[Federal Register Volume 63, Number 80 (Monday, April 27, 1998)]
[Rules and Regulations]
[Pages 20513-20516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10967]



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Rules and Regulations
                                                Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents 
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Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 / Rules 
and Regulations

[[Page 20513]]


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OFFICE OF MANAGEMENT AND BUDGET

5 CFR Part 1303

RIN 0348-AB42


Freedom of Information Act

AGENCY: Office of Management and Budget, Executive Office of the 
President.

ACTION: Final rule.

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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 Sec. 1303.10(d), which 
provides for expedited processing of FOIA requests. The commenter 
requested additional clarification (such as through examples) in 
Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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.

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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:


Sec. 1303.2  Authority and functions.

    The general functions of the Office of Management and Budget, as 
provided by statute and executive order, are to develop and execute the 
budget, oversee implementation of Administration policies and programs, 
advise and assist the President, and develop and implement management 
policies for the government.
    3. Section 1303.3 is revised to read as follows:


Sec. 1303.3  Organization.

    (a) The brief description of the central organization of the Office 
of Management and Budget follows:
    (1) The Director's Office includes the Director, the Deputy 
Director, the Deputy Director for Management, and the Executive 
Associate Director.
    (2) Staff Offices include General Counsel, Legislative Affairs, 
Communications, Administration, and Economic Policy.
    (3) Offices that provide OMB-wide support include the Legislative 
Reference and Budget Review Divisions.
    (4) Resource Management Offices. These offices develop and support 
the President's management and budget agenda in the areas of Natural 
Resources, Energy and Science, National Security and International 
Affairs, Health and Personnel, Human Resources, and General Government 
and Finance.
    (5) Statutory offices include the Office of Federal Financial 
Management, Office of Federal Procurement Policy, and the Office of 
Information and Regulatory Affairs.
    (b) The Office of Management and Budget is located in Washington, 
DC, and has no field offices. Staff are housed in either the Old 
Executive Office Building, 17th Street and Pennsylvania Ave, NW., or 
the New Executive Office Building, 725 17th Street NW., Washington, 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:


Sec. 1303.10  Access to information.

    (a) The Office of Management and Budget makes available information 
pertaining to matters issued, adopted, or promulgated by OMB, that are 
within the scope of 5 U.S.C. 552(a)(2). A public reading area is 
located in the Executive Office of the President Library, Room G-102, 
New Executive Office Building, 725 17th Street NW., Washington, 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

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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:


Sec. 1303.20  Inspection and copying.

    When a request for information has been approved pursuant to 
Sec. 1303.10, the person making the request may make an appointment to 
inspect or copy the materials requested during regular business hours 
by writing or telephoning the FOIA Officer at the address or telephone 
number listed in Sec. 1303.10(b). Such materials may be copied and 
reasonable facilities will be made available for that purpose. Copies 
of individual pages of such materials will be made available at the 
price per page specified in Sec. 1303.40(d); however, the right is 
reserved to limit to a reasonable quantity the copies of such materials 
which may be made available in this manner when copies also are offered 
for sale by the Superintendent of Documents.
    7. Section 1303.30 (d) and (e) are revised to read as follows:


Sec. 1303.30  Definitions.

* * * * *
    (d) The term search means the process of looking for and retrieving 
records or information responsive to a request. It includes page-by-
page or line-by-line identification of information within records and 
also includes reasonable efforts to locate and retrieve information 
from records maintained in electronic form or format. OMB employees 
should ensure that searching for material is done in the most efficient 
and least expensive manner so as to minimize costs for both the agency 
and the requester. For example, employees should not engage in line-by-
line search when merely duplicating an entire document would prove the 
less expensive and quicker method of complying with a request. Search 
should be distinguished, moreover, from review of material in order to 
determine whether the material is exempt from disclosure (see paragraph 
(f) of this section).
    (e) The term duplication means the making of a copy of a document, 
or of the information contained in it, necessary to respond to a FOIA 
request. Such copies can take the form of paper, microform, audio-
visual materials, or electronic records (e.g., magnetic tape or disk), 
among others. The requester's specified preference of form or format of 
disclosure will be honored if the record is readily reproducible in 
that format.
* * * * *
    8. In Sec. 1303.40, paragraph (f) is revised to read as follows:


Sec. 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 Sec. 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:


Sec. 1303.60  Miscellaneous fee provisions.

* * * * *
    (c) Aggregating requests. A requester may not file multiple 
requests at the same time, each seeking portions of a document or 
documents, solely in order to avoid payment of fees. When OMB 
reasonably believes that a requester, or a group of requestors acting 
in concert, has submitted requests that constitute a single request, 
involving clearly related matters, OMB may aggregate those requests and 
charge accordingly. One element to be considered in determining whether 
a belief would be reasonable is

[[Page 20516]]

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