Public Information

UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Part 212

Public Information

AGENCY: United States Agency for International Development.

ACTION: Final rule.

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SUMMARY: These amendments make technical revisions to the Agency's

Freedom of Information Act Regulations as set forth in 5 U.S.C. 553(d).

EFFECTIVE DATE: August 20, 1996.

FOR FURTHER INFORMATION CONTACT:

Willette L. Smith, Customer Outreach and Oversight Staff, Office of

Administrative Services, 703/516-1849, Fax 703/516-1894.

SUPPLEMENTARY INFORMATION: Revisions and updated have been made to the

following sections of 22 of Chapter II of Title 22: (a) 212.25--change

of addresses for Public Reading Room; (b) 212.33 procedure for making

requests for agency's records; (c) 212.34 procedures for responding to

requests for records; (d) 212.35 (b) revised method of calculating

processing fees and 212.35(e) added an appeal rights to fee waiver

decision; 212.36 change appeal time period and update address of

Appeal's Officer; 212.38 revised Agency's predisclosure notification

procedures for processing request for confidential commercial

information.

This rule is not a major rule for the purposes of Executive Order

12291 of February 17, 1981. As required by the Regulatory Flexibility

Act, it is hereby certified that this rule will not have a significant

impact on small business entities.

List of Subjects in 22 CFR Part 212

Freedom of information.

For the reasons set forth in the preamble, Part 212 of Chapter II

of Title 22 of the Code of Federal Regulations is revised to read as

follows:

PART 212--PUBLIC INFORMATION

Subpart A--General

Sec.

212.1 Statement of policy.

Subpart B--Publication in the Federal Register

212.11 Materials to be published.

212.12 Effect of nonpublication.

212.13 Incorporation by reference.

Subpart C--Availability of Information for Public Inspection and

Copying

212.21 Public records.

212.22 Protection of personal privacy.

212.23 Current index.

212.24 Effect of noncompliance.

212.25 Procedures for obtaining materials under this subpart.

Subpart D--Access to Agency Records

212.31 Availability of agency records.

212.32 Identification of records.

212.33 Procedure for making requests.

212.34 Procedures for responding to requests for records.

212.35 Schedule of fees and methods of payment for services

rendered.

212.36 Denial of request for access to records.

212.37 Procedures for agency consideration of appeals.

212.38 Predisclosure notification procedures for confidential

commercial information.

Subpart E--Exemptions From Disclosure

212.41 Exemptions from publication and disclosure requirements of

subparts B, C, and D.

212.42 Exemption from 5 U.S.C. 552.

Subpart F--Opening of Records for Nonofficial Research Purposes.

212.51 General Policy

Authority: 22 U.S.C. 2381(a).

Subpart A--General

Sec. 212.1 Statement of policy.

(a) It is the policy of the United States Agency for International

Development (hereinafter ``USAID'' or ``the Agency'') that information

about its objectives and operations be freely available to the public

in accordance with the provisions of the Freedom of Information Act

(``FOIA''), 5 U.S.C. 552, as amended; the President's Memorandum for

Heads of Departments and Agencies regarding the FOIA, 29 Weekly Comp.

Pres. Doc. 1999 (October 4, 1993); and the Attorney General's

Memorandum of the same title and date. The Director, Office of

Administrative Services, Bureau for Management, or his/her designee, is

responsible on behalf of the Agency for administration of the

provisions of the regulations set forth in this part.

(b) In addition, concerning the International Cooperation and

Development Agency (``IDCA''), pursuant to executive order and

delegations of authority USAID is responsible not only for management

of its own affairs but also for those of IDCA. The policy of IDCA in

the FOIA area has been determined by USAID to be identical to that of

USAID, as stated in this section. Therefore, all policies and

procedures set forth in this part apply equally to IDCA as to USAID;

and it is intended that references in this part to ``USAID'' or ``the

Agency'' shall, wherever appropriate, include or mean a reference to

IDCA. Accordingly, all IDCA FOIA-related matters shall be referred to

and processed by USAID staff under this part as though they were USAID

matters.

(c) All records of USAID shall be made available to the public upon

compliance with the procedures established in Sec. 212.33, except to

the extent a determination is made to withhold a record exemptible

under 5 U.S.C. 552(b). Such a determination shall be made pursuant to

procedures set forth in Sec. 212.36, 212.37 and 212.38.

