[Federal Register Volume 65, Number 209 (Friday, October 27, 2000)]
[Rules and Regulations]
[Pages 64342-64348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27704]


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OVERSEAS PRIVATE INVESTMENT CORPORATION

22 CFR Part 706

RIN 3420-ZA00


Freedom of Information; Final Rule

AGENCY: Overseas Private Investment Corporation.

ACTION: Final rule.

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SUMMARY: This final rule revises the Overseas Private Investment 
Corporation's (``OPIC,'' or ``the Corporation'') Freedom of Information 
Act (``FOIA'') regulations by making substantive and administrative 
changes. These revisions supersede OPIC's current FOIA regulations, 
located at this Part. The final rule incorporates the FOIA revisions 
contained in the Electronic Freedom of Information Act Amendments of 
1996 (Pub. L. 104-231) (``EFOIA''), conforms OPIC's regulations to 
current OPIC FOIA practices, and converts the regulations to a plain 
English format. The final rule also reflects the disclosure principles 
established by President Clinton and Attorney General Reno in their 
FOIA Policy Memorandum of October 4, 1993, and reiterated in Attorney 
General Reno's September 3, 1999 FOIA Memorandum to the heads of 
federal departments and agencies. Finally, the final rule adds a notice 
to OPIC's business submitters concerning access to OPIC records that 
have been transferred to the legal custody and control of the National 
Archives of the United States (``National Archives'').

DATES: This rule is effective November 15, 2000.

FOR FURTHER INFORMATION CONTACT: Laura A. Naide, FOIA Director, (202) 
336-8426, or Eli H. Landy, FOIA Counsel, (202) 336-8418.

SUPPLEMENTARY INFORMATION: This revision of part 706 incorporates 
changes to the language and structure of the regulations and adds new 
provisions to implement the EFOIA. New provisions implementing the 
amendments are found at Sec. 706.12 (defining ``search'' to include 
electronic searches), Sec. 706.21 (electronic reading room), 
Sec. 706.31 (format of disclosure), Sec. 706.32 (timing of responses 
and expedited processing), and Sec. 706.33 (material withheld). OPIC is 
already complying with these statutory requirements; this final rule 
serves as OPIC's formal codification of the applicable law and its 
practice.
    Under the EFOIA, an agency may provide by regulation for multiple 
``tracks'' in responding to FOIA requests depending upon the amount of 
time and work involved in responding to different kinds of requests 
(``multitrack processing''). OPIC will not implement multitrack 
processing. Because OPIC receives a limited number of FOIA requests 
each year and is able to respond to the great majority of them on a 
timely basis, OPIC does not need to provide separate processing tracks 
for more complicated versus simpler FOIA requests.
    Revisions to OPIC's fee schedule can be found at Sec. 706.34. The 
duplication charge will remain fifteen cents per page, while the 
document search and review charges will increase to $16 and $35 per 
hour, respectively. The amount at or below which OPIC will not charge a 
fee is set at $15.
    This revision also notifies OPIC's business submitters of the 
requirement that OPIC transfer legal custody and control of certain 
records to the National Archives pursuant to applicable federal records 
schedules.
    OPIC published a proposed rule at 65 FR 30369, May 11, 2000, and 
invited interested parties to submit comments. OPIC received one set of 
comments and made several changes to its proposed rule based on the 
commentator's suggestions.
    OPIC adopted the following suggestions. First, OPIC revised 
Sec. 706.31(b)(1) to describe more clearly how the Corporation handles 
FOIA requests that do not reasonably describe the records sought. The 
commentator stated that OPIC's proposed regulation did not ``adequately 
guarantee that requesters whose requests need to be clarified will be 
contacted in a timely and effective manner so that their requests can 
be processed quickly.'' The final rule specifies in more detail OPIC's 
procedures for treatment of ambiguous requests.
    Second, OPIC modified Sec. 706.34(e) concerning special service 
charges to clarify that requesters will be provided advance notice of 
the actual cost of any requested service(s) that OPIC has agreed to 
provide. OPIC provides special services such as certification of 
documents and rapid delivery methods as a convenience to its FOIA 
requesters. FOIA requesters are not required to use special services 
and may withdraw a request for special services if they do not wish to 
pay the stated cost.
    OPIC considered, but did not adopt the following suggestions. 
First, OPIC did not adopt the suggestion that the Corporation include 
in its regulations a provision granting expedited processing to records 
that are subject to multiple (i.e., five or more) pending FOIA 
requests. OPIC could establish this discretionary category of 
``expedited processing'' under FOIA subsection 5 U.S.C. 
552(a)(6)(E)(i)(II), but the Corporation does not believe it would 
serve a useful purpose to do so. OPIC's FOIA program is flexible enough 
to accommodate multiple requests and respond to them in a timely manner 
without giving such requests expedited status.
    The commentator was concerned that OPIC's response to multiple 
requests for

