Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Proposed Rules 27031

proposal would not have sufficient

federalism implications to warrant the

preparation of a Federalism Assessment.

For the reasons discussed above, I

certify that this proposed regulation (1)

is not a ‘‘significant regulatory action’’

under Executive Order 12866; (2) is not

a ‘‘significant rule’’ under the DOT

Regulatory Policies and Procedures (44

FR 11034, February 26, 1979); and (3) if

promulgated, will not have a significant

economic impact, positive or negative,

on a substantial number of small entities

under the criteria of the Regulatory

Flexibility Act. A copy of the draft

regulatory evaluation prepared for this

action is contained in the Rules Docket.

A copy of it may be obtained by

contacting the Rules Docket at the

location provided under the caption

ADDRESSES.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviation

safety, Safety.

The Proposed Amendment

Accordingly, pursuant to the

authority delegated to me by the

Administrator, the Federal Aviation

Administration proposes to amend part

39 of the Federal Aviation Regulations

(14 CFR part 39) as follows:

PART 39—AIRWORTHINESS

DIRECTIVES

1. The authority citation for part 39

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 44701.

§ 39.13 [Amended]

2. Section 39.13 is amended by

adding the following new airworthiness

directive:

Learjet: Docket 95–NM–240–AD.

Applicability: Model 60 airplanes, as listed

in Learjet Service Bulletin SB 60–71–2, dated

May 12, 1995; certificated in any category.

Note 1: This AD applies to each airplane

identified in the preceding applicability

provision, regardless of whether it has been

otherwise modified, altered, or repaired in

the area subject to the requirements of this

AD. For airplanes that have been modified,

altered, or repaired so that the performance

of the requirements of this AD is affected, the

owner/operator must request approval for an

alternative method of compliance in

accordance with paragraph (b) of this AD.

The request should include an assessment of

the effect of the modification, alteration, or

repair on the unsafe condition addressed by

this AD; and, if the unsafe condition has not

been eliminated, the request should include

specific proposed actions to address it.

Compliance: Required as indicated, unless

accomplished previously.

To prevent the sealant material in the aft

core cowl nozzle of the engine nacelles from

interfering with the lever of the emergency

fuel shutoff actuating mechanism, which

could result in the failure of the emergency

fuel shutoff actuating mechanism and

resultant engine shutdown, accomplish the

following:

(a) Within 90 days after the effective date

of this AD, modify the aft core cowl nozzle

of the engine nacelles in accordance with

Learjet Service Bulletin SB 60–71–2, dated

May 12, 1995.

(b) An alternative method of compliance or

adjustment of the compliance time that

provides an acceptable level of safety may be

used if approved by the Manager, Wichita

Aircraft Certification Office (ACO), FAA,

Small Airplane Directorate. Operators shall

submit their requests through an appropriate

FAA Principal Maintenance Inspector, who

may add comments and then send it to the

Manager, Wichita ACO.

Note 2: Information concerning the

existence of approved alternative methods of

compliance with this AD, if any, may be

obtained from the Wichita ACO.

(c) Special flight permits may be issued in

accordance with sections 21.197 and 21.199

of the Federal Aviation Regulations (14 CFR

21.197 and 21.199) to operate the airplane to

a location where the requirements of this AD

can be accomplished.

Issued in Renton, Washington, on May 22,

1996.

John J. Hickey,

Acting Manager, Transport Airplane

Directorate, Aircraft Certification Service.

[FR Doc. 96–13498 Filed 5–29–96; 8:45 am]

BILLING CODE 4910–13–U

ARMS CONTROL AND DISARMAMENT

AGENCY

22 CFR Part 602

Freedom of Information Policy and

Procedures

AGENCY: Arms Control and Disarmament

Agency.

ACTION: Notice of proposed rulemaking.

SUMMARY: The United States Arms

Control and Disarmament Agency

(ACDA) proposes to revise and restate in

their entirety its rules that govern the

availability and release of information.

By clarifying these rules, this proposal

will help the public to interact better

with ACDA and is part of ACDA’s effort

to update and streamline its regulations.

ACDA invites comments from interested

groups and members of the public on

the proposed regulations.

DATES: To be considered, comments

must be delivered by mail or in person

to the address, or faxed to the telephone

number, listed below by 5:00 p.m. on

Monday, July 8, 1996.

