Proposed Revisions to the Agency's Freedom of Information Act Regulations

OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

15 CFR Part 2004

Proposed Revisions to the Agency's Freedom of Information Act

Regulations

AGENCY: The Office of the United States Trade Representative.

ACTION: Proposed rule.

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SUMMARY: This document sets forth proposed revisions of the Office of

the United States Trade Representative's (``USTR'') regulations under

the Freedom of Information Act (FOIA). The proposed revisions reflect

the principles established by President Clinton and Attorney General

Reno in their FOIA Policy Memoranda of October 4, 1993. The proposed

regulations also reflect updated cost figures to be used in calculating

and charging fees. Additionally, the proposed regulations contain new

provisions implementing the Electronic Freedom of Information Act

Amendments of 1996.

DATES: Submit comments on or before April 1, 1998.

ADDRESSES: Address all comments concerning this proposed rule to

Elizabeth Hyman, Office of the General Counsel, Office of the United

States Trade Representative, 600 17th Street, N.W., Washington, D.C.

20508.

FOR FURTHER INFORMATION CONTACT:

Ms. Elizabeth Hyman at (202) 395-3432.

SUPPLEMENTARY INFORMATION: This document sets forth proposed revisions

of the Office of the United States Trade Representative's regulations

under the Freedom of Information Act.

New provisions implementing the Electronic Freedom of Information

Act Amendments of 1996 are found at Sec. 2004.3(c)(4) (electronic

reading room), Sec. 2004.6 (timing of response), Sec. 2004.5(b) and

Sec. 2004.13(c) (deletion marking), Sec. 2004.5(c)(2) (volume

estimation), Sec. 2004.3(b)(2) and Sec. 2004.8(b)(3) (format of

disclosure), and Sec. 2004.8(b)(8) (electronic searches). For specific

sections and subsections implementing of the regulations implementing

the Electronic Freedom of Information Act Amendments of 1996, the

following effective dates apply:

Section 2004.3(c)(4)--electronic reading room--November 1, 1997

Section 2004.6(d), (e), and (f)--processing requests under unusual

circumstances, multi-track systems, and with expedited treatment--

October 2, 1997; and

Section 2004.5(c)(2)--Volume estimation--October 2, 1997.

Regulatory Flexibility Act

The United States Trade Representative, in accordance with the

Regulatory Flexibility Act (5 U.S.C. 606(b)), has reviewed this

regulation and by approving it certifies that this regulation will not

have a significant impact on a substantial number of small entities.

This is because costs assessed by USTR will be nominal. Under the

Freedom of Information Act, agencies may recover only the direct costs

for searching for, reviewing, and duplicating the records processed for

requesters. Further, the ``small entities'' that make FOIA requests, as

compared with individual requesters and other requesters, are

relatively few in number.

Executive Order 12866

This regulation has been drafted and reviewed in accordance with

Executive Order 12866, Sec. 1(b), Principles of Regulation. The Office

of Management and Budget has determined that this rule is a

``significant regulatory action'' under Executive Order 12866, Sec.

3(f), Regulatory Planning and Review, and accordingly this rule has

been reviewed by that office.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and

tribal governments, in the aggregate, or by the private sector, of

$100,000,000 or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

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Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by Sec. 804 of the Small

Business Regulatory Enforcement Act of 1996. This rule will not result

in an annual effect on the economy of $100,000,000 or more; a major

increase in costs or prices; or significant adverse effects on

competition, employment, investment, productivity, innovation, or on

the ability of United States-based companies to compete with foreign-

based companies in domestic and export markets.

Paperwork Reduction Act

This part does not impose any reporting or record keeping

requirements under the Paperwork Reduction Act of 1995.

List of Subjects in 15 CFR Part 2004

Freedom of information.

For the reasons stated in the preamble, the Office of the United

States Trade Representative proposes to amend 15 CFR Ch. XX by revising

Part 2004 to read as follows:

PART 2004--FREEDOM OF INFORMATION POLICIES AND PROCEDURES

Subpart A--Procedures Regarding FOIA Requests to USTR

Sec.