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identical records could be delayed if OPIC developed a FOIA backlog and 
such requests were not granted expedited status. Based on OPIC's 
experience processing FOIA requests, this concern is unfounded. OPIC 
does not adhere to a strict first-in, first-out regimen. OPIC begins 
processing each FOIA request upon receipt and handles each request as 
quickly as possible based on the complexity of the request. For 
example, a request for publicly-available information can be processed 
rapidly, often within one or two business days of receipt. By contrast, 
a request for confidential or financial information takes longer to 
process because OPIC must contact the business submitter for comments 
pursuant to Executive Order 12600 and this Part.
    OPIC also notes that most multiple requests for OPIC records are 
requests for commercial or financial information. Because of the notice 
requirements described above, it would be extremely difficult to 
respond to such requests in fewer than 20 business days. Finally, as 
the commentator noted, OPIC's most recent Annual FOIA Report indicates 
that OPIC responds to FOIA requests in a timely manner.
    Second, OPIC did not adopt the suggestion that the Corporation 
notify requesters of their right under 5 U.S.C. 552(a)(6)(C) to seek 
immediate review by a court when the Corporation fails to respond to a 
FOIA request within twenty business days of receipt. The commentator 
suggested that OPIC provide such notice in its responses to FOIA 
requests. For such notification to be meaningful, however, OPIC would 
have to provide the notice prior to processing the FOIA request. This 
would place a burden on OPIC's limited FOIA resources and impose a 
requirement on OPIC that is not found in the FOIA.
    Third, OPIC will not modify  1A706.11(c), which states: ``In 
responding to requests for information, OPIC will consider only those 
records within its possession or control as of the date of the 
request.'' The commentator considers this ``date-of-request cut-off,'' 
to be an inappropriate exclusion of more recently-created responsive 
records. OPIC will retain its practice of using a date-of-request cut-
off because there is no other practical way for the Corporation to 
process FOIA requests and because this practice is consistent with FOIA 
case law.
    The commentator suggests that OPIC adopt a date-of-processing cut-
off. Because OPIC begins processing FOIA requests upon receipt, there 
is no meaningful distinction for the Corporation between the date of 
receipt and the date of processing. Further, without a cut-off date, 
OPIC would never be able to complete its response to a FOIA request for 
an active matter because new records could be created on a continual 
basis. In spite of this basic practice, however, the Corporation may 
make occasional exceptions to the date-of-request cut-off depending 
upon the circumstances of the request. Any such exception is within 
OPIC's sole discretion. This determination is consistent with recent 
FOIA case law. See, e.g., Public Citizen v. Dep't of State, 100 F.Supp. 
2d 10 (D.D.C. 2000).
    Finally, OPIC did not adopt the commentator's suggested language 
regarding referrals of documents to other agencies, although it did 
amend  1A706.33(b) as described below. The commentator suggested 
regulatory language that would require OPIC, prior to referring a 
record to another agency for review and release pursuant to a FOIA 
request, to identify an intention on the part of the originating agency 
to retain control over the record. OPIC believes this requirement would 
create an undue burden on its FOIA program.
    To address the commentator's concerns, OPIC amended  1A706.33(b) to 
state that OPIC will not make a referral if OPIC can make a 
determination concerning release either by examining the document and/
or by informal consultation with the originating agency. OPIC also 
amended the section to state that any necessary referrals will be made 
promptly upon OPIC's receipt of the FOIA request. As the commentator 
noted, OPIC has only made one referral to another agency within the 
last two years. Accordingly, OPIC does not believe that referrals 
within its FOIA program have resulted in delays to its FOIA requesters.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
the head of OPIC has certified that this regulation, as promulgated, 
will not have a significant economic impact on a substantial number of 
small entities. The regulation implements the FOIA, a statute 
concerning the release of federal records, and does not economically 
impact Federal Government relations with the private sector. Further, 
under the FOIA, agencies may recover only the direct costs of searching 
for, reviewing, and duplicating the records processed for requesters. 
Based on OPIC's experience, these fees are nominal.