ADDRESSES: Comments should be

directed to the Office of the General

Counsel, United States Arms Control

and Disarmament Agency, Room 5635,

320 21st Street, N.W., Washington, DC

20451; FAX (202) 647–0024. Comments

will be available for inspection between

8:15 a.m. and 5:00 p.m. at the same

address.

FOR FURTHER INFORMATION CONTACT:

Frederick Smith, Jr., United States Arms

Control and Disarmament Agency,

Room 5635, 320 21st Street, N.W.,

Washington, DC 20451, telephone (202)

647–3596.

SUPPLEMENTARY INFORMATION: ACDA

proposes to update, clarify, reorganize,

and streamline its rules regarding the

availability and release of information

under the Freedom of Information Act,

as amended. ACDA does not intend

these rules to materially affect current

ACDA standards, policies, or

procedures.

Regulatory Flexibility Act Certification

It is hereby certified that the proposed

rule will not have a significant

economic impact on a substantial

number of small entities. Accordingly, a

regulatory flexibility analysis is not

required.

Executive Order 12866 Determination

ACDA has determined that the

proposed rule is not a significant

regulatory action within the meaning of

section 3(f) of that Executive Order.

Paperwork Reduction Act Statement

The proposed rule is not subject to the

provisions of the Paperwork Reduction

Act because it does not contain any

information collection requirements

within the meaning of that Act.

Unfunded Mandates Act Determination

ACDA has determined that the

proposed rule will not result in

expenditures by state, local, and tribal

governments, or by the private sector, of

more than $100 million in any one year.

Accordingly, a budgetary impact

statement is not required under section

202 of the Unfunded Mandates Reform

Act of 1995, 2 U.S.C. 1532.

List of Subjects in 22 CFR Part 602

Freedom of Information Act.

The Proposed Regulations

ACDA proposes to revise 22 CFR Part

602 to read as follows:

PART 602—FREEDOM OF

INFORMATION POLICY AND

PROCEDURES

Subpart A—Basic Policy

Sec.

602.1 Scope of part.

602.2 Definitions.

602.3 General policy.
27032 Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Proposed Rules

Subpart B—Procedure for Requesting

Records

602.10 Requests for records.

602.11 Requests in person.

602.12 Availability of records at the ACDA

Office of Public Affairs.

602.13 Copies of records.

602.14 Records of other agencies,

governments and international

organizations.

602.15 Overseas requests.

602.16 Responses and time limits on

requests.

602.17 Time extensions.

602.18 Inability to comply with requests.

602.19 Predisclosure notification for

confidential commercial information.

Subpart C—Fees

602.20 Fees for records search, review,

copying, certification, and related

services.

602.21 Waiver or reduction of fees.

602.22 [Reserved]

602.23 GPO and free publications.

602.24 Method of payment.

Subpart D—Denials of Records

602.30 Denials.

602.31 Exemptions.

Subpart E—Review of Denials of Records

602.40 Procedure for appealing initial

determinations to withhold records.

602.41 Decision on appeal.

Subpart F—Annual Report to the Congress

602.50 Requirements for annual report.

Authority: 5 U.S.C. 552; 22 U.S.C. 2581;

and 31 U.S.C. 9701.

Subpart A—Basic Policy

§ 602.1 Scope of part.

This part 602 establishes the policies,

responsibilities and procedures for

release to members of the public of

records which are under the jurisdiction

of the U.S. Arms Control and

Disarmament Agency.

§ 602.2 Definitions.

As used throughout this part, the

following terms have the meanings set

forth in this section:

(a) The term Agency and the acronym

ACDA stand for the U.S. Arms Control

and Disarmament Agency.

(b) The term records includes all

books, papers, maps, photographs, or

other documentary materials, regardless

of physical form or characteristics, made

or received by the Agency in pursuance

of Federal law or in connection with the

transaction of public business and

preserved or appropriate for

preservation by the Agency or its

legitimate successor as evidence of the

organization, functions, policies,

decisions, procedures, operations, or

other activities of the Government or

because of the informational value of

data contained therein. Library or

museum material made or acquired

solely for reference or exhibition

purposes is not included within the

definition of the term ‘‘records.’’

(c) Deputy Director means the Deputy

Director of the Agency.

(d) The acronym FOIA stands for the

Freedom of Information Act, as

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

§ 602.3 General policy.

