provide a submitter with prompt

written notice of a FOIA request or

administrative appeal that seeks its

business information whenever required

under paragraph (e) of this section,

except as provided in paragraph (h) of

this section, in order to give the

submitter an opportunity under

paragraph (f) of this section to object to

disclosure of any specified portion of

that information. Such written notice

shall be sent via certified mail, return

receipt request, or similar means. The

notice shall either describe the business

information requested or include copies

of the requested records containing the

information. When notification of a

large number of submitters is required,

notification may be made by posting or

publishing the notice in a place

reasonably likely to accomplish

notification.

(e) When notice is required. Notice

shall be given to the submitter

whenever:

(1) The information has been

designated in good faith by the

submitter as protected from disclosure

under FOIA exemption 4; or

(2) The component has reason to

believe that the information may be

protected from disclosure under FOIA

exemption 4.

(f) Opportunity to object to disclosure.

A component shall allow a submitter

seven working days (i.e., excluding

Saturdays, Sundays, and days on which

Federal offices are closed) from the date

of receipt of the written notice described

in paragraph (d) of this section to

provide the component with a detailed

statement of any objection to disclosure.

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. If a submitter fails to

respond to the notice within the time

specified, the submitter will be

considered to have no objection to

disclosure of the information.

Information a submitter provides under

this paragraph may itself be subject to

disclosure under the FOIA.

(g) Notice of intent to disclose. A

component shall consider a submitter’s

objections and specific grounds under

the FOIA for nondisclosure in deciding

whether to disclose business

information. If a component decides to

disclose business information over the

objection of a submitter, the component

shall give the submitter written notice

via certified mail, return receipt

requested, or similar means, which shall

include:

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

submitter’s objections to disclosure

were not sustained;

(2) A description of the business

information to be disclosed; and

(3) A statement that the component

intends to disclose the information

seven working days from the date the

submitter receives the notice.

(h) Exceptions to notice requirements.

The notice requirements of paragraphs

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

if:

(1) The component determines that

the information should not be disclosed;

(2) The information has been lawfully

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 Executive Order 12600;

or

(4) The designation made by the

submitter under paragraph (c) of this

section appears obviously frivolous, in

which case the component shall provide

the submitter written notice of any final

decision to disclose the information

seven working days from the date the

submitter receives the notice.

(i) Notice of FOIA lawsuit. Whenever

a requester files a lawsuit seeking to

compel the disclosure of business

information, the component shall

promptly notify the submitter.

(j) Corresponding notice to requesters.

Whenever a component provides a

submitter with notice and an

opportunity to object to disclosure

under paragraph (d) of this section, the

component shall also notify the

requester(s). Whenever a submitter files

a lawsuit seeking to prevent the

disclosure of business information, the

component shall notify the requester(s).

§ 4.10 Appeals from initial determinations

or untimely delays.

(a) If a request for records is initially

denied in whole or in part, or has not

been timely determined, or if a requester

receives an adverse initial

determination regarding any other

matter under this subpart (as described

in § 4.7(b)), the requester may file a

written appeal, which must be received

by the Office of General Counsel within

thirty calendar days of the date of the

written denial or, if there has been no

determination, may be submitted

anytime after the due date, including

the last extension under § 4.6(c), of the

determination.

(b) Appeals shall be decided by the

Assistant General Counsel for

Administration (AGC-Admin), except

that appeals for records which were

initially denied by the AGC-Admin

shall be decided by the General

Counsel. Appeals should be addressed

to the AGC-Admin, or the General

Counsel if the records were initially

denied by the AGC-Admin. The address

of both is: U.S. Department of

Commerce, Office of General Counsel,

Room 5875, 14th and Constitution

Avenue NW, Washington, DC 20230.

Both the letter and the appeal envelope

should be clearly marked ‘‘Freedom of

Information Appeal’’. The appeal must

include a copy of the original request

and the initial denial, if any, and may

include a statement of the reasons why

the records requested should be made

available and why the initial denial, if

any, was in error. No opportunity for

personal appearance, oral argument or

hearing on appeal is provided.

(c) Appeals involving records initially

denied on the basis of FOIA exemption

1 (5 U.S.C. 552(b)(1)) shall be forwarded

to the Deputy Assistant Secretary for

Security (DAS) for a declassification

review. The DAS may overrule previous

classification determinations in whole

or in part when, in his judgment,

continued protection in the interest of

national security is no longer required,

or no longer required at the same level.

The DAS shall advise the AGC-Admin,

or the General Counsel, as appropriate,

of his decision.

(d) If an appeal is granted, the person

making the appeal shall be immediately

notified and copies of the releasable

documents shall be made available

promptly thereafter upon receipt of

appropriate fees determined in

accordance with § 4.11.

(e) If no determination of an appeal

has been sent to the requester within the

twenty working day period specified in

§ 4.6(b) or the last extension thereof, the

requester is deemed to have exhausted

his administrative remedies with

respect to the request, giving rise to a

right of judicial review under 5 U.S.C.

552(a)(6)(C). If the person making a

request initiates a court action against

the Department based on the provision

in this paragraph, the administrative

appeal process may continue.

(f) A determination on appeal shall be

in writing and, when it denies records

in whole or in part, the letter to the

requester shall include:

(1) A brief explanation of the basis for

the denial, including a list of applicable

FOIA exemptions and a description of

how the exemptions apply;

(2) A statement that the decision is

final for the Department;

(3) Notification that judicial review of

the denial is available in the district in

which the requester resides or has his

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules 34611

principal place of business, the district

in which the agency records are located,

or the District of Columbia; and

(4) The name and title or position of

the official responsible for denying the

appeal.

§ 4.11 Fees.

(a) In general. Components shall

charge for processing requests under the

FOIA in accordance with paragraph (c)

of this section, except when fees are

limited under paragraph (d) of this

section or when a waiver or reduction

of fees is granted under paragraph (k) of

this section. A component shall collect

all applicable fees before sending copies

of requested records to a requester.

Requesters must pay fees by check or

money order made payable to the

Treasury of the United States.

(b) Definitions. For purposes of this

section:

(1) Commercial use request means a

request from or on behalf of a person

who seeks information for a use of

purpose that furthers his or her

commercial, trade, or profit interests,

which can include furthering those

interests through litigation. Components

shall determine, whenever reasonably

possible, the use to which a requester

will put the requested records. When it

appears that the requester will put the

records to a commercial use, either

because of the nature of the request

itself or because a component has

reasonable cause to doubt a requester’s

stated use, the component shall provide

the requester a reasonable opportunity

to submit further clarification.

(2) Direct costs means those expenses

a component incurs in searching for and

duplicating (and, in the case of

commercial use requests, reviewing)

records to respond to a FOIA request.

Direct costs include, for example, the

labor costs of the employee performing

the work (the basic rate of pay for the

employee, plus 16 percent of that rate to

cover benefits). Not included in direct

costs are overhead expenses such as the

costs of space and heating or lighting of

the facility in which the records are

kept.

(3) Duplication means the making of

a copy of a record, or of the information

contained in it, necessary to respond to

a FOIA request. Copies may take the

form of paper, microform, audiovisual

materials, or electronic records (for

example, magnetic tape or disk), among

others. A component shall honor a

requester’s specified preference of form

or format of disclosure if the record is

readily reproducible with reasonable

efforts in the requested form or format

by the component responding to the

request.

(4) Educational institution means a

preschool, a public or private

elementary or secondary school, an

institution of undergraduate higher

education, an institution of graduate

higher education, an institution of

professional education, or an institution

of vocational education, that operates a

program of scholarly research. To be in

this category, a requester must show

that the request is authorized by and is

made under the auspices of a qualifying

institution, and that the records are

sought to further scholarly research

rather than for a commercial use.

(5) Noncommercial scientific

institution means an institution that is

not operated on a ‘‘commercial’’ basis,

as that term is defined in paragraph

(b)(1) of this section, and that is

operated solely for the purpose of

conducting scientific research, the

results of which are not intended to

promote any particular product or

industry. To be in this category, a

requester must show that the request is

authorized by and is made under the

auspices of a qualifying institution and

that the records are sought to further

scientific research rather than for a

commercial use.

(6) Representative of the news media,

or news media requester 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.

Examples of news media entities

include television or radio stations

broadcasting to the public at large and

publishers of periodicals (but only if

they can qualify as disseminators of

‘‘news’’) that make their products

available for purchase or subscription

by the general public. For ‘‘freelance’’

journalists to be regarded as working for

a news organization, they must

demonstrate a solid basis for expecting

publication through that organization. A

publication contract would be the

clearest proof, but components shall

also look to the past publication record

of a requester in making this

determination. To be in this category, a

requester must not be seeking the

requested records for a commercial use.

However, a request for records

supporting the news-dissemination

function of the requester shall not be

considered to be for a commercial use.

(7) Review means the examination of

a record located in response to a request

in order to determine whether any

portion of it is exempt from disclosure.

It also includes processing any record

for disclosure—for example, doing all

that is necessary to redact it and prepare

it for disclosure. Review costs are

recoverable even if a record ultimately

is not disclosed. Review time does not

include time spent resolving general

legal or policy issues regarding the

application of exemptions.

(8) Search means the process of

looking for and retrieving records or

information responsive to a request. It

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

identification of information within

records and also includes reasonable

efforts to locate and retrieve information

from records maintained in electronic

form or format. Components shall

ensure that searches are done in the

most efficient and least expensive

manner reasonably possible.

(c) Fees. In responding to FOIA

requests, components shall charge the

fees summarized in chart form in

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

section and explained in paragraphs

(c)(3) through (c)(5) of this section,

unless a waiver or reduction of fees has

been granted under paragraph (k) of this

section.

(1) The four categories and chargeable

fees are:

Category Chargeable fees

(i) Commercial Use Requesters ............................................................... Search, Review, and Duplication.

(ii) Educational and Non-commercial Scientific Institution Requesters ... Duplication (excluding the cost of the first 100 pages).

(iii) Representatives of the News Media .................................................. Duplication (excluding the cost of the first 100 pages).

(iv) All Other Requesters .......................................................................... Search and Duplication (excluding the cost of the first 2 hours of

search and 100 pages).

(2) Uniform fee schedule.

34612 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules

Service Rate

(i) Manual search ...................................................................................... Actual salary rate of employee involved, plus 16 percent of salary rate.

(ii) Computerized search .......................................................................... Actual direct cost, including operator time.

(iii) Duplication of records:

(A) Paper copy reproduction ............................................................. $.15 per page.

(B) Other reproduction (e.g., computer disk or printout, microfilm,

microfiche, or microform).

Actual direct cost, including operator time.

(iv) Review of records (includes preparation for release, i.e., excising) .. Actual salary rate of employee conducting review, plus 16 percent of

salary rate.

(3) Search. (i) Search fees shall be

charged for all requests—other than

requests made by educational

institutions, noncommercial scientific

institutions, or representatives of the

news media—subject to the limitations

of paragraph (d) of this section.

Components shall charge for time spent

searching even if they do not locate any

responsive record or if they withhold

the record(s) located as entirely exempt

from disclosure. Search fees shall be the

direct costs of conducting the search by

the involved employees.

(ii) For computer searches of records,

requesters will be charged the direct

costs of conducting the search, although

certain requesters (as provided in

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

charged no search fee and certain other

requesters (as provided in paragraph

(d)(3) of this section) are entitled to the

cost equivalent of two hours of manual

search time without charge. These direct

costs include the costs, attributable to

the search, of operating a central

processing unit and operator/

programmer salary.

