Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 41903

including a brief assessment of the

environmental impacts of the removal

operations and procedures and

mitigation measures that will be taken

to minimize such impacts; and

(4) Projected removal schedule and

duration.

(b) Pig the line, unless the Regional

Supervisor determines that pigging is

not practical; and

(c) Flush the line.

[FR Doc. 00–17032 Filed 7–6–00; 8:45 am]

BILLING CODE 4310–MR–P

DEPARTMENT OF COMMERCE

United States Patent and Trademark

Office

37 CFR Part 102

RIN: 0651–AB21

Public Information, Freedom of

Information and Privacy

AGENCY: United States Patent and

Trademark Office, Commerce.

ACTION: Notice of proposed rulemaking

SUMMARY: The United States Patent and

Trademark Office proposes to add

regulations implementing the Freedom

of Information Act (FOIA), including the

Electronic Freedom of Information Act

(EFOIA) Amendments of 1996, and the

Privacy Act (PA). These proposed rules

are based on rules recently proposed by

the Department of Commerce.

DATES: Comments must be received on

or before August 7, 2000.

ADDRESSES: Send all comments—

1. Electronically to

‘‘PBORulemaking@uspto.gov’’, Subject:

FOIA/PA Rules;

2. By mail to Director of the United

States Patent and Trademark Office, Box

8, Washington, D.C. 20231, ATTN:

FOIA/PA Rules; or

3. By facsimile to 703–305–9373,

ATTN: FOIA/PA Rules.

FOR FURTHER INFORMATION CONTACT:

Joseph G. Piccolo, 703–305–9035.

SUPPLEMENTARY INFORMATION:

Comment Format

USPTO prefers to receive comments

in electronic form, either via the

Internet or on a 31⁄4 inch diskette.

Comments submitted in electronic form

should be submitted as ASCII text.

Special characters and encryption

should not be used.

Background

The Patent and Trademark Office

Efficiency Act (PTOEA) (Pub. L. 106–

113, 113 Stat. 1501A–572) reestablished

the Patent and Trademark Office as

United States Patent and Trademark

Office (USPTO), a performance-based

organization with responsibility for its

own operations. Consequently, USPTO

has or is gaining many functions

formerly provided by the Department of

Commerce. The rules proposed in this

notice adopt the substance of rules

recently proposed by the Department of

Commerce, 65 FR 34606 (May 31, 2000).

Where appropriate, these proposed rules

have been streamlined and tailored to

reflect the practices of USPTO and its

constituencies. In particular, USPTO

has no national security classification

authority so determinations regarding

classified records will be referred to the

classifying authority. Moreover, the

proposed Commerce rules provide a

great deal of guidance to its component

bureaus. USPTO will not decentralize

its initial action authority to its business

units. These proposed rules will apply

to FOIA and Privacy Act requests filed

after October 1, 2000.

Other Considerations

This rule is not 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

USPTO General Counsel 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 FOIA,

agencies may recover only the direct

costs of searching for, reviewing, and

duplicating the records processed for

requesters. Moreover, both FOIA and

these rules set thresholds below which

fees are not charged to reduce the effect

of FOIA fees still further. Further, the

number of ‘‘small entities’’ (within the

meaning of the Regulatory Flexibility

Act) that make FOIA requests is

relatively small compared to the number

of individuals who make such requests.

List of Subjects in 37 CFR Part 102

Administrative practice and

procedure, Freedom of Information,

Privacy, Public information.

For the reasons stated in the

preamble, USPTO proposes to amend 37

CFR Chapter I by adding Part 102 to

read as follows:

PART 102—DISCLOSURE OF

GOVERNMENT INFORMATION

Subpart A—Freedom of Information

Act

Sec.

102.1 General.

102.2 Public reference facilities.

102.3 Records under FOIA.

102.4 Requirements for making requests.

102.5 Responsibility for responding to

requests.

102.6 Time limits and expedited

processing.

102.7 Responses to requests.

102.9 Business Information.

102.10 Appeals from initial determinations

or untimely delays.

102.11 Fees.

Subpart B—Privacy Act

102.21 Purpose and scope.

102.22 Definitions.

102.23 Procedures for making inquiries.

102.24 Procedures for making requests for

records.

102.25 Disclosure of requested records to

individuals.

