Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations 65631

1The Department intends to comprehensively

update its Privacy Act systems of records, and

related provisions in its PA regulations, in a future

Notice of Proposed Rulemaking.

2Section 4.2(b) in the proposed rule is § 4.2(c) in

the final rule set forth below.

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

§ 39.13 [Amended]

2. Section 39.13 is amended by

adding a new airworthiness directive to

read as follows:

2001–25–06 Sikorsky Aircraft Corporation:

Amendment 39–12559. Docket No.

2001–SW–51–AD.

Applicability: Model S–76B helicopters,

serial numbers (S/N) 760430, 760441 through

760445, 760448 through 760452, 760454,

760455, 760458, 760462, and 760465, and

Model S–76C helicopters, S/N 760420,

760436, 760438, 760440, 760453, 760456,

760457, 760459, 760460, 760461 760463,

760464, 760466 through 760487, certificated

in any category.

Note 1: This AD applies to each helicopter

identified in the preceding applicability

provision, regardless of whether it has been

otherwise modified, altered, or repaired in

the area subject to the requirements of this

AD. For helicopters that have been modified,

altered, or repaired so that the performance

of the requirements of this AD is affected, the

owner/operator must request approval for an

alternative method of compliance in

accordance with paragraph (b) of this AD.

The request should include an assessment of

the effect of the modification, alteration, or

repair on the unsafe condition addressed by

this AD; and if the unsafe condition has not

been eliminated, the request should include

specific proposed actions to address it.

Compliance: Required within 30 days after

the effective date of this AD, unless

accomplished previously.

To prevent an attitude and heading

reference (AHRS) fail signal to both

autopilots due to a failure of the essential

bus, loss of both autopilot functions, and

subsequent loss of control of the helicopter,

accomplish the following:

(a) Modify Nos. 1 and 2 AHRS WARN

circuits in accordance with the

Accomplishment Instructions, paragraphs

3.A. through 3.D, of Sikorsky Aircraft

Corporation Alert Service Bulletin No. 76–

34–7A (320A), Revision A, dated September

17, 2001.

(b) An alternative method of compliance or

adjustment of the compliance time that

provides an acceptable level of safety may be

used if approved by the Manager, Boston

Aircraft Certification Office, FAA. Operators

shall submit their requests through an FAA

Principal Maintenance Inspector, who may

concur or comment and then send it to the

Manager, Boston Aircraft Certification Office.

Note 2: Information concerning the

existence of approved alternative methods of

compliance with this AD, if any, may be

obtained from the Boston Aircraft

Certification Office.

(c) Special flight permits may be issued in

accordance with 14 CFR 21.197 and 21.199

to operate the helicopter to a location where

the requirements of this AD can be

accomplished.

(d) The modification shall be done in

accordance with the Accomplishment

Instructions, paragraphs 3.A. through 3.D., of

Sikorsky Aircraft Corporation Alert Service

Bulletin No. 76–34–7A (320A), Revision A,

dated September 17, 2001. This

incorporation by reference was approved by

the Director of the Federal Register in

accordance with 5 U.S.C. 552(a) and 1 CFR

part 51. Copies may be obtained from

Sikorsky Aircraft Corporation, Attn: Manager,

Commercial Tech Support, 6900 Main Street,

Stratford, Connecticut 06614, phone (203)

386–3001, fax (203) 386–5983. Copies may be

inspected at the FAA, Office of the Regional

Counsel, Southwest Region, 2601 Meacham

Blvd., Room 663, Fort Worth, Texas; or at the

Office of the Federal Register, 800 North

Capitol Street, NW., suite 700, Washington,

DC.

(e) This amendment becomes effective on

January 4, 2002.

Issued in Fort Worth, Texas, on November

29, 2001.

David A. Downey,

Manager, Rotorcraft Directorate, Aircraft

Certification Service.

[FR Doc. 01–31039 Filed 12–19–01; 8:45 am]

BILLING CODE 4910–13–U

DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Parts 4, 4a and 4b

[Docket No. 990723201–1208–02]

RIN: 0605–AA14

Public Information, Freedom of

Information and Privacy

AGENCY: Department of Commerce.

ACTION: Final rule.

SUMMARY: This document sets forth

revisions of Department of Commerce

(Department) regulations regarding the

Freedom of Information Act (FOIA),

Privacy Act (PA),1 and declassification

and public availability of national

security information. The revisions

implement the Electronic Freedom of

Information Act (EFOIA) Amendments

of 1996 and Executive Order 12958,

include an updated duplication fee, and

streamline, clarify, and update the

regulations.

DATES: Effective December 20, 2001.

FOR FURTHER INFORMATION CONTACT:

Andrew W. McCready, 202–482–8044.

SUPPLEMENTARY INFORMATION: On May

31, 2000, the Department published a

proposed rule (65 FR 34606) to revise its

existing FOIA and PA regulations, and

to add new provisions to implement the

Electronic Freedom of Information Act

(EFOIA) Amendments of 1996 (Pub. L.

104–231). Interested persons were

invited to submit written comments on

the proposed rule. The Department

received one set of comments. After due

consideration of the comments, the

Department has adopted several of the

modifications the commenter

recommended, and has made numerous

other minor revisions to its proposed

rule for clarity. The Department is also

increasing the duplication charge from

the $.15 announced in the proposed rule

(the current charge is $.07) to $.16 per

page, to reflect an increase in copying

costs since the issuance of the proposed

rule.

Discussion of Comments

The comments received were

submitted by Public Citizen and the

Freedom of Information Clearinghouse,

and are addressed below.

(1) The commenter recommended

deleting from § 4.2(b) 2 the highlighted

phrase in the statement: ‘‘Components

shall also make public inspection

facility records created by the

Department on or after November 1,

1996 available electronically through

the Department’s ‘FOIA Home Page’ link

found at the Department’s World Wide

Web site.’’ The recommended change is

more consistent with the FOIA than is

the proposed language above, and thus

the Department has deleted the

highlighted phrase.

(2) The commenter recommended

changing the cut-off date in § 4.5(a) for

determining records responsive to a

request from the date the request is

received to the date that processing of

the request begins. Many of the requests

the Department receives require a search

to be conducted in more than one of its

components. Implementing the

commenter’s recommendation could

create confusion about such requests

involving multiple components, because

each component could begin processing

the request on a different date, and thus

have a different cut-off date. Further, the

Department’s cut-off date is consistent

with the Supreme Court’s requirement

that for records to be ‘‘agency records’’

subject to the FOIA, the agency must be

in control of them at the time the FOIA

request is made. Department of Justice

v. Tax Analysts, 492 U.S. 136, 145

(1989). Implementing the commenter’s

recommendation could also create

uncertainty with regard to determining

what records are responsive to the

request, and preventing their

inadvertent disposition between the

time the request is received and

processing begins. That is, components

could be placed in a situation in which

65632 Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations

they would not be authorized to

determine what records are responsive

to a request until processing, including

search, begins, even though records in

the component’s control when the

request is received would still be

potentially subject to the request.

(3) The commenter recommended that

in § 4.5(b) the Department clarify the

meaning of ‘‘primary interest,’’ and state

that records will be referred only when

referral is necessary because the

originating agency has a substantial

interest in the record, and the referral is

not likely to substantially delay the

release or otherwise place unreasonable

burdens on the requester.

The Department has decided not to

modify the definition of ‘‘primary

interest,’’ but will clarify its meaning by

moving the sentence ‘‘Ordinarily, the

agency that originated a record will be

presumed to have the primary interest

in it.’’ from the end of § 4.5(b) to

immediately after the first sentence in

§ 4.5(b), where the phrase ‘‘primary

interest’’ first appears. Defining

‘‘primary interest’’ more specifically to

cover possible future rare instances

when the agency that originated a

document would not have the primary

interest in it would require lengthy

explanations of limited usefulness.

The Department also will not amend

its regulations to state that records will

be referred only when referral is

necessary because the originating

agency has a substantial interest in the

record, and when the referral is not

likely to substantially delay the release

or otherwise place unreasonable

burdens on the requester. In the vast

majority of cases, the agency that

originated a record has the primary, or

principal, interest in it, and is in the

best position to determine whether to

release it. In those rare instances when

the originating agency does not have the

primary interest in it, the Department’s

regulations would not require referral to

that agency. Revising the Department’s

regulations, as the commenter suggests,

to require Department officials to make

case-by-case determinations on whether

a referral would be likely to

substantially delay a release or

otherwise place unreasonable burdens

on the requester, would require those

officials to make difficult and inherently

subjective decisions, and thus is

administratively unworkable.

(4) The commenter objected to a

sentence in § 4.6(c)(3) that refusal to

reasonably modify the scope of a request

or arrange an alternate time frame may

affect a requester’s ability to obtain

judicial review. The sentence is

misleading and the Department has

deleted it.

(5) The commenter objected to the

scope of the grounds upon which

§ 4.9(b) would require business

submitters to assert any objections to

disclosure by the Department of records

submitted by them. The Department had

proposed that ‘‘the statement [from the

business submitter] must specify all

grounds for withholding any portion of

the information under any exemption of

the FOIA.’’ The commenter

recommended that the regulation

require submitters to specify only the

grounds for withholding their records

under exemptions (b)(4) and (b)(6),

which protect the individual interests of

the submitter, but not to require them to

assert exemptions intended to protect

Government interests. The Department

agrees in part with the comment, and

has deleted the requirement that the

statement specify all grounds for

withholding information under any

FOIA exemption. The Department has,

however, decided to require submitters

to specify only grounds for withholding

under exemption (b)(4), and not also

under exemption (b)(6), because the

Department does not routinely notify

persons about whom the Department

possesses information potentially

subject to exemption (b)(6). Thus,

requiring business submitters to object

to disclosure of potential (b)(6)

information without requiring other

persons about whom the Department

possesses similar (b)(6) information to

do so would be unfair.

Other Considerations

It has been determined that this rule

is significant under Executive Order

12866.

This rule does not contain a

‘‘collection of information’’ as defined

by the Paperwork Reduction Act.

In accordance with the Regulatory

Flexibility Act (5 U.S.C. 605(b)), the

Chief Counsel for Regulation has

certified to the Chief Counsel for

Advocacy of the Small Business

Administration that this rule will not

have a significant economic impact on

a substantial number of small entities.

Under the FOIA, agencies may recover

only the direct costs of searching for,

reviewing, and duplicating the records

processed for requesters. Thus, the fees

the Department assesses are ordinarily

nominal. Further, the number of ‘‘small

entities’’ that make FOIA requests is

relatively small compared to the number

of individuals who make such requests.

List of Subjects

15 CFR Part 4

Administrative practice and

procedure, Freedom of Information,

Privacy, Public information.

15 CFR Part 4a

Administrative practice and

procedure, Classified information.

15 CFR Part 4b

Privacy.

For the reasons stated in the

preamble, the Department of Commerce

amends 15 CFR as set forth below:

1. Revise Part 4 to read as follows:

PART 4—DISCLOSURE OF

GOVERNMENT INFORMATION

Subpart A—Freedom of Information Act

Sec.

4.1 General.

4.2 Public reference facilities.

4.3 Records under the FOIA.

4.4 Requirements for making requests.

4.5 Responsibility for responding to

requests.

4.6 Time limits and expedited processing.

4.7 Responses to requests.

4.8 Classified information.

4.9 Business Information.

4.10 Appeals from initial determinations or

untimely delays.

4.11 Fees.

Subpart B—Privacy Act

4.21 Purpose and scope.

4.22 Definitions.

4.23 Procedures for making inquiries.

4.24 Procedures for making requests for

records.

4.25 Disclosure of requested records to

individuals.

4.26 Special procedures: Medical records.

4.27 Procedures for making requests for

correction or amendment.

4.28 Agency review of requests for

correction or amendment.

4.29 Appeal of initial adverse agency

determination on correction or

amendment.

4.30 Disclosure of record to person other

than the individual to whom it pertains.

4.31 Fees.

4.32 Penalties.

4.33 General exemptions.

4.34 Specific exemptions.

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.

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.

Appendix C to Part 4—Systems of Records

Noticed by Other Federal Agencies and

Applicable to Records of the Department,

and Applicability of this Part Thereto.

Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations 65633

1The 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 should be sent directly to the

USPTO.

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

§ 4.1 General.

(a) The information in this part is

furnished for the guidance of the public

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 the 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.

(b) As used in this subpart,

component means any office, division,

bureau or other unit of the Department

listed in Appendix A to this part (except

that a regional office of a larger office or

other unit does not constitute a separate

component).

§ 4.2 Public reference facilities.

(a) The Department maintains public

reference facilities (listed in Appendix

A to this part) that contain the records

the FOIA requires to be made regularly

available for public inspection and

copying; furnishes information; receives

and processes requests for records under

the FOIA; and otherwise assists the

public concerning Department

operations under the FOIA.

(b) Each component of the

Department shall determine which of its

records are required to be made

available for public inspection and

copying, and make those records

available either in its own public

reference facility or in the Department’s

Central Reference and Records

Inspection Facility. Each component

shall maintain and make available for

public inspection and copying a current

subject-matter index of its public

inspection facility records. Each index

shall be updated regularly, at least

quarterly, with respect to newly

included records. In accordance with 5

U.S.C. 552(a)(2), the Department has

determined that it is unnecessary and

impracticable to publish quarterly or

more frequently and distribute copies of

the index and supplements thereto.

