This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

24467

Vol. 63, No. 85

Monday, May 4, 1998

DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 1

USDA Freedom of Information Act

Regulations

AGENCY: Department of Agriculture.

ACTION: Proposed rule.

SUMMARY: This proposed revision of the

Department of Agriculture Freedom of

Information Act (FOIA) regulations

provides substantive and administrative

changes to conform to the requirements

of the Electronic FOIA Amendments of

1996, Pub. L. 104–231. It also provides

guidance to the Department of

Agriculture on implementation of this

amended law.

DATES: Comments must be received by

June 3, 1998.

ADDRESSES: Mail comments concerning

this proposal to Andrea Fowler, FOIA

Officer, Office of Communications, U.S.

Department of Agriculture, Washington,

DC 20250, or deliver them to room

536A, Jamie L. Whitten Federal

Building, 1400 Independence Ave., SW,

Washington, DC. Comments received

may be reviewed between the hours of

9 am–4 pm Monday through Friday.

FOR FURTHER INFORMATION CONTACT:

Andrea E. Fowler, Office of

Communications, (202) 720–8164.

SUPPLEMENTARY INFORMATION:

Background Information

On October 2, 1996, President Clinton

signed into law the Electronic FOIA

Amendments of 1996, Pub. L. 104–231.

The amendments to the FOIA address

electronic records in the text of the

statute for the first time. The

amendments include provisions that

address the availability of ‘‘reading

room’’ material by electronic

telecommunication means, volume

estimation, format of disclosure,

marking of deletions, electronic

searches, and the expedited processing

of FOIA requests. In addition, the

amendments extend the time limit for

responding to an initial FOIA request

from ten to twenty days, modify the

requirements for reporting Freedom of

Information activities to Congress, and

clarify the extent to which an agency

may extend the time within which it

will respond to a FOIA request or

appeal.

USDA, therefore, is revising its FOIA

regulations to implement these statutory

amendments. In addition, USDA is

reorganizing, renumbering, and making

clarifying and stylistic changes to its

FOIA regulations. USDA is not revising

Appendix A to the FOIA regulations at

this time.

The following provisions in the

revised regulations will implement the

Electronic FOIA Amendments:

1. Section 1.4 incorporates a new

provision to implement 5 U.S.C.

552(a)(2)(D), which creates a new

category of records to receive ‘‘reading

room’’ treatment: documents released in

response to a FOIA request that may

become the subject of subsequent

requests for substantially the same

records. 5 U.S.C. 552(a)(2)(D).

2. Section 1.4 also incorporates a new

requirement that reading room records

created on or after November 1, 1996, be

made available to the public by

‘‘computer telecommunications’’ or

other ‘‘electronic means.’’ 5 U.S.C.

552(a)(2).

3. Section 1.4 also incorporates a

requirement that each agency maintain

an index of FOIA processed records and

make the index available on-line. 5

U.S.C. 552(a)(2).

4. Section 1.4 also incorporates a

revision to require that each agency

maintain reference material or a guide

for requesting records or information

from the agency. The guide must

include an index of all major

information systems of the agency, a

description of major information and

record locator systems, and a handbook

for obtaining various types and

categories of public information from

the agency, both through FOIA requests

and through other means. The guide

should be made publicly available in

agency reading rooms and through an

electronic site, as well as upon request.

5 U.S.C. 552(g).

5. Section 1.7 increases the time limit

to respond to an initial FOIA request

from ten to twenty working days. 5

U.S.C. 552(a)(6)(D).

6. Section 1.8 provides for

‘‘multitrack’’ processing of FOIA

requests, based on the amount of work

or time (or both) that is involved in

processing them. 5 U.S.C. 552(a)(6)(D).

7. Section 1.9 adds a requirement that

each agency consider requests for

‘‘expedited processing’’ and grant such

requests where the requester shows an

imminent threat to life or physical

safety or an urgency to inform the

public about federal government

activity. 5 U.S.C. 552(a)(6)(E).

8. Section 1.15 incorporates a new

provision requiring that each agency

make reasonable efforts to maintain its

records in forms or formats that are

reproducible for purposes of the FOIA.

552(a)(3)(B).

9. Section 1.15 incorporates a new

requirement that each agency make

reasonable efforts to search for records

in electronic form or format, except

when such efforts would interfere

significantly with the operation of the

agency’s automated information system.

5 U.S.C. 552(a)(3)(C).

10. Section 1.15 incorporates a new

requirement that each agency indicate,

on the released portion of a redacted

record, the amount of information that

has been deleted from a record, unless

including that indication would harm

an interest protected by an applicable

exemption. 5 U.S.C. 552(b).

11. Section 1.15 incorporates a

requirement for each agency to make a

reasonable effort to estimate the volume

of matter being withheld, when entire

records, or entire pages are withheld,

and provide the estimate to the

requester. 5 U.S.C. 552(a)(6)(F).

12. Section 1.15 requires that each

agency provide records in any form or

format requested, if the record is readily

reproducible by the agency in the form

or format requested. 5 U.S.C.

