[Federal Register Volume 65, Number 187 (Tuesday, September 26, 2000)]
[Proposed Rules]
[Pages 57773-57781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24528]


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MORRIS K. UDALL SCHOLARSHIP AND EXCELLENCE IN NATIONAL ENVIRONMENTAL 
POLICY FOUNDATION

36 CFR Part 1600

RIN 3320-AA02, 3320-AA00


Public Availability of Information and the Privacy Act; 
Implementation

AGENCY: Morris K. Udall Scholarship and Excellence in National 
Environmental Policy Foundation.

ACTION: Proposed rule.

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SUMMARY: This document sets forth the proposed implementation 
regulations of the Morris K. Udall Scholarship and Excellence in 
National Environmental Policy Foundation (the Foundation) under the 
Freedom of Information Act (FOIA) and Privacy Act.

DATES: Submit comments on or before October 26, 2000.

ADDRESSES: Address all comments concerning this proposed rule to 
General Counsel, Morris K. Udall Foundation, 110 South Church Avenue, 
Suite 3350, Tucson, Arizona 85701-1650.

FOR FURTHER INFORMATION CONTACT: Ellen K. Wheeler, General Counsel, at 
(520) 670-5299.

SUPPLEMENTARY INFORMATION: These proposed regulations implement the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended by the 
Electronic Freedom of Information Act Amendments of 1996 (Pub. L. 104-
231), and the Privacy Act of 1974, 5 U.S.C. 552a. They apply to all 
Foundation programs, including the U.S. Institute for Environmental 
Conflict Resolution (USIECR). The Foundation proposes the following set 
of regulations to discharge its responsibilities under the FOIA and 
Privacy Act. The FOIA establishes: Basic procedures for public access 
to agency records and guidelines for waiver or reduction of fees the 
agency would otherwise assess for the response to the records request; 
categories of records that are exempt for various reasons from public 
disclosure; and basic requirements for federal agencies regarding their 
processing of and response to requests for agency records. The Privacy 
Act establishes: Basic procedures for individuals' access to all 
records in systems of records maintained by the Foundation that are 
retrieved by an individual's name or personal identifier. These 
proposed rules describe the procedures by which individuals may request 
access to records about themselves, request amendment or correction of 
those records, and request an accounting of disclosures of those 
records by the Foundation. The Foundation invites comments from 
interested groups and members of the public on these proposed 
regulations.

Regulatory Flexibility Act

    The Foundation, in accordance with the Regulatory Flexibility Act 
(5 U.S.C. 606(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. Under the Freedom of 
Information Act, agencies may recover only the direct costs of 
searching for, reviewing, and duplicating the records processed for 
requesters. Thus, fees assessed by the Foundation will be nominal. 
Further, the ``small entities'' that make FOIA requests, as compared 
with individual requesters and other requesters, are relatively few in 
number.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

List of Subjects in 36 CFR Part 1600

    Administrative practice and procedure, Freedom of information, 
Privacy.

    For the reasons set forth in the preamble, the Morris K. Udall 
Foundation proposes to amend Title 36 CFR by adding a new Chapter XVI 
consisting of Part 1600 to read as follows:

[[Page 57774]]

CHAPTER XVI--MORRIS K. UDALL SCHOLARSHIP AND EXCELLENCE IN NATIONAL 
ENVIRONMENTAL POLICY FOUNDATION

PART 1600--PUBLIC AVAILABILITY OF DOCUMENTS AND RECORDS

Subpart A--Procedures for Disclosure of Records Under the Freedom of 
Information Act
Sec.
1600.1   General provisions.
1600.2   Public reading room.
1600.3   Requests for records.
1600.4   Timing of responses to requests.
1600.5   Responses to requests.
1600.6   Disclosure of requested records.
1600.7   Special procedures for confidential information.
1600.8   Appeals.
1600.9   Preservation of records.
1600.10   Fees.
Subpart B--Protection of Privacy and Access to Individual Records Under 
the Privacy Act of 1974
1600.21   General provisions.
1600.22   Requests for access to records.
1600.23   Responsibility for responding to requests for access to 
records.
1600.24   Responses to requests for access to records.
1600.25   Appeals from denials of requests for access to records.
1600.26   Requests for amendment or correction of records.
1600.27   Requests for accountings of record disclosures.
1600.28   Preservation of records.
1600.29   Fees.
1600.30   Notice of court-ordered and emergency disclosures.

    Authority: 5 U.S.C. 552, 552a, 553; 20 U.S.C. 5608(a)(3). 
Subpart A is also issued under 5 U.S.C. 571-574.

Subpart A--Procedures for Disclosure of Records Under the Freedom 
of Information Act


Sec. 1600.1  General provisions.

