[Federal Register Volume 79, Number 202 (Monday, October 20, 2014)]
[Rules and Regulations]
[Pages 62553-62568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24598]



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Rules and Regulations
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Federal Register / Vol. 79, No. 202 / Monday, October 20, 2014 / 
Rules and Regulations

[[Page 62553]]



DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Part 4

[Docket No. 140127076-4811-02]
RIN 0605-AA33


Public Information, Freedom of Information Act and Privacy Act 
Regulations

AGENCY: Department of Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule amends the Department of Commerce's (Department) 
regulations under the Freedom of Information Act (FOIA) and Privacy 
Act. The FOIA regulations are revised to clarify, update and streamline 
the language of several procedural provisions, including methods for 
submitting FOIA requests and appeals and the time limits for filing an 
administrative appeal, and to incorporate certain changes brought about 
by the amendments to the FOIA under the OPEN Government Act of 2007. 
Additionally, the FOIA regulations are updated to reflect developments 
in the case law. The Privacy Act regulations are revised to clarify, 
update and streamline several procedural provisions, including the 
methods for submitting appeals of Privacy Act requests and the time 
limits for filing a Privacy Act appeal. Additionally, the Privacy Act 
regulations are updated to make technical changes to the applicable 
exemptions.

DATES: These amendments are effective November 19, 2014.

FOR FURTHER INFORMATION CONTACT: Mark R. Tallarico, Senior Counsel, 
(202) 482-8156, Office of the General Counsel, 1401 Constitution Avenue 
NW., Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background Information

    On February 27, 2014, the Department of Commerce published a 
proposed rule revising its existing regulations under the FOIA and 
Privacy Act. See 79 FR 11025.
    This rule amends the Department's regulations under the FOIA to 
clarify, update and streamline the language of several procedural 
provisions, including the methods for submitting FOIA requests and 
appeals and the time limits for responding to a request and filing an 
administrative appeal, and to incorporate certain changes brought about 
by the amendments to the FOIA under the OPEN Government Act of 2007, 
Public Law 110-175, 121 Stat. 2524. Additionally, the FOIA regulations 
are being updated to reflect developments in case law.
    Specifically, this action amends the procedures for filing requests 
and appeals for both the FOIA and the Privacy Act, and allows parties 
to use delivery services or file online through FOIAonline (http://foiaonline.regulations.gov). The rule also vests the Office of the 
Inspector General's (OIG) Counsel, rather than the Office of the 
Assistant General Counsel for Administration, with responsibility for 
addressing OIG appeals. It clarifies when the 20-day statutory time 
limit for responding to requests begins (i.e., when requests are 
received by the proper DOC component's FOIA office, when requests are 
modified for purposes of reformulating a request so that it reasonably 
describes the requests sought), and it further clarifies that certain 
inactions by a requester, such as his or her failure to respond to a 
component's one-time clarification request within 30 calendar days, 
failure to submit an agreement to pay anticipated fees in excess of $20 
within 30 calendar days of the component's fee estimate, and failure to 
make an advanced payment within 30 calendar days of the component's fee 
estimate, may result in a request being closed. For FOIA appeals, the 
Department clarifies that if the deadline for filing an administrative 
appeal falls on a Saturday, Sunday or legal public holiday, an appeal 
received by 5 p.m. Eastern Time, the next business day will be deemed 
timely. Pursuant to this rule, it is no longer a requirement that FOIA 
appeals include a copy of the initial FOIA request and the component's 
initial denial, if any.
    To implement the OPEN Government Act of 2007, this rule: (1) Allows 
Department components to seek a one-time clarification of a request and 
toll the time period for responding to the request until the requester 
clarifies; (2) adds a definition for ``Representative of the news 
media, or news media requester'' as defined in the OPEN Government Act; 
and (3) places limits on the fees charged when Department components do 
not comply with the statutory time limits under the FOIA.
    This rule also revises the Department's regulations under the 
Privacy Act to clarify, update and streamline several procedural 
provisions, including the methods for submitting Privacy Act requests 
and appeals, and the time limits for filing a Privacy Act appeal. In 
particular, the action amends the Department's Privacy Act regulations 
regarding applicable exceptions to reflect new Department wide systems 
of records notices published since the last time the regulations were 
updated, and makes requesting your own medical records from the 
Department easier. This rule adopts other changes to mirror those made 
to the FOIA regulations in order to maintain consistency between the 
provisions.
    Finally, this rule revises Appendix A to part 4 to: Update mailing 
addresses and telephone addresses of Department components for receipt 
and processing of requests for records under the FOIA and Privacy Act 
and requests for correction and amendment under the Privacy Act; 
include contact information for components receiving requests for 
records under the FOIA and Privacy Act and requests for correction and 
amendment under the Privacy Act; identify components maintaining public 
inspection facilities; and identify components maintaining separate 
online Electronic FOIA Libraries. Appendix B to part 4 is also revised 
to include an updated list of Department officials authorized to deny 
requests for records under the FOIA and Privacy Act and requests for 
correction or amendment under the Privacy Act.

Public Comments

    Interested persons were afforded the opportunity to participate in 
the rulemaking process through submission of written comments on the 
proposed

[[Page 62554]]

rule during the 30-day open comment period. The Department received 
three public submissions in response to the proposed rulemaking. Due 
consideration was given to each comment received and, in response, the 
Department made modifications to the rule to enhance clarity and/or 
adopt several of the comments to enable a more efficient FOIA process. 
In addition, the Department made technical edits to the appendices to 
Part 4, unprompted by comments, including correcting a component's 
contact information identified in Appendix A and updating the list of 
denying officials identified in Appendix B.

Section 4.1 (General Provisions)

    One commenter recommended that proposed Sec.  4.1 be rewritten to 
better reflect President Obama's policy (i.e., that components 
discretionarily release records where no foreseeable harm exists and 
that there is a presumption of openness). As a general matter, the 
Department unequivocally adheres to and follows the Administration 
policy (as required) regarding discretionary releases and maintaining a 
presumption of openness, and components indeed discretionarily release 
records when no foreseeable harm exists. The Department recognizes that 
the language contained in the proposed revision to Sec.  4.1(a) could 
be misconstrued to not require components to make discretionary 
releases when no foreseeable harm exists; that was not the intention. 
This final rule clarifies this provision by revising the language to 
require components to make discretionary releases of records whenever 
disclosure would not foreseeably harm an interest protected by a FOIA 
exemption and, when required, to do so in accordance with current law 
and/or Executive Branch policy.

Section 4.2 (Public Reading Rooms)

    One commenter offered that the proposed regulations are ambiguous 
as to how components will provide their indices of available records 
and recommended that components make current subject-matter indices 
available electronically in their FOIA Libraries. The Department 
accepts this suggestion and inserts a provision in Sec.  4.2(a) 
requiring components to publish their current indices electronically.
    The same commenter also suggested reinstatement of the description 
of the records that the FOIA requires to be made available for public 
inspection and copying in Sec.  4.2(d). The Department agrees and 
reinstates the language that appeared in Sec.  4.2(d) of the former 
regulations and codifies it in Sec.  4.2(c) in this Final Rule.
    This commenter further suggested that the Department adopt a policy 
to ``establish categories of records that can be disclosed regularly'' 
and recommended that Sec.  4.2 be revised to add a provision stating 
that ``each component be responsible for establishing categories of 
records that can be disclosed regularly and routinely posting such 
records on its Web site.'' While the Department encourages components 
to proactively disclose records on their Web sites (to the extent that 
they can be made publicly available), the Department declines to adopt 
the commenter's suggestion given the limited resources available to 
Department components and the decentralized nature of the FOIA process 
within the Department.
    The same commenter also recommended that Sec.  4.2 be revised to 
include a provision requiring that components, ``to the extent 
feasible, post in its FOIA Library copies of all records, regardless of 
form or format, which have been released to any person under the FOIA, 
other than records released in response to first-party requests.'' To 
the extent that they can be made publicly available, the Department 
encourages the posting of all records released in response to FOIA 
requests onto the FOIAonline Web site, http://foiaonline.regulations.gov. However, given that resources are needed to 
properly post records, it is important that Department components 
retain flexibility in determining how best to use those resources, 
including flexibility to use other options such as posting logs of FOIA 
responses. Accordingly, the Department declines to adopt the 
commenter's suggestion in this Final Rule.
    This commenter further recommended that Sec.  4.2 be revised to 
include a provision requiring that components ``post, in a searchable 
format on its Web site, a log listing all FOIA requests received by the 
agency and their processing status.'' The Department and its components 
utilize the FOIAonline Web site, http://foiaonline.regulations.gov, 
where requesters can submit FOIA requests, track the status of their 
requests, search for requests submitted by other requesters, access 
previously released records, and generate agency-specific FOIA 
processing reports. Accordingly, the Department declines to adopt the 
commenter's suggestion.

Section 4.3 (Records Under the FOIA)

    One commenter recommended that a reference to the obligation to 
extract information from component computer databases be included as a 
primary statement in Sec.  4.3(b) rather than being relegated to a 
qualification statement as set forth in the proposed rule. The 
Department does not agree that Sec.  4.3(b) needs to be modified as 
suggested by the commenter. The provision concerning the extraction of 
information remains in the same position (second sentence) as it is in 
the existing regulations where it seeks to qualify the first statement 
in Sec.  4.3(b)--that is, the question of whether the Department 
creates or compiles records vs. merely extracting them from a database 
is fact dependent. Accordingly, the Department is maintaining the 
language as published in the Proposed Rule.

Section 4.4 (Requirements for Making Requests)

    One commenter recommended revising the language in proposed Sec.  
4.4(c) to ``provide adequate time for requesters to respond after 
having been asked to reasonably describe the records sought'' and 
suggests a 30 day time period. This commenter also recommended 
inserting language clarifying that components' notice to a requester 
that it is closing a request for failure to reasonably describe the 
records sought constitutes an adverse action. The Department agrees 
with both of these recommendations. It was an oversight to not include 
these provisions in the proposed rule, and the Department has included 
such language in this Final Rule at Sec.  4.4(c).
    Another commenter expressed concern that the Department's proposed 
revision to Sec.  4.4(c) (Description of records sought) would allow 
components to prematurely close FOIA requests which curtails 
requesters' access to information and directly contravenes the Obama 
Administration's commitment to transparency and open government. In 
addition to recommending that the Department not adopt this revision, 
this commenter also suggested that components ``should not close the 
file prematurely if requesters do not amend their requests, but instead 
[should] relegate the request to a lower processing track.''
    The Department does not agree with this commenter's concerns that 
revisions to Sec.  4.4(c) would result in the premature closing of FOIA 
requests, that it would curtail requesters' access to information in 
violation of the FOIA, or that it contravenes the Obama 
Administration's open government and transparency policies. The 
revisions to Sec.  4.4(c) seek to galvanize Departmental procedures for 
how components are to

[[Page 62555]]

process requests that do not reasonably describe the records sought. 
The FOIA requires that requesters satisfy two conditions when 
submitting a FOIA request--that the request reasonably describes the 
records sought and that it is made in accordance with agency's 
published rule setting forth the procedures for filing a FOIA request. 
In instances where a component determines that a request does not 
reasonably describe the records sought, the provisions at Sec.  4.4(c) 
require that the component contact the requester and inform him or her 
what additional information is needed to meet the requirements of the 
FOIA--namely, how to reformulate or modify the request so that it 
reasonably describes records that the component may be able to locate. 
By incorporating the first commenter's recommendation in Sec.  4.4(c) 
of this final rule, requesters will have 30 calendar days to modify or 
reformulate their request to meet the requirements of the FOIA before a 
component can close a request. Moreover, in instances where a component 
closes a FOIA request because a requester fails to reasonably describe 
the records sought, the requester will be afforded administrative 
appeal rights to challenge the component's decision. Accordingly, the 
Department declines to adopt these comments.