552(a)(3)(B).

13. Section 1.16 requires each agency

to notify a requester of ‘‘unusual

circumstances’’ that require additional

time for processing a request, and offer

the requester the opportunity to limit

scope of the request, or arrange an

alternative time frame for processing, or

both. 5 U.S.C. 552(a)(6)(B)(I).

14. Section 1.16 incorporates a new

provision to limit the conditions under

which an agency backlog of FOIA

requests may be considered an

‘‘exceptional circumstance’’ justifying a

longer processing time. ‘‘Exceptional

circumstances’’ will not include a delay

that results from a predictable agency
24468 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules

workload of FOIA requests, unless the

agency demonstrates reasonable

progress in reducing its backlog of

pending requests. 552(a)(6)(C)(ii).

15. Section 1.20 modifies the content,

timetable, and procedure for filing the

annual FOIA report. The annual

reporting period will change from a

calendar year to a fiscal year. 5 U.S.C.

552(e).

Revised Section

1. Section 1.4, Implementing

regulations for the Office of the

Secretary, has been incorporated into

§ 1.25.

Removed Section

1. Section 1.5(e), which allows oral

FOIA requests, has been removed in

order to ensure that agencies maintain

accountability and are able to track

requests and process them in the order

of receipt within each agency.

List of Subjects in 7 CFR Part 1

Administrative practice and

procedure, Freedom of information,

Privacy.

Accordingly, it is proposed to revise

7 CFR, part 1, subpart A except

Appendix A, to read as follows:

PART 1—ADMINISTRATIVE

REGULATIONS

Supbart A—Offical Records

Sec.

1.1 Purpose and scope.

1.2 Policy.

1.3 Agency implementing regulations.

1.4 Public access to certain materials.

1.5 Requests for records.

1.6 Aggregating requests.

1.7 Agency response to requests for records.

1.8 Multitrack processing.

1.9 Expedited processing.

1.10 Search services.

1.11 Review services.

1.12 Handling information from a private

business.

1.13 Date of receipt of requests or appeals.

1.14 Appeals.

1.15 General provisions respecting release

of records.

1.16 Extension of administrative deadlines.

1.17 Failure to meet administrative

deadlines.

1.18 Fee schedule.

1.19 Exemptions and discretionary release.

1.20 Annual report.

1.21 Compilation of new records.

1.22 Authentication.

1.23 Records in formal adjudication

proceedings.

1.24 Preservation of records.

1.25 Implementing regulations for the

Office of the Secretary and the Office of

Communications.

Appendix A—Fee Schedule

Subpart A—Official Records

Authority: 5 U.S.C. 301, 552; 7 U.S.C.

3125a; 31 U.S.C. 9701; and 7 CFR

2.28(b)(7)(viii).

§ 1.1 Purpose and scope.

This subpart establishes policy,

procedures, requirements, and

responsibilities for administration and

coordination of the Freedom of

Information Act (‘‘FOIA’’), 5 U.S.C. 552,

pursuant to which any person may

obtain official records. It also provides

rules pertaining to the disclosure of

records pursuant to compulsory process.

This subpart also serves as the

implementing regulations (referred to in

§ 1.3, ‘‘Agency implementing

regulations’’) for the Office of the

Secretary (the immediate offices of the

Secretary, Deputy Secretary, Under

Secretaries and Assistant Secretaries)

and for the Office of Communications.

The Office of Communications has the

primary responsibility for

implementation of the FOIA in the

Department of Agriculture (‘‘USDA’’ or

‘‘Department’’). The term ‘‘agency’’ or

‘‘agencies’’ is used throughout this

subpart to include both USDA program

agencies and staff offices.

§ 1.2 Policy.

(a) Agencies of USDA shall comply

with the time limits set forth in the

FOIA and in this subpart for responding

to and processing requests and appeals

for agency records, unless there are

unusual circumstances within the

meaning of 5 U.S.C. 552(a)(6)(B) and

§ 1.16(b). An agency shall notify a

requester in writing whenever it is

unable to respond to or process a

request or appeal within the time limits

established by the FOIA.

(b) All agencies of the Department

shall comply with the fee schedule

provided as appendix A to this subpart,

with regard to the charging of fees for

providing copies of records and related

services to requesters.

§ 1.3 Agency implementing regulations.

(a) Each agency of the Department

shall promulgate regulations setting

forth the following:

(1) The location and hours of

operation of the agency office or offices

where members of the public may gain

access to those materials required by 5

U.S.C. 552(a)(2) and § 1.4 to be made

available for public inspection and

copying.