Executive Order 12866

    OPIC incorrectly stated that its proposed rule (65 FR 30369, May 
11, 2000) was drafted and reviewed in accordance with Executive Order 
12866, section 1(b), Principles of Regulation. The Office of Management 
and Budget (``OMB''), by memorandum dated October 12, 1993, exempted 
OPIC from the requirements of this Executive Order. Accordingly, OMB 
did not review this final rule or its predecessor proposed rule. OPIC 
did, however, incorporate the general principles stated in section 1(b) 
of the Executive Order in drafting its proposed and final rules.

Unfunded Mandates Reform Act of 1995

    This regulation 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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This regulation is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
regulation will not result in an annual effect on the economy of 
$100,000,000 or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 22 CFR Part 706

    Freedom of Information.

    For the reasons stated in the summary, OPIC revises 22 CFR Part 706 
to read as follows:

PART 706--FREEDOM OF INFORMATION

Subpart A--General
Sec.
706.11  General Provisions.
706.12  Definitions.
Subpart B--Procedures for Obtaining Publicly Available Records
706.21  What types of OPIC records are publicly available, and how 
do I obtain access to or copies of these records?
Subpart C--Procedures for Obtaining Records under the FOIA
706.31  How do I request copies of or access to OPIC records that 
are not otherwise available to the public?
706.32  When will I receive a response to my FOIA request?
706.33  How will OPIC respond to my FOIA request?

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706.34  What, if any, fees will I be charged?
706.35  When will OPIC reduce or waive fees?
706.36  How may I appeal a partial or total denial of records?
Subpart D--Rights of Submitters of Confidential Business Information
706.41  How should business submitters designate business 
information in materials submitted to OPIC?
706.42  When will OPIC notify business submitters of a pending FOIA 
request?
706.43  Who will OPIC notify if a FOIA lawsuit is filed?
706.44  What happens to business information contained in OPIC 
records transferred to the National Archives of the United States?

    Authority: 5 U.S.C. 552, as amended; Executive Order 12600; 44 
U.S.C. 2901, et. seq.

PART 706--FREEDOM OF INFORMATION

Subpart A--General


Sec. 706.11  General Provisions.

    (a) Purpose. The purpose of this part is to help interested parties 
obtain access to OPIC records. Many OPIC records may be accessed by the 
public without filing a formal request under the FOIA. Records that are 
not routinely available, however, must be requested under the FOIA. 
This part also informs OPIC's business submitters of their right to be 
notified of a request for disclosure of business information and to 
object to such disclosure. Finally, this part provides information 
about access to records that OPIC has transferred to the National 
Archives.
    (b) Policy. OPIC's policy is to make its records available to the 
public to the greatest extent possible, in keeping with the spirit of 
the FOIA. This policy includes providing reasonably segregable 
information from records that also contain information that may be 
withheld under the FOIA. However, implementation of this policy also 
reflects OPIC's view that the soundness and viability of many of its 
programs depend in large measure upon full and reliable commercial, 
financial, technical and business information received from applicants 
for OPIC assistance and that the willingness of those applicants to 
provide such information depends on OPIC's ability to hold it in 
confidence. Consequently, except as provided by law and this part, 
information provided to OPIC in confidence will not be disclosed 
without the submitter's consent.
    (c) Scope. This regulation applies to all agency records in OPIC's 
possession and control. This regulation does not compel OPIC to create 
records or to ask outside parties to provide documents in order to 
satisfy a FOIA request. OPIC may, however, in its discretion and in 
consultation with a FOIA requester, create a new record as a partial or 
complete response to a FOIA request. In responding to requests for 
information, OPIC will consider only those records within its 
possession and control as of the date of the request. This regulation 
does not apply to requests for records under the Privacy Act, 5 U.S.C. 
552a. OPIC's regulations governing Privacy Act requests are located at 
22 CFR part 707.
    (d) OPIC Internet Site. OPIC maintains an Internet site at 
www.opic.gov. This site contains information on OPIC functions, 
activities, programs, and transactions. OPIC encourages all prospective 
requesters of information, whether under FOIA or otherwise, to visit 
its Internet site prior to submitting a request.
    (e) OPIC address. OPIC is located at 1100 New York Avenue, NW., 
Washington, DC 20527. All correspondence should be sent to this 
address.


Sec. 706.12  Definitions.