Section 4.6 (Time Limits and Expedited Processing)

    One commenter recommended revising Sec.  4.6(b) (Initial response 
and appeal) to insert a provision stating that: ``As soon as 
practicable after receiving a request, a component shall provide the 
requester with the estimated date it will complete processing the 
request. The component shall notify the requester that he or she may 
reformulate the request, if he or she so chooses, to revise the scope 
of the request in order to potentially reduce processing time.'' In 
support, the commenter cites the OPEN Government Act of 2007, Public 
Law 110-175, as requiring agencies to provide requesters with an 
estimated date of completion for processing requests.
    The OPEN Government Act does not require agencies to proactively 
provide requesters with an estimated completion date for processing 
their requests, as suggested by the commenter. Rather, the 2007 FOIA 
Amendments require that each agency--

establish a telephone line or Internet services that provides 
information about the status of a request to the person making the 
request using the assigned tracking number, including--(i) the date 
on which the agency originally received the request; and (ii) an 
estimated date on which the agency will complete the action on the 
request.

Consistent with the requirements of the OPEN Government Act, and as set 
forth in the Appendix A to part 4, each component maintains a phone 
line where requesters can contact a FOIA professional to obtain an 
estimated completion date for their request. Additionally, components' 
participation in the FOIAonline Web site, http://foiaonline.regulations.gov, offers another mechanism through which 
requesters can communicate electronically with FOIA staff to obtain an 
estimated completion date of their request. Because our current 
regulations and practices are in compliance with OPEN Government Act, 
the Department declines to adopt the commenter's suggestion as it would 
create an unnecessary burden on components' FOIA offices.
    The same commenter also recommended revising Sec.  4.6(c) 
(Clarification of request) to insert two provisions--one stating that 
``Components should also attempt to clarify with the requester by 
telephone'' and another at the end of Sec.  4.6(c) stating 
``Notwithstanding the other provisions of this paragraph, if a 
component has any uncertainty regarding an aspect of the request, it 
shall attempt to communicate with the requester to clarify the scope of 
his or her FOIA request.''
    The Department strongly encourages FOIA staff to communicate with 
requesters, by telephone and/or email, as much and as early as possible 
in order to resolve issues (clarifications or otherwise). Ultimately, 
however, clarifications must be made in writing. The commenter's second 
recommendation is already addressed in Sec.  4.6(c) and no further 
changes are necessary. Accordingly, the Department declines to adopt 
the commenter's suggested changes.
    A second commenter recommended removing from Sec.  4.6(f)(3) 
(Expedited processing) the reference to ``main professional activity or 
occupation'' from the example as to how a requester can establish that 
he or she is ``primarily engaged in disseminating information.'' In 
support, this commenter offers that having a ``professional'' 
requirement would exclude many requesters from obtaining expedited 
processing because ``they may engage primarily in information 
dissemination while it is not a profession or occupation or paid 
activity.''
    The Department did not propose to revise the language addressing 
expedited processing in the Proposed Rule. The Department's regulations 
regarding expedited processing (found at 15 CFR 4.6(f)(1)(iv)) mirror 
the FOIA and allow for this type of processing whenever it is 
determined that a FOIA request involves an ``urgency to inform the 
public about an actual or alleged Federal Government activity, if made 
by a person primarily engaged in disseminating information.'' 5 U.S.C. 
552(a)(6)(E)(v)(II). The purpose of the language at issue in Sec.  
4.6(f)(3) is to give some clarity for how a requester can establish 
that he or she is ``primarily engaged in disseminating information''--a 
requirement set forth in the FOIA--even though the requester is not a 
full-time member of the media. Although we did not propose any 
revisions to the expedited processing regulations, we recognize the 
need to provide additional guidance on this subject. Thus, we revised 
Sec.  4.6(f)(3) in this Final Rule to provide more clarity as to how 
requesters, who are not full-time members of the media, can still 
establish that they are ``primarily engaged in disseminating 
information.''

Section 4.7 (Responses to Requests)

    One commenter suggested that Sec.  4.7 be revised to add a 
provision stating that ``Components shall use plain language in all 
written communications with requesters.'' This commenter cites The 
Plain Writing Act of 2010 as the basis for this revision. By law, the 
Department and its components are required to follow The Plain Writing 
Act of 2010. Therefore, it is unnecessary to include such a provision 
in the Department's FOIA regulations.
    The same commenter also recommended that Sec.  4.7 be revised to 
add language restating President Obama's openness and transparency 
policy and Attorney General Holder's FOIA guidelines which require 
agencies to identify a foreseeable harm in order to withhold 
information under a FOIA exemption. We included language similar to 
what the commenter suggested in Sec.  4.1 in this Final Rule and, thus, 
we decline to make the suggested changes to Sec.  4.7.
    This commenter further recommended that Sec.  4.7 be revised to add 
a provision stating that ``Components shall generally respond with the 
requester by email or through the FOIAonline Web site, rather than 
postal mail, unless he or she specifies otherwise.'' The Department 
encourages communication with requesters by electronic means. However, 
it is important that Department components have flexibility in 
determining how best to communicate with requesters, including 
flexibility to use the U.S. mail

[[Page 62556]]

or other delivery options. Therefore, the Department is not adopting 
the commenter's suggested changes.
    The same commenter recommended that Sec.  4.7(a) be revised to add 
a provision stating that ``Components shall provide automated updates 
on the status of FOIA requests through FOIAonline.'' For support, the 
commenter cites the OPEN Government Act as requiring agencies to 
establish a service allowing requesters to inquire about the status of 
their requests.
    The OPEN Government Act requires agencies to establish either a 
telephone line or an Internet service through which requesters can 
obtain an estimated completion date. The Department and its components 
are in full compliance with this requirement, having established 
telephones lines (contained in Appendix A to part 4 of the Final Rule) 
by which requesters can inquire about the status of their requests. 
Further, the Department's participation in the FOIAonline Web site also 
serves to meet the OPEN Government Act requirement by providing an 
electronic portal through which requesters can inquire about the status 
of their requests. The FOIAonline Web site also provides requesters 
with the ability to track the status of their request. Given these 
current practices, we find it unnecessary to adopt any of the 
commenter's suggested changes in this Final Rule.
    This commenter also recommended that Sec.  4.7(b) be revised to add 
a provision stating that ``If a request involves a voluminous amount of 
material or searches in multiple locations, a component shall provide a 
requester with interim responses, releasing the information on a 
rolling basis.''
    To the extent feasible, Department components presently issue 
interim releases when a request involves voluminous records. The 
Department's current policy, however, only allows for the interim 
release of records when there are no FOIA exemptions applicable to the 
requested information. The Department agrees with this recommendation 
and will include such language mirroring our policy on interim releases 
in this Final Rule at Sec.  4.7.

Section 4.8 (Classified Information)

    One commenter suggested that the Department notify a requester when 
it has performed a declassification review in processing a FOIA 
request. This commenter recommended adding a provision to Sec.  4.8 
stating that ``If the component determines that the records should 
continue to be classified and must be withheld, the component shall 
explain in its response letter to the requester that the records are 
properly classified and that this determination is based on a 
declassification review, with an explanation of how that review 
confirmed the continuing validity of the national security 
classification.''
    We decline to adopt the commenter's suggested changes. The 
Department's regulations at Sec.  4.8 require components, in processing 
a request for classified information, to review the information to 
determine whether it should remain classified. There is no obligation 
by an agency to explain its declassification process. If the 
information remains classified, it is within a component's discretion 
on the extent to which it wishes to explain its review process in the 
determination letter. Further, requiring components to explain their 
declassification processes, as suggested by this commenter, raises the 
potential for inadvertent sharing of information that could disclose 
the nature of the classified material.

Section 4.9 (Business Information)

    One commenter offered two recommendations to improve the clarity 
and accuracy of this section. First, striking ``out of this section'' 
from the end of the first sentence in Sec.  4.9(c). Second, inserting 
``and will be withheld'' in Sec.  4.9(h)(1) to read ``The component 
determines that the information is exempt and will be withheld under a 
FOIA exemption, other than exemption (b)(4).'' We agree that these 
changes improve clarity and accuracy, and therefore we adopt these 
changes in this Final Rule.

Section 4.10 (Appeals From Initial Determinations or Untimely Delays)

    One commenter recommended that the Department provide requesters 60 
calendar days to submit administrative appeals, instead of the 30 days 
from the date of the component's adverse determination letter provided 
for at Sec.  4.10(a). The Department did not propose any revisions to 
the 30 calendar day window for submitting administrative appeals in its 
Proposed Rule. The Department declines to adopt this recommendation; 30 
calendar days provides a requester with a reasonable amount of time to 
submit an administrative appeal.
    Two commenters recommended that the Department remove from 
Sec. Sec.  4.10(b)(1) and (b)(2) the requirement that requesters 
include a copy of their original request and initial denial, if any, 
with the submission of their administrative appeals. One of these 
commenters suggested that the Department change the wording from 
``shall'' to ``should'' or some other standard that does not impose a 
strict requirement that could bar an appeal. The other commenter 
recommended that the pertinent language in Sec. Sec.  4.10(b)(1) and 
(b)(2) be revised to state ``In all cases, the appeal (written or 
electronic) must include the assigned request number or a copy of the 
original request and initial denial, if any.''
    The Department did not propose any substantive revisions to the 
provisions in Sec. Sec.  4.10(b)(1) and (b)(2). The Department's recent 
implementation of the FOIAonline system, however, makes it unnecessary 
for requesters to include copies of their original request and the 
component's initial denial, if any, with their FOIA appeal since it 
will already be available in the system. Therefore, the Department will 
revise, as suggested, the language in Sec. Sec.  4.10(b)(1) and (b)(2) 
to state that ``the appeal `should' include a copy of the original 
request and initial denial, if any.''
    One commenter also recommended that the Department remove from 
Sec. Sec.  4.10(b)(1) and (b)(2) the requirement that appeals ``must'' 
include a statement of the reasons for why the records requested should 
be made available and why the adverse determination was in error. The 
Department did not propose any revisions to the requirement that 
appeals must include a statement of the reasons in Sec. Sec.  
4.10(b)(1) and (b)(2). However, the Department no longer views this 
information as mandatory to process FOIA appeals. Therefore, the 
Department will revise, as suggested, these sections in this Final Rule 
to state that ``the appeal `should' include a statement of the reasons 
for why the records requested should be made available and why the 
adverse determination, if any, was in error.''
    This commenter also suggested that the Department provide 
information about the Office of Government Information Services' 
dispute resolution services in its FOIA regulations and in appeal 
determinations. To this effect, the commenter recommended that Sec.  
4.10 be revised to add a new subsection that states ``The Office of 
Government Information Services (OGIS) within the National Archives and 
Records Administration offers mediation services to resolve disputes 
between requesters and agencies as a non-exclusive alternative to 
litigation. Requesters with concerns about the handling of their 
requests may contact OGIS. Components shall provide the requester with 
the name and contact information of the Office of Government 
Information Services in an appeal determination letter.''

[[Page 62557]]

    The Department agrees with the commenter's first recommendation and 
will create a new Sec.  4.1(c) in this Final Rule to add language 
informing requesters about the dispute resolution services offered by 
OGIS. The Department disagrees with the commenter's other 
recommendation that we include the name and contact information of OGIS 
in appeal determination letters. Our final appeal decisions are not 
appealable. For example, if the Department determines on appeal that 
records are to be withheld under certain FOIA exemptions, then it is 
our belief that this decision is made within the construct of the FOIA 
and relevant supporting case law. For this reason, the Department does 
not adopt the commenter's suggested changes.