(2) Information regarding the

publication and distribution (by sale or

otherwise) of indexes and supplements

to indexes that are maintained in

accordance with the requirements of 5

U.S.C. 552(a)(2) and § 1.4(c);

(3) The title and mailing address of

the official or officials of the agency

authorized to receive requests for

records submitted in accordance with

§ 1.5(a), and to make determinations

regarding whether to grant or deny such

requests. Authority to make such

determinations includes authority to:

(i) Extend the 20 working days

administrative deadline for reply

pursuant to § 1.16;

(ii) Make discretionary releases

pursuant to § 1.19(b); and

(iii) Make determinations regarding

the charging of fees pursuant to

appendix A to this subpart;

(4) The title and mailing address of

the official of the agency who is

authorized to receive appeals submitted

in accordance with § 1.4(e) and to make

determinations regarding whether to

grant or deny such appeals. Authority to

determine appeals includes authority to:

(i) Extend the 20 working days

administrative deadline for reply

pursuant to § 1.16 (to the extent the

maximum extension authorized by

§ 1.16(c) was not used with regard to the

initial request);

(ii) Make discretionary releases

pursuant to § 1.19(b); and

(iii) Make determinations regarding

the charging of fees pursuant to

appendix A to this subpart; and

(5) Other information which would be

of concern to a person wishing to

request records from that agency in

accordance with this subpart.

§ 1.4 Public access to certain materials.

(a) In accordance with 5 U.S.C.

552(a)(2), each agency within the

Department shall make the following

materials available for public inspection

and copying (unless they are promptly

published and copies offered for sale):

(1) Final opinions, including

concurring and dissenting opinions, as

well as orders, made in the adjudication

of cases;

(2) Those statements of policy and

interpretation which have been adopted

by the agency and are not published in

the Federal Register;

(3) Administrative staff manuals and

instructions to staff that affect a member

of the public;

(4) Copies of all records, regardless of

form or format, which have been

released pursuant to a FOIA request

under 5 U.S.C. 552(a)(3), and which

because of the nature of their subject

matter, have become or are likely to

become the subject of subsequent

requests for substantially the same

records. Agencies shall decide on a case

by case basis whether records fall into
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules 24469

this category, based on the following

factors;

(i) Previous experience with similar

records;

(ii) The particular characteristics of

the records involved, including their

nature and the type of information

contained in them; and

(iii) The identity and number of

requesters and whether there is

widespread media, historical, academic,

or commercial interest in the records.

(5) A general index of the records

referred to in paragraph (a)(4) of this

section.

(b) Records encompassed within

paragraphs (a)(1) through (a)(5) of this

section created on or after November 1,

1996, shall be made available to the

public by computer telecommunications

or, if computer telecommunications

means have not been established by the

agency, by other electronic means.

(c) Each agency of the Department

shall maintain and make available for

public inspection and copying current

indexes providing identifying

information regarding any matter

issued, adopted, or promulgated after

July 4, 1967, and required by paragraph

(a) of this section to be made available

or published. Each agency shall publish

and make available for distribution

copies of such indexes and supplements

to such indexes at least quarterly, unless

it determines by notice published in the

Federal Register that publication would

be unnecessary and impracticable. After

issuance of such notice, each agency

shall provide copies of any index upon

request at a cost not to exceed the direct

cost of duplication.

(d) Each agency is responsible for

preparing reference material or a guide

for requesting records or information

from that agency. This guide shall also

include an index of all major

information systems, and a description

of major information and record locator

systems.

(e) Each agency shall also prepare a

handbook for obtaining information

from that agency. The handbook should

be a short, simple explanation to the

public of what the FOIA is designed to

do, and how a member of the public can

use it to access government records. The

handbook should be available on paper

and through electronic means, and it

should identify how a requester can

access agency Freedom of Information

Act annual reports. Similarly, the

annual reports should refer to the

handbook and how to obtain it.

(f) It is appropriate to make frequently

requested records available in

accordance with paragraph (a)(4) of this

section in situations where public

access in a timely manner is important,

and it is not intended to apply where

there may be a limited number of

requests over a short period of time from

a few requesters. Agencies may remove

a record from this access medium when

the appropriate officials determine that

it is unlikely there will be substantial

further requests for that document.

§ 1.5 Requests for records.

(a) Any person who wishes to inspect

or obtain copies of any record of any

agency of the Department shall submit

a request in writing and address the

request to the official designated in

regulations promulgated by that agency.

The requester may ask for a fee waiver.

All such requests for records shall be

deemed to have been made pursuant to

the Freedom of Information Act,

regardless of whether the request

specifically mentions the Freedom of

Information Act. To facilitate processing

of a request, the requester should place

the phrase ‘‘FOIA REQUEST’’ in capital

letters on the front of the envelope or on

the cover sheet of the fax transmittal.

(b) A request must reasonably

describe the records to enable agency

personnel to locate them with

reasonable effort. Where possible, a

requester should supply specific

information regarding dates, titles,

names of individuals, names of offices,

and names of agencies or other

organizations that may help identify the

records. If the request relates to a matter

in pending litigation, the requester

should identify the court and its

location.

(c) If an agency determines that a

request does not reasonably describe the

records, the agency shall inform the

requester of this fact and extend the

requester an opportunity to clarify the

request or to confer promptly with

knowledgeable agency personnel to

attempt to identify the records the

requester is seeking. The ‘‘date of

receipt’’ in such instances, for purposes

of § 1.13, shall be the date of receipt of

the amended or clarified request.

