This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

20513

Vol. 63, No. 80

Monday, April 27, 1998

OFFICE OF MANAGEMENT AND

BUDGET

5 CFR Part 1303

RIN 0348–AB42

Freedom of Information Act

AGENCY: Office of Management and

Budget, Executive Office of the

President.

ACTION: Final rule.

SUMMARY: The Office of Management

and Budget (OMB) is issuing a final rule

revising its regulations implementing 5

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

Act (FOIA). This final rule simplifies

and streamlines OMB’s FOIA

regulations, and also implements the

Electronic Freedom of Information Act

Amendments of 1996 (Pub. L. 104–231).

DATES: The final rule will be effective

May 27, 1998.

FOR FURTHER INFORMATION CONTACT:

Darrell A. Johnson, FOIA Officer, Office

of Management and Budget, at (202)

395–5715.

SUPPLEMENTARY INFORMATION: On

October 9, 1997, (62 FR 52668), OMB

requested public comment on proposed

revisions to its regulations at 5 CFR

1303 implementing the Freedom of

Information Act. This revision is

necessary to: implement the Electronic

Freedom of Information Act

Amendments of 1996, Public Law 104–

231 (E–FOIA); update OMB’s

regulations to reflect current practice;

and streamline OMB’s regulations to

eliminate redundant or otherwise

unnecessary materials.

OMB received one set of comments

regarding the proposed revisions to

OMB’s FOIA regulations. The

commenter raised several issues

regarding the proposal, generally

seeking clarification of provisions

implementing E–FOIA. We will address

each of these issues.

The commenter raised three issues

regarding § 1303.10(d), which provides

for expedited processing of FOIA

requests. The commenter requested

additional clarification (such as through

examples) in § 1303.10(d)(1) for how

OMB interprets the second, third, and

fourth criteria for responding to a FOIA

request on an expedited basis. OMB

believes that, while further clarification

on these criteria may be appropriate in

the future, it is preferable at this point

to review requests for expedited

treatment under the proposed regulatory

criteria; experience in reviewing such

requests should indicate what type of

clarification is needed. The commenter

also asked whether OMB intends to

provide expedited treatment only in

response to an expedition request by the

FOIA requester, or whether OMB would

expedite a request on its own initiative

or in response to an expedition request

by a third party. While OMB expects

that it would typically expedite its

response to a FOIA request in response

to an expedition request by the FOIA

requester, there may be cases in which

OMB would decide to expedite its

response even if the FOIA requester has

not asked for expedited treatment. In

this regard, we should note that, as

explained in the proposed rule (62 FR

52668), OMB does not have a

centralized FOIA process in which

requests are handled on a consecutive

basis; thus, the processing of one

request generally does not delay OMB’s

ability to respond to other requests.

Finally, the commenter asked what

constitutes ‘‘certification’’ under

§ 1303.10(d), which implements 5

U.S.C. 552(a)(6)(E)(vi). Under the

provision, a requester may self-certify

that the information provided, to

demonstrate a compelling need for an

expedited response, is—in the words of

the E–FOIA requirement—‘‘true and

correct to the best of [the requester’s]

knowledge and belief.’’

The commenter asked OMB to

reconsider the 30-day limit in

§ 1303.10(e) for a FOIA requester to file

an administrative appeal, and instead

suggested a six-month time limit.

Having considered the matter again,

OMB continues to believe that 30 days

is a reasonable period in which a

requester can decide whether to file an

administrative appeal of OMB’s

response to a FOIA request. It has been

our experience that the vast majority of

appeals are filed within a few weeks of

OMB’s response. In addition to

providing the requester with sufficient

time, a 30-day limit will also discourage

the filing of ‘‘stale’’ appeals that could

require OMB to duplicate much of the

work done in response to the original

request.

Regarding § 1303.10(g), the

commenter suggested that OMB delete

(or provide additional explanation

regarding) the second sentence, which

concerns the statutory consequences of

a requester refusing to reasonably

modify a request or arrange an

alternative time frame for an agency

response. OMB has retained the

sentence, which is intended simply to

alert requesters to the statutory

consequences of refusing to reasonably

modify a request or arrange an

alternative response period (which is

the subject of the first sentence in that

paragraph).