102.26 Special procedures: Medical

records.

102.27 Procedures for making requests for

correction or amendment.

102.28 Review of requests for correction or

amendment.

102.29 Appeal of initial adverse

determination on correction or

amendment.

102.30 Disclosure of record to person other

than the individual to whom it pertains.

102.31 Fees.

102.32 Penalties.

102.33 General exemptions.

102.34 Specific exemptions.

Appendix to Part 102—Systems of Records

Noticed by Other Federal Agencies and

Applicable to USPTO Records, and

Applicability of this Part Thereto

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

U.S.C. 553; 31 U.S.C. 3717; 35 U.S.C. 2(b)(2),

21, 41, 42, 122; 44 U.S.C. 3101.

Subpart A—Freedom of Information

Act

§ 102.1 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 United States Patent and

Trademark Office (USPTO) follows 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 USPTO activity (for example,

press releases issued by the Office of

Public Affairs) may be provided to the

public without following this part.

USPTO’s policy is to make discretionary

disclosures of records or information

exempt from disclosure under FOIA

whenever disclosure would not

foreseeably harm an interest protected

by a FOIA exemption, but this policy

41904 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

does not create any right enforceable in

court.

(b) As used in this subpart, FOIA

Officer means the USPTO employee

designated to administer FOIA for

USPTO. To ensure prompt processing of

a request, correspondence should be

addressed to the FOIA Officer, United

States Patent and Trademark Office,

Washington DC 20231 or delivered by

hand to Crystal Park Two, 2121 Crystal

Drive, Suite 714, Arlington, Virginia.

§ 102.2 Public reference facilities.

(a) USPTO maintains a public

reference facility that contains the

records FOIA requires to be made

regularly available for public inspection

and copying; furnishes information and

otherwise assists the public concerning

USPTO operations under FOIA; and

receives and processes requests for

records under FOIA. The FOIA Officer

is responsible for determining which of

USPTO’s records are required to be

made available for public inspection

and copying, and for making those

records available in USPTO’s reference

and records inspection facility. The

FOIA Officer shall maintain and make

available for public inspection and

copying a current subject-matter index

of USPTO’s 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),

USPTO has determined that it is

unnecessary and impracticable to

publish quarterly, or more frequently,

and distribute copies of the index and

supplements thereto. The public

reference facility is located in the Public

Search Room, Crystal Plaza Three, 2021

South Clark Place, Room 1A01,

Arlington, Virginia.

(b) The FOIA Officer shall also make

public inspection facility records

created by USPTO on or after November

1, 1996, available electronically through

USPTO’s World Wide Web site (http://

www.uspto.gov). Information available

at the site shall include:

(1) The FOIA Officer’s index of the

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) USPTO 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, 1967, 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 FOIA Officer

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 USPTO and are not published in the

Federal Register; and

(6) Administrative staff manuals and

instructions to staff that affect a member

of the public.

§ 102.3 Records under FOIA.

(a) Records under 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 USPTO

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, USPTO

shall undertake reasonable efforts to

search for the information in electronic

format.

(c) USPTO 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 FOIA.

(d) The FOIA Officer shall preserve all

correspondence pertaining to the

requests received 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 a National Archives and

Records Administration’s General

Records Schedule. The FOIA Officer

shall not dispose of records while they

are the subject of a pending request,

appeal, or lawsuit under FOIA.

§ 102.4 Requirements for making requests.

(a) A request for USPTO records that

are not customarily made available to

the public as part of USPTO’s regular

informational services must be in

writing, and shall be processed under

FOIA, regardless of whether FOIA is

mentioned in the request. Requests

should be sent to the USPTO FOIA

Officer, United States Patent and

Trademark Office, Washington DC

20231 (records FOIA requires to be

made regularly available for public

inspection and copying are addressed in

§ 102.2(c)). For the quickest handling,

the request letter and envelope should

be marked ‘‘Freedom of Information Act

Request.’’ For requests for records about

oneself, § 102.24 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

USPTO 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 USPTO will locate those

records. If the FOIA Officer determines

that a request does not reasonably

describe records, the FOIA Officer will

inform the requester what additional

information is needed or why the

request is otherwise insufficient. The

FOIA Officer also may give the requester

an opportunity to discuss the request so

that it may be modified to meet the

requirements of this section.