(d) If a requester for records or a fee

waiver made under this subpart is

denied, the requester shall have the

right to appeal the denial. Requesters

also may appeal agency determinations

of a requester’s status for purposes of fee

levels under § 5 of appendix A to this

subpart. All appeals must be in writing

and addressed to the official designated

in regulations promulgated by the

agency which denied the request. To

facilitate processing of an appeal, the

requester should place the phrase

‘‘FOIA APPEAL’’ in capital letters on

the front of the envelope or on the cover

sheet of the fax transmittal.

(e) Requests that are not addressed to

a specific agency in USDA, or which

pertain to more than one USDA agency,

or which are sent to the wrong agency

of USDA, should be forwarded to the

Department’s FOIA Officer in the Office

of Communications, U.S. Department of

Agriculture, Washington, DC 20250.

(f) The Department FOIA Officer will

determine which agency or agencies

should process the request, and, where

necessary, refer the request to the

appropriate agency or agencies. The

Department FOIA Officer will also

notify the requester of the referral and

of the name of each agency to which the

request has been referred.

(g) A request will be properly received

when it is in the possession of the

component agency that has

responsibility for maintaining the

requested records.

(h) Each agency shall develop and

maintain a record of all written requests

and appeals received in that agency.

The record shall include the names of

the requester; a brief summary of the

information requested; whether the

request or appeal was granted, denied,

or partially denied; the exemption from

mandatory disclosure under 5 U.S.C.

552(b) upon which any denial was

based; and the amount of any fees

associated with the request or appeal.

§ 1.6 Aggregating requests.

When an agency reasonably believes

that a requester, or a group of requesters

acting in concert, is attempting to break

a request down into a series of requests

for the purpose of evading the

assessment of fees, the agency may

aggregate any such requests and charge

accordingly. One element that may be

considered in determining whether such

a belief would be reasonable is the

brevity of the time period during which

the requests have been made.

§ 1.7 Agency response to requests for

records.

(a) 5 U.S.C. 552(a)(6)(A)(l) provides

that each agency of the Department to

which a request for records or a fee

waiver is submitted in accordance with

§ 1.5(a) shall inform the requester of its

determination concerning that request

within 20 working days of its date of

receipt (excepting Saturdays, Sundays,

and legal public holidays), plus any

extension authorized under § 1.16. If the

agency determines to grant the request,

it shall inform the requester of any

conditions surrounding the granting of

the request (e.g., payment of fees) and

the approximate date upon which the

agency will provide the requested

records. If the agency grants only a

portion of the request, it shall treat the
24470 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules

portion not granted as a denial, and

make a reasonable effort to estimate the

volume of the records denied and

provide this estimate to the requester,

unless providing such an estimate

would harm an interest protected by an

exemption of the FOIA. If the agency

determines to deny the request in part

or in whole, it shall immediately inform

the requester of that decision and

provide the following:

(1) The reasons for the denial;

(2) The name and title or position of

each person responsible for denial of the

request;

(3) The requester’s right to appeal

such denial and the title and address of

the official to whom such appeal is to

be addressed; and

(4) The requirement that such appeal

be made within 45 days of the date of

the denial.

(b) If the reason for not fulfilling a

request is that the records requested are

in the custody of another agency outside

USDA, other than in the permanent

custody of the National Archives and

Records Administration (‘‘NARA’’), the

agency shall inform the requester of this

fact and shall forward the request to that

agency or Department for processing in

accordance with its regulations. If the

records are in the permanent custody of

NARA, the agency shall so inform the

requester. Information about obtaining

access to records at NARA may be

obtained through the NARA Archival

Information Locator (NAIL) Database at

http://www/nara.gov/nara.nail.html, or

by calling NARA at (301) 713–6800. If

the agency has no knowledge of

requested records or if no records exist,

the agency shall notify the requester of

that fact.

§ 1.8 Multitrack processing.

(a)When an agency has a significant

number of requests, the nature of which

precludes a determination within 20

working days, the requests may be

processed in a multitrack processing

system, based on the date of receipt, the

amount of work and time involved in

processing the request, and whether the

request qualifies for expedited

processing.

(b) Agencies may establish as many

processing tracks as appropriate;

processing within each track shall be

based on a first-in, first-out concept, and

rank-ordered by the date of receipt of

the request.

(c) Agencies may provide a requester

whose request does not qualify for the

fastest track an opportunity to limit the

scope of the request in order to qualify

for the fastest track. This multitrack

processing system does not lessen

agency responsibility to exercise due

diligence in processing requests in the

most expeditious manner possible.

(d) Agencies shall process requests in

each track on a ‘‘first-in, first-out’’ basis,

unless there are unusual circumstances

as set forth in § 1.16, or the requester is

entitled to expedited processing as set

forth in § 1.9.

§ 1.9 Expedited processing.