Section 4.11 (Fees)

    One commenter supported the change to proposed Sec.  4.11(b)(6), 
which defines ``representative of the news media'' for fee purposes.
    One commenter expressed concern that the Department's 16-cent per 
page duplication fee contained in Sec.  4.11(c) is inconsistent with 
the FOIA and OMB Guidelines. As a general matter, the Department notes 
that its fee provisions are written to conform with the OMB Guidelines, 
which establish uniform standards for fee matters. Conformity with the 
OMB Guidelines is required by the FOIA. See 5 U.S.C. 552(a)(4)(A)(i). 
Although the Department did not propose any changes to the duplication 
fee in its Proposed Rule, the Department re-examined its costs to make 
duplications and determined that a fee reduction is warranted. This 
Final Rule revises Sec.  4.11(c)(2) to provide for a duplication fee of 
.08 cents per page.
    The same commenter also expressed concern that the reference to 
``the cost of operating a central processing unit in Sec.  
4.11(c)(3)(ii) is an archaic and obsolete reference'' and suggested 
that it be removed from the regulations. Although the Department did 
not propose any changes to the referenced language in its Proposed 
Rule, the Department agrees that this phrase is obsolete and revised 
Sec.  4.11(c)(3)(ii) in this Final Rule to remove this language.
    One commenter proposed that ``the Department should adopt a policy 
that it will not charge a fee if the total fee would be less than 
$50.00'' and recommended including such a provision in Sec.  4.11(d). 
The Department did not propose any changes to the fee threshold amount 
in its Proposed Rule. The Department disagrees with the commenter's 
suggested change and is maintaining the language in the current 
regulations at Sec.  4.11(d)(4), which requires requesters to pay fees 
in excess of $20.00. This amount is comparable to the amounts in which 
other agencies begin charging fees.
    The same commenter also suggested that ``the Department adopt a 
policy that components may waive or reduce fees in additional 
circumstances'' and recommended including such a provision in Sec.  
4.11(k). The Department did not propose any changes to its policy for 
reducing or waiving fees in its Proposed Rule. The Department disagrees 
with the commenter and is maintaining the language in the current 
regulations at Sec.  4.11(k). The FOIA establishes a standard for 
waiver or reduction of fees and the Department's regulations are 
intended to define the manner in which this standard is to be applied. 
Components must make fee determinations consistent with the FOIA and 
Department regulations.

Section 4.29 (Appeal of Initial Adverse Agency Determination on 
Correction or Amendment)

    One commenter objected to the moving of the administrative 
appellate authority in Sec.  4.29 to the Counsel for the Inspector 
General in cases involving requests for OIG records. This commenter 
states that this change differs from the process in almost every other 
agency, and remains entirely unexplained and unjustified. The commenter 
also believes ``it would seem fairer to requesters to have some 
administrative distance between the initial denial authority and the 
appellate authority in such cases[.]''
    The Department disagrees with the commenter and is maintaining the 
language as proposed in Sec.  4.29 and Sec.  4.10, with respect to the 
processing of FOIA and Privacy Act appeals resulting from adverse 
determinations issued by the Office of the Inspector General. Reserving 
appellate authority to the OIG for appeals involving its own records is 
necessary to ensure the OIG's independence in conducting its oversight 
activities of the Department, including audits, inspections, 
evaluations, and investigations. For example, this separate appellate 
authority will minimize the risk of inadvertent disclosure within the 
Department of confidential investigative informants or targets and the 
investigative or audit strategy of the OIG that could interfere with 
ongoing oversight. The Department also notes that other executive 
departments and agencies (NASA being one) similarly reserve appellate 
authority to their OIGs for appeals involving OIG records. Finally, 
contrary to the commenter's concerns, Sec. Sec.  4.10 and 4.29 provide 
for separation between the initial denying authority and the appellate 
authority within the OIG. Under this Final Rule, the official who is 
designated as the denying official, the OIG's FOIA Officer, does not 
have the authority to decide appeals.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the Chief Counsel for Regulation certified at the Proposed 
Rule stage that this regulation will not have a significant economic 
impact on a substantial number of small entities. The factual basis for 
this certification was published with the proposed rule and is not 
repeated here. No comments were received regarding the economic impact 
of this final rule. As a result, a final regulatory flexibility 
analysis is not required and one was not prepared.

Executive Order 12866

    The Office of Management and Budget has determined that this 
regulation is not a ``significant regulatory action'' under Executive 
Order 12866.

Paperwork Reduction Act

    This regulation does not contain a ``collection of information'' as 
defined by the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects in 15 CFR Part 4

    Appeals, Freedom of Information Act, Information, Privacy, Privacy 
Act.

    Dated: October 9, 2014.
Catrina D. Purvis,
Chief Privacy Office and Director of Open Government.

    For the reasons stated in the preamble, the Department of Commerce 
amends 15 CFR part 4 as follows:

PART 4--DISCLOSURE OF GOVERNMENT INFORMATION

0
1. The authority citation for part 4 continues to read as follows:

    Authority:  5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 
553; 31 U.S.C. 3717; 44 U.S.C. 3101; Reorganization Plan No. 5 of 
1950.

Subpart A--Freedom of Information Act

0
2. Section 4.1 is amended by revising the section heading and paragraph 
(a), and adding new paragraph (c) to read as follows:


Sec.  4.1  General provisions.

    (a) The information in this part is furnished for the guidance of 
the public

[[Page 62558]]

and in compliance with the requirements of the Freedom of Information 
Act (FOIA), as amended (5 U.S.C. 552). This part sets forth the 
procedures the Department of Commerce (Department) and its components 
follow to make publicly available materials and indices specified in 5 
U.S.C. 552(a)(2) and records requested under 5 U.S.C. 552(a)(3). 
Information routinely provided to the public as part of a regular 
Department activity (for example, press releases issued by the Office 
of Public Affairs) may be provided to the public without following this 
part. In addition, as a matter of policy, the Department shall make 
discretionary releases of records or information exempt from disclosure 
under the FOIA when required to do so in accordance with current law 
and/or Executive Branch policy. This policy does not create any right 
enforceable in court.
* * * * *
    (c) The Office of Government Information Services (OGIS) within the 
National Archives and Records Administration offers mediation services 
to resolve disputes between requesters and agencies as a non-exclusive 
alternative to litigation. Requesters with concerns about the handling 
of their requests may contact OGIS.

0
3. Section 4.2 is revised to read as follows:


Sec.  4.2  Public reading rooms.

    (a) Records that the FOIA requires to be made available for public 
inspection and copying are accessible electronically through the 
Department's ``Electronic FOIA Library'' on the Department's Web site, 
http://www.doc.gov, which includes links to Web sites for those 
components that maintain Electronic FOIA Libraries. These records may 
also be accessible at the FOIAonline Web site, http://foiaonline.regulations.gov. Each component of the Department is 
responsible for determining which of its records are required to be 
made available, as well as identifying additional records of interest 
to the public that are appropriate for disclosure, and for making those 
records available either in its own Electronic Library or in the 
Department's central Electronic FOIA Library. Components that maintain 
their own Electronic FOIA Library are designated as such in Appendix A 
to this part. Each component shall also maintain and make available 
electronically a current subject-matter index of the records made 
available electronically. Each component shall ensure that posted 
records and indices are updated regularly, at least quarterly.
    (b) If the requester does not have access to the Internet and 
wishes to obtain information regarding publicly available information, 
he or she may contact the component's FOIA office. Appendix A to this 
part contains the contact information for the components' FOIA offices. 
Some components may also maintain physical public reading rooms. These 
components and their contact information are listed in Appendix A to 
this part.
    (c) The Department and its components shall maintain and make 
available electronically for public inspection:
    (1) A current index providing information for the public as to any 
matter that is issued, adopted, or promulgated after July 4, 1997, and 
that is retained as a record and is required to be made available or 
published. Copies of the index are available upon request after payment 
of the direct cost of duplication;
    (2) Copies of records that have been released and that the 
component that maintains them determines, because of their subject 
matter, have become or are likely to become the subject of subsequent 
requests for substantially the same records;
    (3) A general index of the records described in paragraph (c)(2) of 
this section;
    (4) Final opinions and orders, including concurring and dissenting 
opinions made in the adjudication of cases;
    (5) Those statements of policy and interpretations that have been 
adopted by a component and are not published in the Federal Register; 
and
    (6) Administrative staff manuals and instructions to staff that 
affect a member of the public.

0
4. Section 4.3 is amended by revising paragraphs (a) through (c) to 
read as follows:


Sec.  4.3  Records under the FOIA.

    (a) Records under the FOIA include all Government records, 
regardless of format, medium or physical characteristics, and 
electronic records and information, audiotapes, videotapes, Compact 
Disks, DVDs, and photographs.
    (b) In response to a FOIA request, the Department has no obligation 
to create, compile, or obtain from outside the Department a record to 
satisfy a request (for example, extrapolating information from existing 
agency records, reformatting available information, preparing new 
electronic programs or databases, or creating data through calculations 
of rations, proportions, percentages, trends, frequency distributions, 
correlations, or comparisons). In complying with a request for records 
(including data and other electronically-stored information), whether 
the Department creates or compiles records (as by undertaking 
significant programming work) or merely extracts them from an existing 
database is fact dependent. The Department shall undertake reasonable 
efforts to search for records stored in electronic format (including 
data and other electronically-stored information).
    (c) Department officials may, upon request, create and provide new 
records to the public pursuant to statutes that authorize the creation 
and provision of new records for a fee, such as the first paragraph of 
15 U.S.C. 1525, or in accordance with authority otherwise provided by 
law. Such creation and provision of records is outside the scope of the 
FOIA.
* * * * *

0
5. Section 4.4 is revised to read as follows:


Sec.  4.4  Requirements for making requests.

    (a) How made and addressed. The Department has a decentralized 
system for responding to FOIA requests, with each component designating 
a FOIA office to process records from that component. All components 
have the capability to receive requests electronically either through 
electronic mail (email) or the FOIAonline Web site, http://www.foiaonline.regulations.gov. A request for Department records that 
are not customarily made available to the public as part of the 
Department's regular informational services (or pursuant to a user fee 
statute), must be in writing and shall be processed under the FOIA, 
regardless of whether the FOIA is mentioned in the request. Requests 
must include the requester's full name and a legible return address. 
Requesters may also include other contact information, such as an email 
address and a telephone number. For the quickest handling, the request 
(and envelope, if the request is mailed or hand delivered) should be 
marked ``Freedom of Information Act Request.'' Requests may be 
submitted by U.S. mail, delivery service, email, facsimile, or online 
at the FOIAonline Web site, http://foiaonline.regulations.gov. Requests 
made by mail, delivery service, email, or facsimile should be sent to 
the Department component identified in Appendix A to this part that 
maintains those records requested, and should be

[[Page 62559]]

sent to the addresses, email addresses, or numbers listed in Appendix A 
to this part or the Department's Web site, http://www.doc.gov.\1\ If 
the proper component cannot be determined, the request should be sent 
to the central facility identified in Appendix A to this part. The 
central facility will forward the request to the component(s) it 
believes most likely to have the requested records. Requests will be 
considered received for purposes of the 20-day time limit of Sec.  4.6 
as of the date it is received by the proper component's FOIA office.
---------------------------------------------------------------------------

    \1\ The United States Patent and Trademark Office (USPTO), which 
is established as an agency of the United States within the 
Department of Commerce, operates under its own FOIA regulations at 
37 CFR part 102, subpart A. Accordingly, requests for USPTO records, 
and any appeals thereof, should be sent directly to the USPTO.
---------------------------------------------------------------------------

    (b) Requests for records about an individual or oneself. For 
requests for records about oneself, Sec.  4.24 of this part contains 
additional requirements. For requests for records about another 
individual, either written authorization signed by the individual 
permitting disclosure of his or her records to the requester or proof 
that the individual is deceased (for example, a copy of a death 
certificate or an obituary) will facilitate processing the request.
    (c) Description of records sought. A FOIA request must reasonably 
describe the agency records sought, to enable Department personnel to 
locate them with a reasonable amount of effort. Whenever 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, and the name and location of the office where the record 
might be found. In addition, if records about a court case are sought, 
the title of the case, the court in which the case was filed, and the 
nature of the case should be included. If known, any file designations 
or descriptions of the requested records should be included. As a 
general rule, the more specifically the request describes the records 
sought, the greater the likelihood that the Department will be able to 
locate those records. Before submitting their requests, requesters may 
contact the component's FOIA contact to discuss the records they are 
seeking and to receive assistance in describing the records (contact 
information for these individuals is contained in Appendix A to this 
part and on the Department's Web site, http://www.doc.gov). If a 
component determines that a request does not reasonably describe the 
records sought, it shall inform the requester what additional 
information is needed or how the request is otherwise insufficient, to 
enable the requester to modify the request to meet the requirements of 
this section. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with the component's 
designated FOIA contact. When a requester fails to provide sufficient 
detail within 30 calendar days after having been asked to reasonably 
describe the records sought, the component shall notify the requester 
in writing that the request has not been properly made, that no further 
action will be taken, and that the FOIA request is closed. Such a 
notice constitutes an adverse determination under Sec.  4.7(c) for 
which components shall follow the procedures for a denial letter under 
Sec.  4.7(d). In cases where a requester has modified his or her 
request, the date of receipt for purposes of the 20-day time limit of 
Sec.  4.6 shall be the date of receipt of the modified request.

