Public Information, Freedom of Information and Privacy

DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Parts 4, 4a, and 4b

[Docket No. 950929241-5241-01]

RIN 0605-XX02

Public Information, Freedom of Information and Privacy

AGENCY: Department of Commerce.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Commerce proposes to amend its Freedom of

Information Act and Privacy Act regulations to update and clarify them,

and to make certain technical changes. The intent is to make them more

helpful to the public.

DATES: Written comments must be received on or before March 22, 1996.

ADDRESSES: Address written comments to Andrew W. McCready, Attorney-

Advisor, Office of the Assistant General Counsel for Administration,

Rm. H5876, 14th Street & Pennsylvania Avenue, NW, Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT:

Andrew W. McCready, Telephone: 202-482-8044.

SUPPLEMENTARY INFORMATION: On March 4, 1995, as part of the President's

Regulatory Reform Initiative, the President directed agencies to

conduct a page-by-page review of all regulations and eliminate or

revise those that are outdated or otherwise in need of reform. After

conducting a review of the Department's Public Information, Freedom of

Information and Privacy Act regulations, it was determined that the

following amendments were necessary.

The proposed amendment to 15 CFR part 4 changes the duplication fee

for processing Freedom of Information Act (FOIA) requests to reflect

increased costs to the Department, makes technical corrections, makes

clear that records responsive to FOIA requests include electronic

records, updates telephone numbers and addresses, replaces a list of

officials authorized to make initial denials of FOIA requests with a

statement that heads of offices are authorized to grant or deny initial

FOIA requests, and makes clarifying changes.

The proposed amendment to 15 CFR part 4a eliminates the requirement

that the Department's Office of Security coordinate with the Office of

the Assistant General Counsel for Administration with respect to

declassification and FOIA matters, and changes the official responsible

for adjudicating administrative appeals of denials of requests for

classified information.

The proposed amendment to 15 CFR part 4b expands the list of

Privacy Act Officers, and changes the official responsible for

adjudicating Privacy Act appeals of requests for access, correction,

and amendment.

It has been determined that this rule is not a significant rule

under Executive Order 12866.

This rule does not contain a ``collection of information'' as

defined by the Paperwork Reduction Act.

The Assistant General Counsel for Legislation and Regulation

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 because the

regulations are being updated and clarified, and certain technical

changes are being made. The duplication fee is being changed to reflect

increased costs to the Department. The overall intent is to make the

regulations more helpful to the public.

This rule does not contain policies with Federalism implications

sufficient to warrant preparation of a Federalism assessment under

Executive Order 12612.

List of Subjects

15 CFR Part 4

Freedom of Information, Public information, Privacy.

15 CFR Part 4a

Classified information, Freedom of information, Privacy.

15 CFR Part 4b

Privacy.

For the reasons set forth in the preamble, it is proposed that 15

CFR parts 4, 4a, and 4b be amended as follows:

PART 4--PUBLIC INFORMATION

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

Authority: 5 U.S.C. 301, 5 U.S.C. 552, 5 U.S.C. 553,

Reorganization Plan No. 5 of 1950; 31 U.S.C. 3717.

Sec. 4.4 [Amended]

2. In the first sentence of Sec. 4.4(c), remove ``H6628'' and add,

in its place, ``H6020''; and in the last sentence of Sec. 4.4(c),

remove ``(202) 377-3271'' and add, in its place, ``(202) 482-4115''.

3. In the last line of Sec. 4.4(e), remove the word ``the'' and

add, in its place, the word ``this''.

Sec. 4.6 [Amended]

4. In the third sentence of Sec. 4.6(a)(4), remove the word

``orginating'', and add, in its place, the word ``originating''.

5. In the second sentence of Sec. 4.6(b)(3), remove the word

``dilligence'' and add, in its place, the word ``diligence''.

6. Section 4.6 is further amended by revising paragraphs (a)(3),

(a)(6), (b)(5), introductory text, and (b)(5)(iv) and removing (b)(6)

to read as follows:

Sec. 4.6 Initial determinations of availability of records.

(a) * * *

(3) Whether the records no longer exist, or are not in the unit's

possession. The unit should, if it knows which unit of the Department

may have the records, forward the request to it.

* * * * *

(6) In determining records responsive to a request, a unit

ordinarily shall include only those records, including electronic

records, within a unit's possession and control as of the date of its

receipt of the request.

* * * * *

(b) * * *

(5) The head of any bureau, office, or division, or his or her

superiors, are authorized to grant or deny any request for a record of

that bureau, office, or division.

