[Federal Register Volume 65, Number 105 (Wednesday, May 31, 2000)]
[Proposed Rules]
[Pages 34606-34625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13161]


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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.

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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, Attorney-Advisor, 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 Sec. 4.2(b) (electronic reading rooms), 
Sec. 4.6(b) (timing of responses), Sec. 4.6(d) (multitrack processing), 
Sec. 4.6(e) (expedited processing), Sec. 4.7(a), (b)(3) (deletion 
marking and estimation of volume of information withheld), 
Sec. 4.11(b)(3) (format of disclosure), and Sec. 4.11(b)(8) (electronic 
searches).
    Proposed revisions of the Department's fee schedule are at 
Sec. 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.

[[Page 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


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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

[[Page 34608]]

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 Sec. 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, Sec. 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.


Sec. 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 Sec. 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.


Sec. 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 Sec. 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

[[Page 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.


Sec. 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 Sec. 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 
Sec. 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 Sec. 4.10(b).


Sec. 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 Sec. 4.10(c).


Sec. 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.

[[Page 34610]]

    (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).


Sec. 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 Sec. 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 Sec. 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 Sec. 4.11.
    (e) If no determination of an appeal has been sent to the requester 
within the twenty working day period specified in Sec. 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

[[Page 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.


Sec. 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      Duplication (excluding the cost
 Scientific Institution Requesters.       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.

[[Page 34612]]



------------------------------------------------------------------------
                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.,        Actual direct cost, including
     computer disk or printout,           operator time.
     microfilm, microfiche, or
     microform).
(iv) Review of records (includes         Actual salary rate of employee
 preparation for release, i.e.,           conducting review, plus 16
 excising).                               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

[[Page 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


Sec. 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

[[Page 34614]]

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.


Sec. 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.


Sec. 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 Sec. 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 Sec. 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

[[Page 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.


Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 4.23(b)(9). The certification in 
or attached to the letter must be substantially in accordance with the 
following text:


City of ____

County of ____: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 ____ day of ________, 20 ____, and established (his) 
(her) identity to my satisfaction.
    My commission expires ____.


(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

[[Page 34616]]

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 Sec. 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.


Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 4.33 or 4.34, or exempt by 
determination of another agency publishing notice of the system of 
records, as described in Sec. 4.23(f);
    (ii) The record is information compiled in reasonable anticipation 
of a civil action or proceeding;
    (iii) The provisions of Sec. 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).

[[Page 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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.


Sec. 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.


Sec. 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 Sec. 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

[[Page 34618]]

invoked, that is, whether the information in the record is unnecessary, 
inaccurate, irrelevant, untimely or incomplete.


Sec. 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 
Sec. 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 
Sec. 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 quasi-legislative 
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.


Sec. 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 Sec. 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

[[Page 34619]]

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 Sec. 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 Sec. 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 
Sec. 4.28(c) and shall deny an appeal only on the grounds set forth in 
Sec. 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).


Sec. 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 Sec. 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\
---------------------------------------------------------------------------

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

    (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

[[Page 34620]]

    (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 Sec. 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.


Sec. 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 Sec. 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 Government-wide published notice of systems of records.


Sec. 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.


Sec. 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.


Sec. 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

[[Page 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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.

[[Page 34622]]

    (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

[[Page 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         Equal Employment Opportunity
 Complaints.                                 Commission.\3\
Formal Complaints/Appeals of Adverse        Merit Systems Protection
 Personnel Actions.                          Board.\4\
------------------------------------------------------------------------
\1\ The 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.
\1\ The 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.
\3\ The 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.
\4\ The 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.


Sec. 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

[[Page 34624]]

States and its citizens. Accordingly, security classification shall be 
applied only to protect the national security.


Sec. 4a.2  Deputy Assistant Secretary for Security.

    The Deputy Assistant Secretary for Security (DAS) is responsible 
for implementing E.O. 12958 and this part.


Sec. 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 Sec. 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.


Sec. 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.


Sec. 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 
Sec. 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 Sec. 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 Sec. 3.4(d) of E.O. 
12958.


Sec. 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.


Sec. 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 Sec. 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 Sec. 4.11 of the 
Department of Commerce Freedom of Information Act rules and Sec. 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

[[Page 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.


Sec. 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