0
6. Section 4.5 is amended by revising paragraphs (a) through (c) to 
read as follows:


Sec.  4.5  Responsibility for responding to requests.

    (a) In general. Except as stated in paragraph (b) of this section, 
the proper component of the Department to respond to a request for 
records is the component that first receives the request and has 
responsive records (or in the instance of where no records exist, the 
component that first receives the request and is likely to have 
responsive records), or the component to which the Departmental FOIA 
Officer or component FOIA Officer assigns lead responsibility for 
responding to the request. Where a component's FOIA office determines 
that a request was misdirected within the Department, the receiving 
component's FOIA office shall route the request to the FOIA office of 
the proper component(s). Records responsive to a request shall include 
those records within the Department's possession and control as of the 
date the Department begins its search for them.
    (b) Consultations and referrals. When a component receives a 
request for a record (or a portion thereof) in its possession that 
originated with another Federal agency subject to the FOIA, the 
component shall refer the record to that agency for direct response to 
the requester (see Sec.  4.8 for additional information about referrals 
of classified information). In instances where a record is requested 
that originated with the Department and another Federal agency has a 
significant interest in the record (or a portion thereof), the 
component shall consult with that Federal agency before responding to a 
requester. When a component receives a request for a record (or a 
portion thereof) in its possession that originated with another Federal 
agency that is not subject to the FOIA, the component shall consult 
with that Federal agency before responding to the requester.
    (c) Notice of referral. Whenever a component refers a record to 
another Federal agency for direct response to the requester, the 
component's FOIA Officer shall notify the requester in writing of the 
referral and inform the requester of the name of the agency to which 
the record was referred.
* * * * *

0
7. Section 4.6 is amended by redesignating paragraphs (c) through (e) 
as (d) through (f), revising paragraph (b) and newly redesignated 
paragraphs (d)(1) and (2), (e) and (f)(3), and adding new paragraph (c) 
to read as follows:


Sec.  4.6  Time limits and expedited processing.

* * * * *
    (b) Initial response and appeal. Unless the component and the 
requester have agreed otherwise, or when ``unusual circumstances'' 
exist as provided for in paragraph (d) of this section, a determination 
whether to comply with a FOIA request shall be made by components 
within 20 working days (i.e., excluding Saturdays, Sundays, and legal 
public holidays) of the receipt of a request for a record under this 
part by the proper component identified in accordance with Sec.  
4.5(a). In instances involving misdirected requests that are re-routed 
pursuant to Sec.  4.5(a), the response time shall commence on the date 
that the request is received by the proper component, but in any event 
not later than ten working days after the request is first received by 
any designated component. An administrative appeal, other than an 
appeal from a request made to the Office of the Inspector General, 
shall be decided within 20 working days of its receipt by the Office of 
the General Counsel. An administrative appeal from a request made to 
the Office of the Inspector General shall be decided within 20 working 
days of its receipt by the Office of the Inspector General Office of 
Counsel. The Department's failure to comply with the time limits 
identified in this paragraph constitutes exhaustion of the requester's 
administrative remedies for the purposes of judicial action to compel 
disclosure.
    (c) Clarification of request. Components may seek a one-time 
clarification of a request for records under this part. The component's

[[Page 62560]]

request for clarification must be in writing. When a component seeks 
clarification of a request, the time for responding to a request set 
forth in Sec.  4.6(b) is tolled until the requester responds to the 
clarification request. The tolled period will end when the component 
that sought the clarification receives a response from the requester. 
If a component asks for clarification and does not receive a written 
response from the requester within 30 calendar days from the date of 
the component's clarification request, the component will presume that 
the requester is no longer interested and notify the requester that the 
request will be closed.
    (d) Unusual circumstances. (1) Components may extend the time 
period for processing a FOIA request only in ``unusual circumstances,'' 
as described in paragraph (d)(2) of this section, in which the 
component shall, before expiration of the twenty-day period to respond, 
notify the requester of the extension in writing of the unusual 
circumstances involved and of the date by which processing of the 
request is expected to be completed. If the extension is for more than 
ten working days, the component shall provide the requester with an 
opportunity to modify the request or agree to an alternative time 
period for processing the original or modified request.
    (2) For purposes of this section, unusual circumstances include:
    (i) The need to search for and collect the requested agency records 
from field facilities or other establishments that are separate from 
the office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are the subject 
of a single request; or
    (iii) The need to consult with another Federal agency having a 
substantial interest in the determination of the FOIA request or among 
two or more components of the Department having substantial subject-
matter interest in the determination of the request.
* * * * *
    (e) Multi-track processing. (1) A component must use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work and/or time needed to process the 
request, including the amount of pages involved, and whether the 
request qualifies for expedited processing as described in paragraph 
(f) of this section.
    (2) A component using multi-track processing may provide requesters 
in its slower track(s) with an opportunity to limit the scope of their 
requests in order to qualify for faster processing. A component doing 
so shall contact the requester by telephone, email, letter, or through 
the FOIAonline Web site, http://foiaonline.regulations.gov, whichever 
is the most efficient in each case.
    (f) * * *
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that 
person's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. For example, a requester within the 
category described in paragraph (f)(1)(iv) of this section, if not a 
full-time member of the news media, must establish that he or she is a 
person whose primary professional activity or occupation is information 
dissemination, though it need not be his or her sole occupation. A 
requester within the category described in paragraph (f)(1)(iv) of this 
section must also establish a particular urgency to inform the public 
about the Government activity involved in the request--one that extends 
beyond the public's right to know about Government activity generally. 
The existence of numerous articles published on a given subject can be 
helpful to establishing the requirement that there be an ``urgency to 
inform'' the public on a topic. As a matter of administrative 
discretion, a component may waive the formal certification requirement.
* * * * *

0
8. Section 4.7 is revised to read as follows:


Sec.  4.7  Responses to requests.

    (a) Acknowledgment of requests. Upon receipt of a request, a 
component ordinarily shall send an acknowledgement letter to the 
requester which shall provide an assigned request number for further 
reference and, if necessary, confirm whether the requester is willing 
to pay fees.
    (b) Interim responses. If a request involves voluminous records or 
requires searches in multiple locations, to the extent feasible, a 
component shall provide the requester with interim responses consisting 
of fully releasable records.
    (c) Grants of requests. If a component makes a determination to 
grant a request in whole or in part, it shall notify the requester in 
writing of such determination and disclose records to the requester 
promptly upon payment of any applicable fees. Records disclosed in part 
shall be marked or annotated to show the applicable FOIA exemption(s) 
and the amount of information deleted, unless doing so would harm an 
interest protected by an applicable exemption. The location of the 
information deleted shall also be indicated on the record, if feasible.
    (d) Adverse determinations of requests. If a component makes an 
adverse determination regarding a request, it shall notify the 
requester of that determination in writing. An adverse determination is 
a denial of a request and includes decisions that: The requested record 
is exempt, in whole or in part; the request does not reasonably 
describe the records sought; the information requested is not a record 
subject to the FOIA; the requested record does not exist, cannot be 
located, or has previously been destroyed; or the requested record is 
not readily reproducible in the form or format sought by the requester. 
Adverse determinations also include denials involving fees or fee 
waiver matters or denials of requests for expedited processing.
    (e) Content of denial. The denial letter shall be signed by an 
official listed in Appendix B to this part (or a designee), and shall 
include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reason(s) for the denial, including 
any FOIA exemption(s) applied by the component in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, by providing the number of pages or some other reasonable 
form of estimation. This estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed 
in part, or if providing an estimate would harm an interest protected 
by an applicable FOIA exemption; and
    (4) A statement that the denial may be appealed under Sec.  4.10, 
and a list of the requirements for filing an appeal set forth in Sec.  
4.10(b).

0
9. Section 4.8 is revised to read as follows:


Sec.  4.8  Classified information.

    In processing a request for information classified under Executive 
Order 13526 or any other executive order concerning the classification 
of records, the information shall be reviewed to determine whether it 
should remain classified. Ordinarily the component or other Federal 
agency that classified the information should conduct the review, 
except that if a record contains information that has been derivatively 
classified by a

[[Page 62561]]

component because it contains information classified by another 
component or agency, the component shall refer the responsibility for 
responding to the request to the component or agency that classified 
the underlying information. Information determined to no longer require 
classification shall not be withheld on the basis of FOIA exemption 
(b)(1) (5 U.S.C. 552(b)(1)), but should be reviewed to assess whether 
any other FOIA exemption should be invoked. Appeals involving 
classified information shall be processed in accordance with Sec.  
4.10(c).

0
10. Section 4.9 is amended by revising paragraphs (c), (h) and (j) to 
read as follows:


Sec.  4.9  Business information.

* * * * *
    (c) Designation of business information. A submitter of business 
information must use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under FOIA exemption (b)(4). These 
designations will expire ten years after the date of the submission 
unless the submitter requests, and provides justification for, a longer 
period.
* * * * *
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) The component determines that the information is exempt and 
will be withheld under a FOIA exemption, other than exemption (b)(4);
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than the FOIA) or by a regulation issued in accordance with Executive 
Order 12600; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous, except that, in such a case, 
the component shall provide the submitter written notice of any final 
decision to disclose the information seven working days from the date 
the submitter receives the notice.
* * * * *
    (j) Corresponding notice to requester. Whenever a component 
provides a submitter with notice and an opportunity to object to 
disclosure under paragraph (d) of this section, the component shall 
notify the requester that the request is being processed under the 
provisions of this regulation and, as a consequence, there may be a 
delay in receiving a response. The notice to the requester will not 
include any of the specific information contained in the records being 
requested. Whenever a submitter files a lawsuit seeking to prevent the 
disclosure of business information, the component shall notify the 
requester of such action and, as a consequence, there may be further 
delay in receiving a response.

0
11. Section 4.10 is amended by revising paragraphs (a) through (c) to 
read as follows:


Sec.  4.10  Appeals from initial determinations or untimely delays.