(a) A requester may apply for

expedited processing at the time of the

initial request for records. Within ten

calendar days of its receipt of a request

for expedited processing, an agency

shall decide whether to grant it, and

shall notify the requester of the

decision. Once the determination has

been made to grant expedited

processing, an agency shall process the

request as soon as practicable. If a

request for expedited processing is

denied, the agency shall act

expeditiously on any appeal of that

decision.

(b) A request or appeal will be taken

out of order and given expedited

treatment whenever the agency

determines that the requester has

established either of the following

criteria:

(1) 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

(2) An urgency to inform the public

about an actual or alleged federal

government activity, if made by an

individual primarily engaged in

disseminating information.

Representatives of the news media

would normally qualify as individuals

primarily engaged in disseminating

information; however, other requesters

must demonstrate that their primary

activity involves publishing or

otherwise disseminating information to

the public as a whole, and not just a

particular segment or group. ‘‘Urgency’’

contemplates that the information has a

particular value that will be lost if not

disseminated quickly. Ordinarily this

means a breaking news story of general

public interest. Information of historical

interest only or information sought for

litigation or commercial activities

would not meet the test of urgency, nor

would a news media publication or

broadcast deadline unrelated to the

news breaking nature of the

information.

(c) A requester who seeks expedited

processing must provide a written

statement that the requester has certified

to be true and correct to the best of the

requester’s knowledge, explaining in

detail the basis for requesting expedited

processing. The agency will not

consider the request to have been

received unless accompanied by a

written, certified statement, and will be

under no obligation to consider the

request for expedited processing until it

receives such a written, certified

statement.

(d) The same procedures apply to

requests for expedited processing of

administrative appeals.

§ 1.10 Search services.

Search services are services of agency

personnel—clerical or professional—

used in trying to find the records, that

are responsive to a request. Search

services includes both manual and

electronic searches and time spend

examining records for the purpose of

fining information that is within the

scope of the request. Search services

also include services to transport

personnel to places of record storage, or

records to the location of personnel for

the purpose of the search, if such

services are reasonably necessary.

§ 1.11 Review services.

(a) Review services are services of

agency personnel—clerical or

professional—in examining records,

both paper and electronic, located in

response to a request that is for a

commercial use (as specified in § 6 of

appendix A to this subpart) to

determine whether any portion of any

record located is exempt from

mandatory disclosure.

(b) Review services include

processing any records for disclosure,

e.g., doing all that is necessary to redact

exempt portions and otherwise prepare

records for release.

(c) Review services do not include the

time spent resolving general legal or

policy issues regarding the application

of exemptions.

§ 1.12 Handling information from a private

business.

Each USDA agency is responsible for

making the final determination with

regard to the disclosure or

nondisclosure of information in agency

records that has been submitted by a

business. When, in the course of

responding to an FOIA request, an

agency cannot readily determine

whether the information obtained from

a person is privileged or confidential

business information, the policy of

USDA is to obtain and consider the

views of the submitter of the

information and to provide the

submitter an opportunity to object to

any decision to disclose the

information. If a request (including a

subpoena duces tecum as described in

§ 1.215) is received in USDA for
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules 24471

information that has been submitted by

a business, the agency shall:

(a) Provide the business information

submitter with prompt notification of a

request for that information (unless it is

readily determined by the agency that

the information requested should not be

disclosed or, on the other hand, that the

information is not exempt by law from

disclosure). Afford business information

submitters reasonable time in which to

object to the disclosure of any specified

portion of the information. The

submitter must explain fully all grounds

upon which disclosure is opposed. For

example, if the submitter maintains that

disclosure is likely to cause substantial

harm to its competitive position, the

submitter must explain item-by-item

why disclosure would cause such harm.

Information provided by a business

submitter pursuant to this paragraph

may itself be subject to disclosure under

FOIA;

(b) Notify the requester of the need to

inform the submitter of a request for

submitted business information;

(c) Determine whether the requested

records are exempt from disclosure or

must be released;

(d) Provide business information

submitters with notice of any

determination to disclose such records

prior to the disclosure date, in order that

the matter may be considered for

possible judicial intervention; and

(e) Notify business information

submitters promptly of all instances in

which FOIA requesters bring suit

seeking to compel disclosure of

submitted information.

§ 1.13 Date of receipt of requests or

appeals.

The date of receipt of a request or

appeal shall be the date it is received in

the agency and office responsible for the

administrative processing of FOIA

requests or appeals.

§ 1.14 Appeals.

(a) Requesters seeking administrative

appeal of a denial of a request for

records or denial of a fee waiver must

ensure that the appeal is received by the

agency within 45 days of the date of the

denial letter.

(b) Each agency shall provide for

review of appeals by an official different

from the official or officials designated

to make initial denials.

(c) 5 U.S.C. 552(a)(6)(A)(ii) provides

that each agency in the Department to

which an appeal of a denial is submitted

shall inform the requester of its

determination concerning that appeal

within 20 working days (excepting

Saturdays, Sundays, and legal public

holidays), plus any extension

authorized by § 1.16, of its date of

receipt. If the agency determines to

grant the appeal, it shall inform the

requester of any conditions surrounding

the granting of the request (e.g.,

payment of fees) and the approximate

date upon which compliance will be

effected. If the agency grants only a

portion of the appeal, it shall treat the

portion not granted as a denial. If it

determines to deny the appeal either in

part or in whole, it shall inform the

requester of that decision and of the

following:

(1) The reasons for denial;

(2) The name and title or position of

each person responsible for denial of the

appeal; and

(3) The right to judicial review of the

denial in accordance with 5 U.S.C.