(4) Duplication. Duplication fees will

be charged to all requesters, subject to

the limitations of paragraph (d) of this

section. For a paper photocopy of a

record (no more than one copy of which

need be supplied), the fee shall be $.15

cents per page. For copies produced by

computer, such as tapes or printouts,

components shall charge the direct

costs, including operator time, of

producing the copy. For other forms of

duplication, components will charge the

direct costs of that duplication.

(5) Review. Review fees shall be

charged to requesters who make a

commercial use request. Review fees

shall be charged only for the initial

record review—the review done when a

component determines whether an

exemption applies to a particular record

at the initial request level. No charge

will be made for review at the

administrative appeal level for an

exemption already applied. However,

records withheld under an exemption

that is subsequently determined not to

apply may be reviewed again to

determine whether any other exemption

not previously considered applies, and

the costs of that review are chargeable.

Review fees shall be the direct costs of

conducting the review by the involved

employees.

(d) Limitations on charging fees.

(1) No search fee will be charged for

requests by educational institutions,

noncommercial scientific institutions,

or representatives of the news media.

(2) No search fee or review fee will be

charged for a quarter-hour period unless

more than half of that period is required

for search or review.

(3) Except for requesters seeking

records for a commercial use,

components will provide without

charge:

(i) The first 100 pages of duplication

(or the cost equivalent); and

(ii) The first two hours of search (or

the cost equivalent).

(4) Whenever a total fee calculated

under paragraph (c) of this section is

$20.00 or less for any request, no fee

will be charged.

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

and (4) of this section work together.

This means that for requesters other

than those seeking records for a

commercial use, no fee will be charged

unless the cost of search in excess of

two hours plus the cost of duplication

in excess of 100 pages totals more than

$20.00.

(e) Notice of anticipated fees over

$20.00. When a component determines

or estimates that the fees to be charged

under this section will be more than

$20.00, the component shall notify the

requester of the actual or estimated fees,

unless the requester has indicated a

willingness to pay fees as high as those

anticipated. If only a portion of the fee

can be estimated readily, the component

shall advise the requester that the

estimated fee may be only a portion of

the total fee. If the component has

notified a requester that actual or

estimated fees are more than $20.00, the

component shall not consider the

request received or process it further

until the requester agrees to pay the

anticipated total fee. Any such

agreement should be memorialized in

writing. A notice under this paragraph

shall offer the requester an opportunity

to discuss the matter with Departmental

personnel in order to reformulate the

request to meet the requester’s needs at

a lower cost.

(f) Charges for other services. Apart

from the other provisions of this section,

components shall ordinarily charge the

direct cost of special services. Such

special services could include certifying

that records are true copies or sending

records by other than ordinary mail.

(g) Charging interest. Components

shall charge interest on any unpaid bill

starting on the 31st calendar day

following the date of billing the

requester. Interest charges shall be

assessed at the rate provided in 31

U.S.C. 3717 and accrue from the date of

the billing until payment is received by

the component. Components shall

follow the provisions of the Debt

Collection Act of 1982 (Pub. L. 97–365,

96 Stat. 1749), as amended, and its

administrative procedures, including

the use of consumer reporting agencies,

collection agencies, and offset.

(h) Aggregating requests. If a

component reasonably believes that a

requester or a group of requesters acting

together is attempting to divide a

request into a series of requests for the

purpose of avoiding fees, the component

may aggregate those requests and charge

accordingly. Components may presume

that multiple requests of this type made

within a 30 calendar day period have

been made in order to avoid fees. If

requests are separated by a longer

period, components shall aggregate

them only if a solid basis exists for

determining that aggregation is

warranted under all the circumstances

involved. Multiple requests involving

unrelated matters shall not be

aggregated.

(i) Advance payments. (1) For

requests other than those described in

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

a component shall not require the

requester to make an advance payment:

a payment made before work is begun

or continued on a request. Payment

owed for work already completed (i.e.,

a payment before copies are sent to a

requester) is not an advance payment.

(2) If a component determines or

estimates that a total fee to be charged

under this section will be more than

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules 34613

$250.00, it shall require the requester to

pay the entire anticipated fee before

beginning to process the request, unless

it receives a satisfactory assurance of

full payment from a requester who has

a history of prompt payment.

(3) If a requester has previously failed

to pay a properly charged FOIA fee to

any component or other Federal agency

within 30 calendar days of the date of

billing, a component shall require the

requester to pay the full amount due,

plus any applicable interest, and to

make an advance payment of the full

amount of any anticipated fee, before

the component begins to process a new

request or continues to process a

pending request from that requester.

(4) In cases in which a component

requires payment under paragraphs

(i)(2) or (3) of this section, the request

shall not be considered received and

further work will not be done on it until

the required payment is received.

(5) Upon the completion of processing

of a request, when a specific fee is

determined to be payable and

appropriate notice has been given to the

requester, a component shall make

records available to the requester only

upon receipt of full payment of the fee.

(j) Other statutes specifically

providing for fees. The fee schedule of

this section does not apply to fees

charged under any statute (except for

the FOIA) that specifically requires an

agency to set and collect fees for

particular types of records. If records

responsive to requests are maintained

for distribution by agencies operating

such statutorily based fee schedule

programs, components shall inform

requesters of how to obtain records from

those sources.

(k) Requirements for waiver or

reduction of fees. (1) Records responsive

to a request will be furnished without

charge or at a charge reduced below that

established under paragraph (c) of this

section if a component determines,

based on all available information, that

the requester has demonstrated that:

(i) Disclosure of the requested

information is in the public interest

because it is likely to contribute

significantly to public understanding of

the operations or activities of the

Government; and

(ii) Disclosure of the information is

not primarily in the commercial interest

of the requester.

(2) To determine whether the first fee

waiver requirement is met, components

shall consider the following factors:

(i) The subject of the request: whether

the subject of the requested records

concerns the operations or activities of

the Government. The subject of the

requested records must concern

identifiable operations or activities of

the Federal Government, with a

connection that is direct and clear, not

remote or attenuated.

(ii) The informative value of the

information to be disclosed: whether the

disclosure is ‘‘likely to contribute’’ to an

understanding of Government

operations or activities. The disclosable

portions of the requested records must

be meaningfully informative about

Government operations or activities in

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

increased public understanding of those

operations or activities. The disclosure

of information that already is in the

public domain, in either a duplicative or

a substantially identical form, would

not be likely to contribute to such

understanding.

(iii) The contribution to an

understanding of the subject by the

public likely to result from disclosure:

whether disclosure of the requested

information will contribute to the

understanding of a reasonably broad

audience of persons interested in the

subject, as opposed to the individual

understanding of the requester. A

requester’s expertise in the subject area

and ability and intention to effectively

convey information to the public shall

be considered. It shall be presumed that

a representative of the news media

satisfies this consideration. It shall be

presumed that a requester who merely

provides information to media sources

does not satisfy this consideration.

(iv) The significance of the

contribution to public understanding:

whether the disclosure is likely to

contribute ‘‘significantly’’ to public

understanding of Government

operations or activities. The public’s

understanding of the subject in question

prior to the disclosure must be

significantly enhanced by the

disclosure.

(3) To determine whether the second

fee waiver requirement is met,

components shall consider the

following factors:

(i) The existence and magnitude of a

commercial interest: whether the

requester has a commercial interest that

would be furthered by the requested

disclosure. Components shall consider

any commercial interest of the requester

(with reference to the definition of

‘‘commercial use request’’ in paragraph

(b)(1) of this section), or of any person

on whose behalf the requester may be

acting, that would be furthered by the

requested disclosure. Requesters shall

be given an opportunity to provide

explanatory information regarding this

consideration.

(ii) The primary interest in disclosure:

whether any identified commercial

interest of the requester is sufficiently

large, in comparison with the public

interest in disclosure, that disclosure is

‘‘primarily in the commercial interest of

the requester.’’ A fee waiver or

reduction is justified if the public

interest standard (paragraph (k)(1)(i) of

this section) is satisfied and the public

interest is greater than any identified

commercial interest in disclosure.

Components ordinarily shall presume

that if a news media requester has

satisfied the public interest standard,

the public interest is the primary

interest served by disclosure to that

requester. Disclosure to data brokers or

others who merely compile and market

Government information for direct

economic return shall not be presumed

to primarily serve the public interest.

(4) If only some of the records to be

released satisfy the requirements for a

fee waiver, a waiver shall be granted for

those records.

(5) Requests for the waiver or

reduction of fees should address the

factors listed in paragraphs (k)(2) and (3)

of this section, insofar as they apply to

each request.

Subpart B—Privacy Act

§ 4.21 Purpose and scope.

(a) The purpose of this subpart is to

establish policies and procedures for

implementing the Privacy Act of 1974,

as amended (5 U.S.C. 552a). The main

objectives are to facilitate full exercise

of rights conferred on individuals under

the Act and to ensure the protection of

privacy as to individuals on whom the

Department maintains records in

systems of records under the Act. The

Department accepts the responsibility to

act promptly and in accordance with the

Act upon receipt of any inquiry, request

or appeal from a citizen of the United

States or an alien lawfully admitted for

permanent residence into the United

States, regardless of the age of the

individual. Further, the Department

accepts the obligations to maintain only

such information on individuals as is

relevant and necessary to the

performance of its lawful functions, to

maintain that information with such

accuracy, relevancy, timeliness, and

completeness as is reasonably necessary

to assure fairness in determinations

made by the Department about the

individual, to obtain information from

the individual to the extent practicable,

and to take every reasonable step to

protect that information from

unwarranted disclosure. The

Department will maintain no record

describing how an individual exercises

rights guaranteed by the First

Amendment unless expressly

34614 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules

authorized by statute or by the

individual about whom the record is

maintained or unless pertinent to and

within the scope of an authorized law

enforcement activity. An individual’s

name and address will not be sold or

rented by the Department unless such

action is specifically authorized by law;

however, this provision shall not be

construed to require the withholding of

names and addresses otherwise

permitted to be made public.

(b) This subpart applies to all

components of the Department.

Components may promulgate

supplementary orders and rules not

inconsistent with this subpart.

(c) The Assistant Secretary for

Administration is delegated

responsibility for maintaining this

subpart, for issuing such orders and

directives internal to the Department as

are necessary for full compliance with

the Act, and for publishing all required

notices concerning systems of records.

(d) Matters outside the scope of this

subpart include the following:

(1) Requests for records which do not

pertain to the individual making the

request, or to the individual about

whom the request is made if the

requester is the parent or guardian of the

individual;

(2) Requests involving information

pertaining to an individual which is in

a record or file but not within the scope

of a system of records notice published

in the Federal Register;

(3) Requests to correct a record where

a grievance procedure is available to the

individual either by regulation or by

provision in a collective bargaining

agreement with the Department or a

component of the Department, and the

individual has initiated, or has

expressed in writing the intention of

initiating, such grievance procedure. An

individual selecting the grievance

procedure waives the use of the

procedures in this subpart to correct or

amend a record; and,

(4) Requests for employee-employer

services and counseling which were

routinely granted prior to enactment of

the Act, including, but not limited to,

test calculations of retirement benefits,

explanations of health and life

insurance programs, and explanations of

tax withholding options.

(e) Any request for records which

pertains to the individual making the

request, or to the individual about

whom the request is made if the

requester is the parent or guardian of the

individual, shall be processed under the

Act and this subpart and under the

Freedom of Information Act and the

Department’s implementing regulations

at subpart A of this part, regardless

whether the Act or the Freedom of

Information Act is mentioned in the

request.

§ 4.22 Definitions.

(a) All terms used in this subpart

which are defined in 5 U.S.C. 552a shall

have the same meaning herein.