    (a)(1) If a request for records to a component other than the 
Office of Inspector General is initially denied in whole or in part, or 
has not been timely determined, or if a requester receives an adverse 
determination regarding any other matter listed under this subpart (as 
described in Sec.  4.7(c)), the requester may file an appeal. Appeals 
can be submitted in writing or electronically, as described in 
paragraph (b)(1) of this section. The appeal must be received by the 
Office of the General Counsel during normal business hours (8:30 a.m. 
to 5:00 p.m., Eastern Time, Monday through Friday) within 30 calendar 
days of the date of the written denial of the adverse determination or, 
if there has been no determination, an appeal may be submitted any time 
after the due date, including the last extension under Sec.  4.6(d), of 
the adverse determination. Written or electronic appeals arriving after 
normal business hours will be deemed received on the next normal 
business day. If the 30th calendar day falls on a Saturday, Sunday, or 
a legal public holiday, an appeal received by 5:00 p.m., Eastern Time, 
the next business day will be deemed timely. Appeals received after the 
30-day limit will not be considered.
    (2) If a request for records to the Office of Inspector General is 
initially denied in whole or in part, or has not been timely 
determined, or if a requester receives an adverse determination 
regarding any other matter listed under this subpart (as described in 
Sec.  4.7(c)), the requester may file an appeal. Appeals can be 
submitted in writing or electronically, as described in paragraph 
(b)(2) of this section. The appeal must be received by the Office of 
Inspector General, Office of Counsel, during normal business hours 
(8:30 a.m. to 5:00 p.m., Eastern Time, Monday through Friday) within 30 
calendar days of the date of the written denial of the adverse 
determination or, if there has been no determination, an appeal may be 
submitted any time after the due date, including the last extension 
under Sec.  4.6(d), of the adverse determination. Written or electronic 
appeals arriving after normal business hours will be deemed received on 
the next normal business day. If the 30th calendar day falls on a 
Saturday, Sunday, or a legal public holiday, an appeal received by 5:00 
p.m., Eastern Time, the next business day will be deemed timely. 
Appeals received after the 30-day limit will not be considered.
    (b)(1) Appeals, other than appeals from requests made to the Office 
of Inspector General, shall be decided by the Assistant General Counsel 
for Administration (AGC-Admin), except that appeals for records which 
were initially denied by the AGC-Admin shall be decided by the General 
Counsel. Written appeals should be addressed to the AGC-Admin, or the 
General Counsel if the records were initially denied by the AGC-Admin. 
The address of both is: U.S. Department of Commerce, Office of the 
General Counsel, Room 5875, 14th and Constitution Avenue NW., 
Washington, DC 20230. An appeal may also be sent via facsimile at 202-
482-2552. For a written appeal, both the letter and the appeal envelope 
should be clearly marked ``Freedom of Information Act Appeal.'' Appeals 
may also be submitted electronically either by email to 
<a href="/cdn-cgi/l/email-protection#1a5c55535b5b6a6a7f7b76695a7e7579347d756c"><span class="__cf_email__" data-cfemail="85c3caccc4c4f5f5e0e4e9f6c5e1eae6abe2eaf3">[email protected]</span></a> or online at the FOIAonline Web site, http://foiaonline.regulations.gov, if requesters have a FOIAonline account. In 
all cases, the appeal (written or electronic) should include a copy of 
the original request and initial denial, if any. All appeals should 
include a statement of the reasons why the records requested should be 
made available and why the adverse determination was in error. No 
opportunity for personal appearance, oral argument or hearing on appeal 
is provided. Upon receipt of an appeal, AGC-Admin, or the General 
Counsel if the records were initially denied by AGC-Admin, ordinarily 
shall send an acknowledgement letter to the requester which shall 
confirm receipt of the requester's appeal.
    (2) Appeals of initial and untimely determinations by the Office of 
Inspector General shall be decided by the Counsel to the Inspector 
General, except that appeals for records which were initially denied by 
the Counsel to the Inspector General shall be decided by the Deputy 
Inspector General. Written appeals should be addressed to the Counsel 
to the Inspector General, or the Deputy Inspector General if the

[[Page 62562]]

records were initially denied by the Counsel to the Inspector General. 
The address of both is: U.S. Department of Commerce, Office of Counsel, 
Room 7898C, 14th and Constitution Avenue NW., Washington, DC 20230. An 
appeal may also be sent via facsimile at 202-501-7335. For a written 
appeal, both the letter and the appeal envelope should be clearly 
marked ``Freedom of Information Act Appeal.'' Appeals may also be 
submitted electronically either by email to <a href="/cdn-cgi/l/email-protection#5b1d14121a1b34323c753f3438753c342d"><span class="__cf_email__" data-cfemail="5c1a13151d1c33353b7238333f723b332a">[email protected]</span></a> or online 
at the FOIAonline Web site, http://foiaonline.regulations.gov, if 
requesters have a FOIAonline account. In all cases, the appeal (written 
or electronic) should include a copy of the original request and 
initial denial, if any. All appeals should include a statement of the 
reasons why the records requested should be made available and why the 
adverse determination was in error. No opportunity for personal 
appearance, oral argument or hearing on appeal is provided. Upon 
receipt of an appeal, the Counsel to the Inspector General, or the 
Deputy Inspector General if the records were initially denied by the 
Counsel to the Inspector General, ordinarily shall send an 
acknowledgement letter to the requester which shall confirm receipt of 
the requester's appeal.
    (c) Upon receipt of an appeal involving records initially denied on 
the basis of FOIA exemption (b)(1), the records shall be forwarded to 
the Deputy Assistant Secretary for Security (DAS) for a 
declassification review. The DAS may overrule previous classification 
determinations in whole or in part if continued protection in the 
interest of national security is no longer required, or no longer 
required at the same level. The DAS shall advise the AGC-Admin, the 
General Counsel, Counsel to the Inspector General, or Deputy Inspector 
General, as appropriate, of his or her decision.
* * * * *

0
12. Section 4.11 is amended by:
0
a. Revising paragraphs (a), (b)(2) through (4), (b)(6) and (7), (c)(2), 
(c)(3)(ii), (c)(4), (d)(1) and paragraph (i);
0
b. Adding paragraphs (d)(6) and (d)(7);
0
c. Revising paragraph (e);
0
d. Redesignating paragraphs (j) and (k) as (k) and (l); and
0
e. Adding a new paragraph (j).
    The revisions and additions read as follows:


Sec.  4.11  Fees.

    (a) In general. Components shall charge fees for processing 
requests under the FOIA in accordance with paragraph (c) of this 
section, except where fees are limited under paragraph (d) of this 
section or when a waiver or reduction is granted under paragraph (k) of 
this section. A component shall collect all applicable fees before 
processing a request if a component determines that advance payment is 
required in accordance with paragraphs (i)(2) and (i)(3) of this 
section. If advance payment of fees is not required, a component shall 
collect all applicable fees before sending copies of requested records 
to a requester. Requesters must pay fees by check or money order made 
payable to the Treasury of the United States.
    (b) * * *
    (2) Direct costs means those expenses a component incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records to respond to a FOIA request. Direct costs 
include, for example, the salary of the employee performing the work 
(the basic rate of pay for the employee, plus 16% of that rate to cover 
benefits) and the cost of operating computers and other electronic 
equipment, such as photocopiers and scanners. Direct costs do not 
include overhead expenses such as the costs of space, heating, or 
lighting of the facility in which the service is performed.
    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies may take the form of paper, microform, audiovisual materials, or 
electronic records, among others. A component shall honor a requester's 
specified preference of form or format of disclosure if the record is 
readily reproducible with reasonable efforts in the requested form or 
format.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
that operates a program of scholarly research. A requester in this fee 
category must show that the request is authorized by, and is made under 
the auspices of, an educational institution and that the records are 
not sought for a commercial use, but rather are sought to further 
scholarly research. To fall within this fee category, a request must 
serve the scholarly research goal of the institution rather than an 
individual research goal.
    Example 1. A request from a professor of geology at a university 
for records relating to soil erosion, written on letterhead of the 
Department of Geology, would be presumed to be from an educational 
institution.
    Example 2. A request from the same professor of geology seeking 
drug information from the Food and Drug Administration in furtherance 
of a murder mystery he is writing would not be presumed to be an 
institutional request, regardless of whether it was written on 
institutional letterhead.
    Example 3. A student who makes a request in furtherance of the 
completion of a course of instruction would be presumed to be carrying 
out an individual research goal, rather than a scholarly research goal 
of the institution, and would not qualify as part of this fee category.
* * * * *
    (6) Representative of the news media, or news media requester, 
means any person or entity organized and operated to publish or 
broadcast news to the public that actively gathers information of 
potential interest to a segment of the public, uses its editorial 
skills to turn the raw materials into a distinct work, and distributes 
that work to an audience. The term ``news'' means information that is 
about current events or that would be of current interest to the 
public. Examples of news-media entities are television or radio 
stations broadcasting to the public at-large and publishers of 
periodicals that disseminate ``news'' and make their products available 
through a variety of means to the general public including news 
organizations that disseminate solely on the Internet. To be in this 
category, a requester must not be seeking the requested records for a 
commercial use. A request for records that supports the news-
dissemination function of the requester shall not be considered to be 
for a commercial use. A freelance journalist shall be regarded as 
working for a news-media entity if the journalist can demonstrate a 
solid basis for expecting publication through that entity, whether or 
not the journalist is actually employed by the entity. A publication 
contract would be the clearest proof, but components shall also look to 
the past publication record of a requester in making this 
determination. A component's decision to grant a requester media status 
will be made on a case-by-case basis based upon the requester's 
intended use of the material.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt 
from disclosure. Review time includes processing any record for 
disclosure, such as doing all that is necessary to prepare the record 
for disclosure, including the process of redacting it and marking any 
applicable

[[Page 62563]]

exemptions. Review costs are recoverable even if a record ultimately is 
not disclosed. Review time includes time spent obtaining and 
considering any formal objection to disclosure made by a business 
submitter under Sec.  4.9, but does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
* * * * *
    (c) * * *
    (2) Uniform fee schedule.

------------------------------------------------------------------------
                Service                                Rate
------------------------------------------------------------------------
(i) Manual search......................  Actual salary rate of employee
                                          conducting review, plus 16
                                          percent of salary rate.
(ii) Computerized search...............  Actual direct cost, including
                                          operator time.
(iii) Review of records................  Actual salary rate of employee
                                          involved, plus 16 percent of
                                          salary rate.
(iv) Duplication of records:
    (A) Paper copy reproduction........  $.08 per page.
    (B) Other reproduction (e.g.,        Actual direct cost, including
     converting paper into an             operator time.
     electronic format (e.g.,
     scanning), computer disk or
     printout, or other electronically-
     formatted reproduction (e.g.,
     uploading records made available
     to the requester into FOIAonline)).
------------------------------------------------------------------------

    (3) * * *
    (ii) For computer searches of records, requesters will be charged 
the direct costs of conducting the search, although certain requesters 
(as provided in paragraph (d)(1) of this section) will be charged no 
search fee and certain other requesters (as provided in paragraph 
(d)(3) of this section) are entitled to the cost equivalent of two 
hours of manual search time without charge. These direct costs will 
include the costs of the operator/programmer salary apportionable to 
the search and any other tangible direct costs associated with a 
computer search.
    (4) Duplication. Duplication fees shall be charged to all 
requesters, subject to the limitations of paragraph (d) of this 
section. A component shall honor a requester's preference for receiving 
a record in a particular form or format where it is readily producible 
by the component in the form or format requested. For either a 
photocopy or a computer-generated printout of a record (no more than 
one copy of which need be supplied), the fee shall be $.08 per page. 
Requesters may reduce costs by specifying double-sided duplication, 
except where this is technically not feasible. For electronic forms of 
duplication, other than a computer-generated printout, components will 
charge the direct costs of that duplication. Such direct costs will 
include the costs of the requested electronic medium on which the copy 
is to be made and the actual operator time and computer resource usage 
required to produce the copy, to the extent they can be determined.
* * * * *
    (d) * * *
    (1) No search fees shall be charged for requests from educational 
institutions, non-commercial scientific institutions, or 
representatives of the news media.
* * * * *
    (6) No search fees shall be charged to a FOIA requester when a 
component does not comply with the statutory time limits at 5 U.S.C. 
552(a)(6) in which to respond to a request, unless unusual or 
exceptional circumstances (as those terms are defined by the FOIA) 
apply to the processing of the request.
    (7) No duplication fees shall be charged to requesters in the fee 
category of a representative of the news media or an educational or 
noncommercial scientific institution when a component does not comply 
with the statutory time limits at 5 U.S.C. 552(a)(6) in which to 
respond to a request, unless unusual or exceptional circumstances (as 
those terms are defined by the FOIA) apply to the processing of the 
request.
    (e) Notice of anticipated fees in excess of $20.00. (1) When a 
component determines or estimates that the fees for processing a FOIA 
request will total more than $20.00 or total more than the amount the 
requester indicated a willingness to pay, the component shall notify 
the requester of the actual or estimated amount of the fees, unless the 
requester has stated in writing a willingness to pay fees as high as 
those anticipated. If only a portion of the fee can be estimated 
readily, the component shall advise the requester that the estimated 
fee may be only a portion of the total fee. A notice under this 
paragraph shall offer the requester an opportunity to discuss the 
matter with Departmental personnel in order to modify the request in an 
effort to meet the requester's needs at a lower cost.
    (2) When a requester has been notified that the actual or estimated 
fees will amount to more than $20.00, or amount to more than the amount 
the requester indicated a willingness to pay, the component will do no 
further work on the request until the requester agrees in writing to 
pay the actual or estimated total fee. The component will toll the 
processing of the request while it notifies the requester of the actual 
or estimated amount of fees and this time will be excluded from the 
twenty (20) working day time limit (as specified in Sec.  4.6(b)). The 
requester's agreement to pay fees must be made in writing, must 
designate an exact dollar amount the requester is willing to pay, and 
must be received within 30 calendar days from the date of the 
notification of the fee estimate. If the requester fails to submit an 
agreement to pay the anticipated fees within 30 calendar days from the 
date of the component's fee notice, the component will presume that the 
requester is no longer interested and notify the requester that the 
request will be closed.
* * * * *
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i)(2) and (3) of this section, a component shall not 
require the requester to make an advance payment (i.e., a payment made 
before a component begins to process or continues work on a request). 
Payment owed for work already completed (i.e., a pre-payment before 
copies of responsive records are sent to a requester) is not an advance 
payment.
    (2) When a component determines or estimates that the total fee for 
processing a FOIA request will be $250.00 or more, the component shall 
notify the requester of the actual or estimated fee and require the 
requester to make an advance payment of the entire anticipated fee 
before beginning to process the request. A notice under this paragraph 
shall offer the requester an opportunity to discuss the matter with 
Departmental personnel in order to modify the request in an effort to 
meet the requester's needs at a lower cost.
    (3) When a requester has previously failed to pay a properly 
charged FOIA fee to any component or other Federal