2004.1 General.

2004.2 Public reading room.

2004.3 Material available to public.

2004.4 Requirements for making requests.

2004.5 Responses to requests.

2004.6 Time limits and expedited processing.

2004.7 Administrative appeals.

2004.8 Fees--definitions.

2004.9 Fee designations.

2004.10 Miscellaneous fee provisions.

Subpart B--Rules governing disclosure

2004.11 Notification regarding requests for confidential business

information.

2004.12 Classified information.

2004.13 Records which may be exempt from disclosure.

2004.14 Annual report to Congress.

Authority: 5 U.S.C. 552, 31 U.S.C. 3717, 44 U.S.C. chapter 35.

Subpart A--Procedures Regarding FOIA Requests to USTR

Sec. 2004.1 General.

The Office of the United States Trade Representative (USTR) was

established in the Executive Office of the President pursuant to the

Trade Act of 1974, Public Law 93-618, as amended. That law describes

the principal statutory functions of the Office and its organization.

The agency's office is located at 600 17th Street, N.W., Washington,

D.C. 20508. This information is furnished for the guidance of the

public and in compliance with the requirements of section 552 of title

5 U.S.C., as amended. Information routinely provided to the public as

part of a regular agency activity (for example, press releases issued

by the Office of Public Affairs) may be provided to the public without

following this subpart. As a matter of policy, USTR makes discretionary

disclosures of records or information exempt under the FOIA whenever

disclosure would not foreseeably harm an interest protected by a FOIA

exemption, but this policy does not create any right enforceable in

court.

Sec. 2004.2 Public reading room.

USTR maintains a public reading room at 600 17th Street, N.W.,

Washington, D.C. The reading room contains records that the FOIA

requires to be made regularly available for public inspection and

copying.

Sec. 2004.3 Material available to the public.

(a) In general. Nonexempt records released under the authority of

this part are considered to be in the public domain. (See Sec. 2004.13

to determine what exemptions may be applied under FOIA.) Such records

may also be made available in the USTR reading room in paper form, as

well as electronically to facilitate public access (described in

paragraph (c) of this section). Discretionary releases to FOIA

requesters constitute a waiver of the FOIA exemptions that otherwise

apply. Disclosure to a properly constituted advisory committee, to

Congress, to foreign governments or multilateral organizations, or

other Federal agencies does not waive the exemption.

(b) Creating a record. (1) A record must exist and be in the

possession of USTR at the time of the request to be considered subject

to this part and the FOIA. There is no obligation to create, compile,

or obtain from outside the agency a record to satisfy a FOIA request.

(2) In regard to electronic data, the issue of whether records are

actually created or merely extracted from an existing database is not

always readily apparent. Consequently, when responding to FOIA requests

for electronic data where creation of a record, programming, or

particular format become an issue, USTR shall apply a standard of

``reasonable efforts.'' In other words, if the capability exists to

respond to the request and the effort would not significantly interfere

with the operation of the agency's information systems, then the

request should be processed. However, the request need not be processed

where the capability to respond does not exist without a significant

expenditure of resources, thus interfering with operations. A

significant expenditure of resources in both time and manpower that

would cause a significant interference with the operation of USTR's

automated information system would exceed reasonable efforts.

(c) Information available in the public reading room. (1) Index of

available information. USTR will maintain and make available for public

inspection and copying a current index providing identifying

information for the public as to any matter which is issued, adopted,

or promulgated after July 4, 1967, and which is retained as a record

and is required to be made available or published. Copies of the index

are available upon request for a fee of the direct cost of duplication.

(2) Availability of released records. USTR will make available for

public inspection and copying copies of records which have been

released and which the agency determines, because of their subject

matter, have become or are likely to become the subject of subsequent

requests for substantially the same records.

(3) Index of released materials. USTRA will maintain and make

available for public inspection and copying a general index of records

which have been released and which USTR determines because of their

subject matter have become or are likely to become the subject of

subsequent requests for substantially the same records. The index will

be available by computer telecommunications by December 31, 1999.

