10006 Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations

employment in the same or successor

positions. We have adopted that

suggestion in part. We agree that the

limit should apply separately to

positions having different job duties and

qualification requirements. While a few

individuals might be qualified and

available to perform unrelated functions

(e.g., surveyor and pilot), it would not

be practical for the agency to create a job

combining such distinct duties. We

have rewritten the Schedule A authority

to clarify that the limit applies to

employment in jobs having related

duties and comparable qualification

requirements.

We have not adopted the suggestion

that only excepted employment in an

identical or successor position should

count against the limit. Such a broad

exclusion from the service limit would

undermine the justification for the

excepted authority. Examining for jobs

in remote or isolated locations is

impracticable when: only residents of

the immediate area can be expected to

reach the work site whenever they are

needed; the amount of employment

involved would not encourage outside

applicants to move to the isolated area;

and staff from an OPM or agency

examining office could not readily reach

the location to administer the

competitive hiring process. If an agency

can make competitive appointments to

some jobs in a location, can combine

related work to afford a substantial

amount of employment, and/or can

readily attract candidates from outside

the immediate locality, the conditions

for exception would not be met.

Another agency suggested that the

authority should provide for OPM

approval of Schedule A appointments

for additional ‘‘circumstances’’ rather

than additional ‘‘positions.’’ The agency

notes that it is not always possible to

identify in advance all specific positions

that may be needed in connection with

a particular program or situation.

The wording of the Schedule A

authority reflects Civil Service Rule VI

(5 CFR 6.1), which authorizes OPM to

except positions from the competitive

service. This language does not preclude

exception of positions based on the

circumstances under which they are

filled. OPM has previously approved

Schedule A authorities that cover all

positions meeting certain conditions or

all positions filled in connection with a

particular program, without listing those

positions specifically. We will entertain

similar requests submitted under this

new Schedule A authority.

Regulatory Flexibility Act

I certify that these regulations will not

have a significant economic impact on

a substantial number of small entities

(including small businesses, small

organizational units, and small

governmental jurisdictions) because

they apply only to Federal employees.

List of Subjects in 5 CFR Parts 213 and

302

Government employees, Reporting

and recordkeeping requirements.

U.S. Office of Personnel Management

James B. King,

Director.

Accordingly, OPM is amending 5 CFR

parts 213 and 302 as follows:

PART 213—EXCEPTED SERVICE

1. The authority citation for part 213

continues to read as follows:

Authority: 5 U.S.C. 3301 and 3302, E.O.

10577, 3 CFR 1954–1958 Comp., p. 218;

§ 213.101 also issued under 5 U.S.C. 2103;

§ 213.3102 also issued under 5 U.S.C. 3301,

3302, 3307, 8337(h), and 8456; E.O. 12364,

47 FR 22931, 3 CFR 1982 Comp., p. 185.

2. In § 213.3102, paragraph (i) is

revised and paragraph (m) is removed

and reserved, to read as follows:

§ 213.3102 Entire executive civil service.

* * * * *

(i) Temporary and less-than-full time

positions for which examining is

impracticable. These are:

(1) Positions in remote/isolated

locations where examination is

impracticable. A remote/isolated

location is outside the local commuting

area of a population center from which

an employee can reasonably be expected

to travel on short notice under adverse

weather and/or road conditions which

are normal for the area. For this

purpose, a population center is a town

with housing, schools, health care,

stores and other businesses in which the

servicing examining office can schedule

tests and/or reasonably expect to attract

applicants. An individual appointed

under this authority may not be

employed in the same agency under a

combination of this and any other

appointment to positions involving

related duties and requiring the same

qualifications for more than 1,040

workings hour in a service year.

Temporary appointments under this

authority may be extended in 1-year

increments, with no limit on the

number of such extensions, as an

exception to the service limits in

§ 213.104.

(2) Positions for which a critical

hiring need exists. This includes both

short-term positions and continuing

positions that an agency must fill on an

interim basis pending completion of

competitive examining, clearances, or

other procedures required for a longer

appointment. Appointments under this

authority may not exceed 30 days and

may be extended for up to an additional

30 days if continued employment is

essential to the agency’s operations. The

appointments may not be used to extend

the service limit of any other appointing

authority. An agency may not employ

the same individual under this authority

for more than 60 days in any 12-month

period.

(3) Other positions for which OPM

determines that examining is

impracticable.

* * * * *

PART 302—EMPLOYMENT IN THE

EXCEPTED SERVICE

3. The authority citation for part 302

continues to read as follows:

Authority: 5 U.S.C. 1302, 3301, 3302, and

8151, E.O. 10577 (3 CFR 1954–1958 Comp.,

p. 218); § 302.105 also issued under 5 U.S.C.

1104, Pub. L. 95–454, sec. 3(5); § 302.501 also

issued under 5 U.S.C. 7701 et. seq.

4. In § 302.101, paragraph (c)(11) is

added, to read as follows:

§ 302.101 Positions covered by the

regulations.

* * * * *

(c) * * *

(11) Positions for which a critical

hiring need exists when filled under

§ 213.3102(i)(2) of this chapter.

[FR Doc. 95–4394 Filed 2–22–95; 8:45 am]

BILLING CODE 6325–01–M

OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2604

RIN 3209–AA17

Freedom of Information Act Rules and

Schedule of Fees for the Production of

Public Financial Disclosure Reports

AGENCY: Office of Government Ethics

(OGE).

ACTION: Final rule.

SUMMARY: The Office of Government

Ethics is issuing a final rule which

establishes procedures for the

implementation of the Freedom of

Information Act (FOIA). The rule also

establishes a schedule of fees which will

be charged for the reproduction and

mailing of public financial disclosure

reports (SF 278s).

EFFECTIVE DATE: March 27, 1995.