552(a)(4).

(d) Each agency, upon a

determination that it wishes to deny an

appeal, shall send a copy of the records

requested and of all correspondence

relating to the request to the Assistant

General Counsel, General Law Division,

Office of the General Counsel

(‘‘Assistant General Counsel’’). When

the volume of records is so large as to

make sending a copy impracticable, the

agency shall enclose an informative

summary of those records. The agency

shall not deny an appeal until it

receives concurrence from the Assistant

General Counsel.

(e) The Assistant General Counsel

shall promptly review the matter

(including necessary coordination with

the agency) and render all necessary

assistance to enable the agency to

respond to the appeal within the

administrative deadline or any

extension of the administrative

deadline.

§ 1.15 General provisions respecting

release of records.

(a) When releasing documents,

agencies shall provide the record in any

form or format the requester specifies, if

the record is readily reproducible in that

form or format. Agencies shall make

reasonable efforts to maintain their

records in forms or formats that are

reproducible. In responding to requests

for records, agencies shall make

reasonable efforts to search for records

in electronic form or format, except

when such efforts would significantly

interfere with the operation of an

agency’s automated information system.

Such determinations shall be made on

a case by case basis.

(b) In the event a requested record

contains some portions that are exempt

from mandatory disclosure and others

that are not, the official responding to

the request shall ensure that all

reasonably segregable nonexempt

portions are disclosed, and that all

exempt portions are identified

according to the specific exemption or

exemptions which are applicable. The

amount of deleted information shall be

indicated on the released portion of

paper records. Deletions may be marked

by use of brackets or darkened areas

indicating removal of information, or by

any other method that would reasonably

demonstrate the extent of the deletion.

In the case of electronic deletion, or

deletion in audiovisual or microfiche

records, if technically feasible, the

amount of redacted information shall be

indicated at the place in the record

where such deletion was made. This

may be done by use of brackets, shaded

areas, or some other identifiable

technique which will clearly show the

limits of the deleted information.

(c) If, in connection with a request or

an appeal, a charge is to be made in

accordance with § 8 of appendix A to

this subpart, agencies shall inform the

requester of the fee amount and of the

basis for the charge. Each agency, in

accordance with § 8 of appendix A to

this subpart, may require payment of the

entire fee, or a portion of the fee, before

it provides the requested records. An

agency shall require full payment of any

delinquent fee owed by the requester

plus any applicable interest prior to

releasing records on a subsequent

request or appeal. If a requester refuses

to remit payment in advance, an agency

may refuse to process the request or

appeal with written notice to that effect

forwarded to the requester. The ‘‘date of

receipt’’ of an appeal for which advance

payment has been required shall be the

date that payment is received.

(d) In the event compliance with the

request or appeal involves inspection of

records by the requester rather than

providing copies of the records, the

agency response shall include the name,

mailing address, and telephone number

of the person to be contacted to arrange

a mutually convenient time for such

inspection.

(e) Whenever duplication fees, or

search fees for unsuccessful searchers

(see § 4(f) of appendix A to this subpart),

are anticipated to exceed $25.00, and

the requester has not indicated, in

advance, a willingness to pay fees as

high as those anticipated, agencies shall

notify the requester of the amount of the

anticipated fee. If an extensive and

therefore costly successful search is

anticipated, agencies also should notify

requesters of the anticipated fees. The

notification shall offer the requester the

opportunity to confer with agency

personnel to reform the request to meet

the requester’s needs at a lower fee. In
24472 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules

appropriate cases, an advance deposit in

accordance with § 8 of appendix A to

this subpart may be required.

§ 1.16 Extension of administrative

deadlines.

(a) In unusual circumstances as

specified in this section, when

additional time is needed to respond to

the initial request or to an appeal,

agencies shall acknowledge the request

or the appeal in writing within the 20

working day time period, describe the

unusual circumstances requiring the

delay,and indicate the anticipated date

for a substantive response that may not

exceed 10 additional working days,

except as provided in the following:

(1) In instances in which the agency,

with respect to a particular request, has

extended the response date by 10

additional working days, if the agency

finds that it cannot make a response

determination within the additional 10

working day period, the agency shall

notify the requester and provide the

requester an opportunity to limit the

scope of the request to allow the agency

to process the request within the

extended time limit, or an opportunity

to arrange an alternative time frame for

processing the request or a modified

request.

(2) If the requester refuses to

reasonably modify the request or

arrange for an alternative time frame for

processing the request, the FOIA

provides that such refusal shall be

considered as a factor in determining

whether there are exceptional

circumstances that warrant granting

additional time for the agency to

complete its review of the records,as set

forth in 5 U.S.C. 552(a)(6(C). The term

‘‘exceptional circumstances’’ does not

include a delay that results from a

predictable agency backlog, unless the

agency demonstrates reasonable

progress in reducing its backlog of

pending requests.