(4) Electronic availability. Records described in this paragraph

(c)(4) which are created by USTR on or after November 1, 1996, will be

made available by November 1, 1997, including by computer

telecommunications, or if those have not been established, by other

electronic means. Specifically the records are:

(i) Administrative staff manuals and instructions, or portions

thereof, that establish USTR policy or intepretations of policy that

affect a member of the public. This provision does not apply to

instructions for employees on tactics and techniques to be used in

performing their duties, or to instructions relating to the internal

management of USTR.

(ii) Those requested records that have been released in part or in

whole, which because of the nature of the subject matter, have become

or are likely to

[[Page 10161]]

become the subject of subsequent requests for substantially the same

records.

Sec. 2004.4 Requirements for making requests.

(a) All identifiable records of the Office of the United States

Trade Representative (USTR) shall be made available to the public upon

compliance with the procedures established in this part, except to the

extent that a determination is made to withhold a record subject to

exemption under 5 U.S.C. 552(b) and (c).

(b) All requests for records must be in writing and shall be

addressed to Freedom of Information Officer, Office of the United

States Trade Representative, 600 17th Street, N.W., Washington, D.C.

20508.

(c) Description of records sought. The requester must describe the

records that he/she seeks in enough detail to enable USTR personnel to

locate them with a reasonable amount of effort. Whenever possible, the

request should include specific information about each record sought,

such as the date, title or name, author, recipient, and subject matter

of the record. In addition, if the requester desires records pertaining

to a specific trade negotiation or dispute, he/she should provide the

specific name of the proceeding or negotiation, and the nature of that

case or matter. As a general rule, the greater the specificity about

the records or type or records wanted, the more likely USTR will be

able to locate those records in response to your request. If USTR

determines that a request does not reasonably describe records, it

shall notify the requester either of the additional information needed

or explain why the request is otherwise insufficient. USTR also shall

give the requester an opportunity to discuss the request so that it may

be modified to meet the requirements of this section.

(d) Agreement to pay fees. If the requester makes a FOIA request,

it shall be considered an agreement by the requester to pay all

applicable fees charged under Sec. 2004.9, unless he/she seeks a waiver

of fees. USTR ordinarily will confirm this agreement in an

acknowledgment letter. When making a request, the requester may state a

willingness to pay a specific maximum amount without further

consultation.

Sec. 2004.5 Responses to requests.

(a) Acknowledgments of requests. On receipt of a request, USTR

ordinarily shall send an acknowledgment letter to the requester which

shall confirm, or ask for confirmation, of the requester's agreement or

willingness to pay fees under Sec. 2004.9, and provide an assigned

request number for further reference.

(b) Consultations and referrals. (1) Determining the Origin of the

Record. When USTR receives a request for a record in its possession, it

shall determine whether another agency of the Federal Government is

better able to determine whether the record is exempt from disclosure

under the FOIA and, if so, whether it should be disclosed as a matter

of administrative discretion. If USTR determines that it is best able

to respond to the request, then it shall do so. If USTR determines that

it is not best able to process the record then it shall either respond

to the request regarding that record after having consulted with the

agency best able to determine whether to disclose it, and with any

other agency that has a substantial interest in it; or USTR shall refer

the responsibility for responding to the request to another agency that

originated the record (but only if that agency is subject to the FOIA).

Ordinarily the agency that originated a record will be presumed to be

best able to determine whether to disclose it.

(2) Notice of referral. Whenever USTR refers all or any part of the

responsibility for responding to a request to another agency, it

ordinarily shall notify the requester of the referral, the agency to

which the request has been referred, and the part of the request that

has been referred.

(3) Timing of responses to consultations and referrals. All

consultations and referrals will be handled according to the date the

FOIA request by the first agency.

(b) Grants of requests. Once USTR makes a determination to grant a

request in whole or in part, it shall notify the requester in writing.

USTR shall inform the requester in the notice of any fee charged under

Sec. 2004.9 and shall disclose records to the requester promptly on

payment of any applicable fee. Records disclosed in part shall be

marked or annotated to show both the amount and the location of the

information deleted wherever practicable.