* * * * *

(iv) A brief statement of the right of the requester to appeal the

determination to the Assistant General Counsel for Administration, or

the General Counsel if the Assistant General Counsel for Administration

is responsible for the determination, and the address to which the

appeal should

[[Page 6586]]

be sent, in accordance with Sec. 4.8 (a) and (b).

7. Section 4.7(d)(1) is removed and paragraphs (d) (2) and (3) are

redesignated as (d) (1) and (2) respectively, and the introductory text

of newly redesignated (d)(1) is revised to read as follows:

Sec. 4.7 Predisclosure notification procedures for confidential

commercial information.

* * * * *

(d) * * *

(1) The unit shall provide a submitter with notice of a request

whenever:

* * * * *

8. In Sec. 4.8, in paragraph (a) add a sentence after the first

sentence, and in paragraph (b) remove ``5882'' and add in its place,

``H5876'', to read as follows:

Sec. 4.8 Appeals from initial determinations or untimely delays.

(a) * * * For purposes of this section, an appeal will be

considered submitted as of the date of the postmark or proof of receipt

by a private carrier or, if not mailed or entrusted to a private

carrier, the date of actual receipt by the Office of General Counsel. *

* *

Sec. 4.9 [Amended]

9. In Sec. 4.9(b)(2)(iii)(A) remove ``$.07'' and add, in its place,

``$.15''.

10. Section 4.9 is further amended by removing the introductory

paragraph of (d)(2), redesignating (d)(2)(i), (d)(2)(ii), and (d)(3)

through (d)(7) as (d)(2) through (d)(8) respectively, and revising the

newly designated (d)(2) and (d)(4), to read as follows:

Sec. 4.9 Fees.

* * * * *

(d) * * *

(2) When the estimated charges for processing a request under this

part exceed $250, the Department may require the requester to make an

advance payment of an amount up to the entire estimated charges before

beginning to process the request, except when it receives a

satisfactory assurance of full payment from a requester with a history

of timely payment of FOIA fees (i.e., payment within 30 days of the

date of the billing).

* * * * *

(4) Whenever the Department acts pursuant to paragraphs (d)(2) or

(d)(3) of this section, the administrative time limits prescribed in 5

U.S.C. 552(a)(6) will begin only after the agency has received payment

of the required fee.

Appendix A of Part 4--[Amended]

11. Appendix A of Part 4 is amended by removing the final sentence

of Sec. 5.04b of DAO 205-12, (``In addition, the Director of the Office

of Public Affairs or his or her designee shall be informed before any

decision on an appeal from an initial denial is issued.'')

12. Appendix B of part 4 is revised to read:

Appendix B--Freedom of Information; Public Facilities and Addresses

for Requests for Records

The public reference facilities listed below have been

established within the Department of Commerce for (a) Public

inspection and copying of materials from various units within the

Department under 5 U.S.C. 552(a)(2), or determined to be available

for response to requests made under 5 U.S.C. 552(a)(3); (b)

furnishing information and otherwise assisting the public concerning

Department operations under the Freedom of Information Act; and (c)

receipt and processing of requests for records under 5 U.S.C.

552(a)(3).

Unless otherwise noted, each address listed below is the

respective unit's public inspection facility and mailing address for

receipt and processing of requests for records under 5 U.S.C.

552(a)(3), as described in the preceding paragraph. Requests should

be addressed to the unit which the requester knows or has reason to

believe has possession, control, or primary concern with the records

sought. Otherwise, requests should be addressed to the Central

Reference and Records Inspection Facility.

(1) Department of Commerce Freedom of Information Central

Reference and Records Inspection Facility, U.S. Department of

Commerce, room H6020, 14th Street and Constitution Avenue, NW,

Washington, DC 20230. Phone (202) 482-4115. This facility serves the

Office of the Secretary, all other units of the Department not

identified below, and those units identified below which do not have

separate public inspection facilities, in accordance with 15 CFR

4.4(c).

(2) Bureau of the Census, Program and Policy Development Office,

U.S. Department of Commerce, room 2430, Federal Building 3,

Washington, DC 20233. Phone (301) 457-2520. This agency maintains a

separate public inspection facility in room 2455, Federal Building

3, Suitland, Maryland.

(3) Bureau of Economic Analysis/Economics and Statistics

Administration, Public Reference Facility, U.S. Department of

Commerce, room H4836, 14th Street and Constitution Avenue, NW,

Washington, DC 20230. Phone (202) 482-3308. This unit does not

maintain a separate public inspection facility.