(d) The term ``record'' as used in this part includes all books,

papers, maps, photographs, or other documentary material or copies

thereof, regardless of physical form or characteristics, made in or

received by USAID (including its missions or offices abroad), and

preserved as evidence of its organization, functions, policies,

decisions, procedures, operations, or other activities. The term does

not include copies of the records of other U.S. Government agencies,

foreign governments, international organizations, or non-governmental

entities which do not evidence organization, functions, policies,

decisions, procedures, operations, or activities of USAID.

Subpart B--Publication in the Federal Register

Sec. 212.11 Materials to be published.

(a) USAID separately states and currently publishes in the Federal

Register for the information and guidance of the public:

(1) Descriptions of its central and field organization and the

established places

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at which, the officers from whom, and the methods whereby, the public

may secure information, make submittals or requests, or obtain

decisions;

(2) Statements of the general course and method by which its

functions are channelled and determined, including the nature and

requirements for all formal and informal procedures available;

(3) Rules of procedure, descriptions of forms available or the

places at which forms may be obtained, and instructions as to the scope

and contents of all papers, reports, or examinations;

(4) Substantive rules of general applicability adopted as

authorized by law, and statements of general policy or interpretations

of general applicability formulated and adopted by USAID; and

(5) Every amendment, revision or repeal of the material listed in

this section.

(b) USAID Public Notice No. 1 and the USAID Regulations published

in chapter II of Title 22 and in subtitle A, Chapter 7 of Title 41 of

the Code of Federal Regulations implement the provisions of this

section.

Sec. 212.12 Effect of nonpublication.

The materials referenced in Sec. 212.11 shall not be binding upon

or otherwise adversely affect a person unless either

(a) The materials were in fact published in the Federal Register or

(b) The person otherwise had actual and timely notice of the

content of such materials.

Sec. 212.13 Incorporation by reference.

For purposes of this subpart B, USAID matters which are reasonably

available to the class of persons affected thereby are deemed to be

published in the Federal Register when they have been incorporated by

reference therein with the approval of the Director of the Federal

Register.

Subpart C--Availability of Information for Public Inspection and

Copying

Sec. 212.21 Public records.

In accordance with this subpart, USAID makes the following

information and materials available for public inspection and copying:

(a) All final opinions (including concurring and dissenting

options), and all orders made in the adjudication of the cases:

(b) those statements of policy and interpretations which have been

adopted by the Agency and are not published in the Federal Register;

and

(c) Administrative staff manuals and instructions to staff that

affect any member of the public.

Sec. 212.22 Protection of personal privacy.

To the extent required to prevent a clearly unwarranted invasion of

personal privacy, USAID may delete identifying details when USAID makes

available or publishes an opinion, statement of policy, interpretation,

or staff manual or instruction. USAID will, in each such case, explain

in writing the justification for the deletion.

Sec. 212.23 Current index.

USAID maintains and makes available for public inspection and

copying a current index providing identifying information for the

public as to any matter which has been issued, adopted, or promulgated

after July 4, 1967, and which is required by Sec. 212.21 to be made

available or published. Publication of an index is deemed both

unnecessary and impractical. However, copies of the index are

available, upon request, for a fee based on the direct cost of

duplication.

Sec. 212.24 Effect of noncompliance.

No final order, opinion, statement of policy, interpretation, or

staff manual or instruction that affects any member of the public will

be relied upon, used, or cited as precedent by USAID against any

private party unless it has been indexed and either made available or

published as provided by this subpart, or unless that private party

shall have actual and timely notice of the terms thereof.

Sec. 212.25 Procedures for obtaining materials under this subpart.

(a) The materials required to be made available for public

inspection and copying in accordance with this subpart are available to

members of the public at USAID's Public Reading Room, Room 1113, 1621

North Kent Street, Rosslyn, Virginia 22209, which is open from 9 a.m.

to 5 p.m., Monday through Friday, except on holidays. All such

materials are available in electronic form (disks) only; to a

reasonable degree, assistance will be provided in use of necessary

equipment.

(b) Requests for materials which are available under this subpart

should follow the procedures under Sec. 212.33(a) of this part.

(c) The direct costs of any necessary duplication will be charged

in accordance with the fee schedule set forth in Sec. 212.35.

(d) USAID Missions and offices in countries abroad are not

responsible for the maintenance of the index and materials available

under this subpart. However, insofar as they do have these materials,

they will make them available to citizens of the United States who are

present in their respective countries upon application made either or

in person in writing to the USAID Director, or other principal USAID

officer, c/o American Embassy in the applicable country.