(c) Adverse determinations of the request. If USTR makes an adverse

determination denying the request in any respect, it shall notify the

requester of that determination in writing. Adverse determinations, or

denials of requests, consist of: a determination to withhold any

requested document in part or in whole; a determination that a

requested document does not exist or cannot be located; a determination

that what has been requested is not a record subject to the Act; a

determination on any disputed fee matter, including a denial of a

request for a fee waiver; and a denial of a request for expedited

treatment. The denial letter shall include:

(1) A brief statement of the reason(s) for the denial, including

any FOIA exemption applied by USTR in denying the request;

(2) An estimate of the volume of records or information withheld,

in number of pages or in some other reasonable form of estimation. This

estimate does not need to 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

exemption; and

(3) A statement that the denial may be appealed under Sec. 2004.6

and a description of the requirements of that section.

Sec. 2004.6 Time limits and expedited processing.

(a) In general. USTR ordinarily shall respond to requests according

to their order of receipt. USTR will not search for documents

responsive to a request that were created after the date of receipt by

USTR of the request.

(b) Initial response and appeal. Effective October 2, 1997, an

initial response shall be made within 20 working days (i.e. exempting

Saturdays, Sundays, and legal public holidays) after the receipt of a

request for a record under this part by the Freedom of Information

Officer or his designee. An appeal under Sec. 2004.7 shall be decided

within 20 days (excepting Saturdays, Sundays, and legal public

holidays) after the receipt of such an appeal by the Appeals Committee.

(c) Commencement of time limits. The time limits for initial

decision and for an appeal decision begins on the date the request or

appeal is actually received by USTR. If requests or appeals are not

properly marked ``Freedom of Information Request'' or ``Freedom of

Information Act Appeal,'' or the request or appeal is inadvertently

delayed in reaching the respective Freedom of Information Officer or

the Appeals Committee, they will not be deemed received by USTR until

actually received by the Freedom of Information Officer or Appeals

Committee. In such events, the person making the request or appeal will

be furnished a notice of the effective date of receipt.

(d) Unusual circumstances. (1) In unusual circumstances as

specified in paragraph (d)(2) of this section, the Freedom of

Information Officer or his designee may extend the time limits in

paragraph (b) of this section by written notice to the person requiring

a record

[[Page 10162]]

under this part. This notice shall set forth the reasons for such

extension. No such notice shall specify a date which would result in an

extension of either the initial determination period, or the appeal

period, or both, for more than 10 working days. An opportunity will be

provided to limit the scope of the request so that it may be processed

within the 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 the proper processing of the

particular request:

(i) The need to search for and collect the requested records from

overseas posts or other establishments that are separate from the

office processing the request;

(ii) The need to search for, collect, and appropriately examine a

voluminous amount of separate and distinct records which are demanded

in a single request; or

(iii) The need for consultations, which shall 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 having substantial subject matter interest therein.

(3) Unusual circumstances do not include a delay that results from

a predictable agency workload of requests, unless USTR demonstrates

reasonable progress in reducing its backlog of pending requests.

Refusal to reasonably modify a scope of a request or arrange an

alternate time frame may affect a requestor's ability to obtain

judicial review.

(e) Multitrack processing. USTR will ordinarily respond to requests

according to order of receipt. When USTR has a significant number of

pending requests that prevent a response determination from being made

within 20 working days, the requests shall be processed in a multitrack

processing system. USTR may use two or more processing tracks by

distinguishing between simple and more complex requests based on the

date of receipt, the amount of time and work involved in processing the

requests, and whether the request qualifies for expedited processing as

described in paragraph (f) of this section. USTR may provide requesters

in its slower track(s) with an opportunity to limit the scope of their

requests in order to quality for faster processing within the specified

limits of USTR's faster track(s). USTR will contact the requester

either by telephone or by letter, whichever is more efficient in each

case. This multitrack processing system does not obviate the

responsibility of USTR to exercise due diligence in processing requests

in the most expeditious manner possible.

(f) Expedited processing. (1) Requests and appeals will be taken

out of order and put into a separate queue for expedited treatment

whenever it is determined 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) An urgency to inform the public about an actual or alleged

federal government activity, if made by a person primarily engaged in

disseminating information to the public; or

(iii) The loss of substantial due process rights.