(b) As used in this subpart:

(1) Act means the ‘‘Privacy Act of

1974, as amended (5 U.S.C. 552a)’’.

(2) Appeal means a request by an

individual to review and reverse an

initial denial of a request by that

individual for correction or amendment.

(3) Department means the Department

of Commerce.

(4) Inquiry means either a request for

general information regarding the Act

and this subpart or a request by an

individual (or that individual’s parent

or guardian) that the Department

determine whether it has any record in

a system of records which pertains to

that individual.

(5) Person means any human being

and also shall include but not be limited

to, corporations, associations,

partnerships, trustees, receivers,

personal representatives, and public or

private organizations.

(6) Privacy Officer means those

officials, identified in Appendix B to

this part, who are authorized to receive

and act upon inquiries, requests for

access, and requests for correction or

amendment.

(7) Request for access means a request

by an individual or an individual’s

parent or guardian to see a record which

is in a particular system of records and

which pertains to that individual.

(8) Request for correction or

amendment means the request by an

individual or an individual’s parent or

guardian that the Department change

(either by correction, amendment,

addition or deletion) a particular record

in a system of records which pertains to

that individual.

(9) Component means any office,

division, bureau or other unit of the

Department listed in Appendix A to this

part.

§ 4.23 Procedures for making inquiries

(a) Any individual, regardless of age,

who is a citizen of the United States or

an alien lawfully admitted for

permanent residence into the United

States may submit an inquiry to the

Department. The inquiry should be

made either in person or by mail

addressed to the appropriate component

identified in Appendix A to this part or

to the official identified in the

notification procedures paragraph of the

systems of records notice published in

the Federal Register. If an individual

believes the Department maintains a

record pertaining to that individual but

does not know which system of records

might contain such a record and/or

which component of the Department

maintains the system of records,

assistance in person or by mail will be

provided at the first address listed in

Appendix A to this part.

(b) Inquiries submitted by mail should

include the words ‘‘PRIVACY ACT

INQUIRY’’ in capital letters at the top of

the letter and on the face of the

envelope. If the inquiry is for general

information regarding the Act and this

subpart, no particular information is

required. The Department reserves the

right to require compliance with the

identification procedures appearing at

§ 4.24(d) where circumstances warrant.

If the inquiry is a request that the

Department determine whether it has, in

a given system of records, a record

which pertains to the individual, the

following information should be

submitted:

(1) Name of individual whose record

is sought;

(2) Individual whose record is sought

is either a U.S. citizen or an alien

lawfully admitted for permanent

residence;

(3) Identifying data that will help

locate the record (for example, maiden

name, occupational license number,

period or place of employment, etc.);

(4) Record sought, by description and

by record system name, if known;

(5) Action requested (that is, sending

information on how to exercise rights

under the Act; determining whether

requested record exists; gaining access

to requested record; or obtaining copy of

requested record);

(6) Copy of court guardianship order

or minor’s birth certificate, as provided

in § 4.24(f)(3), but only if requester is

guardian or parent of individual whose

record is sought;

(7) Requester’s name (printed),

signature, address, and telephone

number (optional);

(8) Date; and,

(9) Certification of request by notary

or other official, but only if

(i) Request is for notification that

requested record exists, for access to

requested record or for copy of

requested record;

(ii) Record is not available to any

person under 5 U.S.C. 552; and

(iii) Requester does not appear before

an employee of the Department for

verification of identity.

(c) Any inquiry which is not

addressed as specified in paragraph (a)

of this section or which is not marked

as specified in paragraph (b) of this

section will be so addressed and marked

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules 34615

by Department personnel and forwarded

immediately to the responsible Privacy

Officer. An inquiry which is not

properly addressed by the individual

will not be deemed to have been

‘‘received’’ for purposes of measuring

the time period for response until actual

receipt by the Privacy Officer. In each

instance when an inquiry so forwarded

is received, the Privacy Officer shall

notify the individual that his or her

inquiry was improperly addressed and

the date the inquiry was received at the

proper address.

(d)(1) Each inquiry received shall be

acted upon promptly by the responsible

Privacy Officer. Every effort will be

made to respond within ten working

days (i.e., excluding Saturdays, Sundays

and days on which Federal offices are

closed) of the date of receipt. If a

response cannot be made within ten

working days, the Privacy Officer shall

send an acknowledgment during that

period providing information on the

status of the inquiry and asking for such

further information as may be necessary

to process the inquiry. The first

correspondence sent by the Privacy

Officer to the requester shall contain the

Department’s control number assigned

to the request, as well as a note that the

requester should use that number in all

future contacts in order to facilitate

processing. The Department shall use

that control number in all subsequent

correspondence.

(2) If the Privacy Officer fails to send

an acknowledgment within ten working

days, as provided above, the requester

may ask the Assistant General Counsel

for Administration to take corrective

action. No failure of a Privacy Officer to

send an acknowledgment shall confer

administrative finality for purposes of

judicial review.

(e) An individual shall not be

required to state a reason or otherwise

justify his or her inquiry.

(f) Special note should be taken of the

fact that certain agencies are responsible

for publishing notices of systems of

records having Government-wide

application to other agencies, including

the Department. The agencies known to

be publishing these general notices and

the types of records covered therein

appear in Appendix C to this part.

These general notices do not identify

the Privacy Officers in the Department

to whom inquiries should be presented

or mailed. The provisions of this

section, and particularly paragraph (a)

of this section, should be followed in

making inquiries with respect to such

records. Such records in the Department

are subject to the provisions of this part

to the extent indicated in Appendix C

to this part. The exemptions, if any,

determined by the agency publishing a

general notice shall be invoked and

applied by the Department after

consultation, as necessary, with that

other agency.

§ 4.24 Procedures for making requests for

records.

(a) Any individual, regardless of age,

who is a citizen of the United States or

an alien lawfully admitted for

permanent residence into the United

States may submit a request for access

to records to the Department. The

request should be made either in person

or by mail addressed to the appropriate

office listed in Appendix A to this part.

(b) Requests submitted by mail should

include the words ‘‘PRIVACY ACT

REQUEST’’ in capital letters at the top

of the letter and on the face of the

envelope. Any request which is not

addressed as specified in paragraph (a)

of this section or which is not marked

as specified in this paragraph will be so

addressed and marked by Department

personnel and forwarded immediately

to the responsible Privacy Officer. A

request which is not properly addressed

by the individual will not be deemed to

have been ‘‘received’’ for purposes of

measuring time periods for response

until actual receipt by the Privacy

Officer. In each instance when a request

so forwarded is received, the Privacy

Officer shall notify the individual that

his or her request was improperly

addressed and the date when the

request was received at the proper

address.

(c) If the request follows an inquiry

under § 4.23 in connection with which

the individual’s identity was established

by the Department, the individual need

only indicate the record to which access

is sought, provide the Department

control number assigned to the request,

and sign and date the request. If the

request is not preceded by an inquiry

under § 4.23, the procedures of this

section should be followed.

(d) The requirements for

identification of individuals seeking

access to records are as follows:

(1) In person. Each individual making

a request in person shall be required to

present satisfactory proof of identity.

The means of proof, in the order of

preference and priority, are:

(i) A document bearing the

individual’s photograph (for example,

driver’s license, passport or military or

civilian identification card);

(ii) A document, preferably issued for

participation in a federally sponsored

program, bearing the individual’s

signature (for example, unemployment

insurance book, employer’s

identification card, national credit card,

and professional, craft or union

membership card); and,

(iii) A document bearing neither the

photograph nor the signature of the

individual, preferably issued for

participation in a federally sponsored

program (for example, Medicaid card).

In the event the individual can provide

no suitable documentation of identity,

the Department will require a signed

statement asserting the individual’s

identity and stipulating that the

individual understands the penalty

provision of 5 U.S.C. 552a(i)(3) recited

in § 4.32(a). In order to avoid any

unwarranted disclosure of an

individual’s records, the Department

reserves the right to determine the

adequacy of proof of identity offered by

any individual, particularly when the

request involves a sensitive record.

(2) Not in person. If the individual

making a request does not appear in

person before a Privacy Officer or other

employee authorized to determine

identity, a certification of a notary

public or equivalent officer empowered

to administer oaths must accompany the

request under the circumstances

prescribed in § 4.23(b)(9). The

certification in or attached to the letter

must be substantially in accordance

with the following text:

City of ll

County of ll:ss

(Name of individual), who affixed (his)

(her) signature below in my presence,

came before me, a (title), in and for the

aforesaid County and State, this ll

day of llll, 20 ll, and

established (his) (her) identity to my

satisfaction.

My commission expires ll.

(Signature)

(3) Parents of minors and legal

guardians. An individual acting as the

parent of a minor or the legal guardian

of the individual to whom a record

pertains shall establish his or her

personal identity in the same manner

prescribed in either paragraph (d)(1) or

(d)(2) of this section. In addition, such

other individual shall establish his or

her identity in the representative

capacity of parent or legal guardian. In

the case of the parent of a minor, the

proof of identity shall be a certified or

authenticated copy of the minor’s birth

certificate. In the case of a legal

guardian of an individual who has been

declared incompetent due to physical or

mental incapacity or age by a court of

competent jurisdiction, the proof of

identity shall be a certified or

authenticated copy of the court’s order.

For purposes of the Act, a parent or

legal guardian may represent only a

34616 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules

living individual, not a decedent. A

parent or legal guardian may be

accompanied during personal access to

a record by another individual,

provided the provisions of § 4.25(f) are

satisfied.

(e) When the provisions of this

subpart are alleged to impede an

individual in exercising his or her right

to access, the Department will consider,

from an individual making a request,

alternative suggestions regarding proof

of identity and access to records.

(f) An individual shall not be required

to state a reason or otherwise justify his

or her request for access to a record.

§ 4.25 Disclosure of requested records to

individuals.

(a)(1) The responsible Privacy Officer

shall act promptly upon each request.

Every effort will be made to respond

within ten working days (i.e., excluding

Saturdays, Sundays and days on which

Federal offices are closed) of the date of

receipt. If a response cannot be made

within ten working days due to unusual

circumstances, the Privacy Officer shall

send an acknowledgment during that

period providing information on the

status of the request and asking for any

further information that may be

necessary to process the request.

‘‘Unusual circumstances’’ shall include

circumstances in which:

(i) A search for and collection of

requested records from inactive storage,

field facilities or other establishments is

required,

(ii) A voluminous amount of data is

involved,

(iii) Information on other individuals

must be separated or expunged from the

particular record, or

(iv) Consultations with other agencies

having a substantial interest in the

determination of the request are

necessary.

(2) If the Privacy Officer fails to send

an acknowledgment within ten working

days, as provided above, the requester

may ask the Assistant General Counsel

for Administration to take corrective

action. No failure of a Privacy Officer to

send an acknowledgment shall confer

administrative finality for purposes of

judicial review.

(b) Grant of access—(1) Notification.

An individual shall be granted access to

a record pertaining to him or her, except

where the provisions of paragraph (g)(1)

of this section apply. The Privacy

Officer shall notify the individual of a

determination to grant access, and

provide the following information:

(i) The methods of access, as set forth

in paragraph (b)(2) of this section;

(ii) The place at which the record may

be inspected;

(iii) The earliest date on which the

record may be inspected and the period

of time that the records will remain

available for inspection. In no event

shall the earliest date be later than thirty

calendar days from the date of

notification;

(iv) The estimated date by which a

copy of the record could be mailed and

the estimate of fees pursuant to § 4.31.

In no event shall the estimated date be

later than thirty calendar days from the

date of notification;

(v) The fact that the individual, if he

or she wishes, may be accompanied by

another individual during personal

access, subject to the procedures set

forth in paragraph (f) of this section;

and,

(vi) Any additional requirements

needed to grant access to a specific

record.