Subpart D--Access to Agency Records

Sec. 212.31 Availability of agency records.

Upon receiving a request which reasonably describes a USAID record,

and which is made in accordance with the provisions of this subpart,

USAID will make such records, except the following, promptly available

to the requesting party:

(a) Matters published in the Federal Register pursuant to subpart

B;

(b) Matters made available to the public pursuant to subpart C; and

(c) Matters exempt from disclosure pursuant to Sec. 212.41 or

Sec. 241.42 of this part.

Sec. 212.32 Identification of records.

The request for a record by a member of the public must contain a

reasonably specific description of the particular record sought so that

a USAID officer who is familiar with the subject matter of the request

may be able to locate the record with a reasonable amount of effort. A

description that includes as much information as possible, such as the

subject matter, format, approximate date and, where pertinent, the name

of the country or person involved, will facilitate the search for the

requested record.

Sec. 212.33 Procedure for making requests.

(a) Requests for records, other than records available at the

Public Reading Room identified in Sec. 212.24(a), may be made by a

member of the public in writing only to the Chief, Customer Outreach

and Oversight Staff, Room 1113, SA-16, Agency for International

Development, Department of State, 320 21st Street, N.W., Washington,

D.C. 20523-1608. The request and the envelope must be plainly marked

``FOIA Request.'' Requests may be made orally, that is, in person, only

for records and materials available at the Public Reading Room.

(b) Requests for records may be made directly to a USAID mission or

office abroad only by a citizen of the United States who is present in

that country and must be by written application to the USAID Director

(or other principal USAID officer), care of the American Embassy in

that country. Any such written request and its envelope must be plainly

marked ``FOIA Request.''

(c) Only signed original (as opposed to electronically transmitted)

requests are acceptable for procedures pursuant

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to paragraphs (a) and (b) of this section. Telephoned requests, or in-

person requests other than to the Public Reading Room, cannot be

accepted. If a written request not properly marked ``FOIA Request'' on

both the letter and envelope is thereby delayed in reaching the Chief,

Office of Customer Outreach and Oversight Staff, such request will not

be deemed received by USAID until actually received by that official.

In the event of such a delay, the person making the request will be

furnished a notice of the effective date of receipt.

Sec. 212.34 Procedures for responding to requests for records.

(a) Upon receipt by the Chief, Office of Customer Outreach and

Oversight Staff, of a reasonably specific request made pursuant to

Sec. 212.33 of this part, a maximum of ten working days will normally

be taken to determine to what extent the Agency can provide the

information requested. Upon the making of that determination, the

person making the request will be promptly so informed. Copies of the

releasable documents will be made available promptly thereafter upon

receipt of applicable fees and charges as set forth in Sec. 212.35.

(b)(1) In unusual circumstances, USAID may not be able to determine

the availability of the requested documents within ten working days, in

which event the person making the request will be informed by written

notice of the delay, the reasons for the delay and the date on which a

determination may be expected. In this context, the term ``unusual

circumstances'' refers to the following situations:

(i) When there is a need to search for and collect the requested

records from field facilities or other establishments that are separate

from the office processing the request;

(ii) When there is a need to search for, collect, and appropriately

examine a voluminous amount of separate and distinct records which are

sought in a single request; or

(iii) When there is a need for consultation (which will be

conducted with all practicable speed) with another agency having a

substantial interest in the determination of the request or among two

or more components of the Agency, each having substantial subject-

matter interest therein.

(2) The maximum time in making a determination of availability, in

the event of such unusual circumstances, will be twenty working days

from receipt of the request. In the event that only part of the

permissible ten working days extension is used, then USAID reserves the

right, if necessary, to use any remainder of such time for the

determination of an appeal, if one is made.

(c) If a request is made to USAID for material that is controlled

or held by another agency, the person making the request will be

immediately notified that USAID does not have or control the requested

material and he/she will be advised of the name of the controlling

agency and of the address from which the material may be requested,

unless the other agency has, by public regulation, delegated the

release authority to USAID. If release authority has been delegated,

USAID will follow the procedures authorized by the delegation in

determining whether to release the information. If a request for

material is referred to USAID from another agency, the time period for

determination of release of the information will not start until the

request is received by the Chief, Office of Customer Outreach and

Oversight Staff; and the person making the request will be immediately

notified of the referral and of the date the request was received in

USAID. USAID will not accept referral of requests unless and until the

Chief, Customer Outreach and Oversight Staff, or his/her designee,

determines that the material requested is actually within the scope and

control of the release authority of USAID.