(4) Economic Development Administration, Freedom of Information

Records Inspection Facility, U.S. Department of Commerce, room

H7001, 14th Street and Constitution Avenue, NW, Washington, DC

20230. Phone (202) 482-3687. Mailing addresses of Regional EDA

offices:

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

Commerce, Freedom of Information Request Control Desk, Curtis

Center, Suite 140 South, Independence Square West, Philadelphia,

Pennsylvania 19106.

(ii) Atlanta Regional Office, EDA, U.S. Department of Commerce,

Freedom of Information Request Control Desk, 401 West Peachtree

Street, NW, Suite 1820, Atlanta, GA 30308.

(iii) Denver Regional Office, EDA, U.S. Department of Commerce,

Freedom of Information Request Control Desk, room 670, 1244 Speer

Boulevard, Denver, Colorado 80204.

(iv) Chicago Regional Office, EDA, U.S. Department of Commerce,

Freedom of Information Request Control Desk, 111 North Canal Street,

Suite 855, Chicago, IL 60606.

(v) Seattle Regional Office, EDA, U.S. Department of Commerce,

Freedom of Information Request Control Desk, Jackson Federal

Building, room 1856, 915 Second Avenue, Seattle WA 98174.

(vi) Austin Regional Office, EDA, U.S. Department of Commerce,

Freedom of Information Request Control Desk, Grant, Building, Suite

201, 611 East 6th Street, Austin, Texas 78701.

(5) Bureau of Export Administration, Freedom of Information

Records Inspection Facility, U.S. Department of Commerce, room

H4525, 14th Street and Constitution Avenue, NW, Washington, DC

20230. Phone (202) 482-5653.

(6) International Trade Administration, Freedom of Information

Records Inspection Facility, U.S. Department of Commerce, room

H4001, 14th Street and Constitution Avenue, NW., Washington, DC

20230. Phone (202) 482-3756.

(7) Minority Business Development Agency, Freedom of Information

Office, U.S. Department of Commerce, room H5706, 14th Street and

Constitution Avenue, NW, Washington, DC 20230. Phone (202) 482-2025.

This unit does not maintain a separate public inspection facility.

(8) National Institute of Standards and Technology, Freedom of

Information Request Control Desk, Administration Building, room A-

1105, Gaithersburg, Maryland 20899. Phone (301) 975-2389. 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, room 714 WSC-5, 6010 Executive Boulevard,

Rockville, Maryland 20852. Phone (301) 413-0610.

(10) National Technical Information Service, Freedom of

Information room 203, Forbes Building, 5285 Port Royal Road,

Springfield, Virginia 22161. Phone (703) 487-4736. This unit does

not maintain a separate public inspection facility.

(11) National Telecommunications and Information Administration,

Freedom of Information Request Control Desk, U.S. Department of

Commerce, room H4713, 14th Street and Constitution Avenue, NW,

Washington, DC 20230. Phone (202) 482-1816. This unit maintains a

separate public inspection facility in room H1609.

(12) Patent and Trademark Office, Freedom of Information Request

Control Desk, Box 8, Washington, DC 20231. Phone (703) 305-9035.

This agency maintains a separate public inspection facility in the

Public Search Room, room 1A01, Crystal Plaza 3,

[[Page 6587]]

2021 Jefferson Davis Highway, Arlington, Virginia.

(13) United States Travel and Tourism Administration, Freedom of

Information Request Control Desk, U.S. Department of Commerce, room

H1520, 14th Street and Constitution Avenue, NW, Washington, DC

20230. Phone (202) 482-3811.''

Appendix C to Part 4--[Removed]

13. Appendix C is removed.

PART 4a--CLASSIFICATION, DECLASSIFICATION, AND PUBLIC AVAILABILITY

OF NATIONAL SECURITY INFORMATION

14. The authority citation for part 4a continues to read as

follows:

Authority: Sec. 5.3(b), E.O. 12356; 47 FR 14874, April 6, 1982;

47 FR 15557, April 12, 1982.

Sec. 4a.8 [Amended]

15. In Sec. 4a.8(b)(4), remove the words, ``All denials of

information under the Freedom of Information Act must be approved by

the Office of the Assistant General Counsel for Administration.''

16. In Sec. 4a.9 remove paragraphs (e)(2) and (e)(3), redesignate

paragraph (e)(4) as (e)(2), and revise paragraph (f) to read as

follows:

Sec. 4a.9 Request under the Privacy Act and the Freedom of Information

Act involving classified records.