Regarding § 1303.20, the commenter

suggested that the regulations elaborate

further on the procedures for gaining

access to OMB’s offices, in order to

inspect or copy records. We believe that

additional detail is not needed regarding

the access procedures. As explained in

the proposed rule (62 FR 52668), one of

OMB’s aims in revising its FOIA

regulations has been to streamline them.

Persons seeking to inspect or copy

requested materials may write or phone

the FOIA Officer, at the listed address

and phone number.

Finally, the commenter asked for

clarification regarding the statement in

§ 1303.60(c) that OMB would consider

‘‘the time period over which the

requests have occurred’’ in determining

whether it is reasonable to believe that

multiple requests in fact constitute a

single request. While further

clarification might be appropriate in the

future, we believe it is preferable at this

point to review FOIA requests under the

general standard and to see whether any

specific clarification would be necessary

or desirable.

One additional change has been made

in the final rule. References to the

‘‘Deputy Assistant Director for

Administration’’ have been changed to

the ‘‘FOIA Officer.’’

Accordingly, OMB is revising its

FOIA regulations by adopting the

revisions as proposed.
20514 Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations

Regulatory Flexibility Act, Unfunded

Mandates Reform Act, and Executive

Orders 12866 and 12875

For purposes of the Regulatory

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

final rule will not have a significant

economic effect on a substantial number

of small entities; the rule addresses the

procedures to be followed when

responding to requests for information

under the Freedom of Information Act.

For purposes of the Unfunded Mandates

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

well as Executive Orders No. 12866 and

12875, the rule would not significantly

or uniquely affect small governments,

and would not result in increased

expenditures by State, local, and tribal

governments, or by the private sector, of

$100 million or more. Finally, the final

rule is not a ‘‘major rule’’ under 5 U.S.C.

chapter 8; the rule will not have any of

the effects set forth in 5 U.S.C. 804(2).

List of Subjects in 5 CFR Part 1303

Freedom of Information Act.

Franklin D. Raines,

Director.

For the reasons set forth in the

preamble, OMB amends 5 CFR Part

1303 as follows:

PART 1303—[AMENDED]

1. The authority citation for part 1303

is revised to read as follows:

Authority: 5 U.S.C. 552.

2. Section 1303.2 is revised to read as

follows:

§ 1303.2 Authority and functions.

The general functions of the Office of

Management and Budget, as provided

by statute and executive order, are to

develop and execute the budget, oversee

implementation of Administration

policies and programs, advise and assist

the President, and develop and

implement management policies for the

government. 3. Section 1303.3 is revised to read as

follows:

§ 1303.3 Organization.

(a) The brief description of the central

organization of the Office of

Management and Budget follows: (1) The Director’s Office includes the

Director, the Deputy Director, the

Deputy Director for Management, and

the Executive Associate Director.

(2) Staff Offices include General

Counsel, Legislative Affairs,

Communications, Administration, and

Economic Policy. (3) Offices that provide OMB-wide

support include the Legislative

Reference and Budget Review Divisions. (4) Resource Management Offices.

These offices develop and support the

President’s management and budget

agenda in the areas of Natural

Resources, Energy and Science, National

Security and International Affairs,

Health and Personnel, Human

Resources, and General Government and

Finance.

(5) Statutory offices include the Office

of Federal Financial Management,

Office of Federal Procurement Policy,

and the Office of Information and

Regulatory Affairs.

(b) The Office of Management and

Budget is located in Washington, DC,

and has no field offices. Staff are housed

in either the Old Executive Office

Building, 17th Street and Pennsylvania

Ave, NW., or the New Executive Office

Building, 725 17th Street NW.,

Washington, DC 20503. Persons desiring

to visit offices or employees of the

Office of Management and Budget, in

either building, must write or telephone

ahead to make an appointment. Security

in both buildings prevents visitors from

entering the building without an

appointment.

5. Section 1303.10 is revised to read

as follows:

§ 1303.10 Access to information.