(a) In accordance with section 2 of the

Arms Control and Disarmament Act, as

amended (22 U.S.C. 2551), it is the

policy of ACDA to carry out as one of

its primary functions the dissemination

and coordination of public information

concerning arms control,

nonproliferation, and disarmament.

(b) In compliance with the FOIA,

ACDA will make available upon request

by members of the public to the fullest

extent practicable all Agency records

under its jurisdiction, as described in

the FOIA, except to the extent that they

may be exempt from disclosure under

the FOIA and § 602.31.

Subpart B—Procedure for Requesting

Records

§ 602.10 Requests for records.

(a) A written request for records

should be addressed to: FOIA Officer,

U.S. Arms Control and Disarmament

Agency, 320 21st Street, N.W.,

Washington, DC 20451. To facilitate

processing, the letter of request and

envelope should be conspicuously

marked ‘‘FOIA request.’’

(b) The request should identify the

desired record or reasonably describe it.

The identification should be as specific

as possible so that a record can be found

readily. Blanket requests or requests for

‘‘the entire file of’’ or ‘‘all matters

relating to’’ a specified subject will not

be accepted. The Agency will make any

reasonable effort to assist the requester

in sharpening the request to eliminate

extraneous and unwanted materials and

to keep search and copying fees to a

minimum.

(c) If a fee is chargeable under subpart

C of this part for search or duplication

costs incurred in connection with a

request for an Agency record, the

request should include the anticipated

fee or should ask for a determination of

such fee. Any chargeable fee must be

paid in full prior to issuance of

requested materials. The method of

payment is described in § 602.24.

§ 602.11 Requests in person.

A member of the public may request

an Agency record by making an

appointment to apply in person between

the hours of 8:30 a.m. and 4:00 p.m. at

the ACDA Office of Public Affairs, 320

21st Street, N.W., Washington, DC

20451. Form ACDA–21, Public

Information Service Request, is

available at the ACDA Office of Public

Affairs for the convenience of members

of the public in requesting Agency

records.

§ 602.12 Availability of records at the

ACDA Office of Public Affairs.

(a) A current index identifying all

available records is kept on file at the

ACDA Office of Public Affairs. Copies of

this index may be obtained free upon

request.

(b) In addition, the ACDA Office of

Public Affairs will maintain or have

available, unless authorized to be

withheld, certain types of unclassified

records, including but not necessarily

limited to the following:

(1) A copy of the ACDA Manual and

other Agency regulations, including a

copy of title 22 of the Code of Federal

Regulations (CFR) and any other title of

the CFR in which Agency regulations

have been published;

(2) Copies of arms control and

disarmament treaties or agreements in

force;

(3) Research contracts between the

Agency and universities or other nonGovernment organizations; and

(4) Reimbursable agreements with

other Government agencies.

(c) Copies of records available to the

public may be inspected by a requester

in the ACDA Office of Public Affairs

during the business hours stated in

§ 602.11. Copies of records made

available for inspection may not be

removed by any requester from the

ACDA Office of Public Affairs.

§ 602.13 Copies of records.

(a) The Agency will provide copies of

requested records of the same type and

quality that it would provide to

personnel of another U.S. Government

agency in the course of official business.

It will not accept requests for special

types of copying processes or for special

standards of quality of reproduction.

(b) Copies of records requested will be

reproduced as promptly as possible and

mailed to the requester. Chargeable fees

will be determined according to the

schedule set forth in subpart C of this

part. The FOIA Officer is authorized to

limit copies of each requested record to

ten or fewer when there exists an

extraordinary demand for the number of

available copies or when requirements

place excessive demands on the

Agency’s copying facilities.
Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Proposed Rules 27033

§ 602.14 Records of other agencies,

governments and international

organizations.

(a) Requests for records that were

originated by or are primarily the

concern of another U.S. Government

department or agency shall be

forwarded to the particular department

or agency involved, and the requester

notified in writing.

(b) Requests for records that have

been furnished to the Agency by foreign

governments or by international

organizations will not normally be

released unless the organization or

government concerned has indicated

that the particular information should or

may be made public. Where

international organizations or foreign

governments concerned have not made

such a determination, the requester will

be so advised, and if possible, furnished

the address to which the request may be

sent.

§ 602.15 Overseas requests.