(c) Each component shall make public

inspection facility records created on or

after November 1, 1996 available

electronically through the Department’s

‘‘FOIA Home Page’’ link found at the

Department’s World Wide Web site

(http://www.doc.gov). Information

available at the site shall include:

(1) Each component’s index of its

public inspection facility records, which

indicates which records are available

electronically; and

(2) The general index referred to in

paragraph (d)(3) of this section.

(d) The Department shall maintain

and make available for public

inspection and copying:

(1) A current index providing

identifying 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 (d)(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.

§ 4.3 Records under the FOIA.

(a) Records under the FOIA include

all Government records, regardless of

format, medium or physical

characteristics, and include electronic

records and information, audiotapes,

videotapes, and photographs.

(b) Under the FOIA, the Department

has no obligation to create, compile, or

obtain from outside the Department a

record to satisfy a request. In complying

with a request for electronic data,

whether the Department creates or

compiles records (as by undertaking

significant programming work) or

merely extracts them from an existing

database may be unclear. The

Department shall in any case undertake

reasonable efforts to search for the

information in electronic format.

(c) Department officials may, upon

request, create and provide new records

pursuant to user fee statutes, 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.

(d) Components shall preserve all

correspondence pertaining to the

requests they receive under this subpart,

as well as copies of all requested

records, until disposition or destruction

is authorized by Title 44 of the United

States Code or the National Archives

and Records Administration’s General

Records Schedule 14. Components shall

not dispose of records while they are the

subject of a pending request, appeal, or

lawsuit under the FOIA.

§ 4.4 Requirements for making requests.

(a) A request for records of the

Department which are not customarily

made available to the public as part of

the Department’s regular informational

services must be in writing (and may be

sent by mail, facsimile, or E-mail), and

shall be processed under the FOIA,

regardless whether the FOIA is

mentioned in the request. Requests

should be mailed to the Department

component identified in Appendix A to

this part that maintains those records, or

may be sent by facsimile or E-mail to the

numbers or addresses, respectively,

listed at the Department’s ‘‘FOIA Home

Page’’ link found at the Department’s

World Wide 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. For the quickest handling, the

request (and envelope, if the request is

mailed) should be marked ‘‘Freedom of

Information Act Request.’’

(b) For requests for records about

oneself, § 4.24 contains additional

requirements. For requests for records

about another individual, either a

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) facilitates processing the

request.

(c) The records requested must be

described in enough detail to enable

Department personnel to locate them

with a reasonable amount of effort. If

65634 Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations

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 is located.

Also, 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. In general, the more

specifically the request describes the

records sought, the greater the

likelihood that the Department will be

able to locate those records. If a

component determines that a request

does not reasonably describe records, 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.

§ 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 the

component to which the Departmental

Freedom of Information Officer assigns

lead responsibility for responding to the

request. Records responsive to a request

shall include only those records within

the Department’s possession and control

as of the date the proper component

receives the request.

(b) Consultations and referrals. If a

component receives a request for a

record in its possession in which

another Federal agency subject to the

FOIA has the primary interest, the

component shall refer the record to that

agency for direct response to the

requester. Ordinarily, the agency that

originated a record will be presumed to

have the primary interest in it. A

component shall consult with another

Federal agency before responding to a

requester if the component receives a

request for a record in which another

Federal agency subject to the FOIA has

a significant interest, but not the

primary interest; or another Federal

agency not subject to the FOIA has the

primary interest or a significant interest

(see § 4.8 for additional information

about referrals of classified

information).

(c) Notice of referral. Whenever a

component refers a document to another

Federal agency for direct response to the

requester, it ordinarily shall notify the

requester in writing of the referral and

inform the requester of the name of the

agency to which the document was

referred.

(d) Timing of responses to

consultations and referrals. All

consultations and referrals shall be

handled in chronological order, based

on when the FOIA request was received

by the first Federal agency.

(e) Agreements regarding

consultations and referrals. Components

may make agreements with other

Federal agencies to eliminate the need

for consultations or referrals for

particular types of records.

§ 4.6 Time limits and expedited

processing.

(a) In general. Components ordinarily

shall respond to requests according to

their order of receipt.

(b) Initial response and appeal.

Subject to paragraph (c)(1) of this

section, an initial response shall be

made 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 § 4.5(a), and an appeal

shall be decided within 20 working days

of its receipt by the Office of the General

Counsel.

(c) Unusual circumstances. (1) In

unusual circumstances as specified in

paragraph (c)(2) of this section, an

official listed in Appendix B to this part

may extend the time limits in paragraph

(b) of this section by notifying the

requester in writing as soon as

practicable of the unusual

circumstances 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

an opportunity either to modify the

request so that it may be processed

within the applicable time limit, or to

arrange an alternative time frame for

processing the request or a modified

request.

(2) As used in this section, unusual

circumstances means, but only to the

extent reasonably necessary to properly

process the particular request:

(i) The need to search for and collect

the requested records from field

facilities or other establishments

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 for consultation, which

shall be conducted with all practicable

speed, with another component or

Federal agency having a substantial

interest in the determination of the

request.

(3) If a component reasonably believes

that multiple requests submitted by a

requester, or by a group of requesters

acting in concert, constitute a single

request that would otherwise involve

unusual circumstances, and the requests

involve clearly related matters, the

component may aggregate them.

Multiple requests involving unrelated

matters will not be aggregated.

(d) Multitrack processing. (1) A

component may use two or more

processing tracks by distinguishing

between simple and more complex

requests based on the number of pages

involved, or some other measure of the

amount of work and/or time needed to

process the request, and whether the

request qualifies for expedited

processing as described in paragraph (e)

of this section.

(2) A component using multitrack

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, E-mail, or letter,

whichever is most efficient in each case.

(e) Expedited processing. (1) Requests

and appeals shall be taken out of order

and given expedited treatment

whenever it is determined that they

involve:

(i) Circumstances in which the lack of

expedited treatment could reasonably be

expected to pose an imminent threat to

the life or physical safety of an

individual;

(ii) The loss of substantial due process

rights;

(iii) A matter of widespread and

exceptional media interest involving

questions about the Government’s

integrity which affect public confidence;

or

(iv) An urgency to inform the public

about an actual or alleged Federal

Government activity, if made by a

person primarily engaged in

disseminating information.

(2) A request for expedited processing

may be made at the time of the initial

request for records or at any later time.

For a prompt determination, a request

for expedited processing should be sent

to the component listed in Appendix A

to this part that maintains the records

requested.

(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

Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations 65635

described in paragraph (e)(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 main 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 (e)(1)(iv) of this section must

also establish a particular urgency to

inform the public about the Government

activity involved in the request, beyond

the public’s right to know about

Government activity generally.

(4) Within ten calendar days of its

receipt of a request for expedited

processing, the proper component shall

decide whether to grant it and shall

notify the requester of the decision.

Solely for purposes of calculating the

foregoing time limit, any request for

expedited processing shall always be

considered received on the actual date

of receipt by the proper component. If

a request for expedited processing is

granted, the request shall be given

priority and processed as soon as

practicable, subject to § 4.11(i). If a

request for expedited processing is

denied, any appeal of that decision shall

be acted on expeditiously.

§ 4.7 Responses to requests.

(a) 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. The component

shall inform the requester in the notice

of any fee to be charged under § 4.11

and disclose records to the requester

promptly upon payment of any

applicable fee. 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.

(b) 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 in any respect, namely: a

determination to withhold any

requested record in whole or in part; a

determination that a requested record

does not exist or cannot be located; a

determination that a record is not

readily reproducible in the form or

format sought by the requester; a

determination that what has been

requested is not a record subject to the

FOIA (except that a determination

under § 4.11(j) that records are to be

made available under a fee statute other

than the FOIA is not an adverse

determination); a determination against

the requester on any disputed fee

matter, including a denial of a request

for a reduction or waiver of fees; or a

denial of a request for expedited

processing. Each denial letter shall be

signed by an official listed in Appendix

B to this part, and shall include:

(1) The name and title or position of

the denying official;

(2) A brief statement of the reason(s)

for the denial, including applicable

FOIA exemption(s);

(3) An estimate of the volume of

records or information withheld, in

number of pages or some other

reasonable form of estimation. This

estimate need not be provided if the

volume is otherwise indicated through

deletions on records 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, and a list of the requirements

for filing an appeal under § 4.10(b).

§ 4.8 Classified Information.

In processing a request for

information classified under Executive

Order 12958 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

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 exemptions should be invoked.

Appeals involving classified

information shall be processed in

accordance with § 4.10(c).

§ 4.9 Business Information.

(a) In general. Business information

obtained by the Department from a

submitter will be disclosed under the

FOIA only under this section.

(b) Definitions. For the purposes of

this section:

(1) Business information means

commercial or financial information,

obtained by the Department from a

submitter, which may be protected from

disclosure under FOIA exemption (b)(4)

(5 U.S.C. 552(b)(4)).

(2) Submitter means any person or

entity outside the Federal Government

from which the Department obtains

business information, directly or

indirectly. The term includes

corporations; state, local and tribal

governments; and foreign governments.

(c) Designation of business

information. A submitter of business

information should designate by

appropriate markings, either at the time

of submission or at a reasonable time

thereafter, any portions of its

submission that it considers 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.

(d) Notice to submitters. A component

shall provide a submitter with prompt

written notice of a FOIA request or

administrative appeal that seeks its

business information whenever required

under paragraph (e) of this section,

except as provided in paragraph (h) of

this section, in order to give the

submitter an opportunity under

paragraph (f) of this section to object to

disclosure of any specified portion of

that information. Such written notice

shall be sent via certified mail, return

receipt requested, or similar means. The

notice shall either describe the business

information requested or include copies

of the requested records containing the

information. If notification of a large

number of submitters is required,

notification may be made by posting or

publishing the notice in a place

reasonably likely to accomplish

notification.

(e) When notice is required. Notice

shall be given to the submitter

whenever:

(1) The submitter has designated the

information in good faith as protected

from disclosure under FOIA exemption

(b)(4); or

(2) The component has reason to

believe that the information may be

protected from disclosure under FOIA

exemption (b)(4).

(f) Opportunity to object to disclosure.

A component shall allow a submitter

seven working days (i.e., excluding

Saturdays, Sundays, and legal public

holidays) from the date of receipt of the

written notice described in paragraph

(d) of this section to provide the

component with a statement of any

objection to disclosure. The statement

must identify any portions of the

information the submitter requests to be

withheld under FOIA exemption (b)(4),

and describe how each qualifies for

65636 Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations

protection under the exemption: that is,

why the information is a trade secret, or

commercial or financial information

that is privileged or confidential. If a

submitter fails to respond to the notice

within the time specified, the submitter

will be considered to have no objection

to disclosure of the information.

Information a submitter provides under

this paragraph may itself be subject to

disclosure under the FOIA.

(g) Notice of intent to disclose. A

component shall consider a submitter’s

objections and specific grounds under

the FOIA for nondisclosure in deciding

whether to disclose business

information. If a component decides to

disclose business information over a

submitter’s objection, the component

shall give the submitter written notice

via certified mail, return receipt

requested, or similar means, which shall

include:

(1) A statement of reason(s) why the

submitter’s objections to disclosure

were not sustained;

(2) A description of the business

information to be disclosed; and

(3) A statement that the component

intends to disclose the information

seven working days from the date the

submitter receives the notice.

(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 should not be disclosed;

(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, in

which 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.

(i) Notice to submitter of FOIA

lawsuit. Whenever a requester files a

lawsuit seeking to compel the disclosure

of business information, the component

shall promptly notify the submitter.

(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 also notify the

requester. Whenever a submitter files a

lawsuit seeking to prevent the

disclosure of business information, the

component shall notify the requester.

§ 4.10 Appeals from initial determinations

or untimely delays.

(a) If a request for records is initially

denied in whole or in part, or has not

been timely determined, or if a requester

receives an adverse initial

determination regarding any other

matter under this subpart (as described

in § 4.7(b)), the requester may file a

written appeal, which must be received

by the Office of General Counsel within

thirty calendar days of the date of the

written denial or, if there has been no

determination, may be submitted

anytime after the due date, including

the last extension under § 4.6(c), of the

determination.

(b) Appeals shall be decided by the

Assistant General Counsel for

Administration (AGC–Admin), except

that appeals from requests initially

denied by the AGC–Admin shall be

decided by the General Counsel.

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

General Counsel, Room 5875, 14th

Street and Constitution Avenue NW,

Washington, DC 20230. Both the letter

and the appeal envelope should be

clearly marked ‘‘Freedom of Information

Appeal’’. The appeal must include a

copy of the original request, the initial

denial, if any, and a statement of the

reasons why the records requested

should be made available and why the

initial denial, if any, was in error. No

opportunity for personal appearance,

oral argument or hearing on appeal is

provided.

(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, or the General Counsel, as

appropriate, of his or her decision.

(d) If an appeal is granted, the person

who filed the appeal shall be

immediately notified and copies of the

releasable documents shall be made

available promptly thereafter upon

receipt of appropriate fees determined

in accordance with § 4.11.