(a) The Office of Management and

Budget makes available information

pertaining to matters issued, adopted, or

promulgated by OMB, that are within

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

reading area is located in the Executive

Office of the President Library, Room G–

102, New Executive Office Building, 725

17th Street NW., Washington, DC 20503,

phone (202) 395–5715. Some of these

materials are also available from the

Executive Office of the President’s

Publications Office, Room 2200 New

Executive Office Building, 725 17th

Street NW., Washington, DC 20503,

phone (202) 395–7332. OMB issuances

are also available via fax-on-demand at

(202) 395–9068, and are available

electronically from the OMB homepage

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

omb. In addition, OMB maintains the

Office of Information and Regulatory

Affairs (OIRA) Docket Library, Room

10102, New Executive Office Building,

725 17th Street NW., Washington, DC

20503, phone (202) 395–6880. The

Docket Library contains records related

to information collections sponsored by

the Federal government and reviewed

by OIRA under the Paperwork

Reduction Act of 1995. The Docket

Library also maintains records related to

proposed Federal agency regulatory

actions reviewed by OIRA under

Executive Order 12866 ‘‘Regulatory

Planning and Review’’. Telephone logs

and materials from meetings with the

public attended by the OIRA

Administrator are also available in the

Docket Library.

(b) The FOIA Officer is responsible for

acting on all initial requests. Individuals

wishing to file a request under the

Freedom of Information Act (FOIA)

should address their request in writing

to the FOIA Officer, Office of

Management and Budget, 725 17th

Street NW., Washington, DC 20503,

Phone (202) 395–5715. Requests for

information shall be as specific as

possible.

(c) Upon receipt of any request for

information or records, the FOIA Officer

will determine within 20 days

(excepting Saturdays, Sundays and legal

public holidays) after the receipt of such

request whether it is appropriate to

grant the request and will immediately

provide written notification to the

person making the request. If the request

is denied, the written notification to the

person making the request shall include

the names of the individuals who

participated in the determination, the

reasons for the denial, and a notice that

an appeal may be lodged within the

Office of Management and Budget.

(Receipt of a request as used herein

means the date the request is received

in the office of the FOIA Officer.)

(d) Expedited processing. (1) Requests

and appeals will be taken out of order

and given expedited treatment

whenever it is determined that they

involve:

(i) Circumstances in which the lack of

expedited treatment could reasonably be

expected to pose an imminent threat to

the life or physical safety of an

individual;

(ii) An urgency to inform the public

about an actual or alleged federal

government activity, if made by a

person primarily engaged in

disseminating information;

(iii) The loss of substantial due

process rights; or

(iv) A matter of widespread and

exceptional media interest in which

there exist possible questions about the

government’s integrity which effect

public confidence.

(2) A request for expedited processing

may be made at the time of the initial

request for records or at any later time.

(3) A requester who seeks expedited

processing must submit a statement,

certified to be true and correct to the

best of that person’s knowledge and

belief, explaining in detail the basis for

requesting expedited processing. For

example, a requester within the category

described in paragraph (d)(1)(ii) of this

section, if not a full-time member of the

news media, must establish that he or

she is a person whose main professional

activity or occupation is information
Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations 20515

dissemination, though it need not be his

or her sole occupation. A requester

within the category (d)(1)(ii) of this

section also must establish a particular

urgency to inform the public about the

government activity involved in the

request, beyond the public’s right to

know about government activity

generally. The formality of certification

may be waived as a matter of

administrative discretion.

(4) Within ten days of its receipt of a

request for expedited processing, OMB

will decide whether to grant it and will

notify the requester of the decision. If a

request for expedited treatment is

granted, the request will be given

priority and will be processed as soon

as practicable. If a request for expedited

processing is denied, any appeal of that

decision will be acted on expeditiously.

(e) Appeals shall be set forth in

writing within 30 days of receipt of a

denial and addressed to the FOIA

Officer at the address specified in

paragraph (b) of this section. The appeal

shall include a statement explaining the

basis for the appeal. Determinations of

appeals will be set forth in writing and

signed by the Deputy Director, or his

designee, within 20 days (excepting

Saturdays, Sundays, and legal public

holidays). If, on appeal, the denial is in

whole or in part upheld, the written

determination will also contain a

notification of the provisions for judicial

review and the names of the persons

who participated in the determination.

(f) In unusual circumstances, the time

limits prescribed in paragraphs (c) and

(e) of this section may be extended for

not more than 10 days (excepting

Saturdays, Sundays, or legal public

holidays). Extensions may be granted by

the FOIA Officer. The extension period

may be split between the initial request

and the appeal but in no instance may

the total period exceed 10 working days.

