This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

52668

Vol. 62, No. 196

Thursday, October 9, 1997

OFFICE OF MANAGEMENT AND

BUDGET

5 CFR Part 1303

RIN 0348–AB42

Freedom of Information Act

AGENCY: Office of Management and

Budget, Executive Office of the

President.

ACTION: Proposed rule.

SUMMARY: The Office of Management

and Budget (OMB) seeks public

comment on a proposed rule that would

revise OMB’s regulations implementing

5 U.S.C. 552, the Freedom of

Information Act (FOIA). These revisions

are being proposed to simplify and

streamline OMB’s FOIA regulations, as

well as to implement the Electronic

Freedom of Information Act

Amendments of 1996 (Pub. L. 104–231).

DATES: Comments must be received no

later than December 8, 1997.

ADDRESSES: Comments on the proposed

rule should be addressed to: Darrell A.

Johnson, Deputy Assistant Director for

Administration, Office of Management

and Budget, Room 9026, New Executive

Office Building, Washington, D.C.

20503. Comments up to three pages in

length may be submitted via facsimile to

(202) 395–3504. Electronic mail

comments may be submitted via

Internet to FOIAREG@A1.EOP.GOV.

Please include the full body of

electronic mail comments in the text

and not as an attachment. Please

include the name, title, organization,

postal address, and E-mail address in

the text of the message.

FOR FURTHER INFORMATION CONTACT:

Darrell A. Johnson, Deputy Assistant

Director for Administration, Office of

Management and Budget, at (202) 395–

5715.

SUPPLEMENTARY INFORMATION: OMB is

seeking public comment on proposed

revisions to OMB’s regulations at Part

1303 implementing the Freedom of

Information Act (FOIA). Currently,

OMB’s FOIA regulations consist of the

regulations as issued in 1982 (47 FR

33483; August 3, 1982), and as amended

in 1987 (52 FR 4512; December 30,

1987). The proposed revisions are

intended to: implement the Electronic

Freedom of Information Act

Amendments of 1996, P.L. 104–231 (E–

FOIA); update OMB’s regulations to

reflect current practice; and streamline

OMB’s regulations to eliminate

redundant or otherwise unnecessary

materials. The following is a summary

of the proposed changes.

Section 1303.2 (‘‘Authority and

functions’’), which summarizes OMB’s

authority and functions, has been

streamlined.

Section 1303.3 (‘‘Organization’’) has

been revised to reflect changes over time

in OMB’s organizational structure.

Section 1303.10 (‘‘Methods of

operation’’) has been revised to update

information and to reflect the provisions

of E–FOIA. Among the revisions to

Section 1303.10 are provisions revising

the initial response period from 10 days

to 20 days (see Section 8(b) of E–FOIA,

amending 5 U.S.C. 552(a)(6)(A)(i));

establishing an expedited-response

process (see Section 8(a) of E–FOIA,

adding 5 U.S.C. 552(a)(6)(E));

establishing a requirement that

administrative appeals of OMB denials

be made within 30 days of receipt of the

denial (the current regulations do not

set a deadline); and providing for OMB

consultations with a requester to

determine if a FOIA request may be

modified in order to allow for a timely

response, or to arrange an alternative

time frame for a response (see Section

7(b) of E–FOIA, amending 5 U.S.C.

552(a)(6)(B)). Finally, Section 1303.10

explains that OMB materials may be

obtained electronically from OMB’s

home page; these materials include

documents described in 5 U.S.C.

552(a)(2).

Section 1303.20 (‘‘Inspection,

copying, and exceptions’’) has been

streamlined by deleting subsections (b)

and (c). The deletion of subsection (b)

is consistent with the courts’ decisions

in Ryan v. Department of Justice, 617

F.2d 781, 786–89 (D.C. Cir. 1980), and

Meyer v. Bush, 981 F.2d 1288, 1292 n.2,

1294 (D.C. Cir. 1993), and it also reflects

OMB’s practice (in response to FOIA

requests, the files of the OMB units

described in subsection (b) are searched

for responsive documents, and such

documents are reviewed for applicable

exemptions, in the same manner as the

files of other OMB units). Subsection (c)

has been deleted because its recitation

of the exemptions in 5 U.S.C. 552(b) is

unnecessary (i.e., OMB may directly

rely upon the statutory exemptions).