(e) If no determination on an appeal

has been sent to the requester within the

twenty working day period specified in

§ 4.6(b) or the last extension thereof, the

requester is deemed to have exhausted

all administrative remedies with respect

to the request, giving rise to a right of

judicial review under 5 U.S.C.

552(a)(6)(C). If the requester initiates a

court action against the Department

based on the provision in this

paragraph, the administrative appeal

process may continue.

(f) The determination on an appeal

shall be in writing and, when it denies

records in whole or in part, the letter to

the requester shall include:

(1) A brief explanation of the basis for

the denial, including a list of the

applicable FOIA exemptions and a

description of how they apply;

(2) A statement that the decision is

final for the Department;

(3) Notification that judicial review of

the denial is available in the district

court of the United States in the district

in which the requester resides, or has

his or her principal place of business, or

in which the agency records are located,

or in the District of Columbia; and

(4) The name and title or position of

the official responsible for denying the

appeal.

§ 4.11 Fees.

(a) In general. Components shall

charge for processing requests under the

FOIA in accordance with paragraph (c)

of this section, except when fees are

limited under paragraph (d) of this

section or when a waiver or reduction

of fees is granted under paragraph (k) of

this section. 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) Definitions. For purposes of this

section:

(1) Commercial use request means a

request from or on behalf of a person

who seeks information for a use or

purpose that furthers his or her

commercial, trade, or profit interests,

which can include furthering those

interests through litigation. Components

shall determine, whenever reasonably

possible, the use to which a requester

will put the requested records. If it

appears that the requester will put the

records to a commercial use, or if a

component has reasonable cause to

doubt a requester’s asserted noncommercial use, the component shall

provide the requester a reasonable

opportunity to submit further

clarification.

(2) Direct costs means those expenses

a component incurs in providing a

particular service. Such expenses would

include, for example, the labor costs of

the employee performing the service

(the basic rate of pay for the employee,

plus 16 percent of that rate to cover

Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations 65637

benefits). Not included in direct costs

are 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 (for

example, magnetic tape or disk), among

others. A component shall honor a

requester’s specified preference of form

or format of disclosure if the component

can reproduce the record in the

requested form or format with

reasonable effort.

(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. To be in

this category, a requester must show

that the request is authorized by and is

made under the auspices of a qualifying

institution, and that the records are

sought to further scholarly research

rather than for a commercial use.

(5) Noncommercial scientific

institution means an institution that is

not operated on a ‘‘commercial’’ basis,

as that term is defined in paragraph

(b)(1) of this section, and that is

operated solely for the purpose of

conducting scientific research, the

results of which are not intended to

promote any particular product or

industry. To be in this category, a

requester must show that the request is

authorized by and is made under the

auspices of a qualifying institution and

that the records are sought to further

scientific research rather than for a

commercial use.

(6) Representative of the news media,

or news media requester means any

person actively gathering news for an

entity that is organized and operated to

publish or broadcast news to the public.

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

include television or radio stations

broadcasting to the public at large and

publishers of periodicals (but only if

they can qualify as disseminators of

‘‘news’’) that make their products

available for purchase or subscription

by the general public. For ‘‘freelance’’

journalists to be regarded as working for

a news organization, they must

demonstrate a solid basis for expecting

publication through that organization. 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. To be in this category, a

requester must not be seeking the

requested records for a commercial use.

However, a request for records

supporting the news-dissemination

function of the requester shall not be

considered to be for a commercial use.

(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.

It also includes processing any record

for disclosure, for example, redacting it

and marking any applicable exemptions.

Review costs are recoverable even if a

record ultimately is not disclosed.

Review time does not include time

spent resolving general legal or policy

issues regarding the application of

exemptions.

(8) Search means the process of

looking for and retrieving records or

information responsive to a request. It

includes page-by-page or line-by-line

identification of information within

records and also includes reasonable

efforts to locate and retrieve information

from records maintained in electronic

form or format. Components shall

ensure that searches are done in the

most efficient and least expensive

manner reasonably possible.

(c) Fees. In responding to FOIA

requests, components shall charge the

fees summarized in chart form in

paragraphs (c)(1) and (c)(2) of this

section and explained in paragraphs

(c)(3) through (c)(5) of this section,

unless a waiver or reduction of fees has

been granted under paragraph (k) of this

section.

(1) The four categories and chargeable

fees are:

Category Chargeable fees

(i) Commercial Use Requesters ............................................................... Search, Review, and Duplication.

(ii) Educational and Non-commercial Scientific Institution Requesters ... Duplication (excluding the cost of the first 100 pages).

(iii) Representatives of the News Media .................................................. Duplication (excluding the cost of the first 100 pages).

(iv) All Other Requesters .......................................................................... Search and Duplication (excluding the cost of the first 2 hours of

search and 100 pages).

(2) Uniform fee schedule.

Service Rate

(i) Manual search ...................................................................................... Actual salary rate of employee involved, plus 16 percent of salary rate.

(ii) Computerized search .......................................................................... Actual direct cost, including operator time.

(iii) Duplication of records:

(A) Paper copy reproduction ............................................................. $.16 per page

(B) Other reproduction (e.g., computer disk or printout, microfilm,

microfiche, or microform).

Actual direct cost, including operator time.

(iv) Review of records (including redaction) ..................................... Actual salary rate of employee conducting review, plus 16 percent of

salary rate.

(3) Search. (i) Search fees shall be

charged for all requests—other than

requests made by educational

institutions, noncommercial scientific

institutions, or representatives of the

news media—subject to the limitations

of paragraph (d) of this section.

Components shall charge for time spent

searching even if they do not locate any

responsive records or if they withhold

any records located as entirely exempt

from disclosure. Search fees shall be the

direct costs of conducting the search by

the involved employees.

(ii) For computer searches of records,

requesters will be charged the direct

costs of conducting the search, although

certain requesters (as provided in

65638 Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations

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.

(4) Duplication. Duplication fees shall

be charged to all requesters, subject to

the limitations of paragraph (d) of this

section. For a paper photocopy of a

record (no more than one copy of which

need be supplied), the fee shall be $.16

cents per page. For copies produced by

computer, such as tapes or printouts,

components shall charge the direct

costs, including operator time, of

producing the copy. For other forms of

duplication, components shall charge

the direct costs of that duplication.

(5) Review. Review fees shall be

charged to requesters who make a

commercial use request. Review fees

shall be charged only for the initial

record review, in which a component

determines whether an exemption

applies to a particular record at the

initial request level. No charge shall be

imposed for review at the administrative

appeal level for an exemption already

applied. However, records withheld

under an exemption that is

subsequently determined not to apply

may be reviewed again to determine

whether any other exemption not

previously considered applies, and the

costs of that review are chargeable.

Review fees shall be the direct costs of

conducting the review by the involved

employees.

(d) Limitations on charging fees.

(1) No search fee shall be charged for

requests from educational institutions,

noncommercial scientific institutions,

or representatives of the news media.

(2) No search fee or review fee shall

be charged for a quarter-hour period

unless more than half of that period is

required for search or review.

(3) Except for requesters seeking

records for a commercial use,

components shall provide without

charge:

(i) The first 100 pages of duplication

(or the cost equivalent); and

(ii) The first two hours of search (or

the cost equivalent).

(4) If a total fee calculated under

paragraph (c) of this section is $20.00 or

less for any request, no fee shall be

charged. If such total fee is more than

$20.00, the full amount of such fee shall

be charged.

(5) The provisions of paragraphs (d)

(3) and (4) of this section work together.

This means that for requesters other

than those seeking records for a

commercial use, no fee shall be charged

unless the cost of search in excess of

two hours plus the cost of duplication

in excess of 100 pages totals more than

$20.00.

(e) Notice of anticipated fees over

$20.00. If a component determines or

estimates that the total fee to be charged

under this section will be more than

$20.00, the component shall notify the

requester of the actual or estimated fee,

unless the requester has stated in

writing a willingness to pay a fee as

high as that 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. If the

component has notified a requester that

the actual or estimated fee is more than

$20.00, the component shall not

consider the request received for

purposes of calculating the time limit in

§ 4.6(b) to respond to a request, or

process it further, until the requester

agrees to pay the anticipated total fee.

Any agreement to pay should be

memorialized in writing. A notice under

this paragraph shall offer the requester

an opportunity to contact Departmental

personnel to discuss modifying the

request to meet the requester’s needs at

a lower cost.

(f) Charges for other services. Apart

from the other provisions of this section,

if a component decides, as a matter of

administrative discretion, to comply

with a request for special services, the

component shall charge the direct cost

of providing them. Such services could

include certifying that records are true

copies or sending records by other than

ordinary mail.

(g) Charging interest. Components

shall charge interest on any unpaid bill

starting on the 31st calendar day

following the date of billing the

requester. Interest charges shall be

assessed at the rate provided in 31

U.S.C. 3717 and accrue from the date of

the billing until the component receives

payment. Components shall take all

steps authorized by the Debt Collection

Act of 1982, as amended by the Debt

Collection Improvement Act of 1996, to

effect payment, including offset,

disclosure to consumer reporting

agencies, and use of collection agencies.

(h) Aggregating requests. If a

component reasonably believes that a

requester or a group of requesters acting

together is attempting to divide a

request into a series of requests for the

purpose of avoiding fees, the component

may aggregate those requests and charge

accordingly. Among the factors a

component shall consider in deciding

whether to aggregate are the closeness in

time between the component’s receipt of

the requests, and the relatedness of the

matters about which the requests are

made. A component may generally

presume that multiple requests that

involve related matters made by the

same requester or a closely related

group of requesters within a 30 calendar

day period have been made in order to

avoid fees. If requests are separated by

a longer period, a component shall

aggregate them only if a solid basis

exists for determining that aggregation is

warranted under all the circumstances

involved. Multiple requests involving

unrelated matters shall not be

aggregated.

(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:

a payment made before work is begun

or continued on a request. Payment

owed for work already completed (i.e.,

a payment before copies are sent to a

requester) is not an advance payment.

(2) If a component determines or

estimates that a total fee to be charged

under this section will be more than

$250.00, the component shall not

consider the request received for

purposes of calculating the time limit in

§ 4.6(b) to respond to a request, or

process it further, until it receives

payment from the requester of the entire

anticipated fee.

(3) If a requester has previously failed

to pay a properly charged FOIA fee to

any component or other Federal agency

within 30 calendar days of the date of

billing, a component shall require the

requester 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. For

purposes of calculating the time limit in

§ 4.6(b) to respond to a request, the

component shall not consider the

request received until it receives full

payment of all applicable fees and

interest in this paragraph.

(4) Upon the completion of processing

of a request, if a specific fee is

determined to be payable and

appropriate notice has been given to the

requester, a component shall make

records available to the requester only

upon receipt of full payment of the fee.

(j) Other statutes specifically

providing for fees. The fee schedule of

this section does not apply to fees

charged under any statute (except for

the FOIA) that specifically requires an

agency to set and collect fees for

particular types of records. If records

responsive to requests are maintained

for distribution by agencies operating

such statutorily based fee schedule

programs, components shall inform

Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations 65639

requesters how to obtain records from

those sources. Provision of such records

is not handled under the FOIA.

(k) Requirements for waiver or

reduction of fees. (1) Records responsive

to a request will be furnished without

charge, or at a charge reduced below

that established under paragraph (c) of

this section, if the requester asks for

such a waiver in writing and the

responsible component determines,

after consideration of information

provided by the requester, that the

requester has demonstrated that:

(i) Disclosure of the requested

information is in the public interest

because it is likely to contribute

significantly to public understanding of

the operations or activities of the

Government; and

(ii) Disclosure of the information is

not primarily in the commercial interest

of the requester.

(2) To determine whether the first fee

waiver requirement is met, components

shall consider the following factors:

(i) The subject of the request: whether

the subject of the requested records

concerns the operations or activities of

the Government. The subject of the

requested records must concern

identifiable operations or activities of

the Federal Government, with a

connection that is direct and clear, not

remote or attenuated.

(ii) The informative value of the

information to be disclosed: whether the

disclosure is ‘‘likely to contribute’’ to an

understanding of Government

operations or activities. The disclosable

portions of the requested records must

be meaningfully informative about

Government operations or activities in

order to be ‘‘likely to contribute’’ to an

increased public understanding of those

operations or activities. The disclosure

of information that already is in the

public domain, in either a duplicative or

a substantially identical form, would

not be likely to contribute to such

understanding.

(iii) The contribution to an

understanding of the subject by the

public likely to result from disclosure:

whether disclosure of the requested

information will contribute to the

understanding of a reasonably broad

audience of persons interested in the

subject, as opposed to the individual

understanding of the requester. A

requester’s expertise in the subject area

and ability and intention to effectively

convey information to the public shall

be considered. It shall be presumed that

a representative of the news media

satisfies this consideration. Merely

providing information to media sources

is insufficient to satisfy this

consideration.

(iv) The significance of the

contribution to public understanding:

whether the disclosure is likely to

contribute ‘‘significantly’’ to public

understanding of Government

operations or activities. The public’s

understanding of the subject in question

prior to the disclosure must be

significantly enhanced by the

disclosure.

