[Federal Register Volume 62, Number 196 (Thursday, October 9, 1997)]
[Proposed Rules]
[Pages 52668-52670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26553]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

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Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 / 
Proposed Rules

[[Page 52668]]


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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.

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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 <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="30767f79716275777071011e757f601e777f661e">[email protected]</a> 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

[[Page 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:


Sec. 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:


Sec. 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:


Sec. 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

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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:


Sec. 1303.20  Inspection and copying.

    When a request for information has been approved pursuant to 
Sec. 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 
Sec. 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 Sec. 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:


Sec. 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 Sec. 1303.60, paragraph (c) and the concluding text of 
paragraph (d) are revised to read as follows:


Sec. 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.
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[FR Doc. 97-26553 Filed 10-8-97; 8:45 am]
BILLING CODE 3110-01-P


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