Pursuant to the general policy

outlined in § 602.3, ACDA has made

arrangements to provide the United

States Information Agency (USIA) with

material for dissemination abroad, such

as information on official U.S. positions

on arms control and disarmament

policy. Requests originating in an area

served by a USIA office which are

received at Agency headquarters, will be

referred to USIA when appropriate for

direct response to the requester.

§ 602.16 Responses and time limits on

requests.

(a) The FOIA requires an initial

determination on a request for an

Agency record to be made within ten

working days after receipt of the

request.

(b) If it is determined that the

requested record (or portions thereof)

will be made available, the requested

material will be forwarded promptly

after the initial determination, provided

any applicable fee has been paid in full.

(c) If prior to making an initial

determination it is anticipated that the

costs chargeable for a request will

amount to more than $25.00 or more

than the amount of the payment

accompanying the request, whichever is

larger, the requester shall be promptly

notified of the total amount of the

anticipated fee or such portion thereof

as can readily be estimated. In these

instances, an advance deposit in the

estimated amount of the search, review,

and copying costs may be required. The

request for an advance deposit shall

extend an offer to the requester to

consult with Agency personnel in order

to reformulate the request in a manner

that will reduce the fee, yet still meet

the needs of the requester.

(d) In instances where the Agency has

requested an advance deposit, the date

of receipt of the deposit will be

considered as the request date which

begins the period of response by the

Agency.

(e) Receipt of a request for Agency

records will be determined by the time

and date the request is received.

(f) Where an obvious delay in receipt

of a request has occurred, such as in

cases where the requester has failed to

address the request properly, or where

a delay has been caused in the mails,

the Agency will dispatch to the

requester an acknowldgement of the

receipt of the request.

§ 602.17 Time extensions.

(a) In unusual circumstances, the time

limit for an initial or final determination

may be extended, but not to exceed a

total of ten working days in the

aggregate in the processing of any

specific request for an Agency record.

(b) ‘‘Unusual circumstances’’ means,

but only to the extent reasonably

necessary to the proper processing of

the particular case:

(1) The need to search for and collect

the requested records from other

establishments that are physically

separate from ACDA headquarters;

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

appropriately examine a voluminous

amount of separate and distinct records

which are demanded in a single request;

or

(3) The need for consultation, which

shall be conducted with all practicable

speed, with another agency having a

substantial interest in the determination

of the request.

§ 602.18 Inability to comply with requests.

(a) When a request cannot be fulfilled,

the requester will be so informed with

reasons, and any fees returned after

deduction of applicable search costs.

Such reasons may include, but are not

limited to the following:

(1) Insufficient or vague identifying

information which makes identification

or location of the record impossible;

(2) No such record in existence;

(3) Record available for purchase from

the Government Printing Office or

elsewhere; or

(4) Records destroyed pursuant to the

Records Disposal Act.

(b) Inability to comply with requests

shall be processed the same as denials

of records, i.e., notification to the

requester shall be in writing, shall set

forth the reasons therefor, shall be

signed by the name and title of the FOIA

Officer, and shall include an

explanation of the requester’s right to

appeal, including the address to which

an appeal may be directed.

§ 602.19 Predisclosure notification for

confidential commercial information.

(a) When notification is required. If a

request under the FOIA seeks a record

that contains information submitted by

a person or entity outside the Federal

government that arguably is exempt

from disclosure under exemption 4 of

the FOIA because disclosure could

reasonably be expected to cause

substantial competitive harm, the

Agency shall notify the submitter that

such a request has been made whenever:

(1) The submitter has made a good

faith designation of information, less

than ten years old, as confidential

commercial or financial information, or

(2) The Agency has reason to believe

that disclosure of the information could

reasonably be expected to cause

substantial competitive harm.

(b) Notification to submitter. The

notice to the submitter shall either

describe the exact nature of the business

information requested or provide copies

of the records or portions of records

containing the information. The notice

shall afford the submitter a reasonable

period of time, based on the amount

and/or complexity of the information,

within which to object to disclosure.

(c) Objection by submitter. Any

objection by a submitter to disclosure

must be made in writing and sent to:

FOIA Officer, U.S. Arms Control and

Disarmament Agency, 320 21st Street,

N.W., Washington, DC 20451. It should

identify the portion(s) of the

information to which disclosure is

objected, and should include a detailed

statement of all claimed grounds for

withholding any of the information

under the FOIA and, in the case of

exemption 4, an explanation of why the

information constitutes a trade secret or

commercial or financial information

that is privileged and confidential,

including a specification of any claim of

competitive or other business harm that

would result from disclosure.