    (a) This subpart contains the rules that the Morris K. Udall 
Scholarship and Excellence in National Environmental Policy Foundation 
(the Foundation) follows in processing requests for records under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552. These rules should be 
read together with the FOIA, which provides additional information 
about access to records. Requests made by individuals for records about 
themselves under the Privacy Act of 1974, 5 U.S.C. 552a, which are 
processed under subpart B of this part, are processed under this 
subpart also. Information routinely provided to the public as part of a 
regular Foundation activity (for example, press releases, annual 
reports, informational brochures and the like) may be provided to the 
public without following this subpart. As a matter of policy, the 
Foundation makes discretionary disclosures of records or information 
exempt from disclosure under the FOIA whenever disclosure would not 
foreseeably harm an interest protected by a FOIA exemption, but this 
policy does not create any right enforceable in court.
    (b) This subpart applies to all Foundation programs, including the 
U.S. Institute for Environmental Conflict Resolution (USIECR).


Sec. 1600.2  Public reading room.

    (a) The Foundation maintains a public reading room that contains 
the records that the FOIA requires to be made regularly available for 
public inspection and copying. An index of reading room records shall 
be available for inspection and copying and shall be updated at least 
quarterly.
    (b) The public reading room is located at the offices of the 
Foundation, 110 S. Church Avenue, Suite 3350, Tucson, Arizona.
    (c) The Foundation also makes reading room records created on or 
after November 1, 1996, available electronically, if possible, at the 
Foundation's web site (which can be found at www.udall.gov). This 
includes the index of the reading room records, which will indicate 
which records are available electronically.


Sec. 1600.3  Requests for records.

    (a) How made and addressed. You may make a request for records of 
the Foundation by writing to the General Counsel, Morris K. Udall 
Foundation, 110 South Church Avenue, Suite 3350, Tucson, Arizona 85701-
1650. If you are making a request for records about yourself, see 
Sec. 1600.21 for additional requirements. If you are making a request 
for records about another individual, either a written authorization 
signed by that individual permitting disclosure of those records to you 
or proof that that individual is deceased (for example, a copy of a 
death certificate or an obituary) will help the processing of your 
request. For the quickest possible handling, you should mark both your 
request letter and the envelope ``Freedom of Information Act Request.''
    (b) Description of records sought. You must describe the records 
that you seek in enough detail to enable Foundation personnel to locate 
them with a reasonable amount of effort. Whenever possible, your 
request should include specific information about each record sought, 
such as the date, title or name, author, recipient, and subject matter 
of the record. If the Foundation determines that your request does not 
reasonably describe records, it will tell you either what additional 
information is needed or why your request is otherwise insufficient. If 
your request does not reasonably describe the records you seek, the 
response to your request may be delayed.
    (c) Types of records not available. The FOIA does not require the 
Foundation to:
    (1) Compile or create records solely for the purpose of satisfying 
a request for records;
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some future time; or
    (3) Restore records destroyed or otherwise disposed of, except that 
the Foundation must notify the requester that the requested records 
have been destroyed or disposed of.
    (d) Agreement to pay fees. If you make a FOIA request, your request 
shall be considered an agreement by you to pay all applicable fees 
charged under Sec. 1600.10, up to $25.00, unless you seek a waiver of 
fees. The Foundation ordinarily will confirm this agreement in an 
acknowledgment letter. When making a request, you may specify a 
willingness to pay a greater or lesser amount.


Sec. 1600.4  Timing of responses to requests.

    (a) In general. The Foundation ordinarily shall respond to requests 
according to their order of receipt.
    (b) Multitrack processing. (1) The Foundation may use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work and/or time needed to process the 
request. The anticipated number of pages involved may be considered by 
the Foundation in establishing processing tracks. If the Foundation 
sets a page limit for its faster track, it will advise those whose 
request is placed in its slower track(s) of the page limits of its 
faster track(s).
    (2) If the Foundation uses multitrack processing, it may provide 
requesters in its slower track(s) with an opportunity to limit the 
scope of their requests in order to qualify for faster processing 
within the specified limits of its faster track(s).
    (c) Unusual circumstances.
    (1) Where the statutory time limits for processing a request cannot 
be met because of ``unusual circumstances,'' as defined in the FOIA, 
and the Foundation decides to extend the time limits on that basis, the 
Foundation shall as soon as practicable notify the requester in writing 
of the unusual

[[Page 57775]]

circumstances and of the date by which processing of the request can be 
expected to be completed. Where the extension is for more than 10 
working days, the Foundation shall provide the requester with an 
opportunity either to modify the request so that it may be processed 
within the time limits or to arrange an alternative time period for 
processing the request or a modified request.
    (2) Where the Foundation 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, they may be aggregated. Multiple requests involving unrelated 
matters will not be aggregated.
    (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; or
    (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;
    (2) You may ask for expedited processing of a request for records 
at any time.
    (3) In order to request expedited processing, you must submit a 
statement, certified to be true and correct to the best of your 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, if you are a requester within the 
category in paragraph (d)(1)(ii) of this section, and you are not a 
full-time member of the news media, you must establish that you are a 
person whose main professional activity or occupation is information 
dissemination, though it need not be your sole occupation; you 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 10 calendar days of receipt of a request for expedited 
processing, the Foundation will decide whether to grant it and will 
notify you of the decision. If a request for expedited treatment is 
granted, the request will be given priority and processed as soon as 
practicable. If a request for expedited processing is denied, any 
appeal of that decision will be acted on expeditiously.