Section 1303.30 (‘‘Definitions’’) has

been revised to reflect E–FOIA by more

clearly defining the terms ‘‘search’’ and

‘‘duplication.’’ See Section 5 of E–FOIA,

amending 5 U.S.C. 552(a)(3).

Finally, Section 1303.60

(‘‘Miscellaneous fee provisions’’) has

been revised to conform to the

aggregation provision in Section

1303.10(g), and to the new time limit

under the FOIA for initial responses.

In implementing E–FOIA, OMB

considered adopting a multi-track

processing system that would

distinguish simple and complex FOIA

requests and place them on separate

processing tracks. See Section 7(a) of E–

FOIA, adding 5 U.S.C. 552(a)(6)(D).

However, after considering this option,

OMB decided to retain its current

system. Unlike other agencies, OMB

does not have a central office dedicated

to searching for documents in response

to FOIA requests; instead, OMB has a

decentralized system, with the primary

responsibility for responding to

individual FOIA requests generally

assigned to the program office with

responsibility for the subject matter of

the particular request. Accordingly,

pending FOIA requests are generally

processed concurrently, rather than on a

consecutive, request-by-request basis.

For this reason, the time needed to

respond to complex requests generally

does not delay OMB’s ability to respond

to simple requests. Thus, the adoption

of multitrack processing would not be

likely to accelerate OMB’s ability to

respond to requests.

OMB requests comments on the

proposed revisions to OMB’s FOIA

regulations.

Regulatory Flexibility Act, Unfunded

Mandates Reform Act, and Executive

Orders 12866 and 12875

For purposes of the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.), the

proposed rule will not, if promulgated,

have a significant economic effect on a

substantial number of small entities; the

proposed rule addresses the procedures

to be followed when responding to

requests for information under the

Freedom of Information Act. For

purposes of the Unfunded Mandates
Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 / Proposed Rules 52669

Reform Act of 1995 (Pub. L. 104–4), as

well as Executive Orders No. 12866 and

12875, the proposed rule would not

significantly or uniquely affect small

governments, and would not result in

increased expenditures by State, local,

and tribal governments, or by the

private sector, of $100 million or more.

Franklin D. Raines,

Director.

For the reasons set forth in the

preamble, OMB proposes to amend 5

CFR Part 1303 as follows:

PART 1303—[AMENDED]

1. The authority citation for part 1303

is revised to read as follows:

Authority: 5 U.S.C. 552.

2. Section 1303.2 is revised to read as

follows:

§ 1303.2 Authority and functions.

The general functions of the Office of

Management and Budget, as provided

by statute and executive order, are to

develop and execute the budget, oversee

implementation of Administration

policies and programs, advise and assist

the President, and develop and

implement management policies for the

government.

3. Section 1303.3 is revised to read as

follows:

§ 1303.3 Organization.

(a) The brief description of the central

organization of the Office of

Management and Budget follows:

(1) The Director’s Office includes the

Director, the Deputy Director, the

Deputy Director for Management, and

the Executive Associate Director.

(2) Staff Offices include General

Counsel, Legislative Affairs,

Communications, Administration, and

Economic Policy.

(3) Offices that provide OMB-wide

support include the Legislative

Reference and Budget Review Divisions.

(4) Resource Management Offices.

These offices develop and support the

President’s management and budget

agenda in the areas of Natural

Resources, Energy and Science, National

Security and International Affairs,

Health and Personnel, Human

Resources, and General Government and

Finance.

(5) Statutory offices include the Office

of Federal Financial Management,

Office of Federal Procurement Policy,

and the Office of Information and

Regulatory Affairs.

(b) The Office of Management and

Budget is located in Washington, DC,

and has no field offices. Staff are housed

in either the Old Executive Office

Building, 17th Street and Pennsylvania

Ave, NW, or the New Executive Office

Building, 725 17th Street NW,

Washington, D.C. 20503. Persons

desiring to visit offices or employees of

the Office of Management and Budget,

in either building, must write or

telephone ahead to make an

appointment. Security in both buildings

prevents visitors from entering the

building without an appointment.

5. Section 1303.10 is revised to read

as follows:

§ 1303.10 Access to information.