    For purposes of this subpart, the following definitions apply:
    All other requesters--Requesters other than commercial use 
requesters, educational and non-commercial scientific requesters, or 
representatives of the news media.
    Business information--Trade secrets and confidential or privileged 
commercial or financial information obtained from any person, 
including, but not necessarily limited to, information contained in 
individual case files relating to such activities as insurance, loans, 
and loan guaranties.
    Business submitter--Any person that provides business information 
to OPIC.
    Educational institution--A preschool, a public or private 
elementary or secondary school, an institution of undergraduate or 
graduate higher education, or an institution of professional or 
vocational education.
    FOIA--The Freedom of Information Act, as amended, 5 U.S.C. 552.
    National Archives--The National Archives of the United States.
    Non-commercial scientific institution--An institution that is 
operated for the purpose of conducting scientific research, the results 
of which are not intended to promote any particular product or 
industry, and that is not operated solely for purposes of furthering a 
business, trade, or profit interest.
    OPIC--The Overseas Private Investment Corporation.
    Person--An individual, partnership, corporation, association, or 
organization, other than a federal government agency.
    Record--All papers, memoranda, or other documentary material, or 
copies thereof, regardless of physical form or characteristics, created 
or received by OPIC and within OPIC's possession and control. 
``Record'' does not include publications that are available to the 
public through the Federal Register, by sale or through free 
distribution.
    Redaction--The process of removing non-disclosable material from a 
record so that the remainder may be released.
    Representative of the news media--A person actively gathering 
information on behalf of an entity organized and operated to publish or 
broadcast news to the public. Freelance journalists qualify as 
representatives of the news media when they can demonstrate that a 
request is reasonably likely to lead to publication.
    Request--Any request made to OPIC under the FOIA.
    Requester--Any person making a request.
    Review--The examination of a record located in response to a 
request in order to determine whether any portion of the record is 
exempt from disclosure. Review also includes processing any record for 
disclosure--for example, redacting and preparing the record for 
disclosure. Review also includes time spent considering any formal 
objection to disclosure made by a business submitter, but does not 
include time spent resolving general legal or policy issues regarding 
the application of exemptions.
    Search--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.
    Working days--All calendar days excluding Saturdays, Sundays, 
Federal Government holidays, and any other day on which OPIC is not 
open for business.

Subpart B--Procedures for Obtaining Publicly Available Records


Sec. 706.21  What types of OPIC records are publicly available, and how 
do I obtain access to or copies of these records?

    (a) Electronic Access.
    (1) Many OPIC records are readily available to the public by 
electronic access, including OPIC's Annual Report,

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OPIC's Program Handbook, OPIC press releases, and application forms for 
OPIC assistance. Persons seeking information are encouraged to visit 
OPIC's Internet site at: www.opic.gov.
    (2) Records relating to OPIC's FOIA program, including records 
required by the FOIA to be made available electronically, records which 
have been the subject of frequent FOIA requests, and OPIC's annual FOIA 
Report are available in OPIC's Electronic Reading Room. OPIC's 
Electronic Reading Room may be accessed through the ``FOIA'' link on 
OPIC's Internet site at: www.opic.gov. The Electronic Reading Room also 
contains an index of records available electronically. Generally, only 
records created after November 1, 1996 are available electronically.
    (b) Offline Access. Publicly-available OPIC materials are readily 
available on OPIC's Internet site at www.opic.gov. If you do not have 
access to the Internet, you may obtain many of the same materials by 
contacting one or more of the sources listed below.
    (1) General information. General information (e.g., OPIC's Annual 
Report, OPIC's Program Handbook, and application forms for OPIC 
assistance) are available from OPIC's Information Officer. To obtain 
access to or copies of these records, call (202) 336-8400 and ask to be 
connected with the Information Officer, or write to the Information 
Officer. You may also obtain general information by calling the OPIC 
InfoLine at (202) 336-8799 and you may obtain documents by facsimile by 
calling the OPIC FactsLine at (202) 336-8700.
    (2) Claims information. OPIC's Department of Legal Affairs 
maintains public information files relating to the determination of 
claims filed under OPIC's political risk insurance contracts and a list 
of all claims resolved by cash settlements or guaranties. To obtain 
access to or copies of these records, call (202) 336-8400 and ask to be 
connected with the Claims Assistant in Legal Affairs or write to the 
Claims Assistant, Department of Legal Affairs.
    (3) Materials concerning OPIC's Board of Directors. The Corporate 
Secretary maintains public information files containing the minutes of 
the public portions of Board of Directors meetings, as well as 
publicly-releasable Board resolutions. To obtain access to or copies of 
these records, call (202) 336-8400 and ask to be connected with the 
Corporate Secretary or write to the Corporate Secretary.
    (4) Press Releases. OPIC's Press Office maintains copies of OPIC's 
press releases. To obtain access to or copies of these records, call 
(202) 336-8400 and ask to be connected with the Press Office or write 
to the Press Office.
    (5) Reading room material. Pursuant to the FOIA, OPIC maintains 
certain records for public inspection and photocopying, including 
records that have been the subject of frequent FOIA requests. To obtain 
access to or copies of these records, call (202) 336-8400 and ask to be 
connected with the FOIA Office or write to the FOIA Office. OPIC 
maintains an index of FOIA reading room records, which is updated 
regularly.