(2) Methods of access. The following

methods of access to records by an

individual may be available depending

on the circumstances of a given

situation:

(i) Inspection in person may be had in

the office specified by the Privacy

Officer granting access, during the hours

indicated in Appendix A to this part;

(ii) Transfer of records to a Federal

facility more convenient to the

individual may be arranged, but only if

the Privacy Officer determines that a

suitable facility is available, that the

individual’s access can be properly

supervised at that facility, and that

transmittal of the records to that facility

will not unduly interfere with

operations of the Department or involve

unreasonable costs, in terms of both

money and manpower; and,

(iii) Copies may be mailed at the

request of the individual, subject to

payment of the fees prescribed in § 4.31.

The Department, at its own initiative,

may elect to provide a copy by mail, in

which case no fee will be charged the

individual.

(c) Access to medical records is

governed by the provisions of § 4.26.

(d) The Department shall supply such

other information and assistance at the

time of access as to make the record

intelligible to the individual.

(e) The Department reserves the right

to limit access to copies and abstracts of

original records, rather than the original

records. This election would be

appropriate, for example, when the

record is in an automated data media

such as tape or disc, when the record

contains information on other

individuals, and when deletion of

information is permissible under

exemptions (for example, 5 U.S.C.

552a(k)(2)). In no event shall original

records of the Department be made

available to the individual except under

the immediate supervision of the

Privacy Officer or his designee.

(f) Any individual who requests

access to a record pertaining to that

individual may be accompanied by

another individual of his or her choice.

‘‘Accompanied’’ includes discussion of

the record in the presence of the other

individual. The individual to whom the

record pertains shall authorize the

presence of the other individual in

writing. The authorization shall include

the name of the other individual, a

specific description of the record to

which access is sought, the Department

control number assigned to the request,

the date, and the signature of the

individual to whom the record pertains.

The other individual shall sign the

authorization in the presence of the

Privacy Officer. An individual shall not

be required to state a reason or

otherwise justify his or her decision to

be accompanied by another individual

during personal access to a record.

(g) Initial denial of access—(1)

Grounds. Access by an individual to a

record which pertains to that individual

will be denied only upon a

determination by the Privacy Officer

that:

(i) The record is exempt under § 4.33

or 4.34, or exempt by determination of

another agency publishing notice of the

system of records, as described in

§ 4.23(f);

(ii) The record is information

compiled in reasonable anticipation of a

civil action or proceeding;

(iii) The provisions of § 4.26

pertaining to medical records

temporarily have been invoked; or,

(iv) The individual unreasonably has

failed to comply with the procedural

requirements of this part.

(2) Notification. The Privacy Officer

shall give notice of denial of access to

records to the individual in writing and

shall include the following information:

(i) The Privacy Officer’s name and

title or position;

(ii) The date of the denial;

(iii) The reasons for the denial,

including citation to the appropriate

section of the Act and this part;

(iv) The individual’s opportunities, if

any, for further administrative

consideration, including the identity

and address of the responsible official.

If no further administrative

consideration within the Department is

available, the notice shall state that the

denial is administratively final; and,

(v) If stated to be administratively

final within the Department, the

individual’s right to judicial review

provided under 5 U.S.C. 552a(g)(1), as

limited by 5 U.S.C. 552a(g)(5).

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules 34617

(3) Administrative review. When an

initial denial of a request is issued by

the Privacy Officer, the individual’s

opportunities for further consideration

shall be as follows:

(i) As to denial under paragraph

(g)(1)(i) of this section, two

opportunities for further consideration

are available in the alternative:

(A) If the individual contests the

application of the exemption to the

records, review procedures in

§ 4.25(g)(3)(ii) shall apply; or,

(B) If the individual challenges the

exemption itself, the procedure is a

petition for the issuance, amendment, or

repeal of a rule under 5 U.S.C. 553(e).

If the exemption was determined by the

Department, such petition shall be filed

with the Assistant Secretary for

Administration. If the exemption was

determined by another agency (as

described in § 4.23(f)), the Department

will provide the individual with the

name and address of the other agency

and any relief sought by the individual

shall be that provided by the regulations

of the other agency. Within the

Department, no such denial is

administratively final until such a

petition has been filed by the individual

and disposed of on the merits by the

Assistant Secretary for Administration.

(ii) As to denial under paragraphs

(g)(1)(ii), (g)(1)(iv) of this section or (to

the limited extent provided in

paragraph (g)(3)(i)(A) of this section)

paragraph (g)(1)(i) of this section, the

individual may file for review with the

Assistant General Counsel for

Administration, as indicated in the

Privacy Officer’s initial denial

notification. The procedures appearing

in § 4.28 shall be followed by both the

individual and the Department to the

maximum extent practicable.

(iii) As to denial under paragraph

(g)(1)(iii) of this section, no further

administrative consideration within the

Department is available because the

denial is not administratively final until

expiration of the time period indicated

in § 4.26(a).

(h) If a request is partially granted and

partially denied, the Privacy Officer

shall follow the appropriate procedures

of this section as to the records within

the grant and the records within the

denial.

§ 4.26 Special procedures: Medical

records.

(a) No response to any request for

access to medical records by an

individual will be issued by the Privacy

Officer for a period of seven working

days (i.e., excluding Saturdays, Sundays

and days on which Federal offices are

closed) from the date of receipt.

(b) The Department has published as

a routine use, for all systems of records

containing medical records,

consultations with an individual’s

physician or psychologist if, in the sole

judgment of the Department, disclosure

could have an adverse effect upon the

individual. The mandatory waiting

period set forth in paragraph (a) of this

section will permit exercise of this

routine use in appropriate cases. The

Department will pay no cost of any such

consultation.

(c) In every case of a request by an

individual for access to medical records,

the Privacy Officer shall:

(1) Inform the individual of the

waiting period prescribed in paragraph

(a) of this section;

(2) Obtain the name and address of

the individual’s physician and/or

psychologist, if the individual consents

to give them;

(3) Obtain specific, written consent

for the Department to consult the

individual’s physician and/or

psychologist in the event that the

Department believes such consultation

is advisable, if the individual consents

to give such authorization;

(4) Obtain specific, written consent

for the Department to provide the

medical records to the individual’s

physician or psychologist in the event

that the Department believes access to

the record by the individual is best

effected under the guidance of the

individual’s physician or psychologist,

if the individual consents to give such

authorization; and,

(5) Forward the individual’s medical

record to the Department’s medical

officer for review and a determination

on whether consultation with or

transmittal of the medical records to the

individual’s physician or psychologist is

warranted. If the consultation with or

transmittal of such records to the

individual’s physician or psychologist is

determined to be warranted, the

Department’s medical officer shall so

consult or transmit. Whether or not such

a consultation or transmittal occurs, the

Department’s medical officer shall

provide instruction to the Privacy

Officer regarding the conditions of

access by the individual to his or her

medical records.

(d) If an individual refuses in writing

to give the names and consents set forth

in paragraphs (c)(2) through (c)(4) of this

section and the Department has

determined that disclosure could have

an adverse effect upon the individual,

the Department shall give the individual

access to said records by means of a

copy, provided without cost to the

requester, sent registered mail return

receipt requested.

§ 4.27 Procedures for making requests for

correction or amendment.

(a) Any individual, regardless of age,

who is a citizen of the United States or

an alien lawfully admitted for

permanent residence into the United

States may submit a request for

correction or amendment to the

Department. The request should be

made either in person or by mail

addressed to the Privacy Officer who

processed the individual’s request for

access to the record, and to whom is

delegated authority to make initial

determinations on requests for

correction or amendment. The offices of

Privacy Officers are open to the public

between the hours of 9:00 a.m. and 4:00

p.m. Monday through Friday (excluding

days on which Federal offices are

closed).

(b) Requests submitted by mail should

include the words ‘‘PRIVACY ACT

REQUEST’’ in capital letters at the top

of the letter and on the face of the

envelope. Any request which is not

addressed as specified in paragraph (a)

of this section or which is not marked

as specified in this paragraph will be so

addressed and marked by Department

personnel and forwarded immediately

to the responsible Privacy Officer. A

request which is not properly addressed

by the individual will not be deemed to

have been ‘‘received’’ for purposes of

measuring the time period for response

until actual receipt by the Privacy

Officer. In each instance when a request

so forwarded is received, the Privacy

Officer shall notify the individual that

his or her request was improperly

addressed and the date the request was

received at the proper address.

(c) Since the request, in all cases, will

follow a request for access under § 4.25,

the individual’s identity will be

established by his or her signature on

the request and use of the Department

control number assigned to the request.

(d) A request for correction or

amendment should include the

following:

(1) Specific identification of the

record sought to be corrected or

amended (for example, description,

title, date, paragraph, sentence, line and

words);

(2) The specific wording to be deleted,

if any;

(3) The specific wording to be

inserted or added, if any, and the exact

place at which to be inserted or added;

and,

(4) A statement of the basis for the

requested correction or amendment,

with all available supporting documents

and materials which substantiate the

statement. The statement should

identify the criterion of the Act being

34618 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules

invoked, that is, whether the

information in the record is

unnecessary, inaccurate, irrelevant,

untimely or incomplete.

§ 4.28 Agency review of requests for

correction or amendment.

(a)(1)(i) Not later than ten working

days (i.e., excluding Saturdays, Sundays

and days on which Federal offices are

closed) after receipt of a request to

correct or amend a record, the Privacy

Officer shall send an acknowledgment

providing an estimate of time within

which action will be taken on the

request and asking for such further

information as may be necessary to

process the request. The estimate of

time may take into account unusual

circumstances as described in § 4.25(a).

No acknowledgment will be sent if the

request can be reviewed, processed and

the individual notified of the results of

review (either compliance or denial)

within the ten working days. Requests

filed in person will be acknowledged in

writing at the time submitted.

(ii) If the Privacy Officer fails to send

the acknowledgment within ten working

days, as provided in paragraph (a)(1)(i)

of this section, the requester may ask the

Assistant General Counsel for

Administration to take corrective action.

No failure of a Privacy Officer to send

an acknowledgment shall confer

administrative finality for purposes of

judicial review.

(2) Promptly after acknowledging

receipt of a request, or after receiving

such further information as might have

been requested, or after arriving at a

decision within the ten working days,

the Privacy Officer shall either:

(i) Make the requested correction or

amendment and advise the individual

in writing of such action, providing

either a copy of the corrected or

amended record or a statement as to the

means whereby the correction or

amendment was effected in cases where

a copy cannot be provided (for example,

erasure of information from a record

maintained only in magnetically

recorded computer files); or,

(ii) Inform the individual in writing

that his or her request is denied and

provide the following information:

(A) The Privacy Officer’s name and

title or position;

(B) The date of the denial;

(C) The reasons for the denial,

including citation to the appropriate

sections of the Act and this subpart;

and,

(D) The procedures for appeal of the

denial as set forth in § 4.29, including

the address of the Assistant General

Counsel for Administration.

(3) The term promptly in this section

means within thirty working days (i.e.,

excluding Saturdays, Sundays and days

on which Federal offices are closed). If

the Privacy Officer cannot make the

determination within thirty working

days, the individual will be advised in

writing of the reason therefor and of the

estimated date by which the

determination will be made.