* * * * *

(f) Receipt of an appeal for reconsideration of denial of a

classified record under PA/FOIA: Appeals under this section shall be

addressed to the Assistant General Counsel for Administration, or the

General Counsel if the Assistant General Counsel for Administration is

responsible for the denial. The Assistant General Counsel for

Administration or the General Counsel shall refer the record(s) to the

Director, Office of Security, for a declassification review. The

Director may overrule previous determinations in whole or in part when,

in his or her judgment, continued protection in the interest of

national security is no longer required. If the information under

review no longer requires classification, it shall be declassified. The

Director shall inform the official by whom the referral was made of his

or her decision.

PART 4b--PRIVACY ACT

17. The authority citation for part 4b continues to read as

follows:

Authority: 5 U.S.C. 552a; 5 U.S.C. 553; 5 U.S.C. 552; 5 U.S.C.

301; 44 U.S.C. 3101; Reorganization Plan No. 5 of 1950.

18. Section 4b.1 is amended by revising paragraphs (d)(1) and (e)

to read as follows:

Sec. 4b.1 Purpose and scope.

* * * * *

(d) * * *

(1) Requests for records which do not pertain to the individual

making the request, or the individual about whom the request is made if

the requester is the parent or guardian of the individual;

* * * * *

(e) Any request for records which pertains to the individual making

the request, 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 part and under the Freedom of

Information Act and the Department's implementing regulations (part 4

of this chapter), regardless of whether the Act or the Freedom of

Information Act are mentioned in the request.

19. Section 4b.2(b)(6) is revised to read as follows:

Sec. 4b.2 Definitions.

* * * * *

(b) * * *

(6) The term Privacy Officer means the head of any bureau, office,

or division, or his or her superiors. Each Privacy Officer is

authorized to receive and act upon any inquiry, request for access, or

request for correction or amendment pertaining to a record of his or

her bureau, office, or division.

* * * * *

Sec. 4b.3 [Amended]

20. In Sec. 4b.3(f)(2), remove the words, ``General Counsel,'' and

add, in their place, ``Assistant General Counsel for Administration''.

Sec. 4b.5 [Amended]

21. In Sec. 4b.5(a)(2), remove the words, ``responsible General

Counsel,'' and add, in their place, ``Assistant General Counsel for

Administration, or the General Counsel if the Assistant General Counsel

for Administration is responsible for sending an acknowledgment''.

22. In Sec. 4b.5(g)(3)(ii), remove the words, ``General Counsel''

and add, in their place, ``Assistant General Counsel for

Administration, or the General Counsel if the Assistant General Counsel

for Administration is responsible for the denial''.

23. In Sec. 4b.9, paragraph (b) is revised, in paragraphs (c), (e),

(h), and (i) remove the words ``General Counsel'' and add, in their

place, ``Assistant General Counsel for Administration or the General

Counsel'' and paragraph (g)(1) is amended by revising the third, fourth

and fifth sentences to read as follows:

Sec. 4b.9 Appeal of initial adverse agency determination on correction

or amendment.

* * * * *

(b) An appeal shall be addressed to the Assistant General Counsel

for Administration (or the General Counsel if the Assistant General

Counsel for Administration is responsible for the denial), Department

of Commerce, Room 5876, Washington, DC 20230. The processing of appeals

will be facilitated if the words ``PRIVACY APPEAL'' appear in capital

letters on both the envelope and the top of the appeal papers. 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 or

General Counsel, as appropriate. 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 or the General Counsel. In each instance when an appeal

so forwarded is received, the Assistant General Counsel for

Administration or the General Counsel, as appropriate, shall notify the

individual that his or her appeal was improperly addressed and the date

when the appeal was received at the proper address.

* * * * *

(g) * * *

(1) * * * Such a statement shall be filed with the Assistant

General Counsel for Administration, or the General Counsel if the

Assistant General Counsel for Administration is responsible for the

final determination. It should provide the Department control number

assigned to the request, indicate the date of the final determination

and be signed by the individual. The Assistant General Counsel for

Administration or the General Counsel shall acknowledge receipt of such

statement and inform the individual of the date on which it was

received;

* * * * *

Sec. 4b.11 [Amended]

24. In Sec. 4b.11(c), remove the words, ``U.S. Department of

Commerce'' and add, in their place ``Treasury of the United States''.

Sonya Stewart,

Director for Executive Budgeting and Assistance Management.

[FR Doc. 96-3801 Filed 2-20-96; 8:45 am]

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