Sec. 1600.5  Responses to requests.

    (a) Acknowledgments of requests. On receipt of your request, the 
Foundation ordinarily will send an acknowledgment letter to you, which 
will confirm your agreement to pay fees under Sec. 1600.3(d) and 
provide an assigned request number for further reference.
    (b) Referral to another agency. When a requester seeks records that 
originated in another Federal government agency, the Foundation will 
refer the request to the other agency for response. If the Foundation 
refers the request to another agency, it will notify the requester of 
the referral. A request for any records classified by some other agency 
will be referred to that agency for response.
    (c) Grants of requests. Ordinarily, the Foundation will have 20 
business days from when your request is received to determine whether 
to grant or deny your request. Once the Foundation determines to grant 
a request in whole or in part, it will notify you in writing. The 
Foundation will inform you in the notice of any fee charged under 
Sec. 1600.10 and will disclose records to you promptly on payment of 
any applicable fee. Records disclosed in part will be marked or 
annotated to show the amount of information deleted, unless doing so 
would harm an interest protected by an applicable exemption. The 
location of the information deleted also will be indicated on the 
record, if technically feasible.
    (d) Adverse determinations of requests. If the Foundation denies 
your request in any respect, it will notify you of that determination 
in writing. Adverse determinations, or denials of requests, consist of: 
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; a determination that what has been requested 
is not a record subject to the FOIA; a determination on any disputed 
fee matter, including a denial of a request for a fee waiver; and a 
denial of a request for expedited treatment. The denial letter shall be 
signed by the General Counsel or his/her designee, and shall include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reason(s) for the denial, including 
any FOIA exemption applied by the component in denying the request;
    (3) An estimate of the volume of records or information withheld, 
in number of pages or in some other reasonable form of estimation. This 
estimate does not need to 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 
exemption; and
    (4) A statement that the denial may be appealed under 
Sec. 1600.8(a) and a description of the requirements for appeal.


Sec. 1600.6  Disclosure of requested records.

    (a) The Foundation shall make requested records available to the 
public to the greatest extent possible in keeping with the FOIA, except 
that the following records are exempt from the disclosure requirements:
    (1) Records specifically authorized under criteria established by 
an Executive order to be kept secret in the interest of national 
defense or foreign policy and which are, in fact, properly classified 
pursuant to such Executive order;
    (2) Records related solely to the internal personnel rules and 
practices of the Foundation;
    (3) Records specifically exempted from disclosure by statute (other 
than 5 U.S.C. 552(b)), provided that such statute requires that the 
matters be withheld from the public in such a manner as to leave no 
discretion on the issue or that the statute establishes particular 
criteria for withholding information or refers to particular types of 
matters to be withheld. An example that applies to the Foundation is 
the confidentiality protection for dispute resolution communications 
provided by the Administrative Dispute Resolution Act of 1996 (ADRA, 5 
U.S.C. 571-574).
    (4) Records containing trade secrets and commercial or financial 
information obtained from a person and privileged or confidential;
    (5) Interagency or intra-agency memoranda or letters which would 
not be available by law to a party other than an agency in litigation 
with the Foundation;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;

[[Page 57776]]

    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and in the case of a recorded or information 
compiled by criminal law enforcement authority in the course of a 
criminal investigation or by an agency conducting a lawful national 
security intelligence investigation, information furnished by a 
confidential source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (8) Records contained in or related to examination, operating, or 
condition reports prepared by, or on behalf of, or for the use of an 
agency responsible for the regulation or supervision of financial 
institutions;
    (9) Geological or geophysical information and data, including maps, 
concerning wells.
    (b) If a requested record contains exempted material along with 
nonexempted material, all reasonable segregable nonexempt material 
shall be disclosed.
    (c) Even if an exemption described in paragraph (a) of this section 
may be reasonably applicable to a requested record, or portion thereof, 
the Foundation may elect under the circumstances of any particular 
request not to apply the exemption to such requested record, or portion 
thereof, subject to the provisions in Sec. 1600.7 for confidential 
commercial information. The fact that the exemption is not applied by 
the Foundation to any requested record, or portion thereof, has no 
precedential significance as to the application or non-application of 
the exemption to any other requested record, or portion thereof, no 
matter when the request is received.


Sec. 1600.7  Special procedures for confidential commercial 
information.