(b) Whenever an individual’s record is

corrected or amended pursuant to a

request by that individual, the Privacy

Officer shall be responsible for notifying

all persons and agencies to which the

corrected or amended portion of the

record had been disclosed prior to its

correction or amendment, if an

accounting of such disclosure required

by the Act was made. The notification

shall require a recipient agency

maintaining the record to acknowledge

receipt of the notification, to correct or

amend the record, and to apprise any

agency or person to which it had

disclosed the record of the substance of

the correction or amendment.

(c) The following criteria will be

considered by the Privacy Officer in

reviewing a request for correction or

amendment:

(1) The sufficiency of the evidence

submitted by the individual;

(2) The factual accuracy of the

information;

(3) The relevance and necessity of the

information in terms of purpose for

which it was collected;

(4) The timeliness and currency of the

information in light of the purpose for

which it was collected;

(5) The completeness of the

information in terms of the purpose for

which it was collected;

(6) The degree of risk that denial of

the request could unfairly result in

determinations adverse to the

individual;

(7) The character of the record sought

to be corrected or amended; and,

(8) The propriety and feasibility of

complying with the specific means of

correction or amendment requested by

the individual.

(d) The Department will not

undertake to gather evidence for the

individual, but does reserve the right to

verify the evidence which the

individual submits.

(e) Correction or amendment of a

record requested by an individual will

be denied only upon a determination by

the Privacy Officer that:

(1) The individual has failed to

establish, by a preponderance of the

evidence, the propriety of the correction

or amendment in light of the criteria set

forth in paragraph (c) of this section;

(2) The record sought to be corrected

or amended is part of the official record

in a terminated judicial, quasi-judicial

or quasi-legislative proceeding to which

the individual was a party or

participant;

(3) The information in the record

sought to be corrected or amended, or

the record sought to be corrected or

amended, is the subject of a pending

judicial, quasi-judicial or quasilegislative proceeding to which the

individual is a party or participant;

(4) The correction or amendment

would violate a duly enacted statute or

promulgated regulation; or,

(5) The individual unreasonably has

failed to comply with the procedural

requirements of this part.

(f) If a request is partially granted and

partially denied, the Privacy Officer

shall follow the appropriate procedures

of this section as to the records within

the grant and the records within the

denial.

§ 4.29 Appeal of initial adverse agency

determination on correction or amendment.

(a) When a request for correction or

amendment has been denied initially

under § 4.28, the individual may submit

a written appeal within thirty working

days (i.e., excluding Saturdays, Sundays

and days on which Federal offices are

closed) after the date of the initial

denial. When an appeal is submitted by

mail, the postmark is conclusive as to

timeliness.

(b) An appeal should be addressed to

the Assistant General Counsel for

Administration, U.S. Department of

Commerce, Room 5875, 14th and

Constitution Avenue, NW, Washington,

DC 20230. An appeal should include the

words ‘‘PRIVACY APPEAL’’ in capital

letters at the top of the letter and on the

face of the envelope. An appeal not

addressed and marked as provided

herein will be so marked by Department

personnel when it is so identified, and

will be forwarded immediately to the

Assistant General Counsel for

Administration. An appeal which is not

properly addressed by the individual

will not be deemed to have been

‘‘received’’ for purposes of measuring

the time periods in this section until

actual receipt by the Assistant General

Counsel for Administration. In each

instance when an appeal so forwarded

is received, the Assistant General

Counsel for Administration shall notify

the individual that his or her appeal was

improperly addressed and the date

when the appeal was received at the

proper address.

(c) The individual’s appeal shall

include a statement of the reasons why

the initial denial is believed to be in

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules 34619

1 5 U.S.C. 552a(b)(4) has no application within

the Department.

error and the Department’s control

number assigned to the request. The

appeal shall be signed by the individual.

The record which the individual

requests be corrected or amended and

all correspondence between the Privacy

Officer and the requester will be

furnished by the Privacy Officer who

issued the initial denial. Although the

foregoing normally will comprise the

entire record on appeal, the Assistant

General Counsel for Administration may

seek additional information necessary to

assure that the final determination is

fair and equitable and, in such

instances, disclose the additional

information to the individual to the

greatest extent possible, and provide an

opportunity for comment thereon.

(d) No personal appearance or hearing

on appeal will be allowed.

(e) The Assistant General Counsel for

Administration shall act upon the

appeal and issue a final determination

in writing not later than thirty working

days (i.e., excluding Saturdays, Sundays

and days on which Federal offices are

closed) from the date on which the

appeal is received, except that the

Assistant General Counsel for

Administration may extend the thirty

days upon deciding that a fair and

equitable review cannot be made within

that period, but only if the individual is

advised in writing of the reason for the

extension and the estimated date by

which a final determination will issue.

The estimated date should not be later

than the sixtieth working day after

receipt of the appeal unless unusual

circumstances, as described in § 4.25(a),

are met.

(f) If the appeal is determined in favor

of the individual, the final

determination shall include the specific

corrections or amendments to be made

and a copy thereof shall be transmitted

promptly both to the individual and to

the Privacy Officer who issued the

initial denial. Upon receipt of such final

determination, the Privacy Officer

promptly shall take the actions set forth

in § 4.28(a)(2)(i) and (b).

(g) If the appeal is denied, the final

determination shall be transmitted

promptly to the individual and state the

reasons for the denial. The notice of

final determination also shall inform the

individual of the following:

(1) The right of the individual under

the Act to file a concise statement of

reasons for disagreeing with the final

determination. The statement ordinarily

should not exceed one page and the

Department reserves the right to reject a

statement of excessive length. Such a

statement shall be filed with the

Assistant General Counsel for

Administration. It should provide the

Department control number assigned to

the request, indicate the date of the final

determination and be signed by the

individual. The Assistant General

Counsel for Administration shall

acknowledge receipt of such statement

and inform the individual of the date on

which it was received.

(2) The facts that any such

disagreement statement filed by the

individual will be noted in the disputed

record, that the purposes and uses to

which the statement will be put are

those applicable to the record in which

it is noted, and that a copy of the

statement will be provided to persons

and agencies to which the record is

disclosed subsequent to the date of

receipt of such statement;

(3) The fact that the Department will

append to any such disagreement

statement filed by the individual, a copy

of the final determination or summary

thereof which also will be provided to

persons and agencies to which the

disagreement statement is disclosed;

and,

(4) The right of the individual to

judicial review of the final

determination under 5 U.S.C.

552a(g)(1)(A), as limited by 5 U.S.C.

552a(g)(5).

(h) In making the final determination,

the Assistant General Counsel for

Administration shall employ the criteria

set forth in § 4.28(c) and shall deny an

appeal only on the grounds set forth in

§ 4.28(e).

(i) If an appeal is partially granted and

partially denied, the Assistant General

Counsel for Administration shall follow

the appropriate procedures of this

section as to the records within the

grant and the records within the denial.

(j) Although a copy of the final

determination or a summary thereof will

be treated as part of the individual’s

record for purposes of disclosure in

instances where the individual has filed

a disagreement statement, it will not be

subject to correction or amendment by

the individual.

(k) The provisions of paragraphs (g)(1)

through (g)(3) of this section satisfy the

requirements of 5 U.S.C. 552a(e)(3).

§ 4.30 Disclosure of record to person other

than the individual to whom it pertains.

(a) The Department may disclose a

record pertaining to an individual to a

person other than the individual to

whom it pertains only in the following

instances:

(1) Upon written request by the

individual, including authorization

under § 4.25(f);

(2) With the prior written consent of

the individual;

(3) To a parent or legal guardian

under 5 U.S.C. 552a(h);

(4) When required by the Act and not

covered explicitly by the provisions of

5 U.S.C. 552a(b); and

(5) When permitted under 5 U.S.C.

552a(b)(1) through (12), as follows: 1

(i) To those officers and employees of

the agency which maintains the record

who have a need for the record in the

performance of their duties;

(ii) Required under 5 U.S.C. 552;

(iii) For a routine use as defined 5

U.S.C. 552a(a)(7) and described under 5

U.S.C. 552a(e)(4)(D);

(iv) To the Bureau of the Census for

purposes of planning or carrying out a

census or survey or related activity

pursuant to the provisions of Title 13;

(v) To a recipient who has provided

the agency with advance adequate

written assurance that the record will be

used solely as a statistical research or

reporting record, and the record is to be

transferred in a form that is not

individually identifiable;

(vi) To the National Archives and

Records Administration as a record

which has sufficient historical or other

value to warrant its continued

preservation by the United States

Government, or for evaluation by the

Archivist of the United States or the

designee of the Archivist to determine

whether the record has such value;

(vii) To another agency or to an

instrumentality of any governmental

jurisdiction within or under the control

of the United States for a civil or

criminal law enforcement activity if the

activity is authorized by law, and if the

head of the agency or instrumentality

has made a written request to the agency

which maintains the record specifying

the particular portion desired and the

law enforcement activity for which the

record is sought;

(viii) To a person pursuant to a

showing of compelling circumstances

affecting the health or safety of an

individual if upon such disclosure

notification is transmitted to the last

known address of such individual;

(ix) To either House of Congress, or,

to the extent of matter within its

jurisdiction, any committee or

subcommittee thereof, any joint

committee of Congress or subcommittee

of any such joint committee;

(x) To the Comptroller General, or any

of his authorized representatives, in the

course of the performance of the duties

of the General Accounting Office;

(xi) Pursuant to the order of a court

of competent jurisdiction; or

34620 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules

(xii) To a consumer reporting agency

in accordance with section 3711(e) of

Title 31.

(b) The situations referred to in

paragraph (a)(4) of this section include

the following:

(1) 5 U.S.C. 552a(c)(4) requires

dissemination of a corrected or

amended record or notation of a

disagreement statement by the

Department in certain circumstances;

(2) 5 U.S.C. 552a(d) requires

disclosure of records to the individual

to whom they pertain, upon request;

and

(3) 5 U.S.C. 552a(g) authorizes civil

action by an individual and requires

disclosure by the Department to the

court.

(c) The Privacy Officer shall make an

accounting of each disclosure by him of

any record contained in a system of

records in accordance with 5 U.S.C.

552a(c) (1) and (2). Except for a

disclosure made under 5 U.S.C.

552a(b)(7), the Privacy Officer shall

make such accounting available to any

individual, insofar as it pertains to that

individual, on request submitted in

accordance with § 4.24. The Privacy

Officer shall make reasonable efforts to

notify any individual when any record

in a system of records is disclosed to

any person under compulsory legal

process, promptly upon being informed

that such process has become a matter

of public record.

§ 4.31 Fees.

The only fees to be charged to or

collected from an individual under the

provisions of this part are for

duplication of records at the request of

the individual. Components shall charge

fees for duplication of records under the

Act in the same way in which they

charge duplication fees under § 4.11,

except as provided in this section.

(a) No fees shall be charged or

collected for the following: Search for

and retrieval of the records; review of

the records; copying at the initiative of

the Department without a request from

the individual; transportation of records

and personnel; and first-class postage.

(b) It is the policy of the Department

to provide an individual with one copy

of each record corrected or amended

pursuant to his or her request without

charge as evidence of the correction or

amendment.

(c) As required by the United States

Office of Personnel Management in its

published regulations implementing the

Act, the Department will charge no fee

for a single copy of a personnel record

covered by that agency’s Governmentwide published notice of systems of

records.

§ 4.32 Penalties.

(a) The Act provides, in pertinent

part:

Any person who knowingly and willfully

requests or obtains any record concerning an

individual from an agency under false

pretenses shall be guilty of a misdemeanor

and fined not more than $5,000. (5 U.S.C.

552a(i)(3)).

(b) A person who falsely or

fraudulently attempts to obtain records

under the Act also may be subject to

prosecution under such other criminal

statutes as 18 U.S.C. 494, 495 and 1001.