(d) Notification to requester. The

Agency shall notify the requester in

writing when any notification to a

submitter is made pursuant to paragraph

(a) of this section.

(e) When notification is not required.

Notification to a submitter is not

required if:

(1) The Agency determines that the

information requested should not be

disclosed;

(2) Disclosure is required by statute

(other than FOIA) or by regulation; or
27034 Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Proposed Rules

(3) The information has previously

been lawfully published or officially

made available to the public.

(f) Notice of intent to disclose. If the

Agency determines that despite the

objection of the submitter the requested

information should be disclosed, in

whole or in part, it shall notify both the

requester and the submitter of the

decision and shall provide to the

submitter in writing:

(1) A brief explanation of why the

submitter’s objections were not

sustained;

(2) A description of the information to

be disclosed; and

(3) A specified disclosure date that

provides a reasonable period of time

between receipt of the notice and the

disclosure date.

(g) Notice of lawsuit. (1) Whenever a

requester brings legal action to compel

disclosure of information covered by

paragraph (a) of this section, the Agency

shall promptly notify the submitter in

writing.

(2) Whenever a submitter brings legal

action to prevent disclosure of

information covered by paragraph (a) of

this section, the Agency shall promptly

notify the requester in writing.

Subpart C—Fees

§ 620.20 Fees for records search, review,

copying, certification, and related services.

The fees for search, review, and

copying services for Agency records

under the FOIA or the Privacy Act are

as follows:

(a) When documents are requested for

commercial use, requesters will be

assessed the full direct costs for

searching for, reviewing for release, and

copying the records sought. A

‘‘commercial use’’ request refers to a

request 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 the

person on whose behalf the request is

made.

(b) Requesters from educational and

noncommercial scientific institutions

will be assessed only copying costs.

(c) Requesters who are representatives

of the news media (persons actively

gathering news for an entity that is

organized and operated to publish or

broadcast news to the public) will be

assessed only copying costs.

(d) All other requesters will be

assessed fees which recover the full and

reasonable direct cost of searching for,

reviewing for release, and copying

records that are responsive to the

request.

(e) Requesters from educational and

noncommercial scientific institutions,

representatives of the news media, and

all other noncommercial users, will not

be assessed for the first 100 pages of

copying or the first two hours of search

time. Commercial use requesters will

not be entitled to these free services.

(f) The search and review hourly fees

will be based upon employee grade

levels in order to recoup the full,

allowable direct costs attributable to

their performance of these functions.

(g) The fee for paper copy

reproduction will be $.20 per page.

(h) The fee for duplication of

computer tape or printout reproduction

or other reproduction (e.g., microfiche)

will be the actual cost, including

operator time.

(i) If the cost of collecting any fee

would be equal to or greater than the fee

itself, it will not be assessed.

(j) A fee may be charged for searches

that are not productive and for searches

for records or parts of records that

subsequently are determined to be

exempt from disclosure.

(k) Interest charges may be assessed

on any unpaid bill starting on the 31st

day following the day on which the

billing was sent, at the rate prescribed

in 31 U.S.C. 3717 and will accrue from

the date of billing. The Debt Collection

Act, including disclosure to consumer

reporting agencies and the use of

collection agencies, will be utilized to

encourage payment where appropriate.

(l) If search charges are likely to

exceed $25.00, the requester will be

notified of the estimated fees unless the

requester’s willingness to pay whatever

fee is assessed has been provided in

advance.

(m) An advance payment (before work

is commenced or continued on a

request) may be required if the charges

are likely to exceed $250.00. Requesters

who have previously failed to pay a fee

in a timely fashion (i.e., within 30 days

of the date of billing) may be required

to pay this amount plus any applicable

interest (or demonstrate that the fee has

been paid) and then make an advance

payment of the full amount of the

estimated fee before the new or pending

request is processed.

§ 602.21 Waiver or reduction of fees.