(b) As used in this section, ‘‘unusual

circumstances’’ that may justify delay

are:

(1) The need to search for and collect

the requested records from field

facilities or other establishments that are

separate 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 Department or

agency having a substantial interest in

the determination of the request or

among two or more components of the

agency having substantial subject-matter

interest in the request.

Note: consultation regarding policy or legal

issues between an agency and the Office of

the General Counsel, Office of

Communications, or the Department of

Justice is not a basis for extension under this

section.

(c) The 10-day extension authorized

by this section may be divided between

the initial and appellate reviews, but in

no event shall the total extension exceed

10 working days.

(d) Nothing in this section shall

preclude the agency and the requester

from agreeing to an extension of time.

Any such agreement should be

confirmed in writing and should specify

clearly the total time agreed upon.

§ 1.17 Failure to meet administrative

deadlines.

In the event an agency fails to meet

the administrative deadlines set forth in

§ 1.7, or § 1.14, plus any extension

authorized by § 1.16, it shall notify the

requester, state the reasons for the delay,

and the date by which it expects to

dispatch a determination. Although the

requester may be deemed to have

exhausted his or her administrative

remedies under 5 U.S.C. 552(a)(6)(C),

the agency shall continue processing the

request as expeditiously as possible and

dispatch the determination when it is

reached in the same manner and form

as if it had been reached within the

applicable deadline.

§ 1.18 Fee schedule.

Pursuant to § 2.28 of this title, the

Chief Financial Officer is delegated

authority to promulgate regulations

providing for a uniform fee schedule

applicable to all agencies of the

Department regarding requests for

records under this subpart. The

regulations providing for a uniform fee

schedule are found in appendix A to

this subpart.

§ 1.19 Exemptions and discretionary

release.

(a) All agency records, except those

specifically exempted from mandatory

disclosure by one or more provisions of

5 U.S.C. 552(b), shall be made promptly

available to any person submitting a

request under this subpart.

(b) Agencies are authorized in their

sole discretion, to make discretionary

releases when such release is not

otherwise specifically prohibited by

Executive Order, statute, or regulation.

§ 1.20 Annual report.

(a) Each agency of the Department

shall compile the following Freedom of

Information Act statistics on a fiscal

year basis beginning October 1, 1997,

and report the following information to

the Office of Communications no later

than November 30 following the fiscal

year’s close:

(1) The number of requests for records

received and the number of requests

which were processed;

(2) The number of determinations

made not to comply with initial requests

for records made to it under § 1.5(a), and

the reasons for each such determination;

(3) The number of appeals made by

persons under § 1.14(b), the result of

such appeals, and the reason for the

action upon each appeal that results in

a denial of information;

(4) A complete list of all statutes that

the agency relies upon to authorize the

agency to withhold information under 5

U.S.C. 552(b)(3), a description of

whether a court has upheld the decision

of the agency to withhold information

under each such statute, and a concise

description of the scope of any

information withheld;

(5) The number of requests for records

pending before the agency as of

September 30 of the preceding year, and

the median number of days that such

requests had been pending before the

agency as of that date:

(6) The median number of days taken

by the agency to process different types

of requests;

(7) The total amount of fees collected

by the agency for processing requests;

(8) The number of full-time staff of the

agency devoted to processing requests

for records under this section, and the

total amount expended by the agency

for processing such requests.

(b) Each agency shall compile the

information required by paragraph (a) of

this section for the preceding fiscal year

into a report and submit this report to

the Director of Communications, Office

of Communications, no later than

November 30 following the fiscal year’s

close.

(c) The Director of Communications,

Office of Communications, shall

combine the reports from all the

agencies within USDA into a

Departmental report, and shall submit to

the Attorney General on or before

February 1 of each year in accordance

with 5 U.S.C. 552(e).

(d) Each agency shall make the report

available to the public including by

computer telecommunications, or if

computer telecommunications means

have not been established by the agency,

by other electronic means.

§ 1.21 Compilation of new records.

Nothing in 5 U.S.C. 552 or this

subpart requires that any agency create

a new record in order to fulfill a request
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules 24473

for records. However, an agency is

required to provide a record in a form

or format specified by a requester, if the

record is readily reproducible by the

agency in the form or format requested.

Creation of records may be undertaken

voluntarily if the agency determines this

action to be in the public interest or the

interest of USDA.

§ 1.22 Authentication.

When a request is received for an

authenticated copy of a document

which the agency determines to make

available to the requesting party, the

agency shall cause a correct copy to be

prepared and sent to the Office of the

General Counsel which shall certify the

same and cause the seal of the

Department to be affixed, except that the

Hearing Clerk in the Office of

Administrative Law Judges may

authenticate copies of documents in the

records of the Hearing Clerk and that the

Director of the National Appeals

Division may authenticate copies of

documents in the records of the

National Appeals Division.