(2) A request for expedited processing may be made at the time of

the initial request for records or at any later time. A requester who

seeks expedited processing must submit a statement, certified to be

true and correct to the best of that person's knowledge and belief,

explaining in detail the basis for requesting expedited processing. For

example, a requester within the category described in paragraph

(f)(1)(ii) 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 (f)(1)(ii) of this section must

also establish a particular urgency to inform the public about the

government activity generally. The formality of certification may be

waived as a matter of administrative discretion.

Sec. 2004.7 Administrative appeals.

(a) Appeals of adverse determinations. (1) The requester may appeal

an adverse determination denying the request or referral in

Sec. 2004.5(b). The appeal must be in writing and it must be received

by USTR within 60 days of the date of the letter from USTR denying the

request. The appeal letter may include as much or as little related

information as the requester wishes, so long as it clearly identifies

the determination that is being appealed. For the quickest possible

handling, the appeal letter and envelope should be marked ``Freedom of

Information Act Appeal,'' and the letter of appeal should include the

assigned request number referenced in Sec. 2004.5(a).

(2) The Office of the United States Trade Representative has

established an appeals process. An Assistant United States Trade

Representative (AUSTR) shall review all appeals. In the event that the

designated official participated in the adverse determination under

review, or is otherwise unable to render judgement, he or she may

choose one of two other senior officials of the agency (of the rank of

Deputy Assistant United States Trade Representative or higher) also

designated to carry out the function of appellate review. The senior

officials serving as appellate officials may not simultaneously serve

on the classification committee discussed in Sec. 2004.12.

(b) Final determinations on appeals normally shall be made within

20 working days after receipt. When USTR has a significant number of

appeals preventing a response determination within 20 working days, the

appeals shall be processed based on the multi track system discussed in

Sec. 2004.6.

(c) 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. 2004.9. If the appeal is denied in whole or part, the

person making the request shall be immediately notified of the decision

and of the provision of judicial review of USTR's denial of the

request.

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

appropriate time limit, and the person making the request chooses to

initiate a court action against USTR, the administrative appeal process

may continue.

Sec. 2004.8 Fees--definitions.

(a) In general. USTR will charge fees that recoup the full

allowable direct costs it incurs. Moreover, it shall use the most

efficient and least costly methods to comply with requests for

documents made under the FOIA.

(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. USTR shall determine,

whenever reasonably possible, the use to which a requester will put the

requested records. When it appears that the requester will put the

records to a commercial use, either because of the nature of the

request itself or because USTR has reasonable cause to doubt a

requester's stated use, USTR shall provide the requester a

[[Page 10163]]

reasonable opportunity to submit further clarification.

(2) Direct costs means those expenses that an agency actually

incurs in searching for and duplicating (and, in the case of commercial

use requests, reviewing) records to respond to a FOIA request. Direct

costs include, for example, the salary of the employees performing the

work (the basic rate of pay for the employee, plus 16 percent of that

rate to cover benefits) and the cost of operating duplication

machinery.

(3) Duplication means the making of a copy of a record, or the

information contained in it, necessary to respond to a FOIA request.

Copies can take the form of paper, microform, audiovisual materials, or

electronic records (for example magnetic tape or disk), among others.

USTR shall honor a requester's specified preference of form or format

of disclosure if the record is readily reproducible with reasonable

efforts in the requested form or format by the office responding to the

request.

(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, or 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 requester is authorized by and

is made under the auspices of a qualifying institution and that the

records are not sought for a commercial use but are sought to further

scholarly research.

(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 not sought for a commercial use but are sought to further

scientific research.

(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 in instances

where they can qualify as disseminators of ``news'') who 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 USTR 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

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, doing all that is necessary to redact and

prepare it for disclosure. Review costs are recoverable even if a

record ultimately is not disclosed. Review time includes time spent

considering any formal objection to disclosure made by a business

submitter under Sec. 2004.11, but 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. USTR shall ensure that

searches are done in the most efficient and least expensive manner

reasonably possible. For example, USTR shall not search line-by-line

where duplicating a document would be quicker and less expensive.