FOR FURTHER INFORMATION CONTACT:

Janet K. Roell, Office of Government

Ethics, telephone (202) 523–5757, FAX

(202) 523–6325.
Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations 10007

SUPPLEMENTARY INFORMATION: In this

rulemaking document, the Office of

Government Ethics is adopting final

rules under the Freedom of Information

Act (FOIA), 5 U.S.C. 552, and for fees

for copies of SF 278 reports requested

under the Ethics in Government Act. As

noted in OGE’s proposed rules

published at 59 FR 50171–50179

(October 3, 1994), this FOIA regulation,

being codified at 5 CFR part 2604, will

incorporate many of OGE’s existing

practices for the implementation of the

FOIA and follows applicable guidance

of the Department of Justice and the

Office of Management and Budget. The

regulation will also set separate

schedules of fees for FOIA requests and

for larger SF 278 requests.

The proposed rules provided a 60-day

comment period and invited comments

by agencies and the public. Only one

comment was received. That comment

did not suggest any specific changes to

the regulations as proposed, but rather

recommended more disclosure of

certain activities of Federal officials.

With respect to disclosure of activities,

OGE believes that the existing system of

public financial disclosure reporting of

high-level officials under title I of the

Ethics Act, as implemented for the

executive branch by OGE’s regulation at

5 CFR part 2634, as well as other

pertinent laws and regulations

adequately address that separate subject

matter. Therefore, in adopting the

proposed rules as final, the Office of

Government Ethics is not making any

substantive changes. The only changes

reflect correction of a couple of minor

typographical errors (including

indication of the correct March 1 due

date for annual FOIA reports) and

clarification of two passages

—§ 2604.102(c) to expressly indicate

that a requester can opt for regular FOIA

processing in lieu of alternative access

for OGE items also available via the

Government Printing Office or the

National Information Technical Service

of the Department of Commerce and

§ 2604.302(c) to state that OGE will

generally provide nonexempt

responsive records in existing formats to

FOIA requesters.

Executive Order 12866

In promulgating this final rule, the

Office of Government Ethics has

adhered to the regulatory philosophy

and the applicable principles of

regulations set forth in section 1 of

Executive Order 12866, Regulatory

Planning and Review. This regulation

has been reviewed by the Office of

Management and Budget under that

Executive order.

Regulatory Flexibility Act

As Director of the Office of

Government Ethics, I certify under the

Regulatory Flexibility Act (5 U.S.C.

chapter 6) that this regulation will not

have a significant economic impact on

a substantial number of small entities.

Paperwork Reduction Act

The Paperwork Reduction Act (44

U.S.C. chapter 35) does not apply to this

regulation because it does not contain

information collection requirements that

require the approval of the Office of

Management and Budget.

List of Subjects in 5 CFR Part 2604

Administrative practice and

procedure, Archives and records,

Confidential business information,

Conflict of interests, Freedom of

Information, Government employees.

Approved: January 11, 1995.

Stephen D. Potts,

Director, Office of Government Ethics.

Accordingly, for the reasons set forth

in the preamble, the Office of

Government Ethics is amending

subchapter A of chapter XVI of title 5

of the Code of Federal Regulations by

adding the text of and an authority

citation for part 2604, previously

reserved, and by revising the title

thereof to read as follows:

PART 2604—FREEDOM OF

INFORMATION ACT RULES AND

SCHEDULE OF FEES FOR THE

PRODUCTION OF PUBLIC FINANCIAL

DISCLOSURE REPORTS

Subpart A—General Provisions

Sec.

2604.101 Purpose.

2604.102 Applicability.

2604.103 Definitions.

Subpart B—Public Reading Room and

Index Identifying Information for the Public

Sec.

2604.201 Public reading room.

2604.202 Index identifying information for

the public.

Subpart C—Production and Disclosure of

Records Under FOIA

Sec.

2604.301 Requests for records.

2604.302 Response to requests.

2604.303 Form and content of responses.

2604.304 Appeal of denials.

2604.305 Time limits.

Subpart D—Exemptions Under FOIA

Sec.

2604.401 Policy.

2604.402 Business information.

Subpart E—Schedule of Fees

Sec.

2604.501 Fees to be charged—general.

2604.502 Fees to be charged—categories of

requesters.

2604.503 Limitations on charging fees.

2604.504 Miscellaneous fee provisions.

Subpart F—Annual Report to Congress

Sec.

2604.601 Submission of report.

2604.602 Contents of the report.

Subpart G—Fees for the Reproduction and

Mailing of Public Financial Disclosure

Reports

Sec.

2604.701 Policy.

2604.702 Charges.

Authority: 5 U.S.C. 552; 5 U.S.C. App.

(Ethics in Government Act of 1978); E.O.

12600, 52 FR 23781, 3 CFR, 1987 Comp., p.

235.

Subpart A—General Provisions

§ 2604.101 Purpose.

This part contains the regulations of

the Office of Government Ethics (OGE)

implementing the Freedom of

Information Act (FOIA) and Executive

Order 12600. It describes how any

person may obtain records from OGE

under the FOIA. It also implements

section 105(b)(1) of the Ethics in

Government Act of 1978, as amended,

which authorizes an agency to charge

reasonable fees to cover the cost of

reproduction and mailing of public

financial disclosure reports requested by

any person.

§ 2604.102 Applicability.

(a) General. The FOIA and this rule

apply to all OGE records. However, if

another law sets forth procedures for the

disclosure of specific types of records,

such as section 105 of the Ethics in

Government Act of 1978, 5 U.S.C.

appendix, OGE will process a request

for those records in accordance with the

procedures that apply to those specific

records. See 5 CFR 2634.603 and

subpart G of this part. If there is any

record which is not required to be

released under those provisions, OGE

will consider the request under the

FOIA and this rule, provided that the

special Ethics Act access procedures

cited must be complied with as to any

record within the scope thereof.