(3) To determine whether the second

fee waiver requirement (i.e., that

disclosure is not primarily in the

commercial interest of the requester) is

met, components shall consider the

following factors:

(i) The existence and magnitude of a

commercial interest: whether the

requester has a commercial interest that

would be furthered by the requested

disclosure. Components shall consider

any commercial interest of the requester

(with reference to the definition of

‘‘commercial use request’’ in paragraph

(b)(1) of this section), or of any person

on whose behalf the requester may be

acting, that would be furthered by the

requested disclosure. Requesters shall

be given an opportunity to provide

explanatory information regarding this

consideration.

(ii) The primary interest in disclosure:

whether any identified commercial

interest of the requester is sufficiently

great, in comparison with the public

interest in disclosure, that disclosure is

‘‘primarily in the commercial interest of

the requester.’’ A fee waiver or

reduction is justified if the public

interest standard (paragraph (k)(1)(i) of

this section) is satisfied and the public

interest is greater than any identified

commercial interest in disclosure.

Components ordinarily shall presume

that if a news media requester has

satisfied the public interest standard,

the public interest is the primary

interest served by disclosure to that

requester. Disclosure to data brokers or

others who merely compile and market

Government information for direct

economic return shall not be presumed

to primarily serve the public interest.

(4) If only some of the records to be

released satisfy the requirements for a

fee waiver, a waiver shall be granted for

those records.

(5) Requests for the waiver or

reduction of fees should address the

factors listed in paragraphs (k)(2) and (3)

of this section, insofar as they apply to

each request.

Subpart B—Privacy Act

§ 4.21 Purpose and scope.

(a) This subpart establishes policies

and procedures for implementing the

Privacy Act of 1974, as amended (5

U.S.C. 552a). The main objectives of the

subpart are to facilitate full exercise of

rights conferred on individuals under

the Act, and to protect the privacy of

individuals on whom the Department

maintains records in systems of records

under the Act.

(b) The Department shall act promptly

and in accordance with the Act upon

receipt of any inquiry, request or appeal

from a citizen of the United States or an

alien lawfully admitted for permanent

residence into the United States,

regardless of the individual’s age.

Further, the Department shall maintain

only such information on individuals as

is relevant and necessary to the

performance of its lawful functions;

maintain that information with such

accuracy, relevancy, timeliness, and

completeness as is reasonably necessary

to assure fairness in determinations

made by the Department about the

individual; obtain information from the

individual to the extent practicable; and

take every reasonable step to protect

that information from unwarranted

disclosure. The Department shall

maintain no record describing how an

individual exercises rights guaranteed

by the First Amendment unless

expressly authorized to do so by statute

or by the individual about whom the

record is maintained, or unless to do so

is pertinent to and within the scope of

an authorized law enforcement activity.

An individual’s name and address shall

not be sold or rented by the Department

unless such action is specifically

authorized by law.

(c) This subpart applies to all

components of the Department.

Components may promulgate

supplementary orders and rules not

inconsistent with this subpart.

(d) The Assistant Secretary for

Administration is delegated

responsibility for maintaining this

subpart, for issuing such orders and

directives internal to the Department as

are necessary for full compliance with

the Act, and for publishing all required

notices concerning systems of records.

(e) Matters outside the scope of this

subpart include:

(1) Requests for records that do not

pertain to the requester, or to the

individual about whom the request is

made if the requester is the parent or

guardian of the individual;

(2) Requests involving information

pertaining to an individual that is in a

record or file but not within the scope

of a system of records notice published

in the Federal Register;

(3) Requests to correct a record if a

grievance procedure is available to the

individual either by regulation or

through a provision in a collective

65640 Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations

2The 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 PA regulations at 37 CFR

part 102, subpart B. Accordingly, requests

concerning records maintained by the USPTO

should be sent directly to the USPTO.

bargaining agreement with the

Department or a component of the

Department, and the individual has

initiated, or expressed in writing the

intention of initiating, such a grievance

procedure; and

(4) Requests for employee-employer

services and counseling that were

routinely granted prior to enactment of

the Act, including, but not limited to,

test calculations of retirement benefits,

explanations of health and life

insurance programs, and explanations of

tax withholding options.

(f) Any request for records that

pertains to the requester, or to the

individual about whom the request is

made if the requester is the parent or

guardian of the individual, shall be

processed under the Act and this

subpart and under the Freedom of

Information Act and the Department’s

implementing regulations at subpart A

of this part, regardless whether the Act

or the Freedom of Information Act is

mentioned in the request.

§ 4.22 Definitions.

(a) All terms used in this subpart

which are defined in 5 U.S.C. 552a shall

have the same meaning herein.

(b) As used in this subpart:

(1) Act means the ‘‘Privacy Act of

1974, as amended (5 U.S.C. 552a)’’.

(2) Appeal means a request by an

individual to review and reverse an

initial denial of a request from that

individual for correction or amendment.

(3) Component means any office,

division, bureau or other unit of the

Department listed in Appendix A to this

part (except that a regional office of a

larger office or other unit does not

constitute a separate component).

(4) Department means the Department

of Commerce.

(5) Inquiry means either a request for

general information regarding the Act

and this subpart or a request from an

individual (or that individual’s parent

or guardian) that the Department

determine whether it has any record in

a system of records that pertains to that

individual.

(6) Person means any human being

and also shall include, but is not limited

to, corporations, associations,

partnerships, trustees, receivers,

personal representatives, and public or

private organizations.

(7) Privacy Officer means those

officials, identified in Appendix B to

this part, who are authorized to receive

and act upon inquiries, requests for

access, and requests for correction or

amendment.

(8) Request for access means a request

from an individual or an individual’s

parent or guardian to see a record

pertaining to that individual in a

particular system of records.

(9) Request for correction or

amendment means a request from an

individual or an individual’s parent or

guardian that the Department change

(by correction, amendment, addition or

deletion) a particular record pertaining

to that individual in a system of records.

§ 4.23 Procedures for making inquiries.

(a) Any individual, regardless of age,

who is a citizen of the United States or

an alien lawfully admitted for

permanent residence into the United

States may submit an inquiry to the

Department. The inquiry should be

made either in person or by mail

addressed to the appropriate component

identified in Appendix A to this part or

to the official identified in the

notification procedures paragraph of the

systems of records notice published in

the Federal Register.2 If an individual

believes the Department maintains a

record pertaining to him or her but does

not know which system of records

might contain such a record and/or

which component of the Department

maintains the system of records,

assistance in person or by mail will be

provided at the first address listed in

Appendix A to this part.

(b) Inquiries submitted by mail should

include the words ‘‘PRIVACY ACT

INQUIRY’’ in capital letters at the top of

the letter and on the face of the

envelope. If the inquiry is for general

information regarding the Act and this

subpart, no particular information is

required. The Department reserves the

right to require compliance with the

identification procedures appearing at

§ 4.24(d). If the inquiry is a request that

the Department determine whether it

has a record pertaining to the

individual, the following information

should be submitted:

(1) Name of individual whose record

is sought;

(2) Statement that individual whose

record is sought is either a U.S. citizen

or an alien lawfully admitted for

permanent residence;

(3) Identifying data that will help

locate the record (for example, maiden

name, occupational license number,

period or place of employment, etc.);

(4) Record sought, by description and

by record system name, if known;

(5) Action requested (that is, sending

information on how to exercise rights

under the Act; determining whether

requested record exists; gaining access

to requested record; or obtaining copy of

requested record);

(6) Copy of court guardianship order

or minor’s birth certificate, as provided

in § 4.24(d)(3), but only if requester is

guardian or parent of individual whose

record is sought;

(7) Requester’s name (printed),

signature, address, and (optional)

telephone number;

(8) Date; and,

(9) Certification of request by notary

or other official, but only if

(i) Request is for notification that

requested record exists, for access to

requested record, or for copy of

requested record;

(ii) Record is not available to any

person under 5 U.S.C. 552; and

(iii) Requester does not appear before

an employee of the Department for

verification of identity.

(c) Any inquiry which is not

addressed as specified in paragraph (a)

of this section or which is not marked

as specified in paragraph (b) of this

section will be so addressed and marked

by Department personnel and forwarded

immediately to the responsible Privacy

Officer. An inquiry which is not

properly addressed by the individual

will not be deemed to have been

‘‘received’’ for purposes of measuring

the time period for response until actual

receipt by the Privacy Officer. In each

instance when an inquiry so forwarded

is received, the Privacy Officer shall

notify the individual that his or her

inquiry was improperly addressed and

the date the inquiry was received at the

proper address.

(d)(1) Each inquiry received shall be

acted upon promptly by the responsible

Privacy Officer. Every effort will be

made to respond within ten working

days (i.e., excluding Saturdays, Sundays

and legal public holidays) of the date of

receipt at the proper address. If a

response cannot be made within ten

working days, the Privacy Officer shall

send an acknowledgment during that

period providing information on the

status of the inquiry and asking for such

further information as may be necessary

to process the inquiry. The first

correspondence sent by the Privacy

Officer to the requester shall contain the

Department’s control number assigned

to the request, as well as a statement

that the requester should use that

number in all future contacts with the

Department. The Department shall use

that control number in all subsequent

correspondence.

(2) If the Privacy Officer fails to send

an acknowledgment within ten working

days, as provided in paragraph (d)(1) of

Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations 65641

this section, the requester may ask the

Assistant General Counsel for

Administration to take corrective action.

No failure of a Privacy Officer to send

an acknowledgment shall confer

administrative finality for purposes of

judicial review.

(e) An individual shall not be

required to state a reason for or

otherwise justify his or her inquiry.

(f) Special note should be taken that

certain agencies are responsible for

publishing notices of systems of records

having Government-wide application to

other agencies, including the

Department. The agencies known to be

publishing these general notices and the

types of records covered therein appear

in Appendix C to this part. These

general notices do not identify the

Privacy Officers in the Department to

whom inquiries should be presented or

mailed. The provisions of this section,

and particularly paragraph (a) of this

section, should be followed in making

inquiries with respect to such records.

Such records in the Department are

subject to the provisions of this part to

the extent indicated in Appendix C to

this part. The exemptions, if any,

determined by the agency publishing a

general notice shall be invoked and

applied by the Department after

consultation, as necessary, with that

other agency.

§ 4.24 Procedures for making requests for

records.

(a) Any individual, regardless of age,

who is a citizen of the United States or

an alien lawfully admitted for

permanent residence into the United

States may submit a request to the

Department for access to records. The

request should be made either in person

or by mail addressed to the appropriate

office listed in Appendix A to this part.

(b) Requests submitted by mail should

include the words ‘‘PRIVACY ACT

REQUEST’’ in capital letters at the top

of the letter and on the face of the

envelope. Any request which is not

addressed as specified in paragraph (a)

of this section or which is not marked

as specified in this paragraph will be so

addressed and marked by Department

personnel and forwarded immediately

to the responsible Privacy Officer. A

request which is not properly addressed

by the individual will not be deemed to

have been ‘‘received’’ for purposes of

measuring time periods for response

until actual receipt by the Privacy

Officer. In each instance when a request

so forwarded is received, the Privacy

Officer shall notify the individual that

his or her request was improperly

addressed and the date the request was

received at the proper address.

(c) If the request follows an inquiry

under § 4.23 in connection with which

the individual’s identity was established

by the Department, the individual need

only indicate the record to which access

is sought, provide the Department

control number assigned to the request,

and sign and date the request. If the

request is not preceded by an inquiry

under § 4.23, the procedures of this

section should be followed.

(d) The requirements for

identification of individuals seeking

access to records are:

(1) In person. Each individual making

a request in person shall be required to

present satisfactory proof of identity.

The means of proof, in the order of

preference and priority, are:

(i) A document bearing the

individual’s photograph (for example,

driver’s license, passport or military or

civilian identification card);

(ii) A document, preferably issued for

participation in a Federally-sponsored

program, bearing the individual’s

signature (for example, unemployment

insurance book, employer’s

identification card, national credit card,

and professional, craft or union

membership card); and,

(iii) A document bearing neither the

photograph nor the signature of the

individual, preferably issued for

participation in a Federally-sponsored

program (for example, Medicaid card). If

the individual can provide no suitable

documentation of identity, the

Department will require a signed

statement asserting the individual’s

identity and stipulating that the

individual understands the penalty

provision of 5 U.S.C. 552a(i)(3) recited

in § 4.32(a). In order to avoid any

unwarranted disclosure of an

individual’s records, the Department

reserves the right to determine the

adequacy of proof of identity offered by

any individual, particularly if the

request involves a sensitive record.

(2) Not in person. If the individual

making a request does not appear in

person before a Privacy Officer or other

employee authorized to determine

identity, a certification of a notary

public or equivalent officer empowered

to administer oaths must accompany the

request under the circumstances

prescribed in § 4.23(b)(9). The

certification in or attached to the letter

must be substantially in accordance

with the following text:

City of llll County of llll.ss (Name

of individual), who affixed (his) (her)

signature below in my presence, came before

me, a (title), in and for the aforesaid County

and State, this ll day of lll, 20l, and

established (his) (her) identity to my

satisfaction.

My commission expires llll.