(d) If only a part of a record is exempt from disclosure, then any

reasonably segregable portion of such record will be furnished after

deletion of the portions which are exempt, provided that the segregable

portion constitutes an intelligible record which is not distorted out

of context or contradictory to the substance of the entire record

before segregation.

Sec. 212.35 Schedule of fees and method of payment for services

rendered.

(a) Definitions. (1) Direct costs means those expenditures which

the Agency actually incurs in searching for and duplicating (and in the

case of commercial requesters, reviewing) documents in order to respond

to a FOIA request.

(2) Search includes all time spent looking for material that is

responsive to a request, including page-by-page or line-by-line

identification of material within documents. Line-by-line search will

not be done when duplicating an entire document would prove the less

expensive and quicker method of complying with a request. (``Search''

for this purpose is distinguished from ``review'' (see paragraph (a)(4)

of this section).

(3) Duplication refers to the process of making a copy of a

document available to the FOIA requester. Copies can take the form of

paper copy, microfilm or audiovisual materials (among others) and will

be in a form that is reasonably usable by requesters.

(4) Review refers to the process of examining documents located in

response to a commercial use request (see paragraph (a)(5) of this

section) to determine whether any portion of any document located is

permitted to be withheld. It also includes processing any documents for

disclosure, e.g., doing all that is necessary to redact those documents

of exempt material and otherwise preparing them for release. Review

does not include time spent resolving general legal or policy issues

regarding the application of exemptions.

(5) Commercial use request refers to a request from or on behalf of

one who seeks information for a use or purpose that is related to

commerce, trade, or the profit interest of the requester or of the

person on whose behalf the request is made. In determining whether a

requester properly belongs in this category, the Agency will determine

the use to which a requester will put the documents requested. Where

the Agency has reasonable cause to doubt the use to which a requester

will put the records sought, or where that use is not clear from the

request itself, the Agency may seek additional clarification before

assigning the request to a specific category.

(6) Educational institution refers to a preschool, a public or

private elementary or secondary school, an institution of graduate

higher education, an institution of undergraduate higher education, an

institution of professional education, or an institution of vocational

education which operates a program or programs of scholarly research.

(7) Non-commercial scientific institution refers to an institution

that is not operated on a ``commercial'' basis as that term is

referenced in paragraph (a)(5) of this section and which is operated

solely for the purpose of conducting scientific research, the results

of which are not intended to promote any particular product or

industry.

(8) Representative of the news media refers to 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 in those instances when they can

[[Page 43005]]

qualify as disseminators of ``news'' who make their products available

for purchase or subscription by the general public). These examples are

not intended to be all-inclusive. Moreover, as traditional methods of

news delivery evolve (e.g., electronic dissemination of newspapers

through telecommunications services), such alternative media would be

included in this category. In the case of ``freelance'' journalists,

they may be regarded as working for a news organization if they can

demonstrate a sound basis for expecting publication through such an

organization, even though not actually employed by it. A publication

contract would be the clearest evidence, but the Agency may also look

to the past publication record of the requester in making this

determination.

(b) Fees to be charged. The following specific fees shall be

applicable with respect to services rendered to members of the public

under this part:

(1) Commercial use requesters. Fees are intended to cover the full

estimated direct costs of researching for, reviewing for release, and

duplicating the records requested. Search costs are computed based on

the following formula: hours spent by Agency personnel, whatever their

grade and location, and rounded up to the nearest full hour, and

including locality pay for Washington-based personnel only, at the

basic annual rate then payable to U.S. Government employees at the GS-

9/Step 4 level, times 1.17 (to factor in related benefits) and divided

by 2080 (hours per work year). Review costs are computed based on the

same formula but, instead, using the rate then payable to employees at

the GS-13/Step 4 level. Duplicating costs are $0.20 per page. Search

costs will be assessed even though no records may be found or even if,

after review, there is no disclosure of records.

(2) Educational and non-commercial scientific institution

requester. The Agency will provide documents to requesters in this

category for the cost of duplication alone ($0.20 per page), excluding

charges for the first 100 pages. To be eligible for inclusion in this

category, requesters must show that a request is being made under the

auspices of a qualifying institution and that the records are sought in

furtherance of scholarly research, if the request is from an

educational institution or scientific research, if the request is from

a non-commercial scientific institution. Requesters eligible for free

search must (as with all FOIA requesters) reasonably describe the

records sought.