§ 4.33 General exemptions.

(a) Individuals may not have access to

records maintained by the Department

but which were provided by another

agency which has determined by

regulation that such information is

subject to general exemption under 5

U.S.C. 552a(j). If such exempt records

are within a request for access, the

Department will advise the individual

of their existence and of the name and

address of the source agency. For any

further information concerning the

record and the exemption, the

individual must contact that source

agency.

(b) The general exemptions

determined to be necessary and proper

with respect to systems of records

maintained by the Department,

including the parts of each system to be

exempted, the provisions of the Act

from which they are exempted, and the

justification for the exemption, are as

follows:

(1) Individuals identified in Export

Administration compliance proceedings

or investigations—COMMERCE/ITA–1.

Pursuant to 5 U.S.C. 552a(j)(2), these

records are hereby determined to be

exempt from all provisions of the Act,

except 5 U.S.C. 552a (b), (c) (1) and (2),

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

(10), and (11), and (i). These exemptions

are necessary to insure the proper

functioning of the law enforcement

activity, to protect confidential sources

of information, to fulfill promises of

confidentiality, to maintain the integrity

of the law enforcement process, to avoid

premature disclosure of the knowledge

of criminal activity and the evidentiary

bases of possible enforcement actions, to

prevent interference with law

enforcement proceedings, to avoid

disclosure of investigative techniques,

and to avoid the endangering of law

enforcement personnel. Section 7(c) of

the Export Administration Act of 1969,

as amended, also protects this

information from disclosure.

(2) Fisheries Law Enforcement Case

Files—COMMERCE/NOAA–11.

Pursuant to 5 U.S.C. 552a(j)(2), these

records are hereby determined to be

exempt from all provisions of the Act,

except 5 U.S.C. 552a (b), (c) (1) and (2),

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

(10), and (11), and (i). These exemptions

are necessary to insure the proper

functioning of the law enforcement

activity, to protect confidential sources

of information, to fulfill promises of

confidentiality, to prevent interference

with law enforcement proceedings, to

avoid the disclosure of investigative

techniques, to avoid the endangering of

law enforcement personnel, to avoid

premature disclosure of the knowledge

of criminal activity and the evidentiary

bases of possible enforcement actions,

and to maintain the integrity of the law

enforcement process.

(3) Investigative Records—Contract

and Grant Frauds and Employee

Criminal Misconduct—COMMERCE/

DEPT.–12. Pursuant to 5 U.S.C.

552a(j)(2), these records are hereby

determined to be exempt from all

provisions of the Act, except 5 U.S.C.

552a (b), (c) (1) and (2), (e)(4) (A)

through (F), (e) (6), (7), (9), (10), and

(11), and (i). These exemptions are

necessary to insure the proper functions

of the law enforcement activity, to

protect confidential sources of

information, to fulfill promises of

confidentiality, to prevent interference

with law enforcement proceedings, to

avoid the disclosure of investigative

techniques, to avoid the endangering of

law enforcement personnel, to avoid

premature disclosure of the knowledge

of criminal activity and the evidentiary

bases of possible enforcement actions,

and to maintain the integrity of the law

enforcement process.

§ 4.34 Specific exemptions.

(a)(1) Some systems of records under

the Act which are maintained by the

Department contain, from time to time,

material subject to the exemption

appearing at 5 U.S.C. 552a(k)(1), relating

to national defense and foreign policy

materials. The systems of records

published in the Federal Register by the

Department which are within this

exemption are:

COMMERCE/ITA–1, COMMERCE/ITA–

2, COMMERCE/ITA–3, COMMERCE/

NOAA–11, COMMERCE/PAT–TM–4,

COMMERCE/PAT–TM–6, COMMERCE/

PAT–TM–7, COMMERCE/PAT–TM–8,

COMMERCE/PAT–TM–9, COMMERCE/

DEPT–12, COMMERCE/DEPT–13, and

COMMERCE/DEPT–14.

(2) The Department hereby asserts a

claim to exemption of such materials

wherever they might appear in such

systems of records, or any systems of

records, at present or in the future. The

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules 34621

materials would be exempt from 5

U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G),

(H), and (I), and (f). The reason therefore

is to protect the materials required by

Executive order to be kept secret in the

interest of the national defense and

foreign policy.

(b) The specific exemptions

determined to be necessary and proper

with respect to systems of records

maintained by the Department,

including the parts of each system to be

exempted, the provisions of the Act

from which they are exempted, and the

justification for the exemption, are as

follows:

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

The systems of records exempt

hereunder appear in paragraph (a) of

this section. The claims for exemption

of COMMERCE/DEPT–12, COMMERCE/

ITA–1, and COMMERCE/NOAA–11

under this paragraph are subject to the

condition that the general exemption

claimed in § 4.33(b)(3) is held to be

invalid.

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

552a(k)(2). The systems of records

exempt (some only conditionally), the

sections of the Act from which

exempted, and the reasons therefor are

as follows:

(A) Individuals identified in Export

Administration compliance proceedings

or investigations—COMMERCE/ITA–1,

but only on condition that the general

exemption claimed in § 4.33(b)(1) is

held to be invalid;

(B) Individuals involved in export

transactions—COMMERCE/ITA–2;

(C) Fisheries Law Enforcement Case

Files—COMMERCE/NOAA–11, but only

on condition that the general exemption

claimed in § 4.33(b)(2) is held to be

invalid;

(D) Investigative Records—Contract

and Grant Frauds and Employee

Criminal Misconduct—COMMERCE/

DEPT–12, but only on condition that the

general exemption claimed in

§ 4.33(b)(3) is held to be invalid;

(E) Investigative Records—Persons

Within the Investigative Jurisdiction of

the Department—COMMERCE/DEPT–

13;

(F) Litigation, Claims and

Administrative Proceeding Records—

COMMERCE/DEPT–14; and

(G) Non-Registered Persons Rendering

Assistance to Patent Applicants—

COMMERCE/PAT–TM–5.

(ii) The foregoing are exempted from

5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G),

(H), and (I), and (f). The reasons for

asserting the exemption are to prevent

subjects of investigation from frustrating

the investigatory process, to insure the

proper functioning and integrity of law

enforcement activities, to prevent

disclosure of investigative techniques,

to maintain the ability to obtain

necessary information, 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. Special note is taken of the

fact that the proviso clause in this

exemption imports due process and

procedural protections for the

individual. The existence and general

character of the information exempted

will be made known to the individual

to whom it pertains.

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

552a(k)(4). The systems of records

exempt, the sections of the Act from

which exempted, and the reasons

therefore are as follows:

(A) Agricultural Census Records for

1964 (partial), 1969, and 1974—

COMMERCE/CENSUS–1;

(B) Individual and Household

Statistical Surveys and Special Census

Studies Records—COMMERCE/

CENSUS–3;

(C) Minority-Owned Business

Enterprises Survey Records—

COMMERCE/CENSUS–4;

(D) Population and Housing Census

Records for 1960 and 1970—

COMMERCE/CENSUS–5;

(E) Population Census Personal

Service Records for 1900 and All

Subsequent Decennial Censuses—

COMMERCE/CENSUS–6; and

(F) Special Censuses of Population

Conducted for State and Local

Government—COMMERCE/CENSUS–7.

(ii) The foregoing are exempted from

5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G)

(H), and (I), and (f). The reasons for

asserting the exemption are to comply

with the prescription of Title 13, United

States Code, especially sections 8 and 9

relating to prohibitions against

disclosure, and to avoid needless

consideration of these records whose

sole statistical use comports fully with

a basic purpose of the Act, namely, no

adverse determinations may be made

from these records as to any identifiable

individual.

(4)(i) Exempt under 5 U.S.C.

552a(k)(5). The systems of records

exempt (some only conditionally), the

sections of the act from which

exempted, and the reasons therefor are

as follows:

(A) Applications to U.S. Merchant

Marine Academy (USMMA)—

COMMERCE/MA–1;

(B) USMMA Midshipman Medical

Files—COMMERCE/MA–17;

(C) USMMA Midshipman Personnel

Files—COMMERCE/MA–18;

(D) USMMA Non-Appropriated fund

Employees—COMMERCE/MA–19;

(E) Applicants for the NOAA Corps—

COMMERCE/NOAA–4;

(F) Commissioned Officer Official

Personnel Folders—COMMERCE/

NOAA–7;

(G) Conflict of Interest Records,

Appointed Officials—COMMERCE/

DEPT–3;

(H) Investigative Records—Contract

and Grant Frauds and Employee

Criminal Misconduct—COMMERCE/

DEPT–12, but only on condition that the

general exemption claimed in

§ 4.33(b)(3) is held to be invalid;

(I) Investigative Records—Persons

Within the Investigative Jurisdiction of

the Department—COMMERCE/DEPT–

13; and

(J) Litigation, Claims, and

Administrative Proceeding Records—

COMMERCE/DEPT–14.

(ii) The foregoing are exempted from

5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G),

(H), and (I), and (f). The reasons for

asserting the exemption are to maintain

the ability to obtain candid and

necessary information, to fulfill

commitments made to sources to protect

the confidentiality of information, to

avoid endangering these sources and,

ultimately, to facilitate proper selection

or continuance of the best applicants or

persons for a given position or contract.

Special note is made of the limitation on

the extent to which this exemption may

be asserted. The existence and general

character of the information exempted

will be made known to the individual

to whom it pertains.

(c) At the present time, the

Department claims no exemption under

5 U.S.C. 552a(k) (3), (6) and (7).

Appendix A to Part 4—Freedom of

Information Public Inspection

Facilities, and Addresses for Requests

for Records Under the Freedom of

Information Act and Privacy Act, and

Requests for Correction or Amendment

Under the Privacy Act

Each address listed below is the respective

component’s mailing address for receipt and

processing of requests for records under the

Freedom of Information Act and Privacy Act,

for requests for correction or amendment

under the Privacy Act and, unless otherwise

noted, its public inspection facility for

records available to the public under the

Freedom of Information Act. Public

inspection facilities are open to the public

Monday through Friday (except for days on

which Federal offices are closed) between 9

a.m. and 4 p.m. local time of the facility at

issue. Requests should be addressed to the

component the requester knows or has reason

to believe has possession, control, or primary

concern with the records sought. Otherwise,

requests should be addressed to the Central

Reference and Records Inspection Facility.

The telephone number for each facility is

included after its address.

34622 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules

(1) Department of Commerce Freedom of

Information Central Reference and Records

Inspection Facility, U.S. Department of

Commerce, Room 6020, 14th and

Constitution Avenue, NW, Washington, DC

20230; (202) 482–4115. This facility serves

the Office of the Secretary, all other

components of the Department not identified

below, and those components identified

below which do not have separate public

inspection facilities.

(2) Bureau of the Census, Program and

Policy Development Office, U.S. Department

of Commerce, Federal Building 3, Room

2430, Suitland, Maryland 20233; (301) 457–

2520. This agency maintains a separate

public inspection facility in Room 2455,

Federal Building 3, Suitland, Maryland

20233.

(3) Bureau of Economic Analysis/

Economics and Statistics Administration,

Office of the Under Secretary for Economic

Affairs, Department of Commerce, Room

4838, 14th and Constitution Avenue, NW,

Washington, DC 20230; (202) 482–3308. This

component does not maintain a separate

public inspection facility.

(4) Economic Development

Administration, Office of the Chief Counsel,

U.S. Department of Commerce, Room 7005,

14th and Constitution Avenue, NW,

Washington, DC 20230; (202) 482–4687.

Mailing addresses of Regional EDA offices:

(i) Philadelphia Regional Office, EDA, U.S.