§ 102.5 Responsibility for responding to

requests.

(a) In general. Except as stated in

paragraph (b) of this section, the USPTO

will process FOIA requests directed to

USPTO. In determining records

responsive to a request, the FOIA

Officer shall include only those records

within USPTO’s possession and control

as of the date the FOIA Officer receives

the request.

(b) Consultations and referrals. If the

FOIA Officer receives a request for a

record in USPTO’s possession in which

another Federal agency subject to FOIA

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 41905

has the primary interest, the FOIA

Officer shall refer the record to that

agency for direct response to the

requester. The FOIA Officer shall

consult with another Federal agency

before responding to a requester if the

FOIA Officer receives a request for a

record in which another Federal agency

subject to FOIA has a significant

interest, but not the primary interest; or

another Federal agency not subject to

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.

(c) Notice of referral. Whenever a

FOIA Officer refers a document to

another Federal agency for direct

response to the requester, the FOIA

Officer will ordinarily 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. The FOIA

Officer may make agreements with other

Federal agencies to eliminate the need

for consultations or referrals for

particular types of records.

§ 102.6 Time limits and expedited

processing.

(a) In general. The FOIA Officer

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 legal

public holidays) of the receipt of a

request for a record under this part by

the proper FOIA Officer identified in

accordance with § 102.5(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, the

FOIA Officer 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 FOIA

Officer 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 that are the subject of a

single request; or

(iii) The need for consultation, which

shall be conducted with all practicable

speed, with another 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 workload of requests, unless

USPTO 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 the FOIA Officer 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 FOIA Officer

may aggregate them. Multiple requests

involving unrelated matters will not be

aggregated.

(d) Multitrack processing. (1) The

FOIA Officer may use two or more

processing tracks by distinguishing

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) The FOIA Officer may provide

requesters in a slower track with an

opportunity to limit the scope of their

requests in order to qualify for faster

processing. The FOIA Officer may

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 that 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 FOIA Officer.

(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 receipt

of a request for expedited processing,

the FOIA Officer will 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.

§ 102.7 Responses to requests.

(a) Grants of requests. If the FOIA

Officer makes a determination to grant

a request in whole or in part, the FOIA

Officer will notify the requester in

writing. The FOIA Officer will inform

the requester in the notice of any fee

charged under § 102.11 and disclose

records to the requester promptly upon

41906 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

payment of any applicable fee. Records

disclosed in part shall be marked or

annotated to show each applicable FOIA

exemption 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 the FOIA Officer makes an

adverse determination regarding a

request, the FOIA Officer will 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

FOIA (except that a determination

under § 102.11(j) that records are to be

made available under a fee statute other

than 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 the FOIA

Officer 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 § 102.10(b).

§ 102.9 Business Information.

(a) In general. Business information

obtained by USPTO from a submitter

will be disclosed under FOIA only

under this section.

(b) Definitions. For the purposes of

this section:

(1) Business information means

commercial or financial information,

obtained by USPTO 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 USPTO 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.

(d) Notice to submitters. The FOIA

Officer 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 requested, 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 FOIA Officer has reason to

believe that the information may be

protected from disclosure under FOIA

exemption 4.

(f) Opportunity to object to disclosure.

The FOIA Officer shall allow a

submitter seven working days (i.e.,

excluding Saturdays, Sundays, and legal

public holidays) from the date of receipt

of the written notice described in

paragraph (d) of this section to provide

the FOIA Officer 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

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 FOIA.

(g) Notice of intent to disclose. The

FOIA Officer shall consider a

submitter’s objections and specific

grounds under FOIA for nondisclosure

in deciding whether to disclose business

information. If the FOIA Officer decides

to disclose business information over

the objection of a submitter, the FOIA

Officer 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 FOIA Officer

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 FOIA Officer 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 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 FOIA Officer 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 FOIA Officer shall

promptly notify the submitter.

(j) Corresponding notice to requesters.

Whenever a FOIA Officer provides a

submitter with notice and an

opportunity to object to disclosure

under paragraph (d) of this section, the

FOIA Officer shall also notify the

requester(s). Whenever a submitter files

a lawsuit seeking to prevent the

disclosure of business information, the

FOIA Officer shall notify the

requester(s).