(3) Requesters who are representatives of the news media. The

Agency will provide documents to requesters in this category for the

cost of reproduction alone ($0.20 per page), excluding charges for the

first 100 pages. To be eligible for inclusion in this category a

requester must meet the criteria in paragraph (a)(8) of this section,

and his/her request must not be made for commercial use. In reference

to this class of requesters, a request for records supporting the news

dissemination function of the requester shall not be considered to be a

request that is for a commercial use. Requesters eligible for free

search must also reasonably describe the records sought.

(4) All other requesters. The Agency will charge requesters who do

not fit into any of the categories in paragraphs (b) (1), (2), and (3)

of this section fees which recover the full direct cost of search, and

for reproducing records that are responsive to the request, except that

the first 100 pages and the first two hours of search time shall be

furnished without charge. The hourly rates outlined in paragraph (b)(1)

of this section will prevail. Requesters must reasonably describe the

records sought. Moreover, requests from subjects for records filed in

the Agency's Privacy Act System of Records will continue to be treated

under the fee provisions of the Privacy Act of 1975 except that the

first 100 pages of reproduction will be furnished without charge.

(c) Non-payment of fees. (1) The Agency will begin assessing

interest charges on the thirty-first day following the day on which the

requester is advised of the fee charge. Interest will be at the rate

prescribed in 31 U.S.C. 3717.

(2) Where a requester has previously failed to copy a fee charged

in a timely fashion (i.e. within thirty days of the billing date), the

Agency will require the requester to pay the full amount owed plus any

applicable interest as provided in paragraph (c)(1) of this section,

and to make an advance payment of the full amount of the remaining

estimated fee before the Agency begins to process a new request or

continues processing a then-pending request from the requester.

(3) When the Agency acts under paragraph (c) (1) or (2) of this

section the administrative time limits prescribed in subsection (a)(6)

of the FOIA (i.e., ten working days from receipt of initial request and

twenty working days from receipt of appeals from initial denial plus

permissible extensions of these time limits) will begin only after the

Agency has received fee payments described in this section.

(d) Advance payments or confirmation. Where USAID estimates or

determines that allowable charges to a requester are likely to exceed

$250, USAID will require a requester to make an advance payment of the

entire estimated charges before continuing to process the request.

Where the estimated charges are in the $25-$250 range, then USAID in

its discretion, before processing the request, may require either--

(1) An advance deposit of the entire estimated charges or (2)

Written confirmation of the requester's willingness, when billed, to

pay such charges.

(e) Waiving or reducing fee. In accordance with section (4)(A)(ii)

of the FOIA, the Agency will furnish documents without charge or at

reduced charges if disclosure of the information is ``in the public

interest'' in that such disclosure is likely to contribute

significantly to public understanding of the operations or activities

of the Government and is not primarily in the commercial interest of

the requester. A requester may at any time, up to a period not to

exceed thirty days from the final USAID decision concerning his/her

request, request such waiver or reduction of fee by letter addressed to

the Chief, Customer Outreach and Oversight Staff; such request shall

address the above criteria for waiver. Such request will initially be

decided by the Chief, Customer Outreach and Oversight Staff, or his/her

designee; such decision will normally be made, and the requester so

advised, within ten working days of its receipt. The requester, if

dissatisfied with that decision, may appeal pursuant to the same

procedures as apply under Sec. 212.36 and Sec. 212.37 of this part.

(f) Restrictions on assessing fees. With the exception of

requesters seeking documents for a commercial use, Section (4)(A)(iv)

of the FOIA, as amended, requires agencies to provide the first 100

pages of duplication and the first two hours of search time without

charge. Moreover, this section prohibits agencies from charging fees to

any requester, including commercial use requesters, if the cost of

collecting a fee would be equal to or greater than the fee itself.

These provisions work together so that, except for commercial use

requesters, the Agency will not begin to assess fees until it has

provided such free search and reproduction. For example, for a request

that involved two hours and ten minutes of search time and resulted in

105 pages of documents, the Agency will determine the cost of only ten

minutes of search time and only five pages of reproduction. If this

[[Page 43006]]

cost is equal to or less than the cost of processing the payment

instrument--a figure which the Agency will from time to time review and

determine--then there will be no charge to the requester.