(Signature)

(3) Parents of minors and legal

guardians. An individual acting as the

parent of a minor or the legal guardian

of the individual to whom a record

pertains shall establish his or her

personal identity in the same manner

prescribed in either paragraph (d)(1) or

(d)(2) of this section. In addition, such

other individual shall establish his or

her identity in the representative

capacity of parent or legal guardian. In

the case of the parent of a minor, the

proof of identity shall be a certified or

authenticated copy of the minor’s birth

certificate. In the case of a legal

guardian of an individual who has been

declared incompetent due to physical or

mental incapacity or age by a court of

competent jurisdiction, the proof of

identity shall be a certified or

authenticated copy of the court’s order.

For purposes of the Act, a parent or

legal guardian may represent only a

living individual, not a decedent. A

parent or legal guardian may be

accompanied during personal access to

a record by another individual,

provided the provisions of § 4.25(f) are

satisfied.

(e) If the provisions of this subpart are

alleged to impede an individual in

exercising his or her right to access, the

Department will consider, from an

individual making a request, alternative

suggestions regarding proof of identity

and access to records.

(f) An individual shall not be required

to state a reason for or otherwise justify

his or her request for access to a record.

§ 4.25 Disclosure of requested records to

individuals.

(a)(1) The responsible Privacy Officer

shall act promptly upon each request.

Every effort will be made to respond

within ten working days (i.e., excluding

Saturdays, Sundays and legal public

holidays) of the date of receipt. If a

response cannot be made within ten

working days due to unusual

circumstances, the Privacy Officer shall

send an acknowledgment during that

period providing information on the

status of the request and asking for any

further information that may be

necessary to process the request.

‘‘Unusual circumstances’’ shall include

circumstances in which:

(i) A search for and collection of

requested records from inactive storage,

field facilities or other establishments is

required;

(ii) A voluminous amount of data is

involved;

(iii) Information on other individuals

must be separated or expunged from the

particular record; or

65642 Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations

(iv) Consultations with other agencies

having a substantial interest in the

determination of the request are

necessary.

(2) If the Privacy Officer fails to send

an acknowledgment within ten working

days, as provided in paragraph (a)(1) of

this section, the requester may ask the

Assistant General Counsel for

Administration to take corrective action.

No failure of a Privacy Officer to send

an acknowledgment shall confer

administrative finality for purposes of

judicial review.

(b) Grant of access: (1) Notification.

An individual shall be granted access to

a record pertaining to him or her, unless

the provisions of paragraph (g)(1) of this

section apply. The Privacy Officer shall

notify the individual of a determination

to grant access, and provide the

following information:

(i) The methods of access, as set forth

in paragraph (b)(2) of this section;

(ii) The place at which the record may

be inspected;

(iii) The earliest date on which the

record may be inspected and the period

of time that the records will remain

available for inspection. In no event

shall the earliest date be later than thirty

calendar days from the date of

notification;

(iv) The estimated date by which a

copy of the record will be mailed and

the fee estimate pursuant to § 4.31. In no

event shall the estimated date be later

than thirty calendar days from the date

of notification;

(v) The fact that the individual, if he

or she wishes, may be accompanied by

another individual during personal

access, subject to the procedures set

forth in paragraph (f) of this section;

and,

(vi) Any additional prerequisites for

granting access to a specific record.

(2) Methods of access. The following

methods of access to records by an

individual may be available depending

on the circumstances of a given

situation:

(i) Inspection in person may be had in

the office specified by the Privacy

Officer granting access, during the hours

indicated in Appendix A to this part;

(ii) Transfer of records to a Federal

facility more convenient to the

individual may be arranged, but only if

the Privacy Officer determines that a

suitable facility is available, that the

individual’s access can be properly

supervised at that facility, and that

transmittal of the records to that facility

will not unduly interfere with

operations of the Department or involve

unreasonable costs, in terms of both

money and manpower; and,

(iii) Copies may be mailed at the

request of the individual, subject to

payment of the fees prescribed in § 4.31.

The Department, at its own initiative,

may elect to provide a copy by mail, in

which case no fee will be charged the

individual.

(c) Access to medical records is

governed by the provisions of § 4.26.

(d) The Department shall supply such

other information and assistance at the

time of access as to make the record

intelligible to the individual.

(e) The Department reserves the right

to limit access to copies and abstracts of

original records, rather than the original

records. This election would be

appropriate, for example, when the

record is in an automated data medium

such as tape or disc, when the record

contains information on other

individuals, and when deletion of

information is permissible under

exemptions (for example, 5 U.S.C.

552a(k)(2)). In no event shall original

records of the Department be made

available to the individual except under

the immediate supervision of the

Privacy Officer or his or her designee.

(f) Any individual who requests

access to a record pertaining to that

individual may be accompanied by

another individual of his or her choice.

‘‘Accompanied’’ includes discussing the

record in the presence of the other

individual. The individual to whom the

record pertains shall authorize the

presence of the other individual in

writing. The authorization shall include

the name of the other individual, a

specific description of the record to

which access is sought, the Department

control number assigned to the request,

the date, and the signature of the

individual to whom the record pertains.

The other individual shall sign the

authorization in the presence of the

Privacy Officer. An individual shall not

be required to state a reason or

otherwise justify his or her decision to

be accompanied by another individual

during personal access to a record.

(g) Initial denial of access: (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 § 4.33

or 4.34, or exempt by determination of

another agency publishing notice of the

system of records, as described in

§ 4.23(f);

(ii) The record is information

compiled in reasonable anticipation of a

civil action or proceeding;

(iii) The provisions of § 4.26

pertaining to medical records

temporarily have been invoked; or,

(iv) The individual unreasonably has

failed to comply with the procedural

requirements of this part.

(2) Notification. The Privacy Officer

shall give notice of denial of access to

records to the individual in writing, and

the notice shall include the following

information:

(i) The Privacy Officer’s name and

title or position;

(ii) The date of the denial;

(iii) The reasons for the denial,

including citation to the appropriate

section of the Act and this part;

(iv) The individual’s opportunities, if

any, for further administrative

consideration, including the identity

and address of the responsible official.

If no further administrative

consideration within the Department is

available, the notice shall state that the

denial is administratively final; and,

(v) If stated to be administratively

final within the Department, the

individual’s right to judicial review

provided under 5 U.S.C.552a(g)(1), as

limited by 5 U.S.C. 552a(g)(5).

(3) Administrative review. If a Privacy

Officer issues an initial denial of a

request, the individual’s opportunities

for further consideration shall be as

follows:

(i) As to denial under paragraph

(g)(1)(i) of this section, two

opportunities for further consideration

are available in the alternative:

(A) If the individual contests the

application of an exemption to the

records, the review procedures in

§ 4.25(g)(3)(ii) shall apply; or,

(B) If the individual challenges the

validity of the exemption itself, the

individual must file a petition for the

issuance, amendment, or repeal of a rule

under 5 U.S.C. 553(e). If the exemption

was determined by the Department,

such petition shall be filed with the

Assistant Secretary for Administration.

If the exemption was determined by

another agency (as described in

§ 4.23(f)), the Department will provide

the individual with the name and

address of the other agency and any

relief sought by the individual shall be

that provided by the regulations of the

other agency. Within the Department,

no such denial is administratively final

until such a petition has been filed by

the individual and disposed of on the

merits by the Assistant Secretary for

Administration.

(ii) As to denial under paragraphs

(g)(1)(ii) of this section, (g)(1)(iv) of this

section or (to the limited extent

provided in paragraph (g)(3)(i)(A) of this

section) paragraph (g)(1)(i) of this

section, the individual may file for

review with the Assistant General

Counsel for Administration, as

Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations 65643

indicated in the Privacy Officer’s initial

denial notification. The individual and

the Department shall follow the

procedures in § 4.28 to the maximum

extent practicable.

(iii) As to denial under paragraph

(g)(1)(iii) of this section, no further

administrative consideration within the

Department is available because the

denial is not administratively final until

expiration of the time period indicated

in § 4.26(a).

(h) If a request is partially granted and

partially denied, the Privacy Officer

shall follow the appropriate procedures

of this section as to the records within

the grant and the records within the

denial.

§ 4.26 Special procedures: Medical

records.

(a) No response to any request for

access to medical records from an

individual will be issued by the Privacy

Officer for a period of seven working

days (i.e., excluding Saturdays, Sundays

and legal public holidays) from the date

of receipt.

(b) For every request from an

individual for access to medical records,

the Privacy Officer shall:

(1) Inform the individual of the

waiting period prescribed in paragraph

(a) of this section;

(2) Seek from the individual the name

and address of the individual’s

physician and/or psychologist;

(3) Seek from the individual written

consent for the Department to consult

the individual’s physician and/or

psychologist, if the Department believes

such consultation is advisable;

(4) Seek written consent from the

individual for the Department to

provide the medical records to the

individual’s physician or psychologist,

if the Department believes access to the

record by the individual is best effected

under the guidance of the individual’s

physician or psychologist; and,

(5) Forward the individual’s medical

record to the Department’s medical

officer for review and a determination

on whether consultation with or

transmittal of the medical records to the

individual’s physician or psychologist is

warranted. If consultation with or

transmittal of such records to the

individual’s physician or psychologist is

determined to be warranted, the

Department’s medical officer shall so

consult or transmit. Whether or not such

a consultation or transmittal occurs, the

Department’s medical officer shall

provide instruction to the Privacy

Officer regarding the conditions of

access by the individual to his or her

medical records.

(c) If an individual refuses in writing

to give the names and consents set forth

in paragraphs (c)(2) through (c)(4) of this

section, the Department shall give the

individual access to said records by

means of a copy, provided without cost

to the requester, sent registered mail,

return receipt requested.

§ 4.27 Procedures for making requests for

correction or amendment.

(a) Any individual, regardless of age,

who is a citizen of the United States or

an alien lawfully admitted for

permanent residence into the United

States may submit a request for

correction or amendment to the

Department. The request should be

made either in person or by mail

addressed to the Privacy Officer who

processed the individual’s request for

access to the record, and to whom is

delegated authority to make initial

determinations on requests for

correction or amendment. The offices of

Privacy Officers are open to the public

between the hours of 9 a.m. and 4 p.m.

Monday through Friday (excluding

Saturdays, Sundays, and legal public

holidays).

(b) Requests submitted by mail should

include the words ‘‘PRIVACY ACT

REQUEST’’ in capital letters at the top

of the letter and on the face of the

envelope. Any request that is not

addressed as specified in paragraph (a)

of this section or that is not marked as

specified in this paragraph will be so

addressed and marked by Department

personnel and forwarded immediately

to the responsible Privacy Officer. A

request that is not properly addressed

by the individual will not be deemed to

have been ‘‘received’’ for purposes of

measuring the time period for response

until actual receipt by the Privacy

Officer. In each instance when a request

so forwarded is received, the Privacy

Officer shall notify the individual that

his or her request was improperly

addressed and the date the request was

received at the proper address.

(c) Since the request, in all cases, will

follow a request for access under § 4.25,

the individual’s identity will be

established by his or her signature on

the request and use of the Department

control number assigned to the request.

(d) A request for correction or

amendment should include the

following:

(1) Specific identification of the

record sought to be corrected or

amended (for example, description,

title, date, paragraph, sentence, line and

words);

(2) The specific wording to be deleted,

if any;

(3) The specific wording to be

inserted or added, if any, and the exact

place at which it is to be inserted or

added; and,

(4) A statement of the basis for the

requested correction or amendment,

with all available supporting documents

and materials that substantiate the

statement. The statement should

identify the criterion of the Act being

invoked, that is, whether the

information in the record is

unnecessary, inaccurate, irrelevant,

untimely or incomplete.

§ 4.28 Agency review of requests for

correction or amendment.

(a)(1)(i) Not later than ten working

days (i.e., excluding Saturdays, Sundays

and legal public holidays) after receipt

of a request to correct or amend a

record, the Privacy Officer shall send an

acknowledgment providing an estimate

of time within which action will be

taken on the request and asking for such

further information as may be necessary

to process the request. The estimate of

time may take into account unusual

circumstances as described in § 4.25(a).

No acknowledgment will be sent if the

request can be reviewed, processed and

the individual notified of the results of

review (either compliance or denial)

within the ten working days. Requests

filed in person will be acknowledged in

writing at the time submitted.

(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 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 (for example,

erasure of information from a record

maintained only in magneticallyrecorded computer files), 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;

65644 Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations

(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 § 4.29, including

the address of the Assistant General

Counsel for Administration.

(3) The term promptly in this section

means within thirty working days (i.e.,

excluding Saturdays, Sundays and legal

public holidays). If the Privacy Officer

cannot make the determination within

thirty working days, the individual will

be advised in writing of the reason for

the delay and of the estimated date by

which the determination will be made.

(b) Whenever an individual’s record is

corrected or amended pursuant to a

request from that individual, the Privacy

Officer shall notify all persons and

agencies to which the corrected or

amended portion of the record had been

disclosed prior to its correction or

amendment, if an accounting of such

disclosure required by the Act was

made. The notification shall require a

recipient agency maintaining the record

to acknowledge receipt of the

notification, to correct or amend the

record, and to apprise any agency or

person to which it had disclosed the

record of the substance of the correction

or amendment.