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 41907

§ 102.10 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 § 102.7(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 § 102.6(c), of

the determination.

(b) Appeals shall be decided by a

Deputy General Counsel. Appeals

should be addressed to the General

Counsel, United States Patent and

Trademark Office, Washington, DC

20231. 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) 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 § 102.11.

(d) If no determination of an appeal

has been sent to the requester within the

twenty-working-day period specified in

§ 102.6(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 civil action against

USPTO based on the provision in this

paragraph, the administrative appeal

process may continue.

(e) 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;

(3) Notification that judicial review of

the denial is available in the United

States district court for the district in

which the requester resides or has its

principal place of business, the United

States District Court for the Eastern

District of Virginia, or the District of

Columbia; and

(4) The name and title or position of

the official responsible for denying the

appeal.

§ 102.11 Fees.

(a) In general. USPTO shall charge for

processing requests under 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. USPTO 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 or

purpose that furthers his or her

commercial, trade, or profit interests,

which can include furthering those

interests through litigation. The FOIA

Officer 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 the FOIA

Officer has reasonable cause to doubt a

requester’s stated use, the FOIA Officer

shall provide the requester a reasonable

opportunity to submit further

clarification.

(2) Direct costs means those expenses

USPTO 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. The FOIA Officer 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.

(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 the FOIA Officer

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

41908 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

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. The FOIA Officer shall

ensure that searches are done in the

most efficient and least expensive

manner reasonably possible.

(c) Fees. In responding to FOIA

requests, the FOIA Officer shall charge

the fees summarized in chart form in

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

section and explained in paragraphs

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

unless a waiver or reduction of fees has

been granted under paragraph (k) of this

section.

(1) The four categories and chargeable

fees are:

Category Chargeable fees

(i) Commercial Use

Requesters.

Search, Review, and

Duplication.

(ii) Educational and

Non-commercial

Scientific Institution

Requesters.

Duplication (excluding

the cost of the first

100 pages).

(iii) Representatives

of the News Media.

Duplication (excluding

the cost of the first

100 pages).

(iv) All Other Requesters.Search and Duplication (excluding the

cost of the first 2

hours of search

and 100 pages).

(2) Uniform fee schedule.

Service Rate

(i) Manual search ...... Actual salary rate of

employee involved,

plus 16 percent of

salary rate.

(ii) Computerized

search.

Actual direct cost, including operator

time.

(iii) Duplication of

records:.

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

(B) Other reproduction (e.g., computer

disk or printout,

microfilm, microfiche, or microform).

Actual direct cost, including operator

time.

(iv) Review of records

(includes preparation for release, i.e.

excising).

Actual salary rate of

employee conducting review, plus

16 percent of salary rate.

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

charged for all requests—other than

requests made by educational

institutions, noncommercial scientific

institutions, or representatives of the

news media—subject to the limitations

of paragraph (d) of this section. The

FOIA Officer will charge for time spent

searching even if no responsive records

are located or if located records are

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,

the FOIA Officer shall charge the direct

costs, including operator time, of

producing the copy. For other forms of

duplication, the FOIA Officer 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

the FOIA Officer 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, the FOIA

Officer 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 the 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 the FOIA Officer

determines or estimates that the fees to

be charged under this section will be

more than $20.00, the FOIA Officer

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 FOIA Officer shall advise

the requester that the estimated fee may

be only a portion of the total fee. If the

FOIA Officer has notified a requester

that actual or estimated fees are more

than $20.00, the FOIA Officer 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 in writing. A

notice under this paragraph shall offer

the requester an opportunity to discuss

the matter with USPTO 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,

the FOIA Officer 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. The FOIA

Officer 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 FOIA Officer. The FOIA Officer

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.

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 41909

(h) Aggregating requests. If a FOIA

Officer 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 FOIA

Officer may aggregate those requests and

charge accordingly. The FOIA Officer

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, the FOIA Officer 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,

the FOIA Officer 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 the FOIA Officer determines or

estimates that a total fee to be charged

under this section will be more than

$250.00, the requester must pay the

entire anticipated fee before beginning

to process the request, unless the FOIA

Officer 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

USPTO or another responsible Federal

agency within 30 calendar days of the

date of billing, the FOIA Officer 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 FOIA Officer

begins to process a new request or

continues to process a pending request

from that requester.