    (a) Definitions. For purposes of this section:
    (1) Business submitter means any person or entity which provides 
confidential commercial information, directly or indirectly, to the 
Foundation and who has a proprietary interest in the information.
    (2) Commercial-use requester means requesters seeking information 
for a use or purpose that furthers the commercial, trade, or profit 
interests of the requester or the person on whose behalf the request is 
made. In determining whether a requester properly belongs in this 
category, the Foundation shall determine, whenever reasonably possible, 
the use to which a requester will put the documents requested. Where 
the Foundation has reasonable cause to doubt the use to which a 
requester will put the records sought, or where that use is not clear 
from the request itself, the Foundation shall seek additional 
clarification before assigning the request to a specific category.
    (3) Confidential commercial information means records provided to 
the government by a submitter that arguably contain material exempt 
from disclosure under Exemption 4 of the FOIA, because disclosure could 
reasonably be expected to cause substantial competitive harm.
    (b) In general. Confidential commercial information provided to the 
Foundation by a business submitter shall not be disclosed pursuant to 
an FOIA request except in accordance with this section.
    (c) Designation of business information. Business submitters should 
use good-faith efforts to designate, by appropriate markings, either at 
the time of submission or at a reasonable time thereafter, those 
portions of their submissions which they deem to be protected under 
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Any such designation will 
expire 10 years after the records were submitted to the government, 
unless the submitter requests, and provides reasonable justification 
for, a designation period of longer duration.
    (d) Predisclosure notification. (1) Except as is provided for in 
paragraph (i) of this section, the Foundation shall, to the extent 
permitted by law, provide a submitter with prompt written notice of an 
FOIA request or administrative appeal encompassing its confidential 
business information whenever required under paragraph (e) of this 
section. Such notice shall either describe the exact nature of the 
business information requested or provide copies of the records or 
portions thereof containing the business information.
    (2) Whenever the Foundation provides a business submitter with the 
notice set forth in paragraph (e)(1) of this section, the Foundation 
shall notify the requester that the request includes information that 
may arguably be exempt from disclosure under Exemption 4 of the FOIA 
and that the person or entity who submitted the information to the 
Foundation has been given the opportunity to comment on the proposed 
disclosure of information.
    (e) When notice is required. The Foundation shall provide a 
business submitter with notice of a request whenever--
    (1) The business submitter has in good faith designated the 
information as business information deemed protected from disclosure 
under 5 U.S.C. 552(b)(4); or
    (2) The Foundation has reason to believe that the request seeks 
business information the disclosure of which may result in substantial 
commercial or financial injury to the business submitter.
    (f) Opportunity to object to disclosure. Through the notice 
described in paragraph (d) of this section, the Foundation shall, to 
the extent permitted by law, afford a business submitter at least 10 
working days within which it can provide the Foundation with a detailed 
written statement of any objection to disclosure. Such statement shall 
demonstrate why the information is contended to be a trade secret or 
commercial or financial information that is privileged or confidential 
and why disclosure would cause competitive harm. Whenever possible, the 
business submitter's claim of confidentiality should be supported by a 
statement or certification by an officer or authorized representative 
of the business submitter. Information provided by a submitter pursuant 
to this paragraph may itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose.
    (1) The Foundation shall consider carefully a business submitter's 
objections and specific grounds for nondisclosure prior to determining 
whether to disclose confidential commercial business information. 
Whenever the Foundation decides to disclose such information over the 
objection of a business submitter, the Foundation shall forward to the 
business submitter a written notice at least 10 working days before the 
date of disclosure containing--
    (i) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained,
    (ii) A description of the confidential commercial information to be 
disclosed, and
    (iii) A specified disclosure date.
    (2) Such notice of intent to disclose likewise shall be forwarded 
to the requester at least 10 working days prior to the specified 
disclosure date.

[[Page 57777]]

    (h) Notice of FOIA lawsuit. Whenever a requester brings suit 
seeking to compel disclosure of confidential commercial information, 
the Foundation shall promptly notify the business submitter of such 
action.
    (i) Exceptions to predisclosure notification. The requirements of 
this section shall not apply if--
    (1) The Foundation determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The designation made by the submitter in accordance with 
paragraph (c) of this section appears obviously frivolous; except that, 
in such a case, the Foundation will provide the submitter with written 
notice of any final decision to disclose confidential commercial 
information within a reasonable number of days prior to a specified 
disclosure date.


Sec. 1600.8  Appeals.

    (a) Appeals of adverse determinations. If you are dissatisfied with 
the Foundation's response to your request, you may appeal an adverse 
determination denying your request, in any respect, to the Executive 
Director of the Foundation, 110 S. Church Avenue, Suite 3350, Tucson, 
AZ 85701-1650. You must make your appeal in writing, and it must be 
received by the Executive Director within 60 days of the date of the 
letter denying your request. Your appeal letter may include as much or 
as little related information as you wish, as long as it clearly 
identifies the determination (including the assigned request number, if 
known) that you are appealing. For the quickest possible handling, you 
should mark your appeal letter and the envelope ``Freedom of 
Information Act Appeal.''
    (b) Responses to appeals. The decision on your appeal will be made 
in writing. A decision affirming an adverse determination in whole or 
in part shall contain a statement of the reason(s) for the affirmance, 
including any FOIA exemption(s) applied, and will inform you of the 
FOIA provisions for court review of the decision. If the adverse 
determination is reversed or modified on appeal, in whole or in part, 
you will be notified in a written decision and your request will be 
reprocessed in accordance with that appeal decision.
    (c) When appeal is required. If you wish to seek review by a court 
of any adverse determination, you must first appeal it under this 
section.


Sec. 1600.9  Preservation of records.

    The Foundation will preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the FOIA.