(b) The relationship between the FOIA

and the Privacy Act of 1974. The

Privacy Act of 1974, 5 U.S.C. 552a,

applies to records that are about

individuals, but only if the records are

in a system of records as defined in the

Privacy Act. Requests from individuals

for records about themselves which are

contained in an OGE system of records

will be processed under the provisions
10008 Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations

of the Privacy Act as well as the FOIA.

OGE will not deny access by a first party

to a record under the FOIA or the

Privacy Act unless the record is not

available to that individual under both

the Privacy Act and the FOIA.

(c) Records available through routine

distribution procedures. When the

record requested includes material

published and offered for sale (e.g., by

the Superintendent of Documents,

Government Printing Office) or which is

available to the public through an

established distribution system (such as

that of the National Technical

Information Service of the Department

of Commerce), OGE will explain how

the record may be obtained through

those channels. If the requester, after

having been advised of such alternative

access, asks for regular FOIA processing

instead, OGE will provide the record in

accordance with its usual FOIA

procedures under this part.

§ 2604.103 Definitions.

As used in this part,

Agency has the meaning given in 5

U.S.C. 551(1) and 5 U.S.C. 552(f).

Business information means trade

secrets or other commercial or financial

information, provided to the Office by a

submitter, which arguably is protected

from disclosure under Exemption 4 of

the Freedom of Information Act.

Business submitter means any person

who provides business information,

directly or indirectly, to the Office and

who has a proprietary interest in the

information.

Commercial use means, when

referring to a request, that the request is

from, or on behalf of one who seeks

information for a use or purpose that

furthers the commercial, trade, or profit

interests of the requester or of a person

on whose behalf the request is made.

Whether a request is for a commercial

use depends on the purpose of the

request and the use to which the records

will be put. When a request is from a

representative of the news media, a

purpose or use supporting the

requester’s news dissemination function

is not a commercial use.

Direct costs means those expenditures

actually incurred in searching for and

duplicating (and, in the case of

commercial use requesters, reviewing)

records to respond to a FOIA request.

Direct costs include the salary of the

employee performing the work and the

cost of operating duplicating machinery.

Not included in direct costs are

overhead expenses such as costs of

space and heating or lighting of the

facility in which the records are stored.

Duplication means the process of

making a copy of a record. Such copies

include paper copy, microform, audiovisual materials, and magnetic tapes,

cards, and discs.

Educational institution means a

preschool, elementary or secondary

school, institution of undergraduate or

graduate higher education, or institute

of professional or vocational education,

which operates a program of scholarly

research.

Freedom of Information Act or FOIA

means 5 U.S.C. 552.

General Counsel means the General

Counsel of the Office of Government

Ethics. The General Counsel may

delegate any of his responsibilities in

handling FOIA requests in this part to

a designee on OGE’s staff.

He, his and him include she, hers and

her.

Noncommercial scientific institution

means an institution that is not operated

solely for purposes of furthering its own

or someone else’s business, trade, or

profit interests, and that is operated for

purposes of conducting scientific

research the results of which are not

intended to promote any particular

product or industry.

Office or OGE means the United

States Office of Government Ethics.

Person has the meaning given in 5

U.S.C. 551(2).

Records means any handwritten,

typed, or printed documents (such as

memoranda, books, brochures, studies,

writings, drafts, letters, transcripts, and

minutes) and documentary material in

other forms (such as punchcards,

magnetic tapes, cards or discs, paper

tapes, audio or video recordings, maps,

photographs, slides, microfilm and

motion pictures) that are either created

or obtained by the Office and are under

Office control. It does not include

objects or articles such as exhibits,

models, equipment, and duplication

machines or audiovisual processing

materials.

Representative of the news media

means a person actively gathering

information for an entity organized and

operated to publish or broadcast news to

the public. News media entities include

television and radio broadcasters,

publishers of periodicals who distribute

their products to the general public or

who make their products available for

purchase or subscription by the general

public, and entities that may

disseminate news through other media,

such as electronic dissemination of text.

Freelance journalists will be considered

as representatives of a news media

entity if they can show a solid basis for

expecting publication through such an

entity. A publication contract is such a

basis, and the requester’s past

publication record may show such a

basis.

Request means any request for records

made pursuant to 5 U.S.C. 552(a)(3).

Requester means any person who

makes a request for records to OGE.

Review means the process of initially,

or upon appeal (see § 2604.501(b)(3)),

examining documents located in a

response to a request to determine

whether any portion of any document is

permitted to be withheld. It also

includes processing documents for

disclosure, such as redacting portions

which may be withheld. Review does

not include time spent resolving general

legal and policy issues regarding the

application of exemptions.

Search means the time spent looking

for material that is responsive to a

request, including page-by-page or lineby-line identification of material within

documents.

Working days means calendar days,

excepting Saturdays, Sundays, and legal

public holidays.

Subpart B—Public Reading Room and

Index Identifying Information for the

Public

§ 2604.201 Public reading room.

(a) Location of public reading room.

The Office of Government Ethics

maintains a public reading room at its

offices located at 1201 New York

Avenue, NW., Suite 500, Washington,

DC 20005–3917. Persons desiring to

utilize the reading room should contact

the Office, in writing or by telephone at

(202) 523–5757 or FAX (202) 523–6325,

to arrange a time to inspect the materials

available there.

(b) Records available. The Office of

Government Ethics public reading room

contains OGE records which are

required by 5 U.S.C. 552(a)(2) to be

made available for public inspection

and copying, including:

(1) Any final opinions, as well as

orders, made in the adjudication of

cases;

(2) Any statements of policy and

interpretation which have been adopted

by the agency and are not published in

the Federal Register;

(3) Any administrative staff manuals

and instructions to staff that affect a

member of the public, and which are

not exempt from disclosure under

section (b) of the FOIA; and

(4) Current indexes providing

identifying information for the public as

to any matter which was issued,

adopted or promulgated after July 4,

1967, and is required by 5 U.S.C.