(4) In cases in which the FOIA Officer

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, the FOIA Officer 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

FOIA) that specifically requires USPTO

or another responsible Federal 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, the FOIA

Officer 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 the FOIA Officer determines,

based on all available information, that

the requester has demonstrated that:

(i) Disclosure of the requested

information is in the public interest

because it is likely to contribute

significantly to public understanding of

the operations or activities of the

Government; and

(ii) Disclosure of the information is

not primarily in the commercial interest

of the requester.

(2) To determine whether the first fee

waiver requirement is met, the FOIA

Officer 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, the FOIA

Officer 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. The FOIA Officer 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. The

FOIA Officer 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.

41910 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

Subpart B—Privacy Act

§ 102.21 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 Act).

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 USPTO maintains

records in systems of records under the

Act. USPTO 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, USPTO

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 USPTO 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. USPTO will maintain no

record describing how an individual

exercises rights guaranteed by the First

Amendment unless expressly

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 USPTO 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 is administered by

the Privacy Officer of USPTO.

(c) 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 USPTO, 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.

(d) 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

USPTO’s implementing regulations at

Subpart A of this part, regardless

whether the Act or the Freedom of

Information Act is mentioned in the

request.

§ 102.22 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) USPTO means the United States

Patent and Trademark Office.

(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 USPTO 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 a USPTO

employee designated to administer this

subpart.

(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 USPTO change (either by

correction, amendment, addition or

deletion) a particular record in a system

of records which pertains to that

individual.

§ 102.23 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 USPTO.

The inquiry should be made either in

person at Crystal Park Two, 2121 Crystal

Park Drive, Suite 714, Arlington,

Virginia, or by mail addressed to the

Privacy Officer, United States Patent

and Trademark Office, Washington DC

20231 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 USPTO maintains a record

pertaining to that individual but does

not know which system of records

might contain such a record, the USPTO

Privacy Officer will provide assistance

in person or by mail.

(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. USPTO reserves the right to

require compliance with the

identification procedures appearing at

§ 102.24(d) where circumstances

warrant. If the inquiry is a request that

USPTO 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 § 102.24(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);

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 41911

(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 USPTO 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

by USPTO personnel and forwarded

immediately to the 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 Privacy

Officer. Every effort will be made to

respond within ten working days (i.e.,

excluding Saturdays, Sundays and legal

public holidays) 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

USPTO’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. USPTO 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 General Counsel to take

corrective action. No failure of the

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

USPTO. The agencies known to be

publishing these general notices and the

types of records covered therein appear

in an Appendix to this part. 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 USPTO are subject to

the provisions of this part to the extent

indicated in the Appendix to this part.

The exemptions, if any, determined by

an agency publishing a general notice

shall be invoked and applied by USPTO

after consultation, as necessary, with

that other agency.

§ 102.24 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 USPTO. The request

should be made either in person at

Crystal Park Two, 2121 Crystal Drive,

Suite 714, Arlington, Virginia, or by

mail addressed to the Privacy Officer,

United States Patent and Trademark

Office, Washington, DC 20231.

(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 USPTO

personnel and forwarded immediately

to the 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 § 102.23 in connection with

which the individual’s identity was

established by USPTO, the individual

need only indicate the record to which

access is sought, provide the USPTO

control number assigned to the request,

and sign and date the request. If the

request is not preceded by an inquiry

under § 102.23, 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,

USPTO 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 § 102.32(a).

In order to avoid any unwarranted

disclosure of an individual’s records,

USPTO 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 the 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 § 102.23(b)(9). The

certification in or attached to the letter

must be substantially in accordance

with the following text:

City of llllllll

County of llllllll :ss

(Name of individual), who affixed (his) (her)

signature below in my presence, came before

me, a (title), in and for the aforesaid County

and State, this ll day of llll, 20 ,

and established (his) (her) identity to my

satisfaction.

My commission expires llll.

(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

41912 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

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

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 § 102.25(f)

are satisfied.

(e) When the provisions of this

subpart are alleged to impede an

individual in exercising his or her right

to access, USPTO 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.

§ 102.25 Disclosure of requested records

to individuals.

(a)(1) The 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 legal public

holidays) 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 General Counsel to take

corrective action. No failure of the

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 will 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 § 102.31.