Sec. 1600.10  Fees.

    (a) In general. The Foundation will charge you for processing 
requests under the FOIA in accordance with paragraph (c) of this 
section, except where fees are limited under paragraph (d) of this 
section or where a waiver or reduction of fees is granted under 
paragraph (i) of this section. The Foundation ordinarily will collect 
all applicable fees before sending copies of requested records to you. 
You must pay fees by check or money order made payable to the United 
States Treasury.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person seeking information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include 
furthering those interests through litigation. If the Foundation 
determines that you will put the records to a commercial use, either 
because of the nature of your request itself or because the Foundation 
has reasonable cause to doubt your stated use, the Foundation will 
provide you a reasonable opportunity to submit further clarification.
    (2) Direct costs means those expenses that the Foundation actually 
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 salary of the employee performing the 
work and the cost of operating duplication machinery.
    (3) Duplication means the process of making a copy of a record, or 
the information contained in it, available in response to a FOIA 
request. Copies can take the form of paper, microfilm, audiovisual 
materials, or electronic records (for example, magnetic tape or disk), 
among others. The Foundation will honor your 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 or 
graduate higher education, an institution of professional education, 
and an institution of vocational education, which operates a program or 
programs of scholarly research.
    (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 not sought for a commercial use but are sought to further 
scientific research.
    (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 in those instances where 
they can qualify as disseminators of news) who 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 Foundation shall also look to the past 
publication record of a requester in making this determination. To be 
in this category, a requester must not be seeking the requested records 
for a commercial use. However, a request for records supporting the 
news-dissemination function of the requester shall not be considered to 
be for a commercial use.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt 
from disclosure. It also includes processing any record for 
disclosure--for example, doing all that is necessary to redact it and 
prepare it for disclosure. Review costs are recoverable even if a 
record ultimately is not disclosed. Review time does not include time 
spent resolving general legal or policy issues regarding the 
application of exemptions.

[[Page 57778]]

    (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.
    (c) Fees. In responding to FOIA requests, the Foundation will 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (i) of this section:
    (1) Search. Search fees will be charged for all requests, except 
for those by educational institutions, noncommercial scientific 
institutions, or representatives of the news media (subject to the 
limitations of paragraph (d) of this section). Charges may be made for 
time spent searching even if no responsive record is located or if the 
record(s) are withheld as entirely exempt from disclosure.
    (2) Duplication. Duplication fees will be charged for all requests, 
subject to the limitations of paragraph (d) of this section. For a 
paper photocopy of a record, the fee will be ten cents per page. For 
other forms of duplication (including copies produced by computer, such 
as tapes or printouts), the Foundation will charge the direct costs, 
including operator time, of producing the copy.
    (3) Review. Review fees will be charged only for commercial use 
requests. Review fees will be charged only for the initial record 
review--in other words, the review done when the Foundation determines 
whether an exemption applies to a particular record or record portion 
at the initial request level. No charge will be made for review at the 
administrative appeal level for an exemption already applied. However, 
records or record portions 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; the 
costs of that review are chargeable where it is made necessary by such 
a change of circumstances.
    (4) Searches and reviews--amounts of fees. 
    (i) For each quarter hour spent in searching for and/or reviewing a 
requested record, the fees will be: $4.00 for clerical personnel; $7.00 
for professional personnel; and $10.25 for managerial personnel.
    (ii) For computer searches of records, you 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)(4) of 
this section) will be entitled to the cost equivalent of two hours of 
manual search time without charge. These direct costs will include the 
cost of operating a central processing unit for that portion of 
operating time that is directly attributable to searching for 
responsive records, as well as the costs of operator/programmer salary 
apportionable to the search.
    (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) Review fees will be charged only for commercial use requests.
    (3) 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.
    (4) Except for commercial use requests, the Foundation will provide 
the first 100 pages of duplication and the first two hours of search 
time to requesters without charge. These provisions work together, so 
that the Foundation will not begin to assess fees until after providing 
the free search and reproduction. For example, if a request involves 
three hours of search time and duplication of 105 pages of documents, 
the Foundation will charge only for the cost of one hour of search time 
and five pages of reproduction.
    (5) Whenever a total fee calculated under paragraph (d) of this 
section is $14.00 or less for any request, no fee will be charged.
    (e) Notice of anticipated fees in excess of $25.00. When the 
Foundation determines or estimates that the fees will be more than 
$25.00, it will notify you of the actual or estimated amount of the 
fees, unless you have indicated a willingness to pay fees as high as 
those anticipated. If only a portion of the fee can be estimated 
readily, the Foundation will advise you that the estimated fee may be 
only a portion of the total fee. In cases in which you have been 
notified that actual or estimated fees amount to more than $25.00, the 
request will not be considered received and further work will not be 
done on it until you agree in writing to pay the anticipated total fee. 
A notice under this paragraph will offer you an opportunity to discuss 
the matter with Foundation personnel in order to reformulate the 
request to meet your needs at a lower cost.
    (f) Charging interest. The Foundation may charge interest on any 
unpaid bill starting on the 31st day following the date of billing. 
Interest charges will be assessed at the rate provided in 31 U.S.C. 
3717 and will accrue from the date of the billing until payment is 
received by the Foundation.
    (g) Aggregating requests. Where the Foundation 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, it may aggregate those requests and charge accordingly. 
The Foundation may presume that multiple requests of this type made 
within a 30-day period have been made in order to avoid fees. Where 
requests are separated by a longer period, they will be aggregated only 
if there exists a solid basis for determining that aggregation is 
warranted under all the circumstances involved. Multiple requests 
involving unrelated matters will not be aggregated.
    (h) Advance payments. 
    (1) No advance payment (that is, payment before work is begun on a 
request) will ordinarily be required, except as described in paragraphs 
(h)(2) and (3) of this section. Payment owed for work already completed 
(that is, a prepayment before copies are sent to you) is not considered 
an advance payment.
    (2) Where the Foundation determines or estimates that a total fee 
to be charged under this section will be more than $250.00, it may 
require you to make an advance payment of an amount up to the amount of 
the entire anticipated fee before beginning to process the request, 
except where it receives satisfactory assurance of full payment from 
you and you have a history of prompt payment.
    (3) If you have previously failed to pay a properly charged FOIA 
fee within 30 days of the date of billing, the Foundation may require 
you 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 it begins to process a new request or continues to process a 
pending request from you.
    (4) In cases in which the Foundation requires advance payment or 
payment due under paragraph (h)(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.
    (i) 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 where the Foundation determines, based on all 
available information, that the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest

[[Page 57779]]

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) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver will be granted for those 
records.
    (3) If you request a waiver or reduction of fees, your request 
should address the factors listed in paragraph (i)(1) of this section.

Subpart B--Protection of Privacy and Access to Individual Records 
Under the Privacy Act of 1974


Sec. 1600.21  General provisions.

    (a) Purpose and scope. This subpart contains the rules that the 
Morris K. Udall Scholarship and Excellence in National Environmental 
Policy Foundation (the ``Foundation'') follows under the Privacy Act of 
1974, 5 U.S.C. 552a. These rules should be read together with the 
Privacy Act, which provides additional information about records 
maintained on individuals. The rules in this subpart apply to all 
records in systems of records maintained by the Foundation that are 
retrieved by an individual's name or personal identifier. They describe 
the procedures by which individuals may request access to records about 
themselves, request amendment or correction of those records, and 
request an accounting of disclosures of those records by the 
Foundation. In addition, the Foundation processes all Privacy Act 
requests for access to records under the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, following the rules contained in subpart A of 
this part, which gives requests the benefit of both statutes.
    (b) Applicability. This subpart applies to all Foundation programs, 
including the U.S. Institute for Environmental Conflict Resolution 
(USIECR).
    (c) Definitions. As used in this subpart:
    (1) Request for access to a record means a request made under 
Privacy Act subsection (d)(1).
    (2) Request for amendment or correction of a record means a request 
made under Privacy Act subsection (d)(2).
    (3) Request for an accounting means a request made under Privacy 
Act subsection (c)(3).
    (4) Requester means an individual who makes a request for access, a 
request for amendment or correction, or a request for an accounting 
under the Privacy Act.


Sec. 1600.22  Requests for access to records.

    (a) How made and addressed. You may make a request for access to a 
Foundation record about yourself by appearing in person or by writing 
to the Foundation. Your request should be sent or delivered to the 
Foundation's General Counsel, at 110 S. Church Avenue, Suite 3350, 
Tucson, AZ 85701-1650. For the quickest possible handling, you should 
mark both your request letter and the envelope ``Privacy Act Request.''
    (b) Description of records sought. You must describe the records 
that you want in enough detail to enable Foundation personnel to locate 
the system of records containing them with a reasonable amount of 
effort. Whenever possible, your request should describe the records 
sought, the time periods in which you believe they were compiled, and 
the name or identifying number of each system of records in which you 
believe they are kept. The Foundation publishes notices in the Federal 
Register that describe its systems of records. A description of the 
Foundation's systems of records also may be found as part of the 
``Privacy Act Compilation'' published by the National Archives and 
Records Administration's Office of the Federal Register. This 
compilation is available in most large reference and university 
libraries. This compilation also can be accessed electronically at the 
Government Printing Office's World Wide Web site (which can be found at 
http://www.access.gpo.gov/su_docs).
    (c) Agreement to pay fees. If you make a Privacy Act request for 
access to records, it shall be considered an agreement by you to pay 
all applicable fees charged under Sec. 1600.29 up to $25.00. The 
Foundation ordinarily will confirm this agreement in an acknowledgment 
letter. When making a request, you may specify a willingness to pay a 
greater or lesser amount.
    (d) Verification of identity. When you make a request for access to 
records about yourself, you must verify your identity. You must state 
your full name, current address, and date and place of birth. You must 
sign your request and your signature must either be notarized or 
submitted by you under 28 U.S.C. 1746, a law that permits statements to 
be made under penalty of perjury as a substitute for notarization. In 
order to help the identification and location of requested records, you 
may also, at your option, include your social security number.
    (e) Verification of guardianship. When making a request as the 
parent or guardian of a minor or as the guardian of someone determined 
by a court to be incompetent, for access to records about that 
individual, you must establish:
    (1) The identity of the individual who is the subject of the 
record, by stating the name, current address, date and place of birth, 
and, at your option, the social security number of the individual;
    (2) Your own identity, as required in paragraph (d) of this 
section;
    (3) That you are the parent or guardian of that individual, which 
you may prove by providing a copy of the individual's birth certificate 
showing your parentage or by providing a court order establishing your 
guardianship; and
    (4) That you are acting on behalf of that individual in making the 
request.