Documents shall be furnished without

any charge or at a charge reduced below

the fees set forth in § 602.20 if

disclosure of the 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. The following six factors

will be employed in determining when

such fees shall be waived or reduced:

(a) The subject of the request:

Whether the subject of the requested

records concerns ‘‘the operations or

activities of the government;’’

(b) The informative value of the

information to be disclosed: Whether

the disclosure is ‘‘likely to contribute’’

to an understanding of government

operations or activities;

(c) The contribution to an

understanding of the subject by the

general public likely to result from

disclosure: Whether disclosure of the

information will contribute to the

‘‘public understanding;’’

(d) The significance of the

contribution to public understanding:

Whether the disclosure is likely to

contribute ‘‘significantly’’ to public

understanding of government operations

or activities;

(e) The existence and magnitude of a

commercial interest: Whether the

requester has a commercial interest that

would be furthered by the requested

disclosure; and, if so

(f) 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.’’

§ 602.22 [Reserved]

§ 602.23 GPO and free publications.

(a) The index of records available in

the Agency’s Office of Public Affairs

will list the sales offices of records

published by the Government Printing

Office (GPO). The Agency will refer

each requester to the appropriate sales

office and refund any fee payments

accompanying the request. Published

records out of print at the GPO may be

copied by the Agency for the requester

at the requester’s expense in accordance

with the fee schedule established for

copying service. In some instances the

Agency may have extra copies of out of

print GPO records. These extra copies

will be provided to requesters at the

printed GPO price.

(b) The Agency makes some

publications or records available to the

public without charge. These

regulations neither change that practice

nor require payment of a fee by a

requester unless the original stock has

been exhausted and copying services are

necessary to satisfy a request.

§ 602.24 Method of payment.

(a) Payment may be in the form of

cash, a personal check or bank draft

drawn on a bank in the United States,

or a postal money order. Remittances

shall be made payable to the Treasury
Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Proposed Rules 27035

of the United States and mailed or

delivered to the FOIA Officer, U.S.

Arms Control and Disarmament Agency,

320 21st Street, N.W., Washington, DC

20451. Cash should not be sent by mail.

(b) A receipt for fees paid will be

given upon request.

Subpart D—Denials of Records

§ 602.30 Denials.

(a) Requests for inspection or copies

of records may be denied where the

information or record is exempt from

disclosure for reasons stated in § 602.31.

(b) Denials shall be in writing, shall

set forth the reasons therefor, shall be

signed by the FOIA Officer and shall

include an explanation of the

requester’s right to appeal, including the

address to which an appeal may be

directed.

§ 602.31 Exemptions.

The requirements of this part to make

Agency records available do not apply

to matters that are:

(a) Specifically authorized under

criteria established by an Executive

Order to be kept secret in the interest of

national defense or foreign policy and

are in fact properly classified pursuant

to such Executive Order;

(b) Related solely to the internal

personnel rules and practices of the

Agency;

(c) Specifically exempted from

disclosure by statute;

(d) Trade secrets and commercial or

financial information obtained from a

person and privileged or confidential;

(e) Inter-agency or intra-agency

memoranda or letters that would not be

available by law to a private party in

litigation with the Agency;

(f) Personnel and medical files and

similar files the disclosure of which

would constitute a clearly unwarranted

invasion of personal privacy;

(g) Records or information compiled

for law enforcement purposes, but only

to the extent that the production of such

law enforcement records or information:

(1) Could reasonably be expected to

interfere with enforcement proceedings;

(2) Would deprive a person of a right

to a fair trial or impartial adjudication;

(3) Could reasonably be expected to

constitute an unwarranted invasion of

personal privacy;

(4) Could reasonably be expected to

disclose the identity of a confidential

source, including a State, local or

foreign agency or authority or any

private institution that furnished

information on a confidential basis, and,

in the case of a record or information

compiled by a criminal law enforcement

authority in the course of a criminal

investigation, or by an agency

conducting a lawful national security

intelligence investigation, information

furnished by a confidential source;

(5) Would disclose techniques and

procedures for law enforcement

investigations or prosecutions, or would

disclose guidelines for law enforcement

investigations or prosecutions if such

disclosure could reasonably be expected

to risk circumvention of the law; or

(6) Could reasonably be expected to

endanger the life or physical safety of

any individual.

(h) Contained in or related to

examination, operating or condition

reports prepared by, on behalf of, or for

the use of an agency responsible for the

regulation or supervision of financial

institutions; or

(i) Geological and geophysical

information and data, including maps,

concerning wells.

Subpart E—Review of Denials of

Record

§ 602.40 Procedure for appealing initial

determinations to withhold records.