552(a)(2) to be made available or

published.

(c) Copying. The cost of copying

information available in OGE’s public
Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations 10009

reading room shall be imposed on a

requester in accordance with the

provisions of subpart E of this part.

§ 2604.202 Index identifying information

for the public.

(a) The Office of Government Ethics

will maintain and make available for

public inspection and copying a current

index of the materials available at its

public reading room which are required

to be indexed under 5 U.S.C. 552(a)(2).

(b) The Director of the Office of

Government Ethics has determined that

it is unnecessary and impracticable to

publish quarterly or more frequently

and distribute (by sale or otherwise)

copies of each index and supplements

thereto, as provided in 5 U.S.C.

552(a)(2). The Office will provide copies

of such indexes upon request, at a cost

not to exceed the direct cost of

duplication and mailing, if sending

records by other than ordinary mail.

Subpart C—Production and Disclosure

of Records Under FOIA

§ 2604.301 Requests for records.

(a) Addressing requests. Requests for

copies of records may be made in

person or by telephone, (202) 523–5757,

during normal business hours at the

Office of Government Ethics, 1201 New

York Avenue, NW., Suite 500,

Washington, DC 20005–3917 or by mail

addressed to the General Counsel of

OGE. Although oral requests may be

honored, a requester generally will be

asked to submit his request under the

FOIA in writing. In the case of a written

request, the envelope containing the

request and the letter itself should both

clearly indicate that the subject is a

Freedom of Information Act request.

(b) Description of records. Each

request must reasonably describe the

desired records in sufficient detail to

enable Office personnel to locate the

records with a reasonable amount of

effort. A request for a specific category

of records will be regarded as fulfilling

this requirement if it enables responsive

records to be identified by a technique

or process that is not unreasonably

burdensome or disruptive of Office

operations.

(1) Wherever possible, a request

should include specific information

about each record sought, such as the

date, title or name, author, recipient,

and subject matter of the record.

(2) If the General Counsel determines

that a request does not reasonably

describe the records sought, he will

either advise the requester what

additional information is needed to

locate the record, or otherwise state why

the request is insufficient. The General

Counsel will also extend to the

requester an opportunity to confer with

Office personnel with the objective of

reformulating the request in a manner

which will meet the requirements of

this section.

(c) Agreement to pay fees. The filing

of a request under this subpart will be

deemed to constitute an agreement by

the requester to pay all applicable fees

charged under subpart E of this part, up

to $25.00, unless a waiver of fees is

sought. The request may also specify a

limit on the amount the requester is

willing to spend, or may indicate a

willingness to pay an amount greater

than $25.00, if applicable. In cases

where a requester has been notified that

actual or estimated fees may amount to

more than $25.00, the request will be

deemed not to have been received until

the requester has agreed to pay the

anticipated total fee.

(d) Requests for records relating to

corrective actions. No record developed

pursuant to the authority of 5 U.S.C.

app. (Ethics in Government Act of 1978,

section 402(f)(2)) concerning the

investigation of an employee for a

possible violation of any provision

relating to a conflict of interest shall be

made available pursuant to this part

unless the request for such information

identifies the employee to whom the

records relate and the subject matter of

any alleged violation to which the

records relate. Nothing in this

subsection shall affect the application of

subpart D of this part to any record so

identified.

§ 2604.302 Response to requests.

(a) Response to initial request. The

General Counsel is authorized to grant

or deny any request for a record and to

determine appropriate fees.

(b) Referral to another agency. When

a requester seeks records that originated

in another Government agency, OGE

will normally refer the request to the

other agency for response. If OGE refers

the request to another agency, it will

notify the requester of the referral. If

release of certain records may adversely

affect United States relations with

foreign governments, the Office will

usually consult with the Department of

State. A request for any records

classified by some other agency will be

referred to that agency for response.

(c) Creating records. If a person seeks

information from OGE in a format that

does not currently exist, OGE will not

ordinarily reformat the information for

the purpose of responding to the

request. OGE will advise the requester

that it does not have the record in the

format sought, but will provide

whatever nonexempt records in existing

formats that would reasonably respond

to the request. Additionally, OGE will

not generally develop a new record of

information to satisfy a request.

(d) Record cannot be located. If a

requested record cannot be located from

the information supplied, the General

Counsel will so notify the requester in

writing.

§ 2604.303 Form and content of

responses.

(a) Form of notice granting a request.

After the General Counsel has made a

determination to grant a request in

whole or in part, the requester will be

notified in writing. The notice shall

describe the manner in which the record

will be disclosed, whether by providing

a copy of the record with the response

or at a later date, or by making a copy

of the record available to the requester

for inspection at a reasonable time and

place. The procedure for such an

inspection may not unreasonably

disrupt the operations of the Office. The

response letter will also inform the

requester in the response of any fees to

be charged in accordance with the

provisions of subpart E of this part.

(b) Form of notice denying a request.

When the General Counsel denies a

request in whole or in part, he will so

notify the requester in writing. The

response will be signed by the General

Counsel and will include:

(1) The name and title or position of

the person making the denial;

(2) A brief statement of the reason or

reasons for the denial, including the

FOIA exemption or exemptions which

the General Counsel has relied upon in

denying the request; and

(3) A statement that the denial may be

appealed under § 2604.304 of this

subpart, and a description of the

requirements of that section.

§ 2604.304 Appeal of denials.

(a) Right of appeal. If a request has

been denied in whole or in part, the

requester may appeal the denial to the

Deputy Director of the Office of

Government Ethics, 1201 New York

Avenue, NW., Suite 500, Washington,

DC 20005–3917.

(b) Letter of appeal. The appeal must

be in writing and must be sent within

30 days of receipt of the denial letter.

An appeal should include a copy of the

initial request, a copy of the letter

denying the request in whole or in part,

and a statement of the circumstances,

reasons or arguments advanced in

support of disclosure of the request for

the record. Both the envelope and the

letter of appeal must be clearly marked

‘‘Freedom of Information Act Appeal.’’