Extensions will be by written notice to

the persons making the request and will

set forth the reasons for the extension

and the date the determination is

expected.

(g) With respect to a request for which

a written notice under paragraph (f) of

this section extends the time limits

prescribed under paragraph (c) of this

section, the agency shall notify the

person making the request if the request

cannot be processed within the time

limit specified in paragraph (f) of this

section and shall provide the person an

opportunity to limit the scope of the

request so that it may be processed

within that time limit or an opportunity

to arrange with the agency an alternative

time frame for processing the request or

a modified request. Refusal by the

person to reasonably modify the request

or arrange such an alternative time

frame shall be considered as a factor in

determining whether exceptional

circumstances exist for purposes of 5

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

reasonably believes that a requester, or

a group of requestors acting in concert,

has submitted requests that constitute a

single request, involving clearly related

matters, OMB may aggregate those

requests for purposes of this paragraph.

One element to be considered in

determining whether a belief would be

reasonable is the time period over

which the requests have occurred.

(h) As used herein, but only to the

extent reasonably necessary to the

proper processing of the particular

request, the term ‘‘unusual

circumstances’’ means:

(1) The need to search for and collect

the requested records from

establishments that are separated from

the office processing the request;

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

appropriately examine a voluminous

amount of separate and distinct records

which are demanded in a single request;

or

(3) The need for consultation, which

shall be conducted with all practicable

speed, with another agency having a

substantial interest in the determination

of the request or among two or more

components of the agency which have a

substantial subject matter interest

therein.

6. Section 1303.20 is revised to read

as follows:

§ 1303.20 Inspection and copying.

When a request for information has

been approved pursuant to § 1303.10,

the person making the request may

make an appointment to inspect or copy

the materials requested during regular

business hours by writing or

telephoning the FOIA Officer at the

address or telephone number listed in

§ 1303.10(b). Such materials may be

copied and reasonable facilities will be

made available for that purpose. Copies

of individual pages of such materials

will be made available at the price per

page specified in § 1303.40(d); however,

the right is reserved to limit to a

reasonable quantity the copies of such

materials which may be made available

in this manner when copies also are

offered for sale by the Superintendent of

Documents.

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

revised to read as follows:

§ 1303.30 Definitions.

* * * * *

(d) The term search means the process

of looking for and retrieving records or

information responsive to a request. It

includes page-by-page or line-by-line

identification of information within

records and also includes reasonable

efforts to locate and retrieve information

from records maintained in electronic

form or format. OMB employees should

ensure that searching for material is

done in the most efficient and least

expensive manner so as to minimize

costs for both the agency and the

requester. For example, employees

should not engage in line-by-line search

when merely duplicating an entire

document would prove the less

expensive and quicker method of

complying with a request. Search

should be distinguished, moreover, from

review of material in order to determine

whether the material is exempt from

disclosure (see paragraph (f) of this

section).

(e) The term duplication means the

making of a copy of a document, or of

the information contained in it,

necessary to respond to a FOIA request.

Such copies can take the form of paper,

microform, audio-visual materials, or

electronic records (e.g., magnetic tape or

disk), among others. The requester’s

specified preference of form or format of

disclosure will be honored if the record

is readily reproducible in that format.

* * * * *

8. In § 1303.40, paragraph (f) is

revised to read as follows:

§ 1303.40 Fees to be charged—general.

* * * * *

(f) Remittances shall be in the form

either of a personal check or bank draft

drawn on a bank in the United States,

or a postal money order. Remittances

shall be made payable to the order of the

Treasury of the United States and

mailed to the FOIA Officer, Office of

Management and Budget, Washington,

DC 20503.

* * * * *

9. In § 1303.60, paragraph (c) is

revised and the concluding text of

paragraph (d) is designated as paragraph

(d)(3) and revised to read as follows:

§ 1303.60 Miscellaneous fee provisions.

* * * * *

(c) Aggregating requests. A requester

may not file multiple requests at the

same time, each seeking portions of a

document or documents, solely in order

to avoid payment of fees. When OMB

reasonably believes that a requester, or

a group of requestors acting in concert,

has submitted requests that constitute a

single request, involving clearly related

matters, OMB may aggregate those

requests and charge accordingly. One

element to be considered in determining

whether a belief would be reasonable is
20516 Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations

the time period over which the requests

have occurred.