(g) Other provisions--(1) Charges for unsuccessful search. The

Agency will assess charges for time spent searching even if the Agency

fails to locate the records or if records located are determined to be

exempt from disclosure.

(2) Aggregating requesters. When the Agency reasonably believes

that a requester or group of requesters is attempting to break a

request down into a series of requests for the purpose of evading the

assessment of fees, the Agency will aggregate any such requesters and

charge accordingly.

(3) Effect of the Debt Collection Act of 1982 (Public Law 97-365).

The Agency will use the authorities of the Debt Collection Act,

including disclosure to consumer reporting agencies and use of

collection agencies, where appropriate, to encourage repayment.

(4) Remittances. (i) Remittances will be in U.S. Dollars in the

form of either a personal check or bank draft drawn on a bank in the

United States or a money order.

(ii) Remittances shall be made payable to the order of the U.S.

Treasury and mailed to the Chief, Customer Outreach and Oversight

Staff, at the address set forth in Sec. 212.33(a) of this part.

Sec. 212.36 Denial of request for access to records.

(a) If it is determined that the Agency cannot comply with all or

part of a request for records, the person making the request shall be

immediately notified of the determination, the reasons for the

determination, the name and title of each officer responsible for the

denial, and the right of the person to appeal the adverse

determination.

(b) The denial of a request for records may be made, initially,

only by the Chief, Customer Outreach and Oversight Staff, or his/her

designee.

(c) (1) Any person who has been denied access to records pursuant

to this section may appeal the relevant decision not later than thirty

days after the date of the notification of denial or, in the case of a

partial denial, not later than thirty days after the date the

releasable documents are actually furnished to the person making the

request, whichever is later. The appeal shall be in writing addressed

to the Agency's FOIA Appeals Officer, who is:

The Director, Office of Administrative Services, Bureau for

Management, Room 803, SA-2, Agency for International Development,

21st and Virginia Ave., N.W., Washington, D.C., 20523-0217.

(2) In order for the Agency to make a timely response to the

appeal, both the text of the appeal and its envelope must be plainly

marked ``FOIA Appeal''. The appeal must contain a reasonable

description of the record sought and withheld, a copy of the initial

decision to deny access and any other information that will enable the

Appeals Officer to make the final decision.

Sec. 212.37 Procedures for agency consideration of appeals.

(a) Upon receipt of the appeal by the Appeals Officer, a maximum of

twenty working days will normally be taken to decide the appeal. In

unusual circumstances, as defined in Sec. 212.34, the twenty working

days may be extended by ten working days or by the number of days not

used in the original denial of the request.

(b) If the appeal is granted, the person making the appeal shall be

immediately notified and copies of the releasable documents shall be

made available promptly thereafter upon receipt of appropriate fees as

set forth in Sec. 212.35. If the appeal is denied in whole or part, the

person making the request shall be immediately notified of the

decisions and of the provisions for judicial review of the Agency's

denial of the request.

(c) In the event a determination is not issued within the

applicable time limit and the person making the request therefore

chooses to sue the Agency, the Agency-level determination process shall

nonetheless continue.

(d) If an appeal not properly marked ``FOIA Appeal'' on the text of

the appeal and/or envelope is thereby delayed in reaching the Appeals

Officer, it will not be deemed received by the Appeals Officer until

actually received by him/her. In such event, the person making the

appeal will be furnished notice of the effective date of receipt.

Sec. 212.38 Predisclosure notification procedures for confidential

commercial information.

(a) In general. Confidential commercial information provided to the

Agency shall not be disclosed pursuant to a FOIA request except in

accordance with this section. For purposes of this section, the

following definitions apply:

(1) Confidential commercial information means records provided to

the Agency by a submitter that arguably contain material exempt from

release under Exemption 4 of FOIA, 5 U.S.C. 552(b)(4), because

disclosure could reasonably be expected to cause substantial

competitive harm.

(2) Submitter means any person or entity who provides confidential

commercial information to the Agency. The term ``submitter'' includes,

but is not limited to, corporations, state governments and foreign

governments.