(c) The following criteria will be

considered by the Privacy Officer in

reviewing a request for correction or

amendment:

(1) The sufficiency of the evidence

submitted by the individual;

(2) The factual accuracy of the

information to be corrected or amended;

(3) The relevance and necessity of the

information in terms of the purpose for

which it was collected;

(4) The timeliness and currency of the

information in light of the purpose for

which it was collected;

(5) The completeness of the

information in terms of the purpose for

which it was collected;

(6) The degree of risk that denial of

the request could unfairly result in

determinations adverse to the

individual;

(7) The character of the record sought

to be corrected or amended; and,

(8) The propriety and feasibility of

complying with the specific means of

correction or amendment requested by

the individual.

(d) The Department will not

undertake to gather evidence for the

individual, but does reserve the right to

verify the evidence the individual

submits.

(e) Correction or amendment of a

record requested by an individual will

be denied only upon a determination by

the Privacy Officer that:

(1) The individual has failed to

establish, by a preponderance of the

evidence, the propriety of the correction

or amendment in light of the criteria set

forth in paragraph (c) of this section;

(2) The record sought to be corrected

or amended is part of the official record

in a terminated judicial, quasi-judicial

or quasi-legislative proceeding to which

the individual was a party or

participant;

(3) The information in the record

sought to be corrected or amended, or

the record sought to be corrected or

amended, is the subject of a pending

judicial, quasi-judicial or quasilegislative proceeding to which the

individual is a party or participant;

(4) The correction or amendment

would violate a duly enacted statute or

promulgated regulation; or,

(5) The individual unreasonably has

failed to comply with the procedural

requirements of this part.

(f) If a request is partially granted and

partially denied, the Privacy Officer

shall follow the appropriate procedures

of this section as to the records within

the grant and the records within the

denial.

§ 4.29 Appeal of initial adverse agency

determination on correction or amendment.

(a) If a request for correction or

amendment is denied initially under

§ 4.28, the individual may submit a

written appeal within thirty working

days (i.e., excluding Saturdays, Sundays

and legal public holidays) of the date of

the initial denial. If an appeal is

submitted by mail, the postmark is

conclusive as to timeliness.

(b) An appeal 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 APPEAL’’ in capital

letters 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 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 why

the initial denial is believed to be in

error, and the Department’s control

number assigned to the request. The

Privacy Officer who issued the initial

denial shall furnish to the Assistant

General Counsel for Administration the

record 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 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.

(d) No personal appearance or hearing

on appeal will be allowed.

(e) The Assistant General Counsel for

Administration 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 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 issue.

The estimated date should not be later

than the sixtieth working day after

receipt of the appeal unless unusual

circumstances, as described in § 4.25(a),

are met.

(f) If the appeal is determined in favor

of the individual, the final

determination shall include the specific

corrections or amendments to be made

and a copy thereof shall be transmitted

promptly to the individual and to the

Privacy Officer who issued the initial

denial. Upon receipt of such final

determination, the Privacy Officer shall

promptly take the actions set forth in

§ 4.28(a)(2)(i) and (b).

(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 also shall inform the

individual that:

(1) The individual has a right under

the Act to file with the Assistant

General Counsel for Administration a

Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations 65645

3 5 U.S.C. 552b(b)(4) has no application within

the Department.

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 shall acknowledge

receipt of such statement and inform the

individual of the date on which it was

received;

(2) Any such disagreement statement

submitted by the individual would be

noted in the disputed record, and filed

with it;

(3) The purposes and uses to which

the statement would be put are those

applicable to the record in which it is

noted, and that a copy of the statement

would be provided to persons and

agencies to which the record is

disclosed subsequent to the date of

receipt of such statement;

(4) The Department would append to

any such disagreement statement a copy

of the final determination or summary

thereof, which also would be provided

to persons and agencies to which the

disagreement statement is disclosed;

and

(5) The individual has a right to

judicial review of the final

determination under 5 U.S.C.

552a(g)(1)(A), as limited by 5 U.S.C.

552a(g)(5).

(h) In making the final determination,

the Assistant General Counsel for

Administration shall employ the criteria

set forth in § 4.28(c) and shall deny an

appeal only on the grounds set forth in

§ 4.28(e).

(i) If an appeal is partially granted and

partially denied, the Assistant General

Counsel for Administration shall follow

the appropriate procedures of this

section as to the records within the

grant and the records within the denial.

(j) Although a copy of the final

determination or a summary thereof will

be treated as part of the individual’s

record for purposes of disclosure in

instances where the individual has filed

a disagreement statement, it will not be

subject to correction or amendment by

the individual.

(k) The provisions of paragraphs (g)(1)

through (g)(3) of this section satisfy the

requirements of 5 U.S.C. 552a(e)(3).

§ 4.30 Disclosure of record to person other

than the individual to whom it pertains.

(a) The Department may disclose a

record pertaining to an individual to a

person other than the individual to

whom it pertains only in the following

instances:

(1) Upon written request by the

individual, including authorization

under § 4.25(f);

(2) With the prior written consent of

the individual;

(3) To a parent or legal guardian

under 5 U.S.C. 552a(h);

(4) When required by the Act and not

covered explicitly by the provisions of

5 U.S.C. 552a(b); and

(5) When permitted under 5 U.S.C.

552a(b)(1) through (12), as follows:3

(i) To those officers and employees of

the agency that maintains the record

who have a need for the record in the

performance of their duties;

(ii) Required under 5 U.S.C. 552;

(iii) For a routine use as defined in 5

U.S.C. 552a(a)(7);

(iv) To the Bureau of the Census for

purposes of planning or carrying out a

census or survey or related activity

pursuant to the provisions of Title 13 of

the U.S. Code;

(v) To a requester who has provided

the agency with advance adequate

written assurance that the record will be

used solely as a statistical research or

reporting record, and the record is to be

transferred in a form that is not

individually identifiable;

(vi) To the National Archives and

Records Administration as a record that

has sufficient historical or other value to

warrant its continued preservation by

the United States Government, or for

evaluation by the Archivist of the

United States, or the designee of the

Archivist, to determine whether the

record has such value;

(vii) To another agency or to an

instrumentality of any governmental

jurisdiction within or under the control

of the United States for a civil or

criminal law enforcement activity if the

activity is authorized by law, and if the

head of the agency or instrumentality

has made a written request to the agency

which maintains the record, specifying

the particular portion desired and the

law enforcement activity for which the

record is sought;

(viii) To a person pursuant to a

showing of compelling circumstances

affecting the health or safety of an

individual if upon such disclosure

notification is transmitted to the last

known address of such individual;

(ix) To either House of Congress, or,

to the extent of matter within its

jurisdiction, any committee or

subcommittee thereof, any joint

committee of Congress or subcommittee

of any such joint committee;

(x) To the Comptroller General, or any

of his or her authorized representatives,

in the course of the performance of the

duties of the General Accounting Office;

(xi) Pursuant to the order of a court

of competent jurisdiction; or

(xii) To a consumer reporting agency

in accordance with 31 U.S.C. 3711(e).

(b) The situations referred to in

paragraph (a)(4) of this section include

the following:

(1) 5 U.S.C. 552a(c)(4) requires

dissemination of a corrected or

amended record or notation of a

disagreement statement by the

Department in certain circumstances;

(2) 5 U.S.C. 552a(d) requires

disclosure of records to the individual

to whom they pertain, upon request;

and

(3) 5 U.S.C. 552a(g) authorizes civil

action by an individual and requires

disclosure by the Department to the

court.

(c) The Privacy Officer shall make an

accounting of each disclosure by him of

any record contained in a system of

records in accordance with 5 U.S.C.

552a(c)(1) and (2). Except for a

disclosure made under 5 U.S.C.

552a(b)(7), the Privacy Officer shall

make such accounting available to any

individual, insofar as it pertains to that

individual, upon any request submitted

in accordance with § 4.24. The Privacy

Officer shall make reasonable efforts to

notify any individual when any record

in a system of records is disclosed to

any person under compulsory legal

process, promptly upon being informed

that such process has become a matter

of public record.

§ 4.31 Fees.

(a) The only fee to be charged to an

individual under this part is for

duplication of records at the request of

the individual. Components shall charge

a fee for duplication of records under

the Act in the same way in which they

charge a duplication fee under § 4.11,

except as provided in this section.

Accordingly, no fee shall be charged or

collected for: search, retrieval, or review

of records; copying at the initiative of

the Department without a request from

the individual; transportation of

records; or first-class postage.

(b) The Department shall provide an

individual one copy of each record

corrected or amended pursuant to the

individual’s request without charge as

evidence of the correction or

amendment.

(c) As required by the United States

Office of Personnel Management in its

published regulations implementing the

Act, the Department shall charge no fee

for a single copy of a personnel record

65646 Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations

covered by that agency’s Governmentwide published notice of systems of

records.

§ 4.32 Penalties.

(a) The Act provides, in pertinent

part:

Any person who knowingly and willfully

requests or obtains any record concerning an

individual from an agency under false

pretenses shall be guilty of a misdemeanor

and fined not more than $5,000. (5 U.S.C.

552a(i)(3)).

(b) A person who falsely or

fraudulently attempts to obtain records

under the Act also may be subject to

prosecution under such other criminal

statutes as 18 U.S.C. 494, 495 and 1001.

§ 4.33 General exemptions.

(a) Individuals may not have access to

records maintained by the Department

but which were provided by another

agency which has determined by

regulation that such information is

subject to general exemption under 5

U.S.C. 552a(j). If such exempt records

are within a request for access, the

Department will advise the individual

of their existence and of the name and

address of the source agency. For any

further information concerning the

record and the exemption, the

individual must contact that source

agency.

(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/ITA–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.

(2) Fisheries Law Enforcement Case

Files—COMMERCE/NOAA–5. 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 prevent interference

with law enforcement proceedings, to

avoid the disclosure of investigative

techniques, to avoid the endangering of

law enforcement personnel, to avoid

premature disclosure of the knowledge

of criminal activity and the evidentiary

bases of possible enforcement actions,

and to maintain the integrity of the law

enforcement process.

(3) Investigative and Inspection

Records—COMMERCE/DEPT–12.

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

operation of the law enforcement

activity, to protect confidential sources

of information, to fulfill promises of

confidentiality, to prevent interference

with law enforcement proceedings, to

avoid the disclosure of investigative

techniques, to avoid the endangering of

law enforcement personnel, to avoid

premature disclosure of the knowledge

of criminal activity and the evidentiary

bases of possible enforcement actions,

and to maintain the integrity of the law

enforcement process.

§ 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/ITA–1, COMMERCE/ITA–

2, COMMERCE/ITA–3, COMMERCE/

NOAA–11, COMMERCE/PAT–TM–4,

COMMERCE/DEPT–12, COMMERCE/

DEPT–13, and COMMERCE/DEPT–14.

(2) The Department hereby asserts a

claim to exemption of such materials

wherever they might appear in such

systems of records, or any systems of

records, at present or in the future. The

materials would be exempt from 5

U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G),

(H), and (I), and (f), because the

materials are required by Executive

order to be kept secret in the interest of

the national defense and foreign policy.

(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:

(1) Exempt under 5 U.S.C. 552a(k)(1).

The systems of records exempt

hereunder appear in paragraph (a) of

this section. The claims for exemption

of COMMERCE/DEPT–12, COMMERCE/

ITA–1, and COMMERCE/NOAA–11

under this paragraph are subject to the

condition that the general exemption

claimed in § 4.33(b)(3) is held to be

invalid.

(2)(i) Exempt under 5 U.S.C.

552a(k)(2). The systems of records

exempt (some only conditionally), the

sections of the Act from which

exempted, and the reasons therefor are

as follows:

(A) Individuals identified in Export

Administration compliance proceedings

or investigations—COMMERCE/ITA–1,

but only on condition that the general

exemption claimed in § 4.33(b)(1) is

held to be invalid;

(B) Individuals involved in export

transactions—COMMERCE/ITA–2;

(C) Fisheries Law Enforcement Case

Files—COMMERCE/NOAA–11, but only

on condition that the general exemption

claimed in § 4.33(b)(2) is held to be

invalid;

(D) Investigative and Inspection

Records—COMMERCE/DEPT–12, but

only on condition that the general

exemption claimed in § 4.33(b)(3) is

held to be invalid;

(E) Investigative Records—Persons

Within the Investigative Jurisdiction of

the Department—COMMERCE/DEPT–

13;

(F) Litigation, Claims and

Administrative Proceeding Records—

COMMERCE/DEPT–14; and

(ii) The foregoing are exempted from

5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G),

(H), and (I), and (f). The reasons for

asserting the exemption are to prevent

subjects of investigation from frustrating

the investigatory process; to ensure the

proper functioning and integrity of law

enforcement activities; to prevent

disclosure of investigative techniques;

to maintain the ability to obtain

necessary information; to fulfill

commitments made to sources to protect

their identities and the confidentiality

of information; and to avoid

endangering these sources and law

enforcement personnel. Special note is

Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations 65647

taken that the proviso clause in this

exemption imports due process and

procedural protections for the

individual. The existence and general

character of the information exempted

shall be made known to the individual

to whom it pertains.