(a) The Office of Management and

Budget makes available information

pertaining to matters issued, adopted, or

promulgated by OMB, that are within

the scope of 5 U.S.C. 552(a)(2). A public

reading area is located in the Executive

Office of the President Library, Room G–

102, New Executive Office Building, 725

17th Street NW, Washington, D.C.

20503, phone (202) 395–5715. Some of

these materials are also available from

the Executive Office of the President’s

Publications Office, Room 2200 New

Executive Office Building, 725 17th

Street NW, Washington, D.C. 20503,

phone (202) 395–7332. OMB issuances

are also available via fax-on-demand at

(202) 395–9068, and are available

electronically from the OMB homepage

at http:/www.whitehouse.gov/WH/EOP/

omb. In addition, OMB maintains the

Office of Information and Regulatory

Affairs (OIRA) Docket Library, Room

10102, New Executive Office Building,

725 17th Street NW, Washington, D.C.

20503, phone (202) 395–6880. The

Docket Library contains records related

to information collections sponsored by

the Federal government and reviewed

by OIRA under the Paperwork

Reduction Act of 1995. The Docket

Library also maintains records related to

proposed Federal agency regulatory

actions reviewed by OIRA under

Executive Order 12866 ‘‘Regulatory

Planning and Review’’. Telephone logs

and materials from meetings with the

public attended by the OIRA

Administrator are also available in the

Docket Library.

(b) The Deputy Assistant Director for

Administration is responsible for acting

on all initial requests. Individuals

wishing to file a request under the

Freedom of Information Act (FOIA)

should address their request in writing

to the Deputy Assistant Director for

Administration, Office of Management

and Budget, 725 17th Street NW,

Washington, DC 20503, Phone 395–

5715. Requests for information shall be

as specific as possible.

(c) Upon receipt of any request for

information or records, the Deputy

Assistant Director for Administration

will determine within 20 days

(excepting Saturdays, Sundays and legal

public holidays) after the receipt of such

request whether it is appropriate to

grant the request and will immediately

provide written notification to the

person making the request. If the request

is denied, the written notification to the

person making the request shall include

the names of the individuals who

participated in the determination, the

reasons for the denial, and a notice that

an appeal may be lodged within the

Office of Management and Budget.

(Receipt of a request as used herein

means the date the request is received

in the office of the Deputy Assistant

Director for Administration.)

(d) Expedited processing. (1) Requests

and appeals will be taken out of order

and given expedited treatment

whenever it is determined that 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) An urgency to inform the public

about an actual or alleged federal

government activity, if made by a

person primarily engaged in

disseminating information;

(iii) The loss of substantial due

process rights; or

(iv) A matter of widespread and

exceptional media interest in which

there exist possible questions about the

government’s integrity which effect

public confidence.

(2) A request for expedited processing

may be made at the time of the initial

request for records or at any later time.

(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 (d)(1)(ii) 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 (d)(1)(ii) of this

section also must 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 days of its receipt of a

request for expedited processing, OMB
52670 Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 / Proposed Rules

will decide whether to grant it and will

notify the requester of the decision. If a

request for expedited treatment is

granted, the request will be given

priority and will be processed as soon

as practicable. If a request for expedited

processing is denied, any appeal of that

decision will be acted on expeditiously.

(e) Appeals shall be set forth in

writing within 30 days of receipt of a

denial and addressed to the Deputy

Assistant Director for Administration at

the address specified in paragraph (b) of

this section. The appeal shall include a

statement explaining the basis for the

appeal. Determinations of appeals will

be set forth in writing and signed by the

Deputy Director, or his designee, within

20 days (excepting Saturdays, Sundays,

and legal public holidays). If, on appeal,

the denial is in whole or in part upheld,

the written determination will also

contain a notification of the provisions

for judicial review and the names of the

persons who participated in the

determination.

(f) In unusual circumstances, the time

limits prescribed in paragraphs (c) and

(e) of this section may be extended for

not more than 10 days (excepting

Saturdays, Sundays, or legal public

holidays). Extensions may be granted by

the Deputy Assistant Director for

Administration. The extension period

may be split between the initial request

and the appeal but in no instance may

the total period exceed 10 working days.