(a) A member of the public who has

requested an Agency record in

accordance with subpart B of this part

and who has received an initial

determination that does not comply

fully with the request, may appeal such

a determination.

(b) The appeal shall:

(1) Be in writing;

(2) Be initiated within 30 working

days of the initial determination

denying the request;

(3) Include a copy of the initial

written request, a copy of the letter of

denial, and the requester’s reasons for

appealing the denial; and

(4) Be addressed to the Deputy

Director, U.S. Arms Control and

Disarmament Agency, 320 21st Street,

N.W., Washington, DC 20451.

(c) The 30-day period for appealing a

denial begins on the date of the denial

letter. The 30-day limitation may be

waived by the Agency for good cause

shown. The Agency will consider any

request closed if, within 30 working

days after a complete or partial denial,

the requester fails to appeal the denial.

§ 602.41 Decision on appeal.

(a) Review and final determination on

an appeal shall be made by the Deputy

Director.

(b) [Reserved]

(c) Review of an appeal shall be made

on the submitted record. No personal

appearance, oral argument, or hearing

shall be permitted.

(d) The final determination on an

appeal from a denial shall be made by

the Deputy Director within 20 working

days of receipt of the appeal by the

Agency.

(e) If the final determination is to

release the withheld material, the

requester will be notified immediately

and the material will be forwarded

promptly in accordance with the

procedure described in § 602.16 for

notifications of initial determinations.

(f) If the final determination is to

continue to withhold material in whole

or in part, the requester will be notified

immediately of the determination, the

reasons therefor, and the right to

judicial review.

(g) All decisions will be indexed and

available for inspection and copying in

the same manner as other Agency final

orders and opinions, if any, under 5

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

Subpart F—Annual Report to the

Congress

§ 602.50 Requirements for annual report.

(a) On or before March 1 of each

calendar year, ACDA shall submit a

report covering the preceding calendar

year to the Speaker of the House of

Representatives and the President of the

Senate for referral to the appropriate

committees of the Congress. The report

shall include the following information:

(1) The number of determinations

made by ACDA not to comply with

requests for records made to the Agency

under this part and the reasons for each

such determination;

(2) The number of appeals made by

persons under subpart E of this part, the

result of such appeals, and the reason

for the action upon each appeal that

results in a denial of information;

(3) The names and titles or positions

of each person responsible for the denial

of records requested under this part, and

the number of instances of participation

for each;

(4) The results of each proceeding

conducted pursuant to 5 U.S.C.

552(a)(4)(F), 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 actions was not taken;

(5) A copy of this part 602 and any

other rule or regulation made by ACDA

regarding 5 U.S.C. 552;

(6) A copy of the fee schedule and the

total amount of fees collected by ACDA

for making records available under this

part; and

(7) Such other information as

indicates efforts to administer fully this

part.

(b) The FOIA Office will be

responsible for preparing the report for

review and submission to the Congress.
27036 Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Proposed Rules

Dated: May 20, 1996.

Mary Elizabeth Hoinkes,

General Counsel.

[FR Doc. 96–13469 Filed 5–29–96; 8:45 am]

BILLING CODE 6820–32–M

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[PS–29–95]

RIN 1545–AT60

Available Unit Rule

AGENCY: Internal Revenue Service (IRS),

Treasury.

ACTION: Notice of proposed rulemaking

and notice of public hearing.

SUMMARY: This document contains

proposed regulations concerning the

low-income housing credit. The

proposed regulations provide rules for

determining the treatment of lowincome housing units in a building that

are occupied by individuals whose

incomes increase above 140 percent of

the income limitation applicable under

section 42(g)(1). The proposed

regulations affect owners of those

buildings. This document also provides

notice of public hearing on these

proposed regulations.

DATES: Written comments and outlines

of topics to be discussed at the public

hearing scheduled for September 17,

1996, must be received by August 28,

1996.