(c) Action on appeal. The disposition

of an appeal will be in writing and will
10010 Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations

constitute the final action of the Office

on a request. A decision affirming in

whole or in part the denial of a request

will include a brief statement of the

reason or reasons for affirmance,

including each FOIA exemption relied

on. If the denial of a request is reversed

in whole or in part on appeal, the

request will be processed promptly in

accordance with the decision on appeal.

(d) Judicial review. If the denial of the

request for records is upheld in whole

or in part, the Office will notify the

person making the request of his right

to seek judicial review under 5 U.S.C.

552(a)(4).

§ 2604.305 Time limits.

(a) Initial request. Following receipt of

a request for records, the General

Counsel will determine whether to

comply with the request and will notify

the requester in writing of his

determination within 10 working days.

(b) Appeal. A written determination

on an appeal submitted in accordance

with § 2604.304 will be issued within 20

working days after receipt of the appeal.

(c) Extension of time limits. The time

limits specified in either paragraph (a)

or (b) of this section may be extended

in unusual circumstances up to a total

of 10 working days, after written notice

to the requester setting forth the reasons

for the extension and the date on which

a determination is expected to be made.

(d) For the purposes of paragraph (c)

of this section, unusual circumstances

means that there is a need to:

(1) Search for and collect records from

archives;

(2) Search for, collect, and

appropriately examine a voluminous

amount of separate and distinct records

which are demanded in a single request;

or

(3) Consult with another agency

having a substantial interest in the

determination of the request, or consult

with various OGE components that have

substantial subject matter interest in the

records requested.

Subpart D—Exemptions Under FOIA

§ 2604.401 Policy.

(a) Policy on application of

exemptions. Section 552(b) of the

Freedom of Information Act contains

nine exemptions to the mandatory

disclosure of records. A requested

record will not be withheld from

inspection or copying unless it comes

within one of the classes of records

exempted by 5 U.S.C. 552. In making its

determination on withholding, OGE will

consider whether another statute,

Executive order or regulation prohibits

release or, if not, whether there is a need

in the public interest to withhold

material which is otherwise exempt

under FOIA.

(b) Pledge of confidentiality.

Information obtained from any

individual or organization, furnished in

reliance on a provision for

confidentiality authorized by applicable

statute, Executive order or regulation,

will not be disclosed to the extent it can

be withheld under one of the

exemptions. However, this paragraph

does not itself authorize the giving of

any pledge of confidentiality by any

officer or employee of the Office of

Government Ethics.

(c) Exception for law enforcement

information. The Office may treat

records compiled for law enforcement

purposes as not subject to the

requirements of the Freedom of

Information Act when:

(1) The investigation or proceeding

involves a possible violation of criminal

law;

(2) There is reason to believe that the

subject of the investigation or

proceeding is unaware of its pendency;

and

(3) The disclosure of the existence of

the records could reasonably be

expected to interfere with the

enforcement proceedings.

(d) Partial application of exemptions.

Any reasonably segregable portion of a

record will be provided to any person

requesting the record after deletion of

the portions which are exempt under

this subpart.

§ 2604.402 Business information.

(a) In general. Business information

provided to the Office of Government

Ethics by a submitter will not be

disclosed pursuant to a Freedom of

Information Act request except in

accordance with this section.

(b) Designation of business

information. Submitters of business

information should use good-faith

efforts to designate, by appropriate

markings, either at the time of

submission or at a reasonable time

thereafter, those portions of their

submissions which they deem to be

protected under exemption 4 of the

FOIA (5 U.S.C. 552(b)(4)). Any such

designation will expire 10 years after

the records were submitted to the

Government, unless the submitter

requests, and provides reasonable

justification for, a designation period of

longer duration.

(c) Predisclosure notification. The

General Counsel will provide a

submitter with prompt written notice of

a FOIA request regarding its business

information if:

(1) The information has been

designated by the submitter as

information deemed protected from

disclosure under Exemption 4 of the

FOIA; or

(2) The General Counsel has reason to

believe that the information may be

protected from disclosure under

Exemption 4 of the FOIA. Such written

notice shall either describe the exact

nature of the business information

requested or provide copies of the

records containing the business

information. The requester also shall be

notified that notice and an opportunity

to object are being provided to a

submitter.

(d) Opportunity to object to

disclosure. A submitter has five working

days from receipt of the predisclosure

notification to provide a written

statement of any objection to disclosure.

Such statement shall specify all the

grounds for withholding any of the

information under any exemption of the

FOIA and, in the case of Exemption 4,

shall demonstrate why the information

is deemed to be a trade secret or

commercial or financial information

that is privileged or confidential.

Information provided by a submitter

pursuant to this paragraph may itself be

subject to disclosure under the FOIA.

(e) Notice of intent to disclose. The

General Counsel will consider all

objections raised by a submitter and

specific grounds for nondisclosure prior

to determining whether to disclose

business information. Whenever the

General Counsel decides to disclose

business information over the objection

of a submitter, he will send the

submitter a written notice at least 10

working days before the date of

disclosure containing:

(1) A statement of the reasons why the

submitter’s objections were not

sustained;

(2) A copy of the records which will

be disclosed or a written description of

the records; and

(3) A specified disclosure date. The

requester shall also be notified of the

General Counsel’s determination to

disclose records over a submitter’s

objections.

(f) Notice of FOIA lawsuit. Whenever

a requester brings suit seeking to compel

disclosure of business information, the

General Counsel shall promptly notify

the submitter.

(g) Exceptions to predisclosure

notification. The notice requirements in

paragraph (c) of this section do not

apply if:

(1) The General Counsel determines

that the information should not be

disclosed;
Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations 10011

(2) The information has been

published previously or has been

officially made available to the public;

(3) Disclosure of the information is

required by law (other than 5 U.S.C.