Extensions will be by written notice to

the persons making the request and will

set forth the reasons for the extension

and the date the determination is

expected.

(g) With respect to a request for which

a written notice under paragraph (f) of

this section extends the time limits

prescribed under paragraph (c) of this

section, the agency shall notify the

person making the request if the request

cannot be processed within the time

limit specified in paragraph (f) of this

section and shall provide the person an

opportunity to limit the scope of the

request so that it may be processed

within that time limit or an opportunity

to arrange with the agency an alternative

time frame for processing the request or

a modified request. Refusal by the

person to reasonably modify the request

or arrange such an alternative time

frame shall be considered as a factor in

determining whether exceptional

circumstances exist for purposes of 5

U.S.C. 552 (a)(6)(C). When OMB

reasonably believes that a requester, or

a group of requestors acting in concert,

has submitted requests that constitute a

single request, involving clearly related

matters, OMB may aggregate those

requests for purposes of this paragraph.

One element to be considered in

determining whether a belief would be

reasonable is the time period over

which the requests have occurred.

(h) As used herein, but only to the

extent reasonably necessary to the

proper processing of the particular

request, the term unusual circumstances

means:

(1) The need to search for and collect

the requested records from

establishments that are separated from

the office processing the request;

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

appropriately examine a voluminous

amount of separate and distinct records

which are demanded in a single request;

or

(3) The need for consultation, which

shall be conducted with all practicable

speed, with another agency having a

substantial interest in the determination

of the request or among two or more

components of the agency which have a

substantial subject matter interest

therein.

6. Section 1303.20 is revised to read

as follows:

§ 1303.20 Inspection and copying.

When a request for information has

been approved pursuant to § 1303.10,

the person making the request may

make an appointment to inspect or copy

the materials requested during regular

business hours by writing or

telephoning the Deputy Assistant

Director for Administration at the

address or telephone number listed in

§ 1303.10(b). Such materials may be

copied and reasonable facilities will be

made available for that purpose. Copies

of individual pages of such materials

will be made available at the price per

page specified in § 1303.40(d); however,

the right is reserved to limit to a

reasonable quantity the copies of such

materials which may be made available

in this manner when copies also are

offered for sale by the Superintendent of

Documents.

7. Section 1303.30 (d) and (e) are

revised to read as follows:

§ 1303.30 Definitions.

* * * * *

(d) The term 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. OMB employees should

ensure that searching for material is

done in the most efficient and least

expensive manner so as to minimize

costs for both the agency and the

requester. For example, employees

should not engage in line-by-line search

when merely duplicating an entire

document would prove the less

expensive and quicker method of

complying with a request. Search

should be distinguished, moreover, from

review of material in order to determine

whether the material is exempt from

disclosure (see paragraph (f) of this

section).

(e) The term duplication means the

making of a copy of a document, or of

the information contained in it,

necessary to respond to a FOIA request.

Such copies can take the form of paper,

microform, audio-visual materials, or

electronic records (e.g., magnetic tape or

disk), among others. The requesters

specified preference of form or format of

disclosure will be honored if the record

is readily reproducible in that format.

* * * * *

8. In § 1303.60, paragraph (c) and the

concluding text of paragraph (d) are

revised to read as follows:

§ 1303.60 Miscellaneous fee provisions.

* * * * *

(c) Aggregating requests. A requester

may not file multiple requests at the

same time, each seeking portions of a

document or documents, solely in order

to avoid payment of fees. When OMB

reasonably believes that a requester, or

a group of requestors acting in concert,

has submitted requests that constitute a

single request, involving clearly related

matters, OMB may aggregate those

requests and charge accordingly. One

element to be considered in determining

whether a belief would be reasonable is

the time period over which the requests

have occurred.

(d) Advance payments. * * *

(1) * * *

(2) * * *

When OMB acts under paragraph (d)(1)

or (2) of this section, the administrative

time limits prescribed in the FOIA, 5

U.S.C. 552(a)(6) (i.e., 20 working days

from receipt of initial requests and 20

working days from receipt of appeals

from initial denial, plus permissible

extensions of these time limits) will

begin only after OMB has received fee

payments described above.

* * * * *

[FR Doc. 97–26553 Filed 10–8–97; 8:45 am]

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