(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) Agriculture Census Records for

1974 and 1978—COMMERCE/CENSUS–

1;

(B) Individual and Household

Statistical Surveys and Special Census

Studies Records— COMMERCE/

CENSUS–3;

(C) Minority-Owned Business

Enterprises Survey Records—

COMMERCE/CENSUS–4;

(D) Population and Housing Census

Records of the 1960 and Subsequent

Censuses—COMMERCE/ CENSUS–5;

(E) Population Census Personal

Service Records for 1900 and All

Subsequent Decennial Censuses—

COMMERCE/CENSUS–6; and

(F) Special Censuses of Population

Conducted for State and Local

Government—COMMERCE/CENSUS–7.

(G) Statistical Administrative Records

System—COMMERCE/CENSUS–8.

(ii) The foregoing are exempted from

5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G)

(H), and (I), and (f). The reasons for

asserting the exemption are to comply

with the prescription of Title 13 of the

United States Code, especially sections

8 and 9 relating to prohibitions against

disclosure, and to avoid needless

consideration of these records whose

sole statistical use comports fully with

a basic purpose of the Act, namely, that

no adverse determinations are made

from these records as to any identifiable

individual.

(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–4;

(F) Commissioned Officer Official

Personnel Folders—COMMERCE/

NOAA–7;

(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 § 4.33(b)(3) is

held to be invalid;

(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.

(ii) The foregoing are exempted from

5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G),

(H), and (I), and (f). The reasons for

asserting the exemption are to maintain

the ability to obtain candid and

necessary information, to fulfill

commitments made to sources to protect

the confidentiality of information, to

avoid endangering these sources and,

ultimately, to facilitate proper selection

or continuance of the best applicants or

persons for a given position or contract.

Special note is made of the limitation on

the extent to which this exemption may

be asserted. The existence and general

character of the information exempted

will be made known to the individual

to whom it pertains.

(c) At the present time, the

Department claims no exemption under

5 U.S.C. 552a(k) (3), (6) and (7).

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 Central

Reference and Records Inspection Facility.

The telephone number for each component is

included after its address. Public inspection

facilities are open to the public Monday

through Friday (excluding Saturdays,

Sundays, and legal public holidays) between

9 a.m. and 4 p.m. local time of the facility

at issue. Certain public inspection facility

records of components are also available

electronically through the Department’s

‘‘FOIA Home Page’’ link found at the

Department’s World Wide Web site (http://

www.doc.gov)), as described in § 4.2(b). The

Departmental Freedom of Information Officer

is authorized to revise this appendix to

reflect changes in the information contained

in it. Any such revisions shall be posted at

the Department’s ‘‘FOIA Home Page’’ link

found at the Department’s World Wide Web

site (http://www.doc.gov).

(1) Department of Commerce Freedom of

Information Central Reference and Records

Inspection Facility, U.S. Department of

Commerce, Room 6022, 14th and

Constitution Avenue, NW, Washington, DC

20230; (202) 482–4115. This facility 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 public

inspection facilities.

(2) Bureau of the Census, Policy Office,

U.S. Department of Commerce, Federal

Building 3, Room 2430, Suitland, Maryland

20233; (301) 457–2520. This agency

maintains a separate public inspection

facility in Room 2455, Federal Building 3,

Suitland, Maryland 20233.

(3) Bureau of Economic Analysis/

Economics and Statistics Administration,

Office of the Under Secretary for Economic

Affairs, Department of Commerce, Room

4836, 14th and Constitution Avenue, NW,

Washington, DC 20230; (202) 482–3308. This

component does not maintain a separate

public inspection facility.

(4) Bureau of Export Administration, Office

of Administration, U.S. Department of

Commerce, Room 6883, 14th and

Constitution Avenue, NW, Washington, DC

20230; (202) 482–0500. This component does

not maintain a separate public inspection

facility.

(5) Economic Development

Administration, Office of the Chief Counsel,

U.S. Department of Commerce, Room 7005,

14th and Constitution Avenue, NW,

Washington, DC 20230; (202) 482–4687.

Regional EDA offices (none of the following

regional EDA offices maintains a separate

public inspection facility):

(i) Philadelphia Regional Office, EDA, U.S.

Department of Commerce, Curtis Center,

Suite 140 South, Independence Square West,

Philadelphia, Pennsylvania 19106; (215)

597–7896.

(ii) Atlanta Regional Office, EDA, U.S.

Department of Commerce, 401 West

Peachtree Street, NW, Suite 1820, Atlanta,

GA 30308; (404) 730–3006.

(iii) Denver Regional Office, EDA, U.S.

Department of Commerce, Room 670, 1244

Speer Boulevard, Denver, Colorado 80204;

(303) 844–4716.

(iv) Chicago Regional Office, EDA, U.S.

Department of Commerce, 111 North Canal

Street, Suite 855, Chicago, IL 60606; (312)

353–8580.

(v) Seattle Regional Office, EDA, U.S.

Department of Commerce, Jackson Federal

Building, Room 1856, 915 Second Avenue,

Seattle WA 98174; (206) 220–7701.

(vi) Austin Regional Office, EDA, U.S.

Department of Commerce, 327 Congress

Avenue, Suite 200, Austin, Texas 78701;

(512) 381–8169.

(6) International Trade Administration,

Office of Organization and Management

Support, U.S. Department of Commerce,

Room 4001, 14th and Constitution Avenue,

NW, Washington, DC 20230; (202) 482–3032.

65648 Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations

1The foregoing officials have sole authority under

§ 4.7(b) to deny requests for records in any respect,

including, for example, denying requests for

reduction or waiver of fees.

(7) Minority Business Development

Agency, Data Resources Division, U.S.

Department of Commerce, Room 5084, 14th

and Constitution Avenue, NW, Washington,

DC 20230; (202) 482–2025. This agency does

not maintain a separate public inspection

facility.

(8) National Institute of Standards and

Technology, Management and Organization

Division, Administration Building, Room

A525, 100 Bureau Drive, Gaithersburg,

Maryland 20899; (301) 975–4054. This

agency maintains a separate public

inspection facility in Room E–106,

Administration Building, Gaithersburg,

Maryland.

(9) National Oceanic and Atmospheric

Administration, Public Reference Facility

(OFAx2) 1315 East West Highway (SSMC3),

Room 10730, Silver Spring, Maryland 20910;

(301) 713–3540.

(10) National Technical Information

Service, Office of Administration, 5285 Port

Royal Road, Springfield, Virginia 22161;

(703) 605–6449. This agency does not

maintain a separate public inspection

facility.

(11) National Telecommunications and

Information Administration, Office of the

Chief Counsel, U.S. Department of

Commerce, Room 4713, 14th and

Constitution Avenue, NW, Washington, DC

20230; (202) 482–1816. This component does

not maintain a separate public inspection

facility.

(12) Office of Inspector General, Counsel to

the Inspector General, U.S. Department of

Commerce, Room 7892, 14th and

Constitution Avenue, NW, Washington, DC

20230; (202) 482–5992. This component does

not maintain a separate public inspection

facility.

(13) Technology Administration, Office of

the Under Secretary, U.S. Department of

Commerce, Room 4835, 14th and

Constitution Avenue, NW, Washington, DC

20230; (202) 482–1984. This component does

not maintain a separate public inspection

facility.

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, and 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 at the

Department’s ‘‘FOIA Home Page’’ link

found at the Department’s World Wide

Web site (http://www.doc.gov).

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 the Inspector General: Counsel to

the Inspector General; Deputy Counsel to

the Inspector General

Office of the General Counsel: Deputy

General Counsel; Assistant General

Counsel for Administration

Office of Executive Support: Director

Assistant Secretary for Administration

Office of Civil Rights: Director

Office of Budget: Director

Office of Management and Organization:

Director

Office of Chief Information Officer: Director

Office of Executive Budgeting and Assistance

Management: Director

Office of Executive Assistance Management:

Director; Grants Officer

Departmental Freedom of Information

Officer.

Office of Financial Management: Director

Office of Human Resources Management:

Director; Deputy Director.

Office of Administrative Services: Director

Office of Security: Director, Deputy Director

Office of Acquisition Management: Director

Office of Acquisition Services: Director

Office of Small and Disadvantaged Business

Utilization: Director

Bureau of Export Administration

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 Strategic Trade and

Foreign Policy Controls

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: Chief, Policy Office

Economic Development Administration

Freedom of Information Officer

International Trade Administration

Under Secretary for International Trade

Deputy Under Secretary for International

Trade

Counselor to the Department

Director, Trade Promotion Coordinating

Committee Secretariat

Director, Office of Public Affairs

Director, Office of Legislative and

Intergovernmental Affairs

Administration

Chief Financial Officer and Director of

Administration

Director, Office of Organization and

Management Support

Director, Office of Human Resources

Management

Director, Office of Information Resources

Management

ITA Freedom of Information Officer

Import Administration

Assistant Secretary for Import

Administration

Deputy Assistant Secretary for Antidumping

and Countervailing Duty Enforcement I

Deputy Assistant Secretary for Antidumping

and Countervailing Duty Enforcement II

Deputy Assistant Secretary for Antidumping

and Countervailing Duty Enforcement III

Director for Policy and Analysis

Director, Office of Policy

Director, Office of Accounting

Director, Central Records Unit

Director, Foreign Trade Zones Staff

Director, Statutory Import Programs Staff

Director, Office of Antidumping

Countervailing Duty Enforcement I

Director, Office of Antidumping

Countervailing Duty Enforcement II

Director, Office of Antidumping

Countervailing Duty Enforcement III

Director, Office of Antidumping

Countervailing Duty Enforcement IV

Director, Office of Antidumping

Countervailing Duty Enforcement V

Director, Office of Antidumping

Countervailing Duty Enforcement VI

Director, Office of Antidumping

Countervailing Duty Enforcement VII

Director, Office of Antidumping

Countervailing Duty Enforcement VIII

Director, Office of Antidumping

Countervailing Duty Enforcement IX

Market Access and Compliance

Assistant Secretary for Market Access and

Compliance

Deputy Assistant Secretary for Agreements

Compliance

Deputy Assistant Secretary for the Middle

East and North Africa

Deputy Assistant Secretary for Europe

Deputy Assistant Secretary for the Western

Hemisphere

Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations 65649

Deputy Assistant Secretary for Asia and the

Pacific

Deputy Assistant Secretary for Africa

Director, Office of Policy Coordination

Director, Office of Multilateral Affairs

Director, Trade Compliance Center

Director, Office of the Middle East and North

Africa

Director, Office of European Union and

Regional Affairs

Director, Office of Eastern Europe, Russia and

Independent States

Director, Office of Latin America and the

Caribbean

Director, Office of NAFTA and InterAmerican Affairs

Director, Office of China Economic Area

Director, Office of the Pacific Basin

Director, Office of South Asia and Oceania

Director, Office of Japan

Director, Office of Africa

Trade Development

Assistant Secretary for Trade Development

Deputy Assistant Secretary for

Transportation and Technology Industries

Deputy Assistant Secretary for Textiles,

Apparel and Consumer Goods Industries

Deputy Assistant Secretary for Service

Industries and Finance

Deputy Assistant Secretary for Basic

Industries

Deputy Assistant Secretary for Information

Technology Industries

Deputy Assistant Secretary for

Environmental Technologies Industries

Deputy Assistant Secretary for Tourism

Industries

Director, Office of Export Promotion

Coordination

Director, Trade Information Center

Director, Office of Trade and Economic

Analysis

Director, Advocacy Center

Director, Office of Planning, Coordination

and Resource Management

Director, Office of Aerospace

Director, Office of Automotive Affairs

Director, Office of Microelectronics, Medical

Equipment and Instrumentation

Director, Office of Textiles and Apparel

Director, Office of Consumer Goods

Director, Office of Environmental

Technologies

Director, Office of Export Trading Company

Affairs

Director, Office of Finance

Director, Office of Service Industries

Director, Office of Metals, Materials and

Chemicals

Director, Office of Energy, Infrastructure and

Machinery

Director, Office of Electronic Commerce

Director, Office of Information Technologies

Director, Office of Telecommunications

Technologies

U.S. and Foreign Commercial Service

Assistant Secretary and Director General

Deputy Director General

Deputy Assistant Secretary for International

Operations

Deputy Assistant Secretary for Export

Promotion Services

Deputy Assistant Secretary for Domestic

Operations

Director, Office of Information Systems

Director, Office of Planning

Director, Office of Foreign Service Human

Resources

Director for Europe

Director for Western Hemisphere

Director for East Asia and the Pacific

Director, Multilateral Development Bank

Operations

Director, Office of Public/Private Initiatives

Director, Office of Export Information and

Marketing Services

Director, Office of Operations

Minority Business Development

Administration

Freedom of Information Officer

National Oceanic and Atmospheric

Administration

Under Secretary

Assistant Secretary

Director, Office of Public and Constituent

Affairs

Director, Office of Marine and Aviation

Operations

General Counsel

Assistant Administrator for Ocean Services

and Coastal Zone Management

Assistant Administrator for Fisheries

Assistant Administrator for Weather Services

Assistant Administrator for Satellite and

Information Services

Assistant Administrator for Oceanic and

Atmospheric Research

Office of Finance and Administration: Chief

Financial Officer/Chief Administrative

Officer

Director, Acquisition and Grants Office

Director, Systems Acquisition Office

Director, Human Resources Management

Office

Director, Office of Finance

Director, Budget Office

Director, Facilities Office

Director, Information Systems Management

Office

Director, Eastern Administrative Support

Center

Director, Central Administrative Support

Center

Director, Mountain Administrative Support

Center

Director, Western Administrative Support

Center

Freedom of Information Officer

National Telecommunications and

Information Administration

Deputy Assistant Secretary

Chief Counsel

Deputy Chief Counsel

Technology Administration

Under Secretary for Technology

Deputy Under Secretary for Technology

Assistant Secretary for Technology Policy

Chief Counsel

Deputy Chief Counsel

Senior Counsel for Internet Technology

National Institute of Standards and

Technology: Director for Administration

and Chief Financial Officer; Chief,

Management and Organization Division;

NIST Counsel.