[[Page 62564]]

agency within 30 calendar days of the date of billing, the component 
shall notify the requester that he or she is required to pay the full 
amount due, plus any applicable interest, and to make an advance 
payment of the full amount of any anticipated fee, before the component 
begins to process a new request or continues to process a pending 
request from that requester. A notice under this paragraph shall offer 
the requester an opportunity to discuss the matter with Departmental 
personnel in order to modify the request in an effort to meet the 
requester's needs at a lower cost.
    (4) When the component requires advance payment or payment due 
under paragraphs (i)(2) and (i)(3) of this section, the component will 
not further process the request until the required payment is made. The 
component will toll the processing of the request while it notifies the 
requester of the advanced payment due and this time will be excluded 
from the twenty (20) working day time limit (as specified in Sec.  
4.6(b)). If the requester does not pay the advance payment within 30 
calendar days from the date of the component's fee notice, the 
component will presume that the requester is no longer interested and 
notify the requester that the request will be closed.
    (j) Tolling. When necessary for the component to clarify issues 
regarding fee assessment with the FOIA requester, the time limit for 
responding to the FOIA request is tolled until the component resolves 
such issues with the requester.
* * * * *

0
13. Section 4.25 is amended by revising paragraph (g)(1) to read as 
follows:


Sec.  4.25  Disclosure of requested records to individuals.

* * * * *
    (g) * * *
    (1) Grounds. Access by an individual to a record that pertains to 
that individual will be denied only upon a determination by the Privacy 
Officer that:
    (i) The record is exempt under Sec.  4.33 or 4.34, or exempt by 
determination of another agency publishing notice of the system of 
records, as described in Sec.  4.23(f);
    (ii) The record is information compiled in reasonable anticipation 
of a civil action or proceeding;
    (iii) The provisions of Sec.  4.26 pertaining to medical records 
have been invoked; or
    (iv) The individual unreasonably has failed to comply with the 
procedural requirements of this part.
* * * * *

0
14. Section 4.26 is revised to read as follows:


Sec.  4.26  Special procedures: Medical records.

    When a request for access involves medical or psychological 
records, the records will be reviewed by the Department's medical 
officer for a determination on whether disclosure would be harmful to 
the individual to whom they relate. If it is determined that disclosure 
would be harmful, the Department may refuse to disclose the records 
directly to the requester but shall transmit them to a doctor 
authorized in writing by the individual to whom the records relate to 
receive the documents. If an individual refuses to provide written 
authorization to release his or her medical records to a doctor, 
barring any applicable exemption, the Department shall give the 
individual access to his or her records by means of a copy, provided 
without cost to the requester, sent registered mail, return receipt 
requested.

0
15. Section 4.28 is amended by revising paragraphs (a)(1)(ii) and 
(a)(2) to read as follows:


Sec.  4.28  Agency review of requests for correction or amendment.

    (a) * * *
    (1) * * *
    (ii) If the Privacy Officer fails to send the acknowledgment within 
ten working days, as provided in paragraph (a)(1)(i) of this section, 
the requester may ask the Assistant General Counsel for Administration, 
or in the case of a request to the Office of the Inspector General, the 
Counsel to the Inspector General, to take corrective action. No failure 
of a Privacy Officer to send an acknowledgment shall confer 
administrative finality for purposes of judicial review.
    (2) Promptly after acknowledging receipt of a request, or after 
receiving such further information as might have been requested, or 
after arriving at a decision within the ten working days, the Privacy 
Officer shall either:
    (i) Make the requested correction or amendment and advise the 
individual in writing of such action, providing either a copy of the 
corrected or amended record or, in cases in which a copy cannot be 
provided, a statement as to the means by which the correction or 
amendment was effected; or
    (ii) Inform the individual in writing that his or her request is 
denied and provide the following information:
    (A) The Privacy Officer's name and title or position;
    (B) The date of the denial;
    (C) The reasons for the denial, including citation to the 
appropriate sections of the Act and this subpart; and
    (D) The procedures for appeal of the denial as set forth in Sec.  
4.29, including the address of the Assistant General Counsel for 
Administration, or in the case of a request to the Office of the 
Inspector General, the address of the Counsel to the Inspector General.
* * * * *

0
16. Section 4.29 is amended by revising paragraphs (a), (b), (c), (e), 
(g) introductory text, (g)(1), (h), and (i) to read as follows:


Sec.  4.29  Appeal of initial adverse agency determination on 
correction or amendment.

    (a) If a request for correction or amendment is denied initially 
under Sec.  4.28, the individual may submit a written appeal within 
thirty calendar days of the date of the initial denial. The appeal must 
be received by the General Counsel, or by the Counsel to the Inspector 
General in the case of an appeal of an initial adverse determination by 
the Office of Inspector General, during normal business hours (8:30 
a.m. to 5:00 p.m., Eastern Time, Monday through Friday) within 30 
calendar days of the date of the initial denial. Appeals arriving after 
normal business hours will be deemed received on the next normal 
business day. If the 30th calendar day falls on a Saturday, Sunday, or 
a legal public holiday, an appeal received by 5:00 p.m., Eastern Time, 
the next business day will be deemed timely.
    (b)(1) An appeal from a request to a component other than the 
Office of the Inspector General should be addressed to the Assistant 
General Counsel for Administration, U.S. Department of Commerce, Room 
5875, 14th and Constitution Avenue NW., Washington, DC 20230. An appeal 
should include the words ``Privacy Act Appeal'' at the top of the 
letter and on the face of the envelope. An appeal not addressed and 
marked as provided herein will be so marked by Department personnel 
when it is so identified, and will be forwarded immediately to the 
Assistant General Counsel for Administration. An appeal which is not 
properly addressed by the individual will not be deemed to have been 
``received'' for purposes of measuring the time periods in this section 
until actual receipt by the Assistant General Counsel for 
Administration. In each instance when an appeal so forwarded is 
received, the Assistant General Counsel for Administration shall notify 
the

[[Page 62565]]

individual that his or her appeal was improperly addressed and the date 
on which the appeal was received at the proper address.
    (2) An appeal of an initial adverse determination on correction or 
amendment by the Office of Inspector General should be addressed to the 
Counsel to the Inspector General, U.S. Department of Commerce, Room 
7898C, 14th and Constitution Avenue NW., Washington, DC 20230. An 
appeal should include the words ``Privacy Act Appeal'' at the top of 
the letter and on the face of the envelope. An appeal not addressed and 
marked as provided herein will be so marked by Department personnel 
when it is so identified, and will be forwarded immediately to the 
Counsel to the Inspector General. An appeal which is not properly 
addressed by the individual will not be deemed to have been 
``received'' for purposes of measuring the time periods in this section 
until actual receipt by the Counsel to the Inspector General. In each 
instance when an appeal so forwarded is received, the Counsel to the 
Inspector General shall notify the individual that his or her appeal 
was improperly addressed and the date on which the appeal was received 
at the proper address.
    (c) The individual's appeal shall be signed by the individual, and 
shall include a statement of the reasons for why the initial denial is 
believed to be in error, and the Department's control number assigned 
to the request. The Privacy Act Officer who issued the initial denial 
shall furnish to the Assistant General Counsel for Administration, or 
in the case of an initial denial by the Office of the Inspector 
General, to the Counsel to the Inspector General, the record(s) the 
individual requests to be corrected or amended, and all correspondence 
between the Privacy Officer and the requester. Although the foregoing 
normally will comprise the entire record on appeal, the Assistant 
General Counsel for Administration, or in the case of an initial denial 
by the Office of the Inspector General, the Counsel to the Inspector 
General, may seek any additional information necessary to ensure that 
the final determination is fair and equitable and, in such instances, 
disclose the additional information to the individual to the greatest 
extent possible, and provide an opportunity for comment thereon.
* * * * *
    (e) The Assistant General Counsel for Administration, or in the 
case of an initial denial by the Office of the Inspector General, the 
Counsel to the Inspector General, shall act upon the appeal and issue a 
final determination in writing not later than thirty working days 
(i.e., excluding Saturdays, Sundays and legal public holidays) from the 
date on which the appeal is received, except that the Assistant General 
Counsel for Administration, or in the case of an initial denial by the 
Office of the Inspector General, the Counsel to the Inspector General, 
may extend the thirty days upon deciding that a fair and equitable 
review cannot be made within that period, but only if the individual is 
advised in writing of the reason for the extension and the estimated 
date by which a final determination will be issued. The estimated date 
should not be later than the sixtieth day after receipt of the appeal 
unless unusual circumstances, as described in Sec.  4.25(a), are met.
* * * * *
    (g) If the appeal is denied, the final determination shall be 
transmitted promptly to the individual and state the reasons for the 
denial. The notice of final determination shall inform the individual 
that:
    (1) The individual has a right under the Act to file with the 
Assistant General Counsel for Administration, or in the case of an 
initial denial by the Office of the Inspector General, the Counsel to 
the Inspector General, a concise statement of reasons for disagreeing 
with the final determination. The statement ordinarily should not 
exceed one page and the Department reserves the right to reject an 
excessively lengthy statement. It should provide the Department control 
number assigned to the request, indicate the date of the final 
determination and be signed by the individual. The Assistant General 
Counsel for Administration, or in the case of an initial denial by the 
Office of the Inspector General, the Counsel to the Inspector General, 
shall acknowledge receipt of such statement and inform the individual 
of the date on which it was received;
* * * * *
    (h) In making the final determination, the Assistant General 
Counsel for Administration, or in the case of an initial denial by the 
Office of the Inspector General, the Counsel to the Inspector General, 
shall employ the criteria set forth in Sec.  4.28(c) and shall deny an 
appeal only on grounds set forth in Sec.  4.28(e).
    (i) If an appeal is partially granted and partially denied, the 
Assistant General Counsel for Administration, or in the case of an 
initial denial by the Office of the Inspector General, the Counsel to 
the Inspector General, shall follow the appropriate procedures of this 
section as to the records within the grant and the records within the 
denial.
* * * * *
0
17. Section 4.33 is amended by revising paragraphs (b) introductory 
text and (b)(1) to read as follows:


Sec.  4.33  General exemptions.