Subpart C--Procedures for Obtaining Records Under the FOIA


Sec. 706.31  How do I request copies of or access to OPIC records that 
are not otherwise available to the public?

    (a) Submitting a request. To request records that are not otherwise 
available to the public, submit a written request to OPIC's FOIA Office 
either by mail, by hand delivery, by facsimile transmission to (202) 
408-0297, or by electronic mail to <a href="/cdn-cgi/l/email-protection#a4e2ebede5e4cbd4cdc78ac3cbd2"><span class="__cf_email__" data-cfemail="6d2b22242c2d021d040e430a021b">[email protected]</span></a>. You must state that 
you are requested records under the FOIA. Your request is considered 
received by OPIC upon actual receipt by OPIC's FOIA Office.
    (b) Format. Although FOIA requests do not need to follow a specific 
format, you must include the following information:
    (1) You must reasonably describe the records you seek. This means 
that you must provide enough detail to enable OPIC personnel, using 
reasonable efforts, to locate the records. Whenever possible, your 
request should include specific information about each record sought, 
such as the date, title or name, author, recipient, and subject matter. 
Any request that does not reasonably describe the records sought will 
not be considered received by OPIC until the request is clarified. If 
your request does not reasonably describe the records you seek, OPIC 
will make reasonable efforts to contact you and tell you what 
additional information you need to provide in order to clarify your 
request. You then will have an opportunity to modify your request to 
meet the requirements of this section. Any time you spend clarifying 
your request (discussing your request with OPIC and preparing a revised 
request) is excluded from the 20 working-day period (or any extension 
of this period) that OPIC has to respond to your request.
    (2) You must state the format (e.g., paper, computer disk, etc.) in 
which you would like OPIC to provide the requested records. If you do 
not state a preference, you will receive any released records in the 
format most convenient to OPIC.
    (3) You must include your mailing address and telephone number. You 
may also provide your electronic mail address, which will allow OPIC to 
contact you quickly to discuss your request and, in some instances, to 
respond to your request electronically.
    (4) You must state your willingness to pay fees under this Part or, 
alternately, your willingness to pay fees up to a specified limit. If 
you believe that you qualify for a partial or total fee waiver under 
Sec. 706.35(a), you should request a waiver and provide justification 
as required by Sec. 706.35(b). If your request does not contain a 
statement of your willingness to pay fees or a request for a fee 
waiver, OPIC will advise you of the requirements of this paragraph. If 
you fail to respond within ten working days of such notification, OPIC 
will stop processing your request.


Sec. 706.32  When will I receive a response to my FOIA request?

    (a) General. The FOIA requires OPIC to respond within twenty 
working days after the date on which OPIC's FOIA Office received the 
request.
    (b) Order of processing. Generally, OPIC responds to FOIA requests 
in the order in which they are received.
    (c) Extensions.
    (1) In unusual circumstances, OPIC may require an extension of time 
in which to respond to your request. OPIC will provide written notice 
to you whenever such unusual circumstances exist. Unusual circumstances 
may include, for example: The need to search for and collect requested 
records from storage facilities located outside of OPIC's premises; the 
need to search for, collect, and appropriately examine a voluminous 
amount of separate and distinct records that are requested in a single 
request; or the need for consultation with another agency having a 
substantial interest in the request. If the extension is expected to 
exceed ten working days, OPIC will offer you the opportunity to:
    (i) Alter your request so that processing may be accelerated; or
    (ii) Propose an alternative, feasible time frame for processing the 
request.
    (2) When OPIC 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, such 
requests may be aggregated for purposes of this section.
    (d) Expedited processing. OPIC will expedite processing of your 
FOIA

[[Page 64346]]

request if you provide information indicating that one of the following 
factors is present: 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 an urgent need to 
inform the public about an actual or alleged federal government 
activity, if the request is made by a person primarily engaged in 
disseminating information. You may make a request for expedited 
processing at the time you submit your FOIA request or at any later 
time. If you make such a request, you must submit a statement, 
certified to be true and correct to the best of your belief, explaining 
in detail the basis for requesting expedited processing. OPIC will 
notify you of its determination concerning your request for expedited 
processing within ten days after the date of your request. You may 
appeal a denial of a request for expedited processing under the 
provisions at Sec. 706.36. OPIC will grant expedited consideration to 
any such appeal.