§ 1.23 Records in formal adjudication

proceedings.

Records in formal adjudication

proceedings are on file in the Hearing

Clerk’s office, Office of Administrative

Law Judges, U.S. Department of

Agriculture, Washington, DC 20250, and

shall be made available to the public.

§ 1.24 Preservation of records.

Agencies shall preserve all

correspondence relating to the requests

it receives under this subpart, and all

records processed pursuant to such

requests, until such time as the

destruction of such correspondence and

records is authorized pursuant to Title

44 of the United States Code, and

appropriate records disposition

authority granted by NARA. Under no

circumstances shall records be sent to a

Federal Records Center, transferred to

the permanent custody of NARA, or

destroyed while they are the subject of

a pending request, appeal, or civil

action under the FOIA.

§ 1.25 Implementing regulations for the

Office of the Secretary and the Office of

Communications

(a) For the Office of the Secretary and

for the Office of Communications, the

regulations required by § 1.3 are as

follows:

(1) Records available for public

inspection and copying may be obtained

in Room 536–A, Jamie L. Whitten

Federal Building, USDA, Washington,

DC 20250 during the hours of 9 a.m. to

5 p.m. by prior appointment;

(2) Any indexes and supplements

which are maintained in accordance

with the requirements of 5 U.S.C.

552(a)(2) and § 1.5(b) will also be

available in Room 536–A, Jamie L.

Whitten Federal Building, USDA,

Washington, DC 20250 during the hours

of 9 a.m. to 5 p.m.;

(3) The person authorized to receive

Freedom of Information Act requests

and to determine whether to grant or

deny such requests is the FOIA Officer,

Office of Communications, USDA,

Washington, DC 20250;

(4) The official authorized to receive

appeals from denials of FOIA requests

and to determine whether to grant or

deny such appeals is the Director of

Communications, Office of

Communications, USDA, Washington,

DC 20250.

(b) The organization and functions of

the Office of the Secretary and the

Office of Communications is as follows:

(1) The Office of the Secretary

provides the overall policy guidance

and direction of the activities of the

Department of Agriculture. Departmentwide policy statements and

announcements are made from this

office.

(2) The Office of the Secretary

consists of the Secretary, Deputy

Secretary, Under Secretaries, Assistant

Secretaries, and other staff members.

(3) In the absence of the Secretary and

the Deputy Secretary, responsibility for

the operation of the Department of

Agriculture is as delegated at part 2,

subpart A of this title.

(4) The Office of Communications

provides policy direction, review, and

coordination of public information

programs of the Department of

Agriculture. The Office of

Communications has responsibility for

maintaining the flow of information to

the mass communications media,

various constituency groups, and the

general public.

(5) The Office of Communications is

headed by the Director of

Communications. In the Director’s

absence, the Office of Communications

is headed by the Deputy Director.

* * * * *

Done at Washington, DC this 13 day of

April, 1998.

Dan Glickman,

Secretary of Agriculture.

[FR Doc. 98–10432 Filed 5–1–98; 8:45 am]

BILLING CODE 3410–01–M

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

9 CFR Part 130

[Docket No. 94–115–1]

RIN 0579–AA70

Veterinary Diagnostic Services User

Fees

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Proposed rule.

SUMMARY: We are proposing to revise

user fees for veterinary diagnostic

services to reflect changes in operating

costs and changes in calculations. In

addition, we are proposing to add new

user fees to cover the costs of additional

veterinary diagnostic services. In

addition, we propose to reorganize these

user fees by type of service and location

where the service is provided, and to

group reagents into categories. We are

also proposing to revise user fees for the

use of animal import centers operated

by the Animal and Plant Health

Inspection Service, and to add new user

fees for new spaces. These actions are

necessary to ensure that we recover our

costs. The Food, Agriculture,

Conservation, and Trade Act of 1990, as

amended, authorizes us to set and

collect these user fees.

DATES: Consideration will be given only

to comments received on or before July

6, 1998.

ADDRESSES: Please send an original and

three copies of your comments to

Docket 94–115–1, Regulatory Analysis

and Development, PPD, APHIS, suite

3C03, 4700 River Road Unit 118,

Riverdale, MD 20737–1238. Please state

that your comments refer to Docket No.

94–115–1. Comments received may be

inspected at USDA, room 1141, South

Building, 14th Street and Independence

Avenue SW., Washington, DC, between

8 a.m. and 4:30 p.m., Monday through

Friday, except holidays. Persons

wishing to inspect comments are

requested to call ahead on (202) 690–

2817 to facilitate entry into the

comment reading room.

FOR FURTHER INFORMATION CONTACT: For

information concerning services

provided for live animals and germ

plasm, contact Dr. Gary S. Colgrove,

Chief Staff Veterinarian, National Center

for Import and Export, VS, APHIS, 4700

River Road Unit 38, Riverdale, MD

20737–1231; (301) 734–3294.

For information concerning services

provided for veterinary diagnostics,

contact Dr. James E. Pearson, Director,