* * * * *
    (b) The general exemptions determined to be necessary and proper 
with respect to systems of records maintained by the Department, 
including the parts of each system to be exempted, the provisions of 
the Act from which they are exempted, and the justification for the 
exemption, are as follows:
    (1) Individuals identified in Export Transactions--COMMERCE/BIS-1. 
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to 
be exempt from all provisions of the Act, except 5 U.S.C. 552a(b), 
(c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and 
(11), and (i). These exemptions are necessary to ensure the proper 
functioning of the law enforcement activity, to protect confidential 
sources of information, to fulfill promises of confidentiality, to 
maintain the integrity of the law enforcement process, to avoid 
premature disclosure of the knowledge of criminal activity and the 
evidentiary bases of possible enforcement actions, to prevent 
interference with law enforcement proceedings, to avoid disclosure of 
investigative techniques, and to avoid endangering law enforcement 
personnel. Section 12(c) of the Export Administration Act of 1979, as 
amended, also protects this information from disclosure.
* * * * *

0
18. Section 4.34 is amended by revising paragraphs (a)(1), (b) 
introductory text, (b)(2)(i)(A), (b)(3)(i), and (b)(4)(i) to read as 
follows:


Sec.  4.34  Specific exemptions.

    (a)(1) Certain systems of records under the Act that are maintained 
by the Department may occasionally contain material subject to 5 U.S.C. 
552a(k)(1), relating to national defense and foreign policy materials. 
The systems of records published in the Federal Register by the 
Department that are within this exemption are:
    COMMERCE/BIS-1, COMMERCE/ITA-2, COMMERCE/ITA-3, COMMERCE/NOAA-11, 
COMMERCE-PAT-TM-4, COMMERCE/DEPT-12, COMMERCE/DEPT-13, and COMMERCE/
DEPT-14.
* * * * *

[[Page 62566]]

    (b) The specific exemptions determined to be necessary and proper 
with respect to systems of records maintained by the Department, 
including the parts of each system to be exempted, the provisions of 
the Act from which they are exempted, and the justification for the 
exemption, are as follows:
    (2)(i) * * *
    (A) Individuals identified in Export Administration compliance 
proceedings or investigations--COMMERCE/BIS-1, but only on condition 
that the general exemption claimed in Sec.  4.33(b)(1) is held to be 
invalid;
* * * * *
    (3)(i) Exempt under 5 U.S.C. 552a(k)(4). The systems of records 
exempt, the sections of the Act from which exempted, and the reasons 
therefor are as follows:
    (A) Special Censuses, Surveys, and Other Studies--COMMECE/CENSUS-3;
    (B) Economic Survey Collection--COMMERCE/CENSUS-4;
    (C) Decennial Census Program--COMMERCE/CENSUS-5;
    (D) Population Census Records for 1910 & All Subsequent Decennial 
Census--COMMERCE/CENSUS-6;
    (E) Other Agency Surveys & Reimbursable--COMMERCE/CENSUS-7;
    (F) Statistical Administrative Records System--COMMERCE/CENSUS-8;
    (G) Longitudinal Employer-Household Dynamics System--COMMERCE/
CENSUS-9; and
    (H) Foreign Trade Statistics--COMMERCE/CENSUS-12.
* * * * *
    (4)(i) Exempt under 5 U.S.C. 552a(k)(5). The systems of records 
exempt (some only conditionally), the sections of the Act from which 
exempted, and the reasons therefor are as follows:
    (A) Applications to U.S. Merchant Marine Academy (USMMA)--COMMERCE/
MA-1;
    (B) USMMA Midshipman Medical Files--COMMERCE/MA-17;
    (C) USMMA Midshipman Personnel Files--COMMERCE/MA-18;
    (D) USMMA Non-Appropriated Fund Employees--COMMERCE/MA-19;
    (E) Applicants for the NOAA Corps--COMMERCE/NOAA-1;
    (F) Commissioned Officer Official Personnel Folders--COMMERCE/NOAA-
3;
    (G) Conflict of Interest Records, Appointed Officials--COMMERCE/
DEPT-3
    (H) Investigative and Inspection Records--COMMERCE/DEPT-12, but 
only on condition that the general exemption claimed in Sec.  
4.33(b)(3) is held to be valid;
    (I) Investigative Records--Persons Within the Investigative 
Jurisdiction of the Department--COMMERCE/DEPT-13; and
    (J) Litigation, Claims, and Administrative Proceeding Records--
COMMERCE/DEPT-14.
* * * * *

0
19. Appendix A to Part 4 is revised to read as follows:

Appendix A to Part 4--Freedom of Information Public Inspection 
Facilities, and Addresses for Requests for Records Under the Freedom of 
Information Act and Privacy Act, and Requests for Correction or 
Amendment Under the Privacy Act

    Each address listed below is the respective component's mailing 
address for receipt and processing of requests for records under the 
Freedom of Information Act and Privacy Act, for requests for 
correction or amendment under the Privacy Act and, unless otherwise 
noted, its public inspection facility for records available to the 
public under the Freedom of Information Act. Requests should be 
addressed to the component the requester knows or has reason to 
believe has possession of, control over, or primary concern with the 
records sought. Otherwise, requests should be addressed to the 
Departmental FOIA Office identified in paragraph (1) of this 
appendix. The telephone and facsimile numbers for each component are 
included after its address, as well as email addresses for 
components that maintain an email address for the purposes of 
receiving of FOIA and Privacy Act requests. Records of components 
that are required to be made publicly available are available 
electronically either through the Department's ``Electronic FOIA 
Library'' on the Department's Web site, http://www.doc.gov, as 
described in Sec.  4.2(a), or the component's separate online 
Electronic FOIA Library as indicated below. Components that maintain 
a public inspection facility are designated as such below. These 
public inspection facilities records are open to the public Monday 
through Friday (i.e., excluding Saturdays, Sundays, and legal public 
holidays) between 9:00 a.m. and 4:00 p.m. local time of the facility 
at issue. The Departmental Freedom of Information Act Officer is 
authorized to revise this appendix to reflect changes in the 
information contained in it. Any such revisions shall be posted on 
the Department's ``FOIA Home Page'' link found at the Department's 
Web site, http://www.doc.gov.
    (1) U.S. Department of Commerce, Office of Privacy and Open 
Government, Departmental FOIA Office, 14th and Constitution Avenue 
NW., Mail Stop A300, Washington, DC 20230; Phone: (202) 482-3258; 
Fax: (202) 482-0827; Email: <a href="/cdn-cgi/l/email-protection#4f0a0920262e0f2b202c61282039"><span class="__cf_email__" data-cfemail="4005062f292100242f236e272f36">[email protected]</span></a>; FOIAonline: http://foiaonline.regulations.gov. This component maintains an online 
Electronic FOIA Library through the Department's Web site, http://www.doc.gov. This online Electronic FOIA Library serves the Office 
of the Secretary, all other components of the Department not 
identified below, and those components identified below that do not 
have separate online Electronic FOIA Libraries.
    (2) Bureau of the Census, Policy Coordination Office, U.S. 
Department of Commerce, Room 8H027, 4600 Silver Hill Road, Suitland, 
Maryland 20233; Ph.: (301) 763-6440; Fax: (301) 763-6239 (ATTN.: 
FOIA Office); Email: <a href="/cdn-cgi/l/email-protection#e88b8d859b9d9bc68d8e878189a88b8d869b9d9bc68f879e"><span class="__cf_email__" data-cfemail="b9dadcd4caccca97dcdfd6d0d8f9dadcd7caccca97ded6cf">[email protected]</span></a>; FOIAonline: http://foiaonline.regulations.gov. This component maintains a separate 
online Electronic FOIA Library through its Web site, http://www.census.gov.
    (3) Bureau of Economic Analysis/Economic and Statistics 
Administration, Office of the Under Secretary for Economic Affairs, 
U.S. Department of Commerce, 14th and Constitution Avenue NW., Mail 
Stop H4836, Washington, DC 20230; Ph.: (202) 482-5997; Fax: (202) 
482-2889; Email: <a href="/cdn-cgi/l/email-protection#6a2f2c25232b2f392b2a0e0509440d051c"><span class="__cf_email__" data-cfemail="0d484b42444c485e4c4d69626e236a627b">[email protected]</span></a>; FOIAonline: http://foiaonline.regulations.gov. This component maintains a separate 
online Electronic FOIA Library through its Web site, http://www.esa.doc.gov.
    (4) Bureau of Industry and Security, Office of Administration, 
U.S. Department of Commerce, 14th and Constitution Avenue NW., Mails 
Stop H6622, Washington, DC 20230; Ph.: (202) 482-0953; Fax: (202) 
482-0326; Email: <a href="/cdn-cgi/l/email-protection#f396959c9a9281968286968087b3919a80dd979c90dd949c85"><span class="__cf_email__" data-cfemail="3257545d5b534057434757414672505b411c565d511c555d44">[email protected]</span></a>; FOIAonline: http://foiaonline.regulations.gov. This component maintains a separate 
online Electronic FOIA Library through its Web site, http://www.bis.doc.gov.
    (5) Economic Development Administration, Office of the Chief 
Counsel, U.S. Department of Commerce, 14th and Constitution Avenue 
NW., Room 7325, Washington, DC 20230; Ph.: (202) 482-3085; Fax: 
(202) 482-5671; FOIAonline: http://foiaonline.regulations.gov. This 
component does not maintain a separate online Electronic FOIA 
Library, nor do any of the following Regional EDA offices.
    (i) Atlanta Regional Office, EDA, U.S. Department of Commerce, 
401 West Peachtree Street NW., Suite 1820, Atlanta, Georgia 30308; 
Ph.: (404) 730-3006.
    (ii) Austin Regional Office, EDA, U.S. Department of Commerce, 
504 Lavaca Street, Suite 1100, Austin, Texas 78701; Ph.: (512) 381-
8165.
    (iii) Chicago Regional Office, EDA, U.S. Department of Commerce, 
111 North Canal Street, Suite 855, Chicago, Illinois 60606; Ph.: 
(312) 353-8143.
    (iv) Denver Regional Office, EDA, U.S. Department of Commerce, 
410 17th Street, Suite 250, Denver, Colorado 80202; Ph.: (303) 844-
4404.
    (v) Philadelphia Regional Office, EDA, U.S. Department of 
Commerce, Curtis Center, Suite 140 South, 601 Walnut Street, 
Philadelphia, Pennsylvania 19106; Ph.: (215) 597-7896.
    (vi) Seattle Regional Office, EDA, U.S. Department of Commerce, 
Jackson Federal Building, Room 1890, 915 Second Avenue, Seattle, 
Washington 98174; Ph.: (206) 220-7663.
    (6) International Trade Administration, Office of Strategic 
Resources, U.S.

[[Page 62567]]