(b) Notice to submitters. Whenever the Agency receives a FOIA

request for confidential commercial information and, pursuant to

paragraph (c) of this section, the submitter of such information is

entitled to receive notice of that request, then the Agency shall

promptly notify the submitter that it has received the request, unless

such a notice is not required pursuant to paragraph (g) of this

section. The notice shall be in writing and shall either describe the

exact nature of the confidential commercial information requested or

provide a copy of the records or portion of the records containing the

confidential commercial information. The notice shall be addressed to

the submitter and mailed, postage prepaid, first class mail, to the

submitter's last known address. Where notice is required to be given to

a voluminous number of submitters, in lieu of such a mailing the notice

may be posted or published in a manner and place reasonably calculated

to provide notice to the submitters.

(c) When notice is required; related matters. (1) For confidential

commercial information submitted prior to January 1, 1988, the Agency

shall provide a submitter with notice of its receipt of a FOIA request

whenever:

(i) The records are less than ten years old and the information has

been designated by the submitter as confidential commercial

information; or

(ii) The Agency has reason to believe that the disclosure of the

information could reasonably be expected to cause substantial

competitive harm to the submitter thereof.

(2) For confidential commercial information submitted to the Agency

on or after January 1, 1988, the Agency shall provide a submitter with

notice of its receipt of a FOIA request whenever:

(i) The submitter has designated the information as confidential

commercial information pursuant to the requirements of this section; or

(ii) The Agency has reason to believe that the disclosure of the

information could reasonably be expected to cause substantial

competitive harm to the submitter.

(3) Notice of a request for confidential commercial information

falling within paragraph (c)(2)(i) of this section shall be required

for a period of not more than ten years after the date of submission

unless the submitter

[[Page 43007]]

provides reasonable justification for a designation period of greater

duration.

(4) A submitter shall use good-faith efforts to designate by

appropriate markings, either at the time a record is submitted to the

Agency or within a reasonable period of time thereafter, those portions

of the record which it deems to contain confidential commercial

information. The designation shall be accompanied by a certification

made by the submitter, its agent or designee that to the best of the

submitter's knowledge, information and belief, the record does, in

fact, contain confidential commercial information that theretofore has

not been disclosed to the public.

(5) Whenever the Agency provides notice to the submitter in

accordance with paragraph (c) of this section, the Agency shall at the

same time provide written notice to the requester that it is affording

the submitter a reasonable period of time within which to object to the

disclosure, and that, therefore, the Agency may be required to enlarge

the time within which it otherwise would respond to the request.

(d) Opportunity to object to disclosure. To the extent permitted by

law, the notice required by paragraph (c) of this section shall afford

a submitter a reasonable period of time within which the submitter or

its authorized representative may provide the Agency with a written

objection to the disclosure of the confidential commercial information

and demonstrate why the submitter believes that the records contain

confidential commercial information whose disclosure would, probably,

cause substantial competitive injury to the submitter. Except where a

certification already has been made in conformance with the

requirements of paragraph (c)(4) of this section, the objection shall

be accompanied by certification made by the submitter, its agent or

designee, that to the best of the submitter's knowledge, information

and belief, the record does, in fact, contain confidential commercial

information that theretofore has not been disclosed to the public.

Information provided by a submitter pursuant to this paragraph may

itself be subject to disclosure under the FOIA.

(e) Notice of intent to disclose. (1) The Agency shall give careful

consideration to objections made by a submitter pursuant to paragraph

(d) of this section prior to making any administrative determination of

the issue. Whenever the Agency decides to disclose information despite

the objection of a submitter, the Agency shall forward to the submitter

a written notice which shall include:

(i) A statement of the reasons for which a submitter's disclosure

objections were not sustained; and

(ii) A description of the information to be disclosed.

(2) To the extent permitted by law, the notice required to be given

by paragraph (e)(1) of this section shall be provided to the submitter

a reasonable number of days prior to the specific disclosure date.

(3) Whenever the Agency provides notice to the submitter in

accordance with paragraphs (e) (1) and (2) of this section, the Agency

shall at the same time notify the requester

(i) That such a notice has been given and

(ii) Of the proposed date for disclosure.

(f) Notice of lawsuit. When a requester brings suit seeking to

compel the disclosure of information for which notice is required

pursuant to paragraph (c) of this section, the Agency shall promptly

notify the submitter that such suit has been filed.