552); or

(4) The designation made by the

submitter in accordance with paragraph

(b) of this section appears obviously

frivolous; except that, in such a case, the

General Counsel will provide the

submitter with written notice of any

final decision to disclose business

information within a reasonable number

of days prior to a specified disclosure

date.

Subpart E—Schedule of Fees

§ 2604.501 Fees to be charged—general.

(a) Policy. Fees shall be assessed

according to the schedule contained in

paragraph (b) of this section and the

category of requesters described in

§ 2604.502 for services rendered in

responding to and processing requests

for records under subpart C of this part.

All fees shall be charged to the

requester, except where the charging of

fees is limited under § 2604.503(a) and

(b) or where a waiver or reduction of

fees is granted under § 2604.503(c).

Requesters shall pay fees by check or

money order made payable to the

Treasury of the United States.

(b) Types of charges. The types of

charges that may be assessed in

connection with the production of

records in response to a FOIA request

are as follows:

(1) Searches—(i) Manual searches for

records. Whenever feasible, the Office

will charge at the salary rate (i.e., basic

pay plus 16%) of the employee making

the search. However, where a

homogeneous class of personnel is used

exclusively in a search (e.g., all clerical

time or all professional time) the Office

will charge $10.00 per hour for clerical

time and $20.00 per hour for

professional time. Charges for search

time will be billed by fifteen minute

segments.

(ii) Computer searches for records.

Requesters will be charged the actual

direct cost of conducting a search using

existing programming. These direct

costs shall include the cost of operating

a central processing unit for that portion

of operating time that is directly

attributable to searching for records

responsive to a request, as well as the

cost of operator/programmer salary

apportionable to the search. The Office

will not alter or develop programming

to conduct a search.

(iii) Unproductive searches. The

Office will charge search fees even if no

records are found which are responsive

to the request, or if the records found

are exempt from disclosure.

(2) Duplication. The standard copying

charge for documents in paper copy is

$.15 per page. When responsive

information is provided in a format

other than paper copy, such as in the

form of computer tapes and discs, the

requester may be charged the direct

costs of the tape, disc, or whatever

medium is used to produce the

information, as well as any related

reproduction costs.

(3) Review. Costs associated with the

review of documents, as defined in

§ 2604.104(q), will be charged at the

salary rate (i.e., basic pay plus 16%) of

the employee conducting the review.

Except as noted below, charges may be

assessed only for review at the initial

level, i.e., the review undertaken the

first time the documents are analyzed to

determine the applicability of specific

exemptions to a particular record or

portion of the records. A requester will

not be charged for review at the

administrative appeal level concerning

the applicability of an exemption

already applied at the initial level.

However, when a record has been

withheld pursuant to an exemption

which is subsequently determined not

to apply and the record is reviewed

again at the appeal level to determine

the potential applicability of other

exemptions, the costs of such additional

review may be assessed.

(4) Other services and materials.

Where the Office elects, as a matter of

administrative discretion, to comply

with a request for a special service or

materials, such as certifying that records

are true copies or sending records by

special methods, the actual direct costs

of providing the service or materials

will be charged.

§ 2604.502 Fees to be charged—categories

of requesters.

(a) Fees for various requester

categories. The paragraphs below state,

for each category of requester, the type

of fees generally charged by the Office.

However, for each of these categories,

the fees may be limited, waived or

reduced in accordance with the

provisions set forth in § 2604.503. In

determining whether a requester

belongs in any of the following

categories, the Office will determine the

use to which the requester will put the

documents requested. If the Office has

reasonable cause to doubt the use to

which the requester will put the records

sought, or where the use is not clear

from the request itself, the Office will

seek clarification before assigning the

request to a specific category.

(b) Commercial use requester. The

Office will charge the full costs of

search, review, and duplication.

Commercial use requesters are not

entitled to two hours of free search time

or 100 free pages of reproduction as

described in § 2604.503(a); however, the

de minimis fees provision of

§ 2604.503(b) does apply to such

requesters.

(c) Educational and noncommercial

scientific institutions and news media. If

the request is from an educational

institution or a noncommercial

scientific institution, operated for

scholarly or scientific research, or a

representative of the news media, and

the request is not for a commercial use,

the Office will charge only for

duplication of documents, excluding

charges for the first 100 pages.

(d) All other requesters. If the request

is not one described in paragraph (b) or

(c) of this section, the Office will charge

the full and direct costs of searching for

and reproducing records that are

responsive to the request, excluding the

first 100 pages of duplication and the

first two hours of search time.

§ 2604.503 Limitations on charging fees.

(a) In general. Except for requesters

seeking records for a commercial use as

described in § 2604.502(b), the Office

will provide, without charge, the first

100 pages of duplication and the first

two hours of search time, or their cost

equivalent.

(b) De minimis fees. The Office will

not assess fees for individual requests if

the total charge would be $10.00 or less.

(c) Waiver or reduction of fees.

Records responsive to a request under 5

U.S.C. 552 will be furnished without

charge or at a reduced charge where the

Office determines, based upon

information provided by a requester in

support of a fee waiver request, that

disclosure of the requested information

is in the public interest because it is

likely to contribute significantly to

public understanding of the operations

or activities of the Government and is

not primarily in the commercial interest

of the requester. Requests for a waiver

or reduction of fees will be considered

on a case-by-case basis.

(1) In determining whether disclosure

is in the public interest because it is

likely to contribute significantly to

public understanding of the operations

or activities of the Government, the

Office will consider the following

factors:

(i) The subject of the request: Whether

the subject of the requested records

concerns the operations or activities of

the Government. The subject matter of

the requested records, in the context of
10012 Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations

the request, must specifically and

directly concern identifiable operations

or activities of the Federal Government.