ADDRESSES: Send submissions to:

CC:DOM:CORP:R (PS–29–95), room

5228, Internal Revenue Service, POB

7604, Ben Franklin Station, Washington,

DC 20044. In the alternative,

submissions may be hand delivered

between the hours of 8 a.m. and 5 p.m.

to: CC:DOM:CORP:R (PS–29–95),

Courier’s Desk, Internal Revenue

Service, 1111 Constitution Avenue NW.,

Washington, DC. The public hearing

will be held in the NYU Classroom,

room 2615, Internal Revenue Building,

1111 Constitution Avenue, NW.,

Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Concerning the regulations, David Selig,

(202) 622–3040; concerning submissions

and the hearing, Christina Vasquez,

(202) 622–7180 (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

Background

This document contains proposed

amendments to the Income Tax

Regulations (26 CFR Part 1) under

section 42. These amendments are

proposed to provide guidance under

section 42(g)(2)(D), as amended by

section 7108(e)(1) of the Omnibus

Budget and Reconciliation Act of 1989,

and section 11701(a)(3)(A) and (a)(4) of

the Omnibus Budget and Reconciliation

Act of 1990. Section 42(g)(2)(D)

provides rules for determining the

treatment of low-income housing units

that are occupied by individuals whose

incomes rise above the income

limitation applicable under section

42(g)(1).

The general rule in section

42(g)(2)(D)(i) provides that if the income

of an occupant of a low-income unit

increases above the income limitation

applicable under section 42(g)(1), the

unit continues to be treated as a lowincome unit. This general rule only

applies if the occupant’s income

initially met the income limitation and

the unit continues to be rent-restricted.

Section 42(g)(2)(D)(ii), however,

provides an exception to the general

rule in section 42(g)(2)(D)(i). The unit

ceases being treated as a low-income

unit when two conditions occur. The

first condition is that the occupant’s

income increases above 140 percent of

the income limitation applicable under

section 42(g)(1), or above 170 percent

for a deep rent-skewed project described

in section 142(d)(4)(B) (applicable

income limitation). When this occurs,

the unit becomes an over-income unit.

The second condition is that a new

resident, whose income exceeds the

applicable income limitation

(nonqualified resident), occupies any

residential unit in the building of a

comparable or smaller size (comparable

unit).

Explanation of Provisions

All Available Units Must Be Rented to

Qualified Residents

The heading of section 42(g)(2)(D)(ii)

indicates that the next available unit

must be rented to a low-income tenant

to maintain the low-income status of an

over-income unit. Although the heading

of section 42(g)(2)(D)(ii) refers to the

next available unit, the body of section

42(g)(2)(D)(ii) clarifies that if any

available comparable unit is occupied

by a nonqualified resident, the overincome unit ceases to be treated as a

low-income unit. Therefore, all

available comparable units in the

building, not only the next available

unit, must be rented to qualified

residents to maintain the low-income

status of the over-income unit.

A Current Resident May Move Within

the Same Low-Income Building

The proposed regulations define a

qualified resident under the available

unit rule as any person whose income

does not exceed the applicable income

limitation or any current resident,

regardless of the income level of the

current resident. Thus, a current

resident may move to a different unit in

the same low-income building without

causing a violation of the available unit

rule even if the current resident’s

income exceeds the applicable income

limitation. When a current resident

moves to a different unit within the

same low-income building, the new unit

adopts the status of the vacated unit.

Rule Applies to Each Building

Separately

The rules of section 42 generally

apply on a building-by-building basis.

For example, the amount of credit

allowable under section 42(a) is

determined for each building in a

qualified low-income housing project.

The recapture of credit under section

42(j) is determined by examining the

qualified basis of each building. In

addition, section 42(g)(2)(D)(ii) uses the

phrase ‘‘any residential rental unit in

the building’’ to identify residential

rental units that must be rented to

qualified residents to preserve the lowincome status of an over-income unit.

The proposed regulations provide,

therefore, that in a project containing

more than one low-income building, the

available unit rule applies separately to

each building.

Effect of Violation of Available Unit

Rule

The proposed regulations further

provide that all over-income units in the

building lose their status as low-income

units if an owner violates the available

unit rule. A violation of the rule occurs

when a building has one or more overincome units and the owner of the

building rents an available comparable

unit in the building to a nonqualified

resident.

Over-Income Unit Counts Toward

Minimum Set-Aside Requirement

The proposed regulations also clarify

whether an over-income unit counts

towards satisfying the applicable

minimum set-aside requirement of

section 42(g)(1). The available unit rule

provides that an over-income unit

maintains its status as a low-income

unit as long as the owner does not rent

an available comparable unit to a

nonqualified resident. Section 42(i)(3),

which defines a low-income unit, and

section 42(g)(2)(D), which contains rules