National Technical Information Service:

Director; Deputy Director; Chief Financial

Officer/Associate Director for Finance and

Administration.

Appendix C to Part 4—Systems of

Records Noticed by Other Federal

Agencies and Applicable to Records of

the Department and Applicability of

this Part Thereto

Category of records Other Federal Agency

Federal Personnel Records ..................................................................................................... Office of Personnel Management.1

Federal Employee Compensation Act Program Program ....................................................... Department of Labor.2

Equal Employment Opportunity Appeal Complaints ................................................................ Equal Employment Opportunity Commission.3

Formal Complaints/Appeals of Adverse Personnel Actions .................................................... Merit Systems Protection Board.4

1The provisions of this part do not apply to these records covered by notices of systems of records published by the Office of Personnel Management for all agencies. The regulations of OPM alone apply. 2The provisions of this part apply only initially to these records covered by notices of systems of records published by the U.S. Department of

Labor for all agencies. The regulations of that Department attach at the point of any denial for access or for correction or amendment. 3The provisions of this part do not apply to these records covered by notices of systems of records published by the Equal Employment Opportunity Commission for all agencies. The regulations of the Commission alone apply. 4The provisions of this part do not apply to these records covered by notices of systems of records published by the Merit Systems Protection

Board for all agencies. The regulations of the Board alone apply.

65650 Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations

2. Part 2 is revised to read as follows:

PART 4a—CLASSIFICATION,

DECLASSIFICATION, AND PUBLIC

AVAILABILITY OF NATIONAL

SECURITY INFORMATION

Sec.

4a.1 General.

4a.2 Deputy Assistant Secretary for

Security.

4a.3 Classification levels.

4a.4 Classification authority.

4a.5 Duration of classification.

4a.6 General.

4a.7 Mandatory review for

declassification.

4a.8 Access to classified information by

individuals outside the Government.

Authority: E.O. 12958; 47 FR 14874, April

6, 1982; 47 FR 15557, April 12, 1982.

§ 4a.1 General.

Executive Order 12958 provides the

only basis for classifying information

within the Department of Commerce

(Department), except as provided in the

Atomic Energy Act of 1954, as amended.

The Department’s policy is to make

information concerning its activities

available to the public, consistent with

the need to protect the national defense

and foreign relations of the United

States. Accordingly, security

classification shall be applied only to

protect the national security.

§ 4a.2 Deputy Assistant Secretary for

Security.

The Deputy Assistant Secretary for

Security (DAS) is responsible for

implementing E.O. 12958 and this part.

§ 4a.3 Classification levels.

Information may be classified as

national security information by a

designated original classifier of the

Department if it is determined that the

information concerns one or more of the

categories described in § 1.5 of E.O.

12958. The levels established by E.O.

12958 (Top Secret, Secret, and

Confidential) are the only terms that

may be applied to national security

information. Except as provided by

statute, no other terms shall be used

within the Department for the three

classification levels.

§ 4a.4 Classification authority.

Authority to originally classify

information as Secret or Confidential

may be exercised only by the Secretary

of Commerce and by officials to whom

such authority is specifically delegated.

No official of the Department is

authorized to originally classify

information as Top Secret.

§ 4a.5 Duration of classification.

(a) Information shall remain classified

no longer than ten years from the date

of its original classification, except as

provided in § 1.6(d) of E.O. 12958.

Under E.O. 12958, information may be

exempted from declassification within

ten years if the unauthorized disclosure

of such information could reasonably be

expected to cause damage to the

national security for more than ten years

and meets one of the eight criteria listed

in § 1.6 (d).

(b) Department of Commerce

originally classified information marked

for an indefinite duration of

classification under predecessor orders

to E.O. 12958 shall be declassified after

twenty years. Classified information

contained in archive records determined

to have permanent historical value

under Title 44 of the United States Code

shall be automatically declassified no

longer than 25 years from the date of its

original classification, except as

provided in § 3.4(d) of E.O. 12958.

§ 4a.6 General.

National security information over

which the Department exercises final

classification jurisdiction shall be

declassified or downgraded as soon as

national security considerations permit.

If information is declassified, it may

continue to be exempt from public

disclosure by the Freedom of

Information Act (5 U.S.C. 552) or other

applicable law.

§ 4a.7 Mandatory review for

declassification.

(a) Requests. Classified information

under the jurisdiction of the Department

is subject to review for declassification

upon receipt of a written request that

describes the information with

sufficient specificity to locate it with a

reasonable amount of effort. Requests

must be submitted to the Deputy

Assistant Secretary for Security, U.S.

Department of Commerce, Room 1069,

14th and Constitution Avenue, NW.,

Washington, DC 20230.

(b) Exemptions. The following are

exempt from mandatory review for

declassification:

(1) Information that has been

reviewed for declassification within the

past two years;

(2) Information that is the subject of

pending litigation;

(3) Information originated by the

incumbent President, the incumbent

President’s White House Staff,

committees, commissions, or boards

appointed by the incumbent President,

or other entities within the Executive

Office of the President that solely advise

and assist the incumbent President; and

(4) Information specifically exempt

from such review by law.

(c) Processing requirements. (1) The

DAS shall acknowledge receipt of the

request directly to the requester. If a

request does not adequately describe the

information sought in accordance with

paragraph (a) of this section, the

requester shall be notified that unless

additional information is provided, no

further action will be taken. The request

shall be forwarded to the component

that originated the information or that

has primary interest in the subject

matter. The component assigned action

shall review the information in

accordance with § 4a.7(c)(2) through (4)

within twenty working days.

(2) The component assigned action

shall determine whether, under the

declassification provisions of the U.S.

Department of Commerce Security

Manual, the entire document or portions

thereof may be declassified.

Declassification of the information shall

be accomplished by a designated

declassification authority. Upon

declassification the information shall be

remarked. If the information is not

partially or entirely declassified, the

reviewing official shall provide the

reasons for denial by citing the

applicable provisions of E.O. 12958. If

the classification is a derivative decision

based on classified source material of

another Federal agency, the component

shall provide the information to the

originator for review.

(3) If information is declassified, the

component shall also determine

whether it is releasable under the

Freedom of Information Act. If the

information is not releasable, the

component shall advise the DAS that

the information has been declassified

but that it is exempt from disclosure,

citing the appropriate exemption of the

Freedom of Information Act.

(4) If the request for declassification is

denied in whole or in part, the requester

shall be notified of the right to appeal

the determination within sixty calendar

days and of the procedures for such an

appeal. If declassified information

remains exempt from disclosure under

the Freedom of Information Act, the

requester shall be advised of the

appellate procedures under that law.

(d) Fees. If the request requires

services for which fees are chargeable,

the component assigned action shall

calculate the anticipated fees to be

charged, and may be required to

ascertain the requester’s willingness to

pay the allowable charges as a

precondition to taking further action on

the request, in accordance with § 4.11 of

the Department of Commerce Freedom

Federal Register / Vol. 66, No. 245 / Thursday, December 20, 2001 / Rules and Regulations 65651

of Information Act rules and § 4.31 of

the Department’s Privacy Act rules.

(e) Right of appeal. (1) A requester

may appeal to the DAS when

information requested under this

section is not completely declassified

and released after expiration of the

applicable time limits. Within thirty

working days (i.e., excluding Saturdays,

Sundays, and legal public holidays) of

receipt of a written appeal:

(i) The DAS shall determine whether

continued classification of the requested

information is required in whole or in

part;

(ii) If information is declassified,

determine whether it is releasable under

the Freedom of Information Act; and

(iii) Notify the requester of his or her

determination, making available any

information determined to be releasable.

If continued classification is required

under the provisions of the Department

of Commerce National Security Manual,

the DAS shall notify the requester of his

or her determination, including the

reasons for denial based on applicable

provisions of E.O. 12958, and of the

right of final appeal to the Interagency

Security Classification Appeals Panel.

(2) During the declassification review

of information under appeal the DAS

may overrule previous determinations

in whole or in part if continued

protection in the interest of national

security is no longer required. If the

DAS determines that the information no

longer requires classification, it shall be

declassified and, unless it is otherwise

exempt from disclosure under the

Freedom of Information Act, released to

the requester. The DAS shall advise the

original reviewing component of his or

her decision.

§ 4a.8 Access to classified information by

individuals outside the Government.

(a) Industrial, Educational, and

Commercial Entities. Certain bidders,

contractors, grantees, educational,

scientific, or industrial organizations

may receive classified information

under the procedures prescribed by the

National Industrial Security Program

Operating Manual.

(b) Access by historical researchers

and former Presidential appointees. An

individual engaged in historical

research projects or who has previously

occupied a policy-making position to

which he or she was appointed by the

President may be authorized access to

classified information for a limited

period, provided that the head of the

component with jurisdiction over the

information:

(1) Determines in writing that:

(i) Access is consistent with national

security;

(ii) The individual has a compelling

need for access; and

(iii) The Department’s best interest is

served by providing access;

(2) Obtains in writing from the

individual:

(i) Consent to a review by the

Department of any resultant notes and

manuscripts for the purpose of

determining that no classified

information is contained in them; and

(ii) Agreement to safeguard classified

information in accordance with

applicable requirements; and

(iii) A detailed description of the

individual’s research;

(3) Ensures that custody of classified

information is maintained at a

Department facility;

(4) Limits access granted to former

Presidential appointees to items that the

individual originated, reviewed, signed,

or received while serving as a

Presidential appointee; and

(5) Receives from the DAS:

(i) A determination that the

individual is trustworthy; and

(ii) Approval to grant access to the

individual.

(c) An individual seeking access

should describe the information with

sufficient specificity to locate and

compile it with a reasonable amount of

effort. If the access requested by a

historical researcher or former

Presidential appointee requires services

for which fees are chargeable, the

responsible component shall notify the

individual in advance.

(d) This section applies only to

classified information originated by the

Department, or to information in the

sole custody of the Department.

Otherwise, the individual shall be

referred to the classifying agency.

PART 4b—[REMOVED]

3. Remove Part 4b.

Dated: December 6, 2001.

Robert F. Kugelman,

Director, Office of Executive Budgeting and

Assistance Management.

[FR Doc. 01–31131 Filed 12–19–01; 8:45 am]

BILLING CODE 3510–BW–P

DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 619

Program for Qualifying DOD Freight

Motor Carriers, Exempt Surface Freight

Forwarders, Shippers Agents, and

Freight Brokers

AGENCY: Headquarters Military Traffic

Management Command (MTMC), DoD.

ACTION: Final rule.

SUMMARY: This action removes 32 CFR

Part 619 published in the Federal

Register Aug 20, 1993 (58 FR 44405,

amended at 61 FR 49060, Sept. 18,

1996). The rule is being removed to

allow for publication in MTMC rules

publication. This rule is now obsolete

and no longer applies to or governs the

qualifications of carriers to do business

with MTMC or with the Department of

Defense.

DATES: Effective December 20, 2001.

ADDRESSES: Headquarters Military

Traffic Management Command, ATTN:

MTOP–MRM (Mr. Rick Wirtz, TMS) 200

Stovall Street, Alexandria, VA 22332.

FOR FURTHER INFORMATION CONTACT: Mr.

Rick Wirtz, (703) 428–2382

SUPPLEMENTARY INFORMATION: The

Commander, MTMC, is the proponent of

this rule and, acting with the advice of

his acquisition, operations and legal

staffs, had concluded that it is obsolete.

Due to changes in the laws governing

interstate commerce, including a

transition of much of our procurement

from nonFAR to FAR contract

procedures, there is no longer any

necessity for this rule. Under FAR

contracting the contracting Officer has

the responsibility for making

determinations as to whether a carrier

bidder is a responsible bidder who is

qualified to do business with the DoD

under the contract in issue.

This rule has been replaced with a

simpler program, which meets the

requirements of the current Interstate

Commerce Act and the requirements of

our current transportation needs. The

current procedures for carriers to follow

in order to qualify for doing business

with MTMC are published on the

MTMC Home Page. The carrier industry

has been properly notified of this

change and is currently following the

new procedures to the satisfaction of all

parties. The new program for qualifying

carriers is not a ‘‘Rule’’, as that term is

used in rulemaking proceedings under

the Administrative Procedures Act and

thus does not require publication in the

Code of Federal Regulations or in the

Federal Register. We understand that

the volume of the CFR that contains 49

CFR Part 619 is due to be reprinted

soon. Therefore, it would be helpful in

avoiding confusion with the public if 32

CFR Part 619 is removed.

List of Subjects in 32 CFR Part 619

Program for Qualifying DOD Freight

Motor Carriers, Exempt Surface Freight

Forwarders, Shippers Agents, and

Freight Brokers.