Department of Commerce, 14th and Constitution Avenue NW., Room 
40003, Washington, DC 20230; Ph.: (202) 482-7937; Fax: (202) 482-
1584; Email: <a href="/cdn-cgi/l/email-protection#badcd5d3dbfacec8dbdedf94ddd5cc"><span class="__cf_email__" data-cfemail="70161f19113004021114155e171f06">[email protected]</span></a>; FOIAonline: http://foiaonline.regulations.gov. This component does not maintain a 
separate online Electronic FOIA Library.
    (7) Minority Business Development Agency, Office of 
Administration and Employee Support Services, U.S. Department of 
Commerce, 14th and Constitution Avenue NW., Room 5092, Washington, 
DC 20230; Ph.: (202) 482-2419; Fax: (202) 482-2500; Email: 
<a href="/cdn-cgi/l/email-protection#0d4b42444c4d606f696c236a627b"><span class="__cf_email__" data-cfemail="1c5a53555d5c717e787d327b736a">[email protected]</span></a>; FOIAonline: http://foiaonline.regulations.gov. This 
component maintains a separate online Electronic FOIA Library 
through its Web site, http://www.mbda.gov.
    (8) National Institute of Standards and Technology, Management 
and Organization Office, U.S. Department of Commerce, 100 Bureau 
Drive, Mail Stop 1710, Gaithersburg, Maryland 20899-1710; Ph.: (301) 
975-4054; Fax: (301) 975-5301; Email: <a href="/cdn-cgi/l/email-protection#0a6c65636b4a6463797e246d657c"><span class="__cf_email__" data-cfemail="ccaaa3a5ad8ca2a5bfb8e2aba3ba">[email protected]</span></a>; FOIAonline: 
http://foiaonline.regulations.gov. This component maintains a 
separate public inspection facility at the Administration Building, 
Gaithersburg, Maryland. Please call (301) 975-4054 for inspection 
facility directions and hours. This component does not maintain a 
separate online Electronic FOIA Library.
    (9) National Oceanic and Atmospheric Administration, U.S. 
Department of Commerce, 1315 East-West Highway (SSMC3), Room 9719, 
Silver Spring, Maryland 20910; Ph.: (301) 628-5658; Fax: (301) 713-
1169; Email: <a href="/cdn-cgi/l/email-protection#3d5b52545c7d53525c5c135a524b"><span class="__cf_email__" data-cfemail="1c7a73757d5c72737d7d327b736a">[email protected]</span></a>; FOIAonline: http://foiaonline.regulations.gov. This component maintains a separate 
online Electronic FOIA Library through its Web site, http://www.noaa.gov.
    (10) National Technical Information Service, Office of the Chief 
Information Officer, U.S. Department of Commerce, 5301 Shawnee Road, 
Room 227, Alexandria, Virginia 22312; Ph.: (703) 605-6710; Fax: 
(703) 605-6764; FOIAonline: http://foiaonline.regulations.gov. This 
component maintains a separate online Electronic FOIA Library 
through its Web site, http://www.ntis.gov.
    (11) National Telecommunications and Information Administration, 
Office of the Chief Counsel, U.S. Department of Commerce, 14th and 
Constitution Avenue NW., Mail Stop 4713, Washington, DC 20230; Ph.: 
(202) 482-1816; Fax: (202) 501-8013; Email: <a href="/cdn-cgi/l/email-protection#670221282e262729332e264903080449000811"><span class="__cf_email__" data-cfemail="771231383e363739233e365913181459101801">[email protected]</span></a>; 
FOIAonline: http://foiaonline.regulations.gov. This component does 
not maintain a separate online Electronic FOIA Library.
    (12) Office of Inspector General, FOIA and Records Management 
Specialist, U.S. Department of Commerce, 14th and Constitution 
Avenue NW., Room 7099C, Washington, DC 20230; Ph.: (202) 482-3470; 
Fax: (202) 501-7921; Email: <a href="/cdn-cgi/l/email-protection#d89e97919998b7b1bff6bcb7bbf6bfb7ae"><span class="__cf_email__" data-cfemail="0a4c45434b4a65636d246e6569246d657c">[email protected]</span></a>; FOIAonline: http://foiaonline.regulations.gov. This component maintains a separate 
online Electronic FOIA Library through its Web site, http://www.oig.doc.gov.


0
20. Appendix B to Part 4 is revised to read as follows:

Appendix B to Part 4--Officials Authorized To Deny Requests for Records 
Under the Freedom of Information Act, and Requests for Records and 
Requests for Correction or Amendment Under the Privacy Act

    The officials of the Department listed below and their superiors 
have authority, with respect to the records for which each is 
responsible, to deny requests for records under the FOIA,\1\ and 
requests for records and requests for correction or amendment under 
the PA. In addition, the Departmental Freedom of Information Officer 
and the Freedom of Information Officer for the Office of the 
Secretary have the foregoing FOIA and PA denial authority for all 
records of the Department. The Departmental Freedom of Information 
Officer is authorized to assign that authority, on a case-by-case 
basis only, to any of the officials listed below, if the records 
responsive to a request include records for which more than one 
official listed below is responsible. The Departmental Freedom of 
Information Officer is authorized to revise this appendix to reflect 
changes in designation of denial officials. Any such revisions shall 
be posted on the Department's ``FOIA Home Page'' link found at the 
Department's Web site, http://www.doc.gov.
---------------------------------------------------------------------------

    \1\ The foregoing officials have sole authority under Sec.  
4.7(c) to deny requests for records in any respect, including, for 
example, denying requests for reduction or waiver of fees.
---------------------------------------------------------------------------

OFFICE OF THE SECRETARY

Office of the Secretary: Executive Secretary; Freedom of Information 
Officer
Office of Business Liaison: Director
Office of Public Affairs: Director; Deputy Director; Press 
Secretary; Deputy Press Secretary
Assistant Secretary for Legislative and Intergovernmental Affairs; 
Deputy Assistant Secretary for Legislative and Intergovernmental 
Affairs
Office of Inspector General: Freedom of Information Act Officer
Office of the General Counsel: Deputy General Counsel; Assistant 
General Counsel for Administration
Office of Executive Support: Director
Office of Chief Information Officer: Director

ASSISTANT SECRETARY FOR ADMINISTRATION

Office of Civil Rights: Director
Office of Budget: Director
Office of Privacy and Open Government: Director Departmental Freedom 
of Information Officer
Office of Program Evaluation and Risk Management: Director
Office of Financial Management: Director
Office of Human Resources Management: Director; Deputy Director
Office of Administrative Services: Director
Office of Security: Director
Office of Acquisition Management: Director
Office of Acquisition Services: Director
Office of Small and Disadvantaged Business Utilization: Director

BUREAU OF INDUSTRY AND SECURITY

Under Secretary
Deputy Under Secretary
Director, Office of Administration
Director, Office of Planning, Evaluation and Management
Assistant Secretary for Export Administration
Deputy Assistant Secretary for Export Administration
Director, Office of Strategic Industries and Economic Security
Director, Office of Nonproliferation Controls and Treaty Compliance
Director, Office of Exporter Services
Assistant Secretary for Export Enforcement
Deputy Assistant Secretary for Export Enforcement
Director, Office of Export Enforcement
Director, Office of Enforcement Analysis
Director, Office of Antiboycott Compliance

ECONOMICS AND STATISTICS ADMINISTRATION

Office of Administration: Director
Bureau of Economic Analysis: Director
Bureau of the Census: Freedom of Information Act Officer

ECONOMIC DEVELOPMENT ADMINISTRATION

Freedom of Information Officer

INTERNATIONAL TRADE ADMINISTRATION

Executive Administration

Under Secretary for International Trade
Deputy Under Secretary for International Trade
Chief Counsel for International Trade
Chief Counsel for Enforcement and Compliance
Trade Promotion Coordinating Committee Secretariat
Director, Office of Public Affairs
Director, Office of Legislative and Intergovernmental Affairs
Chief Information Officer
Deputy Chief Information Officer
Chief Administrative Officer, Office of the Chief Information 
Officer
Chief Financial and Administration Officer
Deputy Chief Financial Administrative Officer
Director, Budget Division
Director, Financial Management and Administrative Oversight Division
Director, Business Operations and Policy Compliance Division
Director, Performance Management and Employee Programs Division
Freedom of Information Act Officer

Enforcement and Compliance

Assistant Secretary for Enforcement and Compliance
Deputy Assistant Secretary for Enforcement and Compliance
Director, Office of Foreign Trade Zones Staff
Director, Office of Operations Support
Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Operations
Executive Director, Antidumping and Countervailing Duty Operations

[[Page 62568]]

Director, Office of Antidumping and Countervailing Duty Enforcement 
I
Director, Office of Antidumping and Countervailing Duty Enforcement 
II
Director, Office of Antidumping and Countervailing Duty Enforcement 
III
Director, Office of Antidumping and Countervailing Duty Enforcement 
IV
Director, Office of Antidumping and Countervailing Duty Enforcement 
V
Director, Office of Antidumping and Countervailing Duty Enforcement 
VI
Director, Office of Antidumping and Countervailing Duty Enforcement 
VII
Deputy Assistant Secretary for Policy & Negotiations
Director, Office of Trade Agreements Negotiations and Compliance
Director, Office of Accounting
Director, Office of Policy

Global Markets

Assistant Secretary of Global Markets and Director General for the 
US&FCS
Deputy Director General
Principal Deputy Assistant Secretary
Executive Director, Advocacy Center
Director, Business Information and Technology Office
Director, Global Knowledge Center
Director, Office of Budget
Director, Office of Foreign Service Human Capital
Director, Office of Strategic Planning
Director, Office of Administrative Services
Executive Director, SelectUSA
Deputy Assistant Secretary for U.S. Field
National U.S. Field Director
Deputy Assistant Secretary for Asia
Executive Director for Asia
Director, Office of the ASEAN and Pacific Basin
Director, Office of East Asia and APEC
Director, Office of South Asia
Deputy Assistant Secretary for China, Hong Kong, and Mongolia
Executive Director for China, Hong Kong, and Mongolia
Director, Office of China, Hong Kong, and Mongolia
Deputy Assistant Secretary for Western Hemispheres
Executive Director for Western Hemispheres
Director, Office of North and Central America
Director, Office of South America
Deputy Assistant Secretary for Europe, Middle East, and Africa
Executive Deputy Assistant Secretary for Europe, Middle East, and 
Africa
Executive Director for Europe and Eurasia
Director, Office of Europe Country Affairs
Director, Office of the European Union
Director, Office of Russia, Ukraine, and Eurasia
Executive Director for Africa and Middle East
Director, Office of the Middle East and North Africa
Director, Office of Sub-Saharan Africa

Industry and Analysis

Assistant Secretary for Industry and Analysis
Deputy Assistant Secretary for Industry and Analysis
Trade Agreements Secretariat
Executive Director, Office of Trade Programs and Strategic 
Partnerships
Director, Trade Promotion Programs
Director, Strategic Partnerships
Director, Office of Advisory Committees and Industry Outreach
Director, Office of Planning, Coordination and Management
Deputy Assistant Secretary for Services
Director, Office of Financial and Insurance Industries
Director, Office of Digital Service Industries
Director, Office of Supply Chain, Professional and Business Services
Executive Director for National Travel and Tourism Office
Director, Office of Travel and Tourism Industries
Deputy Assistant Secretary for Trade Policy and Analysis
Director, Office of Standards and Investment Policy
Director, Office of Trade and Economic Analysis
Director, Office of Trade Negotiations and Analysis
Director, Office of Intellectual Property Rights
Deputy Assistant Secretary for Manufacturing
Director, Office of Energy and Environmental Industries
Director, Office of Transportation and Machinery
Director, Office of Health and Information Technologies
Deputy Assistant Secretary for Textiles, Consumer Goods, and 
Materials
Director, Office of Textiles and Appeal
Director, Office of Materials
Director, Office of Consumer Goods

MINORITY BUSINESS DEVELOPMENT AGENCY

Chief Counsel
Freedom of Information Officer

NATIONAL INSTITUTE OF STANDARDS AND TECNOLOGY

Chief, Management and Organization Office
NIST Counsel

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Under Secretary
Deputy Under Secretary for Operations
Chief, Resource and Operations Management
Director, Office of Communications and External Affairs
Director, Office of Marine and Aviation Operations
General Counsel
Deputy General Counsel
Assistant Administrator for National Ocean Services
Deputy Assistant Administrator for National Ocean Services
Assistant Administrator for National Marine Fisheries Service
Deputy Assistant Administrator for Operations for National Marine 
Fisheries Service
Deputy Assistant Administrator for Regulatory Programs for National 
Marine Fisheries Service
Assistant Administrator for National Weather Services
Deputy Assistant Administrator for National Weather Services
Assistant Administrator for National Environmental Satellite, Data, 
and Information Service
Deputy Assistant Administrator for National Environmental Satellite, 
Data, and Information Service
Assistant Administrator for Oceanic and Atmospheric Research
Deputy Assistant Administrator for Programs & Administration 
(Oceanic and Atmospheric Research)
Assistant Administrator for Program, Planning and Integration
Chief Administrative Officer
Chief Financial Officer
Chief Information Officer
Director, Acquisition and Grants Office
Deputy Director, Acquisition and Grants Office
Head of Contracting Offices, Acquisition and Grants Office
Director, Workforce Management Office
Senior Advisor for International Affairs
Director, Office of Legislation & Intergovernmental Affairs
Freedom of Information Officer

NATIONAL TECHNICAL INFORMATION SERVICE

Director
Deputy Director
Chief Financial Officer/Associate Director for Finance and 
Administration

NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION

Deputy Assistant Secretary
Chief Counsel
Deputy Chief Counsel

[FR Doc. 2014-24598 Filed 10-17-14; 8:45 am]
BILLING CODE 3510-17-P


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