Department of Commerce, Freedom of

Information Request Control Desk, Curtis

Center, Suite 140 South, Independence

Square West, Philadelphia, Pennsylvania

19106.

(ii) Atlanta Regional Office, EDA, U.S.

Department of Commerce, Freedom of

Information Request Control Desk, 401 West

Peachtree Street, NW, Suite 1820, Atlanta,

GA 30308.

(iii) Denver Regional Office, EDA, U.S.

Department of Commerce, Freedom of

Information Request Control Desk, Room 670,

1244 Speer Boulevard, Denver, Colorado

80204.

(iv) Chicago Regional Office, EDA, U.S.

Department of Commerce, Freedom of

Information Request Control Desk, 111 North

Canal Street, Suite 855, Chicago, IL 60606.

(v) Seattle Regional Office, EDA, U.S.

Department of Commerce, Freedom of

Information Request Control Desk, Jackson

Federal Building, Room 1856, 915 Second

Avenue, Seattle WA 98174.

(vi) Austin Regional Office, EDA, U.S.

Department of Commerce, Freedom of

Information Request Control Desk, Grant

Building, Suite 201, 611 East 6th Street,

Austin, Texas 78701.

(5) Bureau of Export Administration, Office

of Administration, U.S. Department of

Commerce, Room 4525, 14th and

Constitution Avenue, NW, Washington, DC

20230; (202) 482–0109.

(6) International Trade Administration,

Office of Organization and Management

Support, U.S. Department of Commerce,

Room 4001, 14th and Constitution Avenue,

NW, Washington, DC 20230; (202) 482–3756.

(7) Minority Business Development

Agency, Data Resources Division, U.S.

Department of Commerce, Room 5084, 14th

and Constitution Avenue, NW, Washington,

DC 20230; (202) 482–2025. This agency does

not maintain a separate public inspection

facility.

(8) National Institute of Standards and

Technology, Office of the Director, Room A–

1105, Gaithersburg, Maryland 20234; (301)

975–2389. This agency maintains a separate

public inspection facility in Room E–106,

Administration Building, Gaithersburg,

Maryland.

(9) National Oceanic and Atmospheric

Administration, Central FOIA Facility, 1305

East-West Highway, SSMC–4, 8th floor,

Station 8627, Silver Spring, Maryland 20910;

(301) 713–3540.

(10) National Technical Information

Service, Office of Administrative

Management, Room 209, Forbes Building,

Springfield, Virginia 22161; (703) 487–4736.

This agency does not maintain a separate

public inspection facility.

(11) National Telecommunications and

Information Administration, Office of the

Chief Counsel, U.S. Department of

Commerce, Room 4713, 14th and

Constitution Avenue, NW, Washington, DC

20230; (202) 482–1816. This agency

maintains a separate public inspection

facility in Room 1609.

(12) Office of Inspector General, Counsel to

the Inspector General, U.S. Department of

Commerce, Room 7892, 14th and

Constitution Avenue, NW, Washington, DC

20230; (202) 482–5992. This component does

not maintain a separate public inspection

facility.

(13) Technology Administration, Office of

the Under Secretary, U.S. Department of

Commerce, Room 4835, 14th and

Constitution Avenue, NW, Washington, DC

20230; (202) 482–1984. This component does

not maintain a separate public inspection

facility.

Appendix B to Part 4—Officials

Authorized to Deny Requests for

Records Under the Freedom of

Information Act, and Requests for

Records and Requests for Correction or

Amendment Under the Privacy Act

The following officials of the Department,

and their superiors, have been delegated

authority with respect to the records for

which each is responsible, to deny requests

for records under the Freedom of Information

Act, and requests for records and requests for

correction or amendment under the Privacy

Act. The Director for Executive Budgeting

and Assistance Management is authorized to

revise this appendix to reflect organizational

changes or new delegations.

Office of the Secretary

Office of the Secretary: Executive Secretary

Freedom of Information Officer

Office of the Deputy Secretary: Associate

Deputy Secretary

Office of Business Liaison: Director

Office of Consumer Affairs: Director

Office of the Press Secretary: Press Secretary;

Deputy Press Secretary

Office of Public Affairs: Director

Office of Space Commerce: Director

Office of the Assistant Secretary for

Legislative and Intergovernmental Affairs:

Deputy Assistant Secretary for Legislative

and Intergovernmental Affairs

Office of the Inspector General: Counsel to

the Inspector General; Deputy Counsel to

the Inspector General

Office of the General Counsel: Deputy

General Counsel; Assistant General

Counsel for Administration

Office of Intelligence Liaison: Director

Assistant Secretary for Administration

Office of the Administrative Law Judge:

Office Manager

Office of Civil Rights: Director

Office of Budget, Planning and Organization:

Director

Office of Management and Organization:

Director

Office of Budget: Director

Office of Information Policy and Technology:

Director

Office of Information Planning and Review:

Director

Office of Executive Budgeting and Assistance

Management: Director

Office of Executive Assistance Management:

Director

Office of Grants Administration: Office

Manager

Departmental Freedom of Information Officer

Office of Financial Management: Director

Office of Human Resources Management:

Director; Deputy Director

Office of Workforce Effectiveness and

Executive Resources: Director

Office of Labor and Employee Relations:

Director

Office of Automated Systems and Pay

Administration: Director

Office of Administrative Services: Director

Office of Security: Director, Deputy Director

Office of Acquisition Management: Director

Office of Acquisition Services: Director

Office of Small and Disadvantaged Business

Utilization: Director

Economics and Statistics Administration

Office of Administration: Director

Bureau of Economic Analysis: Director

Bureau of the Census: Chief, Program and

Policy Development Office

Economic Development Administration

Freedom of Information Act Officer

Export Administration

Under Secretary

Deputy Under Secretary

Director for Administration

Director, Office of Planning, Evaluation and

Management

Assistant Secretary for Export Administration

Deputy Assistant Secretary for Export

Administration

Director, Office of Strategic Industries and

Economic Security

Director, Office of Chemical and Biological

Controls and Treaty Compliance

Director, Office of Nuclear and Missile

Technology Controls

Director, Office of Strategic Trade and

Foreign Policy Controls

Director, Office of Exporter Services

Assistant Secretary for Export Enforcement

Deputy Assistant Secretary for Export

Enforcement

Director, Office of Export Enforcement

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules 34623

Director, Office of Enforcement Analysis

Director, Office of Antiboycott Compliance

International Trade Administration

Deputy Under Secretary for International

Trade

Counselor to the Department

Director, Office of Public Affairs

Director, Office of Legislative and

Intergovernmental Affairs

Administration

Director, Office of Organization and

Management Support

Director, Office of Human Resources

Management

Director, Office of Financial Management

Director, Office of Information Resources

Management

U.S. and Foreign Commercial Service

Deputy Assistant Secretary for International

Operations

Deputy Assistant Secretary for Export

Promotion Services

Deputy Assistant Secretary for Domestic

Operations

Director, Human Resources Development

Staff

Director, Office of Planning

Market Access and Compliance

Director, Office of Multilateral Affairs

Director, Trade Compliance Center

NAFTA Secretary

Director, Office of Policy Coordination

Director, Office of Africa

Director, Office of the Near East

Director, Office of European Union and

Regional Affairs

Director, Office of Eastern Europe, Russia and

Independent States

Director, Office of Latin America and the

Caribbean

Director, Office of NAFTA

Director, Office of Inter-American Affairs

Director, Office of China Economic Area

Director, Office of Korea and Southeast Asia

Director, Office of South Asia and Oceania

Director, Office of Japan Trade Policy

Director, Office of Japan Commercial

Programs

Trade Development

Deputy Assistant Secretary for

Environmental Technologies Exports

Deputy Assistant Secretary for Tourism

Industries

Director, Trade Information Center

Director, Advocacy Center

Director, Office of Trade and Economic

Analysis

Director, Office of Planning, Coordination

and Resource Management

Director, Office of Aerospace

Director, Office of Computers and Business

Equipment

Director, Office of Microelectronics, Medical

Equipment and Instrumentation

Director, Office of Telecommunications

Director, Office of Textiles and Apparel

Director, Office of Consumer Goods

Director, Office of Automotive Affairs

Director, Office of Materials, Metals and

Chemicals

Director, Office of Energy, Infrastructure and

Machinery

Director, Office of Export Trading Company

Affairs

Director, Office of Finance

Director, Office of Service Industries

Import Administration

Director of Policy and Analysis

Director, Foreign Trade Zones Staff

Director, Statutory Import Programs Staff

Director, Office of AD/CVD Enforcement I

Director, Office of AD/CVD Enforcement II

Director, Office of AD/CVD Enforcement III

Director, Office of AD/CVD Enforcement IV

Director, Office of AD/CVD Enforcement V

Director, Office of AD/CVD Enforcement VI

Director, Office of AD/CVD Enforcement VII

Director, Office of AD/CVD Enforcement VIII

Director, Office of AD/CVD Enforcement IX

Minority Business Development

Administration

Freedom of Information Officer

National Oceanic and Atmospheric

Administration

Under Secretary

Assistant Secretary

Director, Office of Public Affairs

Director, NOAA Corps

General Counsel

Assistant Administrator for Ocean Services

and Coastal Zone Management

Assistant Administrator for Fisheries

Assistant Administrator for Weather Services

Assistant Administrator for Environmental

Satellite, Data and Information Services

Assistant Administrator for Oceanic and

Atmospheric Research

Director, Environmental Research

Laboratories

Director, Office of Finance and

Administration

Director, Eastern Administrative Support

Center

Director, Western Administrative Support

Center

Director, Mountain Administrative Support

Center

Director, Central Administrative Support

Center

Director, Procurement, Grants, and

Administrative Services Office

Director, Systems Acquisition Office

NOAA FOIA Officer

National Telecommunications and

Information Administration

Deputy Assistant Secretary

Chief Counsel

Deputy Chief Counsel

Technology Administration

Under Secretary for Technology

Deputy Under Secretary for Technology

Assistant Secretary for Technology Policy

Chief Counsel

Deputy Chief Counsel

National Institute of Standards and

Technology: Director of Administration;

Deputy Director of Administration

National Technical Information Service:

Director; Director: Office of Administration

Appendix C to Part 4—Systems of

Records Noticed by Other Federal

Agencies and Applicable to Records of

the Department and Applicability of

This Part Thereto

Category of records Other Federal agency

Federal Personnel

Records.

Office of Personnel

Management.1

Federal Employee

Compensation Act

Program.

Department of

Labor.2

Equal Employment

Opportunity Appeal

Complaints.

Equal Employment

Opportunity Commission.3

Formal Complaints/

Appeals of Adverse

Personnel Actions.

Merit Systems Protection Board.4

1The provisions of this part do not apply to

these records covered by notices of systems

of records published by the Office of Personnel Management for all agencies. The regulations of OPM alone apply. 1The provisions of this part apply only initially to these records covered by notices of

systems of records published by the U.S. Department of Labor for all agencies. The regulations of that Department attach at the point of

any denial for access or for correction or

amendment. 3The provisions of this part do not apply to

these records covered by notices of systems

of records published by the Equal Employment

Opportunity Commission for all agencies. The

regulations of the Commission alone apply. 4The provisions of this part do not apply to

these records covered by notices of systems

of records published by the Merit Systems

Protection Board for all agencies. The regulations of the Board alone apply.

2. Part 4a is revised to read as follows:

PART 4a—CLASSIFICATION,

DECLASSIFICATION, AND PUBLIC

AVAILABILITY OF NATIONAL

SECURITY INFORMATION

Sec.