(d) Advance payments. * * *

(1) * * *

(2) * * *

(3) When OMB acts under paragraph

(d)(1) or (2) of this section, the

administrative time limits prescribed in

the FOIA, 5 U.S.C. 552(a)(6) (i.e., 20

working days from receipt of initial

requests and 20 working days from

receipt of appeals from initial denial,

plus permissible extensions of these

time limits), will begin only after OMB

has received fee payments described in

paragraphs (d)(1) and (2) of this section.

* * * * *

[FR Doc. 98–10967 Filed 4–24–98; 8:45 am]

BILLING CODE 3110–01–P

DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 6

Appendices to the Dairy Tariff-Rate

Import Quota Licensing Regulation

AGENCY: Office of the Secretary, USDA.

ACTION: Adjustment of Appendices to

the Dairy Tariff-Rate Import Quota

Licensing Regulation for the 1998 TariffRate Quota Year.

SUMMARY: This document announces the

cumulative annual transfers from

Appendix 1 to Appendix 2 for certain

dairy product import licenses

permanently surrendered by licensees

or revoked by the Licensing Authority.

EFFECTIVE DATE: April 27, 1998.

FOR FURTHER INFORMATION CONTACT:

Richard P. Warsack, Licensing

Authority, Import Policies and Programs

Division, STOP 1029, U.S. Department

of Agriculture, 1400 Independence

Avenue, S.W., Washington, D.C. 20250–

1029 or telephone at (202) 720–9439.

SUPPLEMENTARY INFORMATION: The

Foreign Agricultural Service (FAS),

under a delegation of authority from the

Secretary of Agriculture, administers the

Dairy Tariff-Rate Import Quota

Licensing Regulation codified at 7 CFR

6.20–6.36 which provides for the

issuance of licenses to import certain

dairy articles which are subject to tariffrate quotas at the low-tier tariff (TRQs)

set forth in the Harmonized Tariff

Schedule of the United States. These

dairy articles may only be entered into

the United States by or for the account

of a person or firm to whom such

licenses have been issued and only in

accordance with the terms and

conditions of the regulation.

Licenses for the quota year are issued

on a calendar year basis, and each

license authorizes the license holder to

import a specified quantity and type of

dairy article from a specified country of

origin. The use of licenses by the license

holder to import dairy articles at the

low-tier tariff is monitored by the Dairy

Import Program Group, Import Policies

and Programs Division, Foreign

Agricultural Service, U.S. Department of

Agriculture, and the U.S. Customs

Service.

The regulation at 7 CFR 6.34(a) states

that whenever a historical license

(Appendix 1) is not issued to an

applicant pursuant to the provisions of

6.23, is permanently surrendered or is

revoked by the Licensing Authority, the

amount of such license will be

transferred to Appendix 2. Section

6.34(b) provides that the cumulative

annual transfers will be published in the

Federal Register. Accordingly, this

document sets out revised Appendices

for the 1998 tariff-rate quota year.

Issued at Washington, D.C. the 22nd day of

April, 1998.

Richard P. Warsack,

Licensing Authority.

List of Subjects in 7 CFR Part 6

Agricultural commodities, Cheese,

Dairy products, Imports, Reporting and

recordkeeping requirements.

Accordingly, 7 CFR Part 6 is amended

as follows:

1. The authority citation for Part 6,

Subpart—Dairy Tariff-Rate Import

Quota Licensing continues to read as

follows:

Authority: Additional U.S. Notes 6, 7, 8,

12, 14, 16–23 and 25 to Chapter 4 and

General Note 15 of the Harmonized Tariff

Schedule of the United States (19 U.S.C.

1202), Pub. L. 97–258, 96 Stat. 1051, as

amended (31 U.S.C. 9701), and secs. 103 and

404, Pub. L. 103–465, 108 Stat. 4819 (19

U.S.C. 3513 and 3601).

2. Appendices 1, 2 and 3 to Subpart—

Dairy Tariff-Rate Import Quota

Licensing are revised to read as follows:

BILLING CODE 3410–10–M