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

a location specified by the Privacy

Officer during business hours;

(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 USPTO 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

§ 102.31. USPTO, on 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 § 102.26.

(d) USPTO will supply such other

information and assistance at the time of

access as to make the record intelligible

to the individual.

(e) USPTO 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

diskette, 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 USPTO

be made available to the individual

except under the immediate supervision

of the Privacy Officer or the Privacy

Officer’s 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 USPTO

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

§ 102.33 or § 102.34, or exempt by

determination of another agency

publishing notice of the system of

records, as described in § 102.23(f);

(ii) The record is information

compiled in reasonable anticipation of a

civil action or proceeding;

(iii) The provisions of § 102.26

pertaining to medical records

temporarily have been invoked; or

(iv) The individual has unreasonably

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

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 41913

consideration, including the identity

and address of the responsible official.

If no further administrative

consideration within USPTO is

available, the notice shall state that the

denial is administratively final; and

(v) If stated to be administratively

final within USPTO, 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).

(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

§ 102.25(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

USPTO, such petition shall be filed with

the General Counsel. If the exemption

was determined by another agency (as

described in § 102.23(f)), USPTO 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 USPTO, no such

denial is administratively final until

such a petition has been filed by the

individual and disposed of on the

merits by the General Counsel.

(ii) As to denial under paragraphs

(g)(1)(ii) of this section, (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), the

individual may file for review with the

General Counsel, as indicated in the

Privacy Officer’s initial denial

notification. The procedures appearing

in § 102.28 shall be followed by both the

individual and USPTO to the maximum

extent practicable.

(iii) As to denial under paragraph

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

administrative consideration within

USPTO is available because the denial

is not administratively final until

expiration of the time period indicated

in § 102.26(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.

§ 102.26 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 legal public holidays)

from the date of receipt.

(b) USPTO 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 USPTO, 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. USPTO

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 USPTO to consult the individual’s

physician and/or psychologist in the

event that USPTO believes such

consultation is advisable, if the

individual consents to give such

authorization;

(4) Obtain specific, written consent

for USPTO to provide the medical

records to the individual’s physician or

psychologist in the event that USPTO

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 USPTO’s medical expert 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, USPTO’s medical

expert shall so consult or transmit.

Whether or not such a consultation or

transmittal occurs, USPTO’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 USPTO has determined that

disclosure could have an adverse effect

upon the individual, USPTO 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.

§ 102.27 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 USPTO.

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 office of the Privacy

Officer is open to the public between

the hours of 9:00 a.m. and 4:00 p.m.,

Monday through Friday (excluding legal

public holidays).

(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 USPTO

personnel and forwarded immediately

to the 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

§ 102.25, the individual’s identity will

be established by his or her signature on

the request and use of the USPTO

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

41914 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

(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

invoked, that is, whether the

information in the record is

unnecessary, inaccurate, irrelevant,

untimely or incomplete.

§ 102.28 Review of requests for correction

or amendment.

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

days (i.e., excluding Saturdays, Sundays

and legal public holidays) 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

§ 102.25(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

General Counsel to take corrective

action. No failure of the 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 § 102.29, including

the address of the General Counsel.

(3) The term promptly in this section

means within thirty working days (i.e.,

excluding Saturdays, Sundays, and legal

public holidays). 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) USPTO will not undertake to

gather evidence for the individual, but

does reserve the right to verify the

evidence which the individual submits.

(e) Correction or amendment of a

record requested by an individual will

be denied only upon a determination by

the Privacy Officer that:

(1) The individual has failed to

establish, by a preponderance of the

evidence, the propriety of the correction

or amendment in light of the criteria set

forth in paragraph (c) of this section;

(2) The record sought to be corrected

or amended is part of the official record

in a terminated judicial, quasi-judicial,

or quasi-legislative proceeding to which

the individual was a party or

participant;

(3) The information in the record

sought to be corrected or amended, or

the record sought to be corrected or

amended, is the subject of a pending

judicial, quasi-judicial, or quasilegislative proceeding to which the

individual is a party or participant;

(4) The correction or amendment

would violate a duly enacted statute or

promulgated regulation; or

(5) The individual has unreasonably

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.

§ 102.29 Appeal of initial adverse

determination on correction or amendment.