4a.1 General

4a.2 Deputy Assistant Secretary for Security

4a.3 Classification levels

4a.4 Classification authority

4a.5 Duration of classification

4a.6 General

4a.7 Mandatory review for declassification

4a.8 Access to classified information by

individuals outside the Government

Authority: E.O. 12958; 47 FR 14874, April

6, 1982; 47 FR 15557, April 12, 1982.

§ 4a.1 General.

Executive Order 12958 provides the

only basis for classifying information

within the Department of Commerce,

except as provided in the Atomic

Energy Act of 1954, as amended. The

policy of the Department of Commerce

is to make information concerning its

activities available to the public

consistent with the need to protect the

national defense or foreign relations as

required by the interests of the United

34624 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules

States and its citizens. Accordingly,

security classification shall be applied

only to protect the national security.

§ 4a.2 Deputy Assistant Secretary for

Security.

The Deputy Assistant Secretary for

Security (DAS) is responsible for

implementing E.O. 12958 and this part.

§ 4a.3 Classification levels.

Information may be classified as

national security information by a

designated original classifier of the

Department when it is determined that

the information concerns one or more of

the categories described in § 1.5 of E.O.

12958. The levels established by E.O.

12958 (Top Secret, Secret, and

Confidential) are the only terms which

may be applied to national security

information. Except as provided by

statute, no other terms shall be used

within the Department of Commerce in

conjunction with any of the three

classification levels.

§ 4a.4 Classification authority.

Authority to originally classify

information as Secret or Confidential

may be exercised only by the Secretary

of Commerce and by officials to whom

such authority is specifically delegated.

No official of the Department of

Commerce is authorized to originally

classify information as Top Secret.

§ 4a.5 Duration of Classification.

(a) Information shall remain classified

no longer than ten years from the date

of its original classification, except as

provided in § 1.6(d) of E.O. 12958.

Under E.O. 12958, information may be

exempted from declassification within

ten years if the unauthorized disclosure

of such information could reasonably be

expected to cause damage to the

national security for more than ten years

and meets one of the eight criteria listed

in § 1.6(d).

(b) Department of Commerce

originally classified information marked

for an indefinite duration of

classification under predecessor orders

to E.O. 12958 shall be declassified after

twenty years. Classified information

contained in archive records determined

to have permanent historical value

under title 44, United States Code, shall

be automatically declassified no longer

than 25 years from the date of its

original classification, except as

provided in § 3.4(d) of E.O. 12958.

§ 4a.6 General.

National security information over

which the Department of Commerce

exercises final classification jurisdiction

shall be declassified or downgraded as

soon as national security considerations

permit. When information is

declassified, it may continue to be

exempt from public disclosure by the

Freedom of Information Act (5 U.S.C.

552) or other applicable law.

§ 4a.7 Mandatory review for

declassification.

(a) Requests. Classified information

under the jurisdiction of the Department

of Commerce is subject to review for

declassification upon receipt of a

written request that describes the

information with sufficient specificity to

locate it with a reasonable amount of

effort. Requests must be submitted to

the Deputy Assistant Secretary for

Security, U.S. Department of Commerce,

Room 1069, 14th and Constitution

Avenue, NW, Washington, DC 20230.

(b) Exemptions. The following are

exempt from mandatory review for

declassification:

(1) Information that has been

reviewed for declassification within the

past two years;

(2) Information that is the subject of

pending litigation;

(3) Information originated by the

incumbent President, the incumbent

President’s White House Staff,

committees, commissions, or boards

appointed by the incumbent President,

or other entities within the Executive

Office of the President that solely advise

and assist the incumbent President; and

(4) Information specifically exempt

from such review by law.

(c) Processing requirements. (1) The

DAS shall acknowledge receipt of the

request directly to the requester. If a

request does not adequately describe the

information sought in accordance with

paragraph (a) of this section, the

requester shall be notified that unless

additional information is provided, no

further action will be taken. The request

shall be forwarded to the operating unit

or office which originated the

information or which has primary

interest in the subject matter. The unit

or office assigned action shall review

the information in accordance with

§ 4a.7(c)(2) through (4) within twenty

working days.

(2) The action office shall determine

whether, under the declassification

provisions of the Department of

Commerce National Security Manual,

the entire document or portions thereof

may be declassified. Declassification of

the information shall be accomplished

by a designated declassification

authority. Upon declassification the

information shall be remarked. If the

information is not partially or entirely

declassified, the reviewing official shall

provide the reasons for denial by citing

the applicable provisions of E.O. 12958.

When the classification is a derivative

decision based on classified source

material of another Federal agency, the

action office shall provide the

information to the originator for review.

(3) If information is declassified, the

action office shall also determine

whether it is releasable under the

Freedom of Information Act. If the

information is not releasable, the action

office shall advise the DAS that the

information has been declassified but

that it is exempt from disclosure, citing

the appropriate exemption of the

Freedom of Information Act.

(4) If the request for declassification is

denied in whole or in part, the requester

shall be notified of the right to appeal

the determination within sixty calendar

days and of the procedures for such an

appeal. If declassified information

remains exempt from disclosure under

the Freedom of Information Act, the

requester shall be advised of those

appellate procedures.

(d) Fees. If the request requires the

rendering of services for which fees may

be charged, the unit assigned action may

calculate the anticipated fees to be

charged and ascertain the requester’s

willingness to pay the allowable charges

as a precondition to taking further

action on the request in accordance with

§ 4.11 of the Department of Commerce

Freedom of Information Act rules and

§ 4.31 of the Department’s Privacy Act

rules.

(e) Right of appeal. (1) A requester

may appeal to the DAS when

information requested under this

section is not completely declassified

and released after expiration of the

applicable time limits. Within thirty

working days (i.e., excluding Saturdays,

Sundays, and days on which Federal

offices are closed) of receipt of a written

appeal,

(i) The DAS shall determine whether

continued classification of the requested

information is required in whole or in

part; if information is declassified;

(ii) Determine whether it is releasable

under the Freedom of Information Act;

and

(iii) Notify the requester of his

determination, making available any

information determined to be releasable.

If continued classification is required

under the provisions of the Department

of Commerce National Security Manual,

the DAS shall notify the requester of his

determination, including the reasons for

denial based on applicable provisions of

E.O. 12958, and of the right of final

appeal to the Interagency Security

Classification Appeals Panel.

(2) During the declassification review

of information under appeal the DAS

may overrule previous determinations

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules 34625

in whole or in part when, in his

judgment, continued protection in the

interest of national security is no longer

required. If the DAS determined that the

information no longer requires

classification, it shall be declassified

and, unless it is otherwise exempt from

disclosure under the Freedom of

Information Act, released to the

requester. The DAS shall advise the

original reviewing Commerce office or

unit of his decision.

§ 4a.8 Access to classified information by

individuals outside the Government.

(a) Industrial, Educational, and

Commercial Entities. Certain bidders,

contractors, grantees, educational,

scientific, or industrial organizations

may receive classified information

under the procedures prescribed by the

National Industrial Security Program

Operating Manual.

(b) Access by historical researchers

and former Presidential appointees. An

individual engaged in historical

research projects or who has previously

occupied a policy-making position to

which he or she was appointed by the

President may be authorized access to

classified information for a limited

period, provided that the head of the

component with jurisdiction over the

information:

(1) Determines in writing that:

(i) Access is consistent with national

security,

(ii) The individual has a compelling

need for access, and

(iii) The Department’s best interest is

served by providing access;

(2) Obtains in writing from the

individual:

(i) Consent to a review by the

Department of their resultant notes and

manuscripts for the purpose of

determining that no classified

information is contained in them, and

(ii) Agreement to safeguard classified

information in accordance with

applicable requirements; and

(iii) A detailed description of the

individual’s research;

(3) Ensures that custody of classified

information is maintained at a

Department facility;

(4) Limits access granted to former

Presidential appointees to items that the

individual originated, reviewed, signed,

or received while serving as a

Presidential appointee; and

(5) Receives from the DAS:

(i) A determination that the

individual is trustworthy; and

(ii) Approval to grant access to the

individual.

(c) An individual seeking access

should describe the information with

sufficient specificity to locate and

compile it with a reasonable amount of

effort. If the access requested by a

historical researcher or former

Presidential appointee requires

rendering services for which fair and

equitable fees may be charged, the

responsible component shall notify the

individual in advance.

(d) This section applies only to

classified information originated by the

Department, or to information in the

sole custody of the Department.

Otherwise, the individual shall be

referred to the classifying agency.

PART 4b—PRIVACY ACT [REMOVED]

3. Remove Part 4b.

Dated: May 17, 2000.

Susan Sutherland,

Acting Director for Executive Budgeting and

Assistance Management.

[FR Doc. 00–13161 Filed 5–30–00; 8:45 am]

BILLING CODE 3510–BW–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 917

[KY–225–FOR]

Kentucky Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment

period and opportunity for public

hearing.

SUMMARY: OSM is announcing receipt of

a proposed amendment to the Kentucky

regulatory program (Kentucky program)

under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The

proposed amendment consists of

revisions to the Kentucky regulations

pertaining to permitting, abating

violations, and constructing roads above

highwalls. The amendment is intended

to revise the Kentucky program to be

consistent with the corresponding

Federal regulations.

DATES: If you submit written comments,

they must be received by 4 p.m., (e.d.t.)

on June 30, 2000. If requested, a public

hearing on the proposed amendment

will be held on June 26, 2000. Requests

to speak at the hearing must be received

by 4 p.m. (e.d.t.) on June 15, 2000.

ADDRESSES: Mail or hand-deliver your

written comments and requests to speak

at the hearing to William J. Kovacic,

Field Office Director, at the address

listed below.

You may review copies of the

Kentucky program, the proposed

amendment, a listing of any scheduled

public hearings, and all written

comments received in response to this

document at the addresses listed below

during normal business hours, Monday

through Friday, excluding holidays. You

may receive one free copy of the

proposed amendment by contacting

OSM’s Lexington Field Office.

William J. Kovacic, Director, Lexington

Field Office, Office of Surface Mining

Reclamation and Enforcement, 2675

Regency Road, Lexington, Kentucky

40503; telephone: (859) 260–8400. EMail: bkovacic@osmre.gov.

Department of Surface Mining

Reclamation and Enforcement, 2

Hudson Hollow Complex, Frankfort,

Kentucky 40601; telephone: (502)

564–6940.

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Director, Lexington

Field Office, Telephone: (859) 260–

8400.

SUPPLEMENTARY INFORMATION:

I. Background on the Kentucky

Program

On May 18, 1982, the Secretary of the

Interior conditionally approved the

Kentucky program. You can find

background information on the

Kentucky program, including the

Secretary’s findings, the disposition of

comments, and the conditions of

approval in the May 18, 1982, Federal

Register (47 FR 21404). You can find

subsequent actions concerning the

conditions of approval and program

amendments at 30 CFR 917.11, 917.13,

917.15, 917.16, and 917.17.

II. Description of the Proposed

Amendment

By letter dated May 9, 2000

(Administrative Record No. KY–1473),

Kentucky submitted a proposed

amendment to its program consisting of

enacted House Bills (HB) 502 (partial),

599, and 792.

HB 502 is a budget bill and only Part

IX, Item 36(b), which pertains to surface

coal mining permits, was submitted. It

provides that the permit block

provisions of KRS 350.085(6) apply to

either the applicant or any person who

owns or controls the applicant who is

currently in violation. It requires the

cabinet to continue in effect the current

administrative regulations on ownership

and control, provided that a due process

hearing is afforded at the time the

cabinet makes a preliminary

determination to impose a permit block.

It requires the cabinet to conditionally

issue a permit, permit renewal, or