Sec. 1600.23  Responsibility for responding to requests for access to 
records.

    (a) In general. In determining which records are responsive to a 
request, the Foundation ordinarily will include only those records in 
its possession as of the date the Foundation begins its search for 
them. If any other date is used, the Foundation will inform the 
requester of that date.
    (b) Authority to grant or deny requests. The Foundation's General 
Counsel, or his/her designee, is authorized to grant or deny any 
request for access to a record of the Foundation.
    (c) Consultations and referrals. When the Foundation receives a 
request for access to a record in its possession, it will determine 
whether another agency of the Federal Government is better able to 
determine whether the record is exempt from access under the Privacy 
Act. If the Foundation determines that it is best able to process the 
record in response to the request, then it will do so. If the 
Foundation determines that it is not best able to process the record, 
then it will either:
    (1) Respond to the request regarding that record, after consulting 
with the agency best able to determine whether the record is exempt 
from access and with any other agency that has a substantial interest 
in it; or
    (2) Refer the responsibility for responding to the request 
regarding that record to another agency that originated the record (but 
only if that agency is subject to the Privacy Act). Ordinarily, the 
agency that originated a record will be presumed to be best able to 
determine whether it is exempt from access.
    (d) Notice of referral. Whenever the Foundation refers all or any 
part of the responsibility for responding to your request to another 
agency, it ordinarily will notify you of the referral and inform you of 
the name of each agency

[[Page 57780]]

to which the request has been referred and of the part of the request 
that has been referred.
    (e) Timing of responses to consultations and referrals. All 
consultations and referrals shall be handled according to the date the 
Privacy Act access request was initially received by the Foundation, 
not any later date.


Sec. 1600.24  Responses to requests for access to records.

    (a) Acknowledgments of requests. On receipt of your request, the 
Foundation ordinarily will send an acknowledgment letter, which shall 
confirm your agreement to pay fees under Sec. 1600.22(c) and may 
provide an assigned request number for further reference.
    (b) Grants of requests for access. Once the Foundation makes a 
determination to grant your request for access in whole or in part, it 
will notify you in writing. The Foundation will inform you in the 
notice of any fee charged under Sec. 1600.29 and will disclose records 
to you promptly on payment of any applicable fee. If your request is 
made in person, the Foundation may disclose records to you directly, in 
a manner not unreasonably disruptive of its operations, on payment of 
any applicable fee and with a written record made of the grant of the 
request. If you are accompanied by another person when you make a 
request in person, you shall be required to authorize in writing any 
discussion of the records in the presence of the other person.
    (c) Adverse determinations of requests for access. If the 
Foundation makes an adverse determination denying your request for 
access in any respect, it will notify you of that determination in 
writing. Adverse determinations, or denials of requests, consist of: 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 what has been requested is not a record 
subject to the Privacy Act; a determination on any disputed fee matter; 
and a denial of a request for expedited treatment. The notification 
letter shall be signed by the General Counsel, or his/her designee, and 
shall include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reason(s) for the denial, including 
any Privacy Act exemption(s) applied by the Foundation in denying the 
request; and
    (3) A statement that the denial may be appealed under 
Sec. 1600.25(a) and a description of the requirements of 
Sec. 1600.25(a).


Sec. 1600.25  Appeals from denials of requests for access to records.

    (a) Appeals. If you are dissatisfied with the Foundation's response 
to your request for access to records, you may appeal an adverse 
determination denying your request in any respect to the Executive 
Director of the Foundation, 110 S. Church Avenue, Suite 3350, Tucson, 
AZ 85701-1650. You must make your appeal in writing, and it must be 
received within 60 days of the date of the letter denying your request. 
Your appeal letter may include as much or as little related information 
as you wish, as long as it clearly identifies the determination 
(including the assigned request number, if any) that you are appealing. 
For the quickest possible handling, you should mark both your appeal 
letter and the envelope ``Privacy Act Appeal.''
    (b) Responses to appeals. The decision on your appeal will be made 
in writing. A decision affirming an adverse determination in whole or 
in part will include a brief statement of the reason(s) for the 
affirmance, including any Privacy Act exemption applied, and will 
inform you of the Privacy Act provisions for court review of the 
decision. If the adverse determination is reversed or modified on 
appeal in whole or in part, you will be notified in a written decision 
and your request will be reprocessed in accordance with that appeal 
decision.
    (c) When appeal is required. If you wish to seek review by a court 
of any adverse determination or denial of a request, you must first 
appeal it under this section.