Furthermore, the records must be sought

for their informative value with respect

to those Government operations or

activities;

(ii) The informative value of the

information to be disclosed: Whether

the information is likely to contribute to

an understanding of Government

operations or activities. The disclosable

portions of the requested records must

be meaningfully informative on specific

Government operations or activities in

order to hold potential for contributing

to increased public understanding of

those operations and activities. The

disclosure of information which is

already in the public domain, in either

a duplicative or substantially identical

form, would not be likely to contribute

to such understanding, as nothing new

would be added to the public record;

(iii) The contribution to an

understanding of the subject by the

public likely to result from disclosure:

Whether disclosure of the requested

information will contribute to public

understanding. The disclosure must

contribute to the understanding of the

public at large, as opposed to the

individual understanding of the

requester or a narrow segment of

interested persons. A requester’s

identity and qualifications—e.g.,

expertise in the subject area and ability

and intention to convey information to

the general public—will be considered;

and

(iv) The significance of the

contribution to public understanding:

Whether the disclosure is likely to

contribute significantly to public

understanding of Government

operations or activities. The public’s

understanding of the subject matter in

question, as compared to the level of

public understanding existing prior to

the disclosure, must be likely to be

significantly enhanced by the

disclosure.

(2) In determining whether disclosure

of the requested information is not

primarily in the commercial interest of

the requester, the Office will consider

the following factors:

(i) The existence and magnitude of a

commercial interest: Whether the

requester has a commercial interest that

would be furthered by the requested

disclosure. The Office will consider all

commercial interests of the requester, or

any person on whose behalf the

requester may be acting, which would

be furthered by the requested

disclosure. In assessing the magnitude

of identified commercial interests,

consideration will be given to the effect

that the information disclosed would

have on those commercial interests; and

(ii) The primary interest in disclosure:

Whether the magnitude of the identified

commercial interest of the requester is

sufficiently large, in comparison with

the public interest in disclosure, that

disclosure is primarily in the

commercial interest of the requester. A

fee waiver or reduction is warranted

only where the public interest can fairly

be regarded as greater in magnitude than

the requester’s commercial interest in

disclosure. The Office will ordinarily

presume that, where a news media

requester has satisfied the public

interest standard, the public interest

will be served primarily by disclosure to

that requester. Disclosure to data

brokers and others who compile and

market Government information for

direct economic return will not be

presumed to primarily serve the public

interest.

(3) Where only a portion of the

requested record satisfies the

requirements for a waiver or reduction

of fees under this paragraph, a waiver or

reduction shall be granted only as to

that portion.

(4) A request for a waiver or reduction

of fees must accompany the request for

disclosure of records, and should

include:

(i) A clear statement of the requester’s

interest in the documents;

(ii) The proposed use of the

documents and whether the requester

will derive income or other benefit from

such use;

(iii) A statement of how the public

will benefit from release of the

requested documents; and

(iv) If specialized use of the

documents is contemplated, a statement

of the requester’s qualifications that are

relevant to the specialized use.

(5) A requester may appeal the denial

of a request for a waiver or reduction of

fees in accordance with the provisions

of § 2604.304.

§ 2604.504 Miscellaneous fee provisions.

(a) Notice of anticipated fees in excess

of $25.00. Where the Office determines

or estimates that the fees to be assessed

under this section may amount to more

than $25.00, the Office shall notify the

requester as soon as practicable of the

actual or estimated amount of fees,

unless the requester has indicated in

advance his willingness to pay fees as

high as those anticipated. Where a

requester has been notified that the

actual or estimated fees may exceed

$25.00, the request will be deemed not

to have been received until the requester

has agreed to pay the anticipated total

fee. A notice to the requester pursuant

to this paragraph will include the

opportunity to confer with Office

personnel in order to reformulate the

request to meet the requester’s needs at

a lower cost.

(b) Aggregating requests. A requester

may not file multiple requests, each

seeking portions of a document or

documents in order to avoid the

payment of fees. Where there is reason

to believe that a requester or group of

requesters acting in concert, is

attempting to divide a request into a

series of requests for the purpose of

evading the assessment of fees, the

Office may aggregate the requests and

charge accordingly. The Office will

presume that multiple requests of this

type made within a 30-day period have

been made in order to evade fees.

Multiple requests regarding unrelated

matters will not be aggregated.

(c) Advance payments. An advance

payment before work is commenced or

continued will not be required unless:

(1) The Office estimates or determines

that the total fee to be assessed under

this section is likely to exceed $250.00.

When a determination is made that the

allowable charges are likely to exceed

$250.00, the requester will be notified of

the likely cost and will be required to

provide satisfactory assurance of full

payment where the requester has a

history of prompt payment of FOIA fees,

or will be required to submit an advance

payment of an amount up to the full

estimated charges in the case of

requesters with no history of payment;

or

(2) A requester has previously failed

to pay a fee charged in a timely fashion

(i.e., within 30 days of the date of the

billing). In such cases the requester may

be required to pay the full amount owed

plus any applicable interest as provided

by paragraph (e) of this section, and to

make an advance payment of the full

amount of the estimated fee before the

Office begins to process a new request.

(3) When the Office requests an

advance payment of fees, the

administrative time limits described in

subsection (a)(6) of the FOIA will begin

to run only after the Office has received

the advance payment.

(d) Billing and payment. Normally the

Office will require a requester to pay all

fees before furnishing the requested

records. However, the Office may send

a bill along with, or following the

furnishing of records, in cases where the

requester has a history of prompt

payment.

(e) Interest charges. Interest charges

on an unpaid bill may be assessed

starting on the 31st day following the

day on which the billing was sent.

Interest shall be at the rate prescribed in
Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations 10013

31 U.S.C. 3717 and shall accrue from

the date of billing. To collect unpaid

bills, the Office will follow the

provisions of the Debt Collection Act of

1982, as amended (96 Stat. 1749 et seq.)

including the use of consumer reporting

agencies, collection agencies, and offset.