Sec. 706.33  How will OPIC respond to my FOIA request?

    (a) OPIC response. You will be notified in writing once OPIC makes 
a determination concerning your request. OPIC will respond by providing 
the requested records to you in whole or in part and/or by denying your 
request in whole or in part, or by notifying you that OPIC will produce 
or withhold, in whole or in part, the requested records. If you owe 
fees, OPIC will respond to you after you have paid the fees.
    (1) Segregable records. If OPIC determines that part(s) of a record 
are exempt from disclosure under the FOIA, any reasonably segregable 
part of the record will be provided to you after redaction of the 
exempt material. OPIC will mark or annotate any such record to show 
both the amount and the location of the redacted information wherever 
practicable. If segregation would render the record meaningless, OPIC 
will withhold the entire record.
    (2) Denials. A denial is a determination to withhold any requested 
record in whole or in part, a determination that a requested record 
cannot be located, or a determination that what you requested is not a 
record subject to the FOIA. If OPIC denies all or part of your request, 
you will be provided:
    (i) The name, title, and signature of the person responsible for 
the determination;
    (ii) The statutory basis for non-disclosure;
    (iii) A statement that the denial may be appealed under Sec. 706.36 
and a brief description of the requirements of that section; and
    (iv) If entire records or pages of records are withheld, an 
estimated volume of the amount of material withheld unless providing 
such an estimate would harm an interest protected by the FOIA exemption 
under which the denial is made.
    (b) Referrals to other government agencies. If you request a record 
in OPIC's possession that was created or classified by another Federal 
agency, OPIC will promptly refer your request to that agency for direct 
response to you unless OPIC can determine by examining the record or by 
informal consultation with the originating agency that the record may 
be released in whole or part. OPIC will notify you of any such 
referral.


Sec. 706.34  What, if any, fees will I be charged?

    (a) General Policy. You generally will be charged for costs 
incurred by OPIC in complying with your FOIA request, in accordance 
with paragraph (c) of this section and as required or permitted by law. 
As explained more fully in paragraph (c) of this section, fees will 
vary according to your requester status.
    (1) Search fees are $16 per hour.
    (2) Review fees are $35 per hour.
    (3) Duplication costs are $.15 per page for photocopying, and 
direct costs for all other media (including any operator time 
involved).
    (b) Anticipated Fees. Your FOIA request must specifically state 
that you will pay all fees chargeable under this section or, 
alternatively, that you will pay fees up to a specified limit. If your 
request makes no reference to anticipated fees and your request is 
expected to involve fees of more than $25, or OPIC estimates that the 
fees will exceed the dollar limit specified in your request, OPIC will 
promptly notify you of the estimated fees.
    (c) Uniform Fee Schedule. Fees will be charged according to your 
requester status.
    (1) Commercial use requesters. Commercial use requesters will be 
charged the cost of all time spent searching for and reviewing for 
release the requested records and for all duplication costs.
    (2) Educational and non-commercial scientific institution 
requesters. Educational and non-commercial scientific institution 
requesters will be charged only the costs of duplication. No fee will 
be charged for the costs of photocopying the first 100 pages of 
documents or for the first $15 of other media costs. To be eligible for 
inclusion in this category, you must show that your request is being 
made under the auspices of a qualifying educational institution or non-
commercial scientific institution and that the records are sought in 
furtherance of scholarly (if the request is from an educational 
institution) or scientific (if the request is from a non-commercial 
scientific institution) research.
    (3) Representatives of the news media. Representatives of the news 
media will be charged only the costs of duplication. No fee will be 
charged for the costs of photocopying the first 100 pages of documents 
or for the first $15 of other media costs. To be eligible for inclusion 
in this category, you must be a representative of the news media and 
your request must not be made for a commercial use. A request for 
records that supports the news dissemination function of the requester 
is not considered to be a request that is for a commercial use.
    (4) All other requesters. All other requesters will be charged for 
the cost of any search time in excess of two hours, photocopying any 
documents in excess of 100 pages, and any costs in excess of the first 
$15 of other media costs.
    (d) Fees for searches that produce no records. Fees will be charged 
as provided in this section even if OPIC's search and review does not 
produce any disclosable records.
    (e) Special services charges. At its discretion, OPIC may comply 
with requests for special services such as certification of documents 
or shipping methods other than regular U.S. mail. You will be charged 
the direct costs of any such services. OPIC will inform you of the cost 
of any special service(s) that you request, and you must pay this cost 
before OPIC will finish processing your FOIA request. If you do not 
wish to pay the stated cost, you may rescind your request for the 
special service(s).
    (f) Advance Payments. Where OPIC estimates that fees are likely to 
exceed $250, you will be required to make an advance payment of the 
entire fee before OPIC continues to process your request. You will be 
provided an opportunity to narrow the scope of your request if you do 
not want to pay the entire amount of the estimated fees.
    (g) Restrictions on Assessing Fees. With the exception of 
commercial use requesters, the FOIA requires agencies to provide the 
first 100 pages of photocopying and the first two hours of search time 
to requesters without charge. Moreover, the FOIA prohibits agencies 
from charging fees to any requester, including commercial use