Sec. 1600.26  Requests for amendment or correction of records.

    (a) How made and addressed. You may make a request for amendment or 
correction of a Foundation record about yourself by following the 
procedures in Sec. 1600.22. Your request should identify each 
particular record in question, state the amendment or correction that 
you want, and state why you believe that the record is not accurate, 
relevant, timely, or complete. You may submit any documentation that 
you think would be helpful.
    (b) Foundation responses. Within 10 working days of receiving your 
request for amendment or correction of records, the Foundation will 
send you a written acknowledgment of its receipt of your request, and 
it will promptly notify you whether your request is granted or denied. 
If the Foundation grants your request in whole or in part, it will 
describe the amendment or correction made and advise you of your right 
to obtain a copy of the corrected or amended record. If the Foundation 
denies your request in whole or in part, it will send you a letter 
stating:
    (1) The reason(s) for the denial; and
    (2) The procedure for appeal of the denial under paragraph (c) of 
this section, including the name and business address of the official 
who will act on your appeal.
    (c) Appeals. You may appeal a denial of a request for amendment or 
correction to the Executive Director in the same manner as a denial of 
a request for access to records (see Sec. 1600.25), and the same 
procedures will be followed. If your appeal is denied, you will be 
advised of your right to file a Statement of Disagreement as described 
in paragraph (d) of this section and of your right under the Privacy 
Act for court review of the decision.
    (d) Statements of Disagreement. If your appeal under this section 
is denied in whole or in part, you have the right to file a Statement 
of Disagreement that states your reason(s) for disagreeing with the 
Foundation's denial of your request for amendment or correction. 
Statements of Disagreement must be concise, must clearly identify each 
part of any record that is disputed, and should be no longer than one 
typed page for each fact disputed. Your Statement of Disagreement must 
be sent to the Foundation, which will place it in the system of records 
in which the disputed record is maintained and will mark the disputed 
record to indicate that a Statement of Disagreement has been filed and 
where in the system of records it may be found.
    (e) Notification of amendment/correction or disagreement. Within 30 
working days of the amendment or correction of a record, the Foundation 
shall notify all persons, organizations, or agencies to which it 
previously disclosed the record, if an accounting of that disclosure 
was made, that the record has been amended or corrected. If an 
individual has filed a Statement of Disagreement, the Foundation will 
attach a copy of it to the disputed record whenever the record is 
disclosed and may also attach a concise statement of its reason(s) for 
denying the request to amend or correct the record.


Sec. 1600.27  Requests for an accounting of record disclosures.

    (a) How made and addressed. Except where accountings of disclosures 
are not required to be kept (as stated in paragraph (b) of this 
section), you may make a request for an accounting of any disclosure 
that has been made by the Foundation to another person, organization, 
or agency of any record about you. This accounting contains the

[[Page 57781]]

date, nature, and purpose of each disclosure, as well as the name and 
address of the person, organization, or agency to which the disclosure 
was made. Your request for an accounting should identify each 
particular record in question and should be made by writing to the 
Foundation, following the procedures in Sec. 1600.22.
    (b) Where accountings are not required. The Foundation is not 
required to provide accountings to you where they relate to disclosures 
for which accountings are not required to be kept--in other words, 
disclosures that are made to employees within the agency and 
disclosures that are made under the FOIA.
    (c) Appeals. You may appeal a denial of a request for an accounting 
to the Foundation Executive Director in the same manner as a denial of 
a request for access to records (see Sec. 1600.25) and the same 
procedures will be followed.


Sec. 1600.28  Preservation of records.

    The Foundation will preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the Act.


Sec. 1600.29  Fees.

    The Foundation will charge fees for duplication of records under 
the Privacy Act in the same way in which it charges duplication fees 
under Sec. 1600.10. No search or review fee will be charged for any 
record.


Sec. 1600.30  Notice of court-ordered and emergency disclosures.

    (a) Court-ordered disclosures. When a record pertaining to an 
individual is required to be disclosed by a court order, the Foundation 
will make reasonable efforts to provide notice of this to the 
individual. Notice will be given within a reasonable time after the 
Foundation's receipt of the order--except that in a case in which the 
order is not a matter of public record, the notice will be given only 
after the order becomes public. This notice will be mailed to the 
individual's last known address and will contain a copy of the order 
and a description of the information disclosed.
    (b) Emergency disclosures. Upon disclosing a record pertaining to 
an individual made under compelling circumstances affecting health or 
safety, the Foundation will notify that individual of the disclosure. 
This notice will be mailed to the individual's last known address and 
will state the nature of the information disclosed; the person, 
organization, or agency to which it was disclosed; the date of 
disclosure; and the compelling circumstances justifying the disclosure.

    Dated: September 20, 2000.
Christopher L. Helms,
Executive Director, Morris K. Udall Scholarship and Excellence in 
National Environmental Policy Foundation.
[FR Doc. 00-24528 Filed 9-25-00; 8:45 am]
BILLING CODE 6820-FN-P