(a) When a request for correction or

amendment has been denied initially

under § 102.28, the individual may

submit a written appeal within thirty

working days (i.e., excluding Saturdays,

Sundays and legal public holidays) 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 General Counsel, United States

Patent and Trademark Office,

Washington, DC 20231. 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 USPTO personnel when it is

so identified and will be forwarded

immediately to the General Counsel. 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

General Counsel. In each instance when

an appeal so forwarded is received, the

General Counsel 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

error and USPTO’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

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 41915

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

USPTO.

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 General

Counsel 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 General Counsel shall act

upon the appeal and issue a final

determination in writing not later than

thirty working days (i.e., excluding

Saturdays, Sundays and legal public

holidays) from the date on which the

appeal is received, except that the

General Counsel 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

§ 102.25(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 § 102.28(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 USPTO

reserves the right to reject a statement of

excessive length. Such a statement shall

be filed with the General Counsel. It

should provide the USPTO control

number assigned to the request, indicate

the date of the final determination and

be signed by the individual. The

General Counsel 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 USPTO 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,

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 General Counsel shall employ the

criteria set forth in § 102.28(c) and shall

deny an appeal only on the grounds set

forth in § 102.28(e).

(i) If an appeal is partially granted and

partially denied, the General Counsel

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).

§ 102.30 Disclosure of record to person

other than the individual to whom it

pertains.

(a) USPTO 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 § 102.25(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

When permitted under 5 U.S.C.

552a(b)(1) through (12), which read as

follows: 1

(i) To those officers and employees of

the agency which maintains the record

who have a need for the record in the

performance of their duties;

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

(iii) For a routine use as defined in 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

(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 USPTO in

certain circumstances;

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

disclosure of records to the individual

41916 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

to whom they pertain, upon request;

and

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

action by an individual and requires

disclosure by USPTO 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 § 102.24. 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.

§ 102.31 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. The Privacy Officer shall

charge fees for duplication of records

under the Act in the same way in which

they charge duplication fees under

§ 102.11, 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

USPTO without a request from the

individual; transportation of records

and personnel; and first-class postage.

(b) It is the policy of USPTO 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, USPTO will charge no fee for a

single copy of a personnel record

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

records.

§ 102.32 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.

§ 102.33 General exemptions.

(a) Individuals may not have access to

records maintained by USPTO 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, USPTO 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 exemption determined

to be necessary and proper with respect

to systems of records maintained by

USPTO, 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, is as follows: 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.

§ 102.34 Specific exemptions.

(a)(1) Some systems of records under

the Act which are maintained by

USPTO 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

USPTO which are within this

exemption are: COMMERCE/PAT–TM–

6, COMMERCE/PAT–TM–7,

COMMERCE/PAT–TM–8, COMMERCE/

PAT–TM–9.

(2) USPTO 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 materials

would be exempt from 5 U.S.C. 552a

(c)(3), (d), (e)(1), (e)(4) (G), (H), and (I),

and (f) to protect 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 USPTO, 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)(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) Investigative Records—Contract

and Grant Frauds and Employee

Criminal Misconduct—COMMERCE/

DEPT–12, but only on condition that the

general exemption claimed in

§ 102.33(b)(3) is held to be invalid;

(B) Investigative Records—Persons

Within the Investigative Jurisdiction of

USPTO—COMMERCE/DEPT–13;

(C) Litigation, Claims and

Administrative Proceeding Records—

COMMERCE/DEPT–14;

(D) Attorneys and Agents Registered

to Practice Before the Office—

COMMERCE/PAT–TM–1

(E) Complaints, Investigations and

Disciplinary Proceedings Relating to

Registered Patent Attorneys and

Agents—COMMERCE/PAT–TM–2; and

(F) 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.

(2)(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

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 41917

exempted, and the reasons therefor are

as follows:

(A) Investigative Records—Contract

and Grant Frauds and Employee

Criminal Misconduct—COMMERCE/

DEPT–12, but only on condition that the

general exemption claimed in

§ 102.33(b)(3) is held to be invalid;

(B) Investigative Records—Persons

Within the Investigative Jurisdiction of

USPTO—COMMERCE/DEPT–13; and

(C) 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, USPTO claims

no exemption under 5 U.S.C. 552a(k)

(3), (4), (6) and (7).