[[Page 64347]]

requesters, if the cost of collecting the fee would be equal to or 
greater than the fee itself. OPIC has determined that its cost of 
collecting a FOIA fee is $15. In implementing these provisions, OPIC 
will not begin to assess fees until after providing the free search and 
reproduction described above, except for commercial use requesters. For 
example, for a request involving four hours of search time and results 
in 105 pages of documents, OPIC will determine the cost of only 2 hours 
of search time and only five pages of duplication.
    (h) Failure to pay fees.
    (1) OPIC will begin assessing interest charges on the 31st calendar 
day following the date of billing. Interest will be at the rate 
prescribed in section 3717 of Title 31 of the United States Code.
    (2) If you previously failed to pay a FOIA fee to OPIC in a timely 
fashion, you must pay the full amount owed plus any applicable interest 
as provided above and make an advance payment of the full amount of the 
estimated fee before OPIC will process a new FOIA request from you.
    (3) When OPIC acts under paragraphs (h)(1) or (2) of this section, 
the administrative time limits for processing FOIA requests (i.e., 20 
working days from receipt of initial request and 20 working days from 
receipt of an appeal plus permissible extensions) will begin only after 
OPIC has received full payment of all applicable fees and interest.


Sec. 706.35  When will OPIC reduce or waive fees?

    (a) Waiver. In accordance with the FOIA's fee waiver provisions, 
OPIC will furnish records to you without charge or at a reduced charge 
if disclosure of the information you request is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the government and is 
not primarily in your commercial interest. In determining whether a fee 
waiver is appropriate, OPIC will consider the following factors:
    (1) Whether the subject of the requested records concerns the 
operations or activities of the government;
    (2) Whether disclosure of the requested information is likely to 
contribute significantly to public understanding of government 
operations or activities;
    (3) Whether you have the intention and ability to disseminate the 
information to the public;
    (4) Whether the information is already in the public domain;
    (5) Whether you have a commercial interest that would be furthered 
by the disclosure; and, if so,
    (6) Whether the magnitude of your identified commercial interest is 
sufficiently large, in comparison with the public interest in 
disclosure, that disclosure is primarily in your commercial interest.
    (b) Justification. In all cases, you have the burden of presenting 
sufficient evidence or information to justify the requested fee waiver 
or reduction.
    (c) Inspection. You may come to OPIC's offices to inspect any 
releasable records that you requested without charge to you except for 
any search, review, and/or duplication fees that are otherwise payable.
    (d) Other provisions.
    (1) Aggregating requests. When OPIC reasonably believes that a 
requester or group of requesters is attempting to break down a request 
into a series of requests for the purpose of evading the assessment of 
fees, OPIC will aggregate any such requests and charge accordingly.
    (2) Remittances. All payments under this Part must be in the form 
of a check or a bank draft denominated in U.S. currency. Checks should 
be made payable to the order of United States Treasury and mailed to 
the OPIC FOIA Office.


Sec. 706.36  How may I appeal a partial or total denial of records?

    (a) Procedure. If your request for records has been denied in whole 
or in part, you may file an appeal within twenty working days following 
the date on which you receive OPIC's denial. Your appeal should be 
addressed to OPIC's Vice President and General Counsel. Your appeal is 
considered received by OPIC upon actual receipt by OPIC's Vice 
President and General Counsel. You should clearly mark your envelope 
and appeal letter as a ``Freedom of Information Act Appeal.'' Your 
appeal letter should reasonably describe the information or records 
requested and any other pertinent facts and statements.
    (b) Response. OPIC's Vice President and General Counsel or his/her 
designee will render a written decision within twenty working days 
after the date of OPIC's receipt of the appeal, unless an extension of 
up to ten working days is deemed necessary due to unusual 
circumstances. You will be notified in writing of any extension. If 
your appeal is denied in whole or in part, the decision will explain 
OPIC's rationale for upholding the denial. If your appeal is granted in 
whole or in part, the information or requested records will be made 
available promptly, provided the requirements of Sec. 706.34 regarding 
payment of fees are satisfied.