Subpart F—Annual Report to Congress

§ 2604.601 Submission of report.

On or before March 1 of each calendar

year, a report of OGE’s activities over

the preceding year relating to the

Freedom of Information Act will be

submitted to the Speaker of the House

of Representatives and the President of

the Senate.

§ 2604.602 Contents of the report.

The annual report to Congress will

include for the relevant reporting

period:

(a) The number of FOIA requests

made to OGE, determinations made by

OGE not to comply with requests for

records made to it under the FOIA and

the reasons for each such determination;

(b) The number of appeals made by

persons under the FOIA, the results of

such appeals, and the reasons for the

action by OGE upon each appeal that

results in a denial of information;

(c) The names and titles or positions

of each person responsible for the denial

of records requested under the FOIA;

(d) The results of each proceeding

conducted pursuant to subsection

(a)(4)(F) of the FOIA, including a report

of the disciplinary action taken against

the officer or employee who was

primarily responsible for improperly

withholding records or an explanation

of why disciplinary action was not

taken;

(e) A copy of every rule made by OGE

regarding the FOIA;

(f) A copy of the fee schedule and the

total amount of fees collected by OGE

for making records available under the

FOIA; and

(g) Such other information as

indicates efforts by OGE to administer

fully the FOIA.

Subpart G—Fees for the Reproduction

and Mailing of Public Financial

Disclosure Reports

§ 2604.701 Policy.

Fees for the reproduction and mailing

of public financial disclosure reports

(SF 278s) requested pursuant to section

105 of the Ethics in Government Act of

1978, as amended, and § 2634.603 of

this chapter shall be assessed according

to the schedule contained in § 2604.702.

Requesters shall pay fees by check or

money order made payable to the

Treasury of the United States. Except as

provided in § 2604.702(d), nothing

concerning fees in subpart E of this part

supersedes the charges set forth in this

subpart for records covered in this

subpart.

§ 2604.702 Charges.

(a) Duplication. Except as provided in

paragraph (c) of this section, copies of

public financial disclosure reports (SF

278s) requested pursuant to section 105

of the Ethics in Government Act of

1978, as amended, and § 2634.603 of

this chapter will be provided upon

payment of $.03 per page furnished.

(b) Mailing. Except as provided in

paragraph (c) of this section, the actual

direct cost of mailing public financial

disclosure reports will be charged for all

forms requested. Where the Office elects

to comply, as a matter of administrative

discretion, with a request for special

mailing services, the actual direct cost

of such service will be charged.

(c) De minimis fees. The Office will

not assess fees for individual requests if

the total charge would be $10.00 or less.

(d) Miscellaneous fee provisions. The

miscellaneous fee provisions set forth in

§ 2604.504 apply to requests for public

financial disclosure reports pursuant to

§ 2634.603 of this chapter.

[FR Doc. 95–4347 Filed 2–22–95; 8:45 am]

BILLING CODE 6345–01–U

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Airspace Docket No. 94–AGL–23]

Establishment of Class D Airspace;

Akron-Canton, OH

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Final rule.

SUMMARY: This action establishes Class

D airspace at Akron-Canton Regional

Airport, Akron, Ohio. Currently, the

airspace at Akron-Canton Regional

Airport is designated as Class C

airspace. During certain periods of time,

the Akron-Canton Air Traffic Control

Tower (ATCT) radar approach control

facility is not operational. However, the

ATCT at Akron-Canton Regional Airport

is full-time. The intended effect of this

proposal is to provide accurate reference

to Class D airspace at Akron-Canton

Regional Airport.

EFFECTIVE DATE: 0901 UTC, May 25,

1995.

FOR FURTHER INFORMATION CONTACT:

Jeffrey L. Griffith, Air Traffic Division,

System Management Branch, AGL–530,

Federal Aviation Administration, 2300

East Devon Avenue, Des Plaines, Illinois

60018, telephone (708) 294–7568.

SUPPLEMENTARY INFORMATION:

History

On August 24, 1994, the FAA

proposed to amend part 71 of the

Federal Aviation Regulations (14 CFR

part 71) to establish Class D airspace at

Akron-Canton Regional Airport, Akron,

Ohio (59 FR 43517).

Currently, the airspace at AkronCanton Regional Airport is designated

as Class C airspace. During certain

period of time, the Akron-Canton ATCT

radar approach control facility is not

operational and traffic is re-routed to

Cleveland ARTCC during those times.

However, the ATCT at Akron-Canton

Regional Airport is full-time. The

intended effect of this proposal is to

correctly reference Class D airspace in

aeronautical maps and charts. This

action does not change the existing

method of handling air traffic operations

at Akron-Canton ATCT.

Interested parties were invited to

participate in this rulemaking

proceeding by submitting written

comments on the proposal to the FAA.

Eight (8) letters of objection were

received in response to the proposal.

These objections were based on

concerns for safety. The following

concerns were raised:

1. Establishing Class D airspace at

Akron, Ohio would jeopardize safety at

Akron-Canton Regional Airport for air

traffic operations during the hours that

Class D airspace would be in effect. VFR

traffic should be separated from IFR

traffic.

2. Within the Weather Bureau closing,

the airport would be unattended for the

hours of Class D operation (midnight to

6:00 a.m. local time) and therefore there

would be no controllers at the ATCT to

observe and instruct snow removal from

the runways during these times. This

was of concern to the commenter

because the airport is in the snow belt

of Lake Erie.

3. Akron-Canton ATCT needs more

controllers to handle the existing and

increasing traffic so as not to jeopardize

the continued growth of Akron-Canton

Regional Airport.

All of these comments were

considered and evaluated. They are

responded to as follows:

1. There is no change to the existing

method of handling air traffic operations

at Akron-Canton Regional Airport. Class

D airspace has existed at Akron-Canton

Regional Airport for several years;

however, it is not correctly indicated on

aeronautical maps and charts. During