Appendix to Part 102—Systems of

Records Noticed by Other Federal

Agencies 1 and Applicable to USPTO

Records and Applicability of This Part

Thereto

Category of records Other Federal agency

Federal Personnel

Records.

Office of Personnel

Management.2

Federal Employee

Compensation Act

Program.

Department of

Labor.3

Equal Employment

Opportunity Appeal

Complaints.

Equal Employment

Opportunity Commission.4

Formal Complaints/

Appeals of Adverse

Personnel Actions.

Merit Systems Protection Board.5

1Other than systems of records noticed by

the Department of Commerce. Where the system of records applies only to USPTO, these

regulations apply. Where the system of

records applies generally to components of

the Department of Commerce, the regulations

of that department attach at the point of any

denial for access or for correction or amendment. 2The 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.

3The 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. 4The 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. 5The 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.

Dated: June 29, 2000.

Q. Todd Dickinson,

Under Secretary of Commerce for Intellectual

Property and Director of the United States

Patent and Trademark Office.

[FR Doc. 00–17031 Filed 7–6–00; 8:45 am]

BILLING CODE 3510–16–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG28

Endangered and Threatened Wildlife

and Plants; Proposed Designation of

Critical Habitat for the Zayante BandWinged Grasshopper

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), propose

designation of critical habitat for the

Zayante band-winged grasshopper

(Trimerotropis infantilis) under the

Endangered Species Act of 1973, as

amended (Act). We propose designation

of critical habitat within an

approximately 4,230-hectare (10,560-

acre) area occupied by the Zayante

band-winged grasshopper in Santa Cruz

County, California.

Critical habitat identifies specific

areas that are essential to the

conservation of a listed species, and that

may require special management

considerations or protection. The

primary elements of critical habitat for

the Zayante band-winged grasshopper

are those habitat components that are

essential for the primary physical and

biological needs of the species. These

needs include: food, water, sunlight, air,

minerals and other nutritional or

physiological needs; cover or shelter;

sites for breeding and reproduction and

dispersal; protection from disturbance;

and habitat that is representative of the

historical geographic and ecological

distribution of the Zayante band-winged

grasshopper.

If this proposed rule is made final,

section 7 of the Act would prohibit

destruction or adverse modification of

critical habitat by any activity funded,

authorized, or carried out by any

Federal agency. Section 4 of the Act

requires us to consider economic and

other impacts of specifying any

particular area as critical habitat. We

solicit data and comments from the

public on all aspects of this proposal,

including data on the economic and

other impacts of the designation. We

may revise this proposal to incorporate

or address new information received

during the comment period.

DATES: We will accept comments from

all interested parties until September 5,

2000. Public hearing requests must be

received by August 21, 2000.

ADDRESSES: If you wish to comment,

you may submit your comments and

materials concerning this proposal by

any one of several methods.

1. You may submit written comments

and information to the Field Supervisor,

U.S. Fish and Wildlife Service, Ventura

Fish and Wildlife Office, 2493 Portola

Road, Suite B, Ventura, California

93003.

2. You may hand-deliver written

comments to our Ventura Office, 2493

Portola Road, Suite B, Ventura,

California.

3. You may send comments by

electronic mail (e-mail) to

fw1grasshopper@r1.fws.gov.

Comments and materials received, as

well as supporting documentation used

in the preparation of this proposed rule,

will be available for public inspection,

by appointment, during normal business

hours at the Ventura Fish and Wildlife

Office.

FOR FURTHER INFORMATION CONTACT:

Diane Noda, Field Supervisor, Ventura

Fish and Wildlife Office, 805/644–1766.

SUPPLEMENTARY INFORMATION:

Background

The Zayante band-winged

grasshopper (Trimerotropis infantilis),

Order Orthoptera and Family Acrididae,

was first described from near Mount

Hermon in the Santa Cruz Mountains,

Santa Cruz County, California, in 1984

(Rentz and Weissman 1984). The body

and forewings of the Zayante bandwinged grasshopper are pale gray to

light brown with dark cross-bands on

the forewings. The basal area of the

hindwings is pale yellow with a faint

thin band. The hind tibiae (lower legs)

are blue, and the eyes have bands

around them. Males range in length

from 13.7 to 17.2 millimeters (mm) (0.54