Subpart D--Rights of Submitters of Confidential Business 
Information


Sec. 706.41.  How should business submitters designate business 
information in materials submitted to OPIC?

    All business submitters may designate, by appropriate markings, 
either at the time of submission or at a later time, any portions of 
their submissions that they consider to be protected from disclosure 
under the FOIA. These markings will be considered by OPIC in responding 
to a FOIA request but such markings (or the absence of such markings) 
will not be dispositive as to whether the marked information is 
ultimately released.


Sec. 706.42  When will OPIC notify business submitters of a pending 
FOIA request?

    (a) Except as provided in paragraph (e) of this section, OPIC's 
FOIA Office will promptly notify a business submitter in writing that a 
request for disclosure has been made for any business information 
provided by the submitter. This notification will describe the nature 
and scope of the request, advise the submitter of its right to submit 
written objections in response to the request, and inform the submitter 
of OPIC's intent to disclose the business information ten working days 
from the date of the notice. The notice will either describe the 
business information requested or include copies of the requested 
records.
    (b) The business submitter may, at any time prior to the disclosure 
date described in paragraph (a) of this section, submit to OPIC's FOIA 
Office detailed written objections to the disclosure of the requested 
information, specifying the grounds upon which it contends that the 
information should not be disclosed. In setting forth such grounds, the 
submitter should explain the basis of its belief that the nondisclosure 
of any item of information requested is mandated or permitted by law. 
In the case of information that the submitter believes to be exempt 
from disclosure under subsection (b)(4) of the FOIA, the submitter 
shall explain why the information is considered a trade secret or 
commercial or financial information that is privileged or confidential 
and either: How disclosure of the information would cause substantial 
competitive harm to the submitter, or why the information should be 
considered voluntarily submitted and

[[Page 64348]]

why it is information that would not customarily be publicly released 
by the submitter. Information provided by a business submitter pursuant 
to this paragraph may itself be subject to disclosure under the FOIA.
    (c) The period for providing OPIC with objections to disclosure of 
information may be extended by OPIC upon receipt of a written request 
for an extension from the business submitter. Such written request 
shall set forth the date upon which any objections are expected to be 
completed and shall provide reasonable justification for the extension. 
In its discretion, OPIC may permit more than one extension.
    (d) OPIC may accept or reject the submitter's objections, in whole 
or in part. If OPIC rejects the submitter's objections, in whole or in 
part, OPIC will promptly notify the business submitter of its 
determination at least five working days prior to release of the 
information. The notification will include:
    (1) A statement of the reasons for OPIC's decision to reject the 
business submitter's objections;
    (2) A description of the information to be disclosed, or a copy 
thereof; and
    (3) A specific disclosure date.
    (e) OPIC will not ordinarily notify the business submitter pursuant 
to paragraph (a) of this section if:
    (1) OPIC determines that the FOIA request should be denied;
    (2) The disclosure is required by law (other than pursuant to 5 
U.S.C. 552); or
    (3) The information has been published or otherwise made available 
to the public, including material described in Sec. 706.21.


Sec. 706.43  Who will OPIC notify if a FOIA lawsuit is filed?

    If a requester files a lawsuit seeking to compel the disclosure of 
business information, OPIC will promptly notify any business 
submitter(s) that submitted information at issue in the lawsuit.


Sec. 706.44  What happens to business information contained in OPIC 
records transferred to the National Archives of the United States?

    Under the Records Disposal Act, 44 U.S.C. Chapter 33, OPIC is 
required to transfer legal custody and control of records with 
permanent historical value to the National Archives. OPIC's Finance 
Project and Insurance Contract Case files generally do not qualify as 
records with permanent historical value. OPIC will not transfer these 
files except when the National Archives determines that an individual 
project or case is especially significant or unique. If the National 
Archives receives a FOIA request for records that have been transferred 
it will respond to the request in accordance with its own FOIA 
regulations.

    Dated: October 24, 2000.
Laura A. Naide,
FOIA Director and Senior Administrative Counsel.
[FR Doc. 00-27704 Filed 10-26-00; 8:45 am]
BILLING CODE 3210-01-U


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