(g) Exceptions to notice requirements. The notice requirements of

this section shall not apply if:

(1) The Agency determines that the information should not be

disclosed;

(2) The information has been published or has been officially made

available to the public;

(3) Disclosure of the information is required by an Agency rule

that;

(i) Was adopted pursuant to notice and public comment;

(ii) Specifies narrow classes of records submitted to the Agency

that are to be released under the FOIA; and

(iii) Provides in exceptional circumstances for notice when the

submitter provides written justification, at the time the information

is submitted or a reasonable time thereafter, that disclosure of the

information could reasonably be expected to cause substantial

competitive harm;

(4) For purposes of paragraph (c) of this section, the information

requested was not designated by the submitter as exempt from disclosure

when the submitter had an opportunity to make such designation at the

time of submission of the information or within a reasonable time

thereafter, unless;

(i) The Agency has substantial reason to believe that disclosure of

the information would result in competitive harm; or

(ii) The designation made by the submitter appears obviously

frivolous; except that, in such case, the Agency must provide the

submitter with written notice of any final administrative disclosure

determination within a reasonable number of days prior to the specified

disclosure date.

Subpart E--Exemptions From Disclosure

Sec. 212.41 Exemptions from publication and disclosure requirements of

subparts B, C, and D.

None of the provisions of subparts B, C, and D which provide for

publication and disclosure of certain information and records shall be

applicable to matters that are:

(a) Specifically authorized under criteria established by an

Executive Order to be kept secret in the interest of national defense

or foreign policy and are in fact properly classified pursuant to such

Executive Order;

(b) Related solely to the internal personnel rules and practices of

the Agency;

(c) Specifically exempted from disclosure by statute;

(d) Trade secrets and commercial or financial information obtained

from a person and privileged and confidential;

(e) Interagency or intra-agency memorandums or letters which would

not be available by law to a party other than an agency in litigation

with the agency;

(f) Personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal

privacy;

(g) Records or information compiled for law enforcement purposes,

but only to the extent that the production of such law enforcement

records or information:

(1) Would reasonably be expected to interfere with enforcement

proceedings;

(2) Would deprive a person of a right to a fair trial or an

impartial adjudication;

(3) Could reasonably be expected to constitute an unwarranted

invasion of personal privacy;

(4) Could reasonably be expected to disclose the identity of a

confidential source, including a State, local or foreign agency or

authority or any private institution which furnished information on a

confidential basis, and, in the case of a record or information

compiled by a criminal law enforcement authority in the course of a

criminal investigation, or by an agency conducting a lawful security

intelligence investigation, information furnished by a confidential

source;

(5) Would disclose techniques and procedure for law enforcement

investigations or prosecutions if such disclosure could reasonably be

expected to risk circumvention of the law; or

(6) Could reasonably be expected to endanger the life or physical

safety of any individual.

(h) Contained in or related to examination, operating, or condition

[[Page 43008]]

reports prepared by, on behalf of, or for the use of any agency

responsible for the regulation or supervision of financial

institutions; and

(i) Geological and geophysical information and data (including

maps) concerning wells.

Sec. 212.42 Exemption from 5 U.S.C. 552.

Whenever a request is made which involves access to records

described in paragraph (g) of Sec. 212.41 and the investigation or

proceedings involves a possible violation of criminal law; and there is

reason to believe that the subject of the investigation or proceeding

is not aware of its pendency, and disclosure of the existence of the

records could reasonably be expected to interfere with enforcement

proceedings, the Agency may, during only such time as that

circumstances continues, treat the records as not subject to the

requirements of 5 U.S.C. 552 and this subpart.

Subpart F--Opening of Records for Nonofficial Research Purposes

Sec. 212.51 General policy.

(a) The Agency will open its records on an equitable basis to all

individuals engaged in private research as soon as such action may be

taken without adversely affecting the national security, the

maintenance of friendly relations with other nations, the efficient

operation of the Agency, or the administrative feasibility of servicing

requests for access to such records.

(b) Access for research purposes to the classified foreign policy

records in the Agency's custody will be governed by the regulations of

the Department of State with respect thereto, as set forth in part 6,

chapter II of title II of the Code of Federal Regulations. Application

for such access may be made to the Chief, Customer Outreach and

Oversight Staff, at the address listed in Sec. 212.33(a) of this part.

That officer, or his/her designee, in consultation with the Director,

Historical Office, Department of State, or his/her designee, will

determine the action to be taken and will so advise the researcher.

Dated: July 31, 1996.

Willette L. Smith,

Public Affairs Specialist, Office of Admin. Services.

[FR Doc. 96-20880 Filed 8-19-96; 8:45 am]

BILLING CODE 6116-01-M