Sec. 2004.9 Fee designations.

(a) Fees. USTR will charge fees as set forth in this paragraph (a)

unless a fee is under paragraph (b) of this section or would be reduced

under Sec. 2004.10(e).

(1) Manual searches for records. For each quarter hour spent by

clerical personnel in searching for and retrieving a requested record,

the fee will be $3.50. Where such retrieval cannot be performed

entirely by clerical personnel--for example, where the identification

of records within the scope of a request requires the use of

professional personnel--the fee will be $8.75 per quarter hour. Where

the time of managerial personnel is required, the fee will be $10.25

per quarter hour.

(2) Computer searches for records. USTR will charge at the actual

direct cost of providing the service. This will include the cost of

operating the central processing unit (CPU) for that portion of

operating time that is directly attributable to searching for records

responsive to a FOIA request and operator/programmer salary

apportionable to the search.

(3) Review of records. Only requesters who are seeking documents

for commercial use may be charged for time spent reviewing records to

determine whether they are exempt from mandatory disclosure. Charges

may be assessed only for the initial review, i.e., the review

undertaken the first time USTR analyzes the applicability of a specific

exemption to a particular record or portion of a record. Records or

portions of records withheld in full under an exemption that is

subsequently determined not to apply may be reviewed again to determine

the applicability of other exemptions not previously considered. The

costs for such a subsequent review are assessable.

(4) Duplication of records. For paper copies, records will be

duplicated at a rate of $.15 per page. For copies prepared by computer,

such as diskettes, tapes, or printouts, USTR shall charge the actual

cost, including operator time, of production of the tape or printout.

For other methods of reproduction or duplication, USTR will charge the

actual direct costs of producing the document(s).

(5) Other charges. USTR will recover the full costs of providing

services such as those enumerated in this paragraph (a)(5) when it

elects to provide them.

(i) Certifying that records are true copies;

(ii) Sending records by special methods such as express mail.

(6) Remittances. Remittances shall be in the form either of a

personal check or bank draft drawn on a bank in the United States, or a

postal money order. Remittances shall be made payable to the order of

the Treasury of the United States and mailed or delivered to the

Freedom of Information Officer, Office of the United States Trade

Representative, 600 17th Street, N.W., Washington, D.C. 20508.

(7) A receipt for fees paid will be given upon request. A refund of

fees paid for services actually rendered will not be made.

(b) Limitations on charging fees (1) No search fee will be charged

for requests by educational institutions, noncommercial scientific

institutions, or representatives of the news media.

[[Page 10164]]

(2) No search fee or review will 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,

USTR will provide without charge: the first 100 pages of duplication

(or the cost equivalent); and the first two hours search (or the cost

equivalent).

(4) Whenever a total fee calculated under paragraph (c) of this

section is $14.00 or less for any request, no fee will be charged.

(5) The provisions of paragraphs (b)(3) and (4) of this section

work together. This means that for requesters other than those seeking

records for a commercial use, no fee will 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 $14.00.

(c) Notice of anticipated fees in excess of $25.00. When USTR

determines or estimates that the fees to be charged under this section

will amount to more than $25.00, the USTR shall notify the requester of

the actual or estimated amount of fees, unless the requester has

indicated a willingness to pay fees as high as those anticipated. If

only a portion of the fee can be estimated readily, the USTR shall

advise the requester that the estimated fee may be only a portion of

the total fee. In cases in which a requester has been notified that

actual or estimated fees may exceed $25.00, the request shall not be

considered received and further work shall not be done on it until the

requester agrees to pay the anticipated total fee. Any such agreement

should be memorialized in writing. A notice under this paragraph will

offer the requester an opportunity to discuss the matter with USTR in

order to reformulate the request to meet the requester's needs at a

lower cost.

Sec. 2004.10 Miscellaneous fee provisions.

(a) Charging interest. USTR may charge interest on any unpaid bill

starting on the 31st day following the date of billing the requester.

Interest charges will be assessed at the rate provided in 31 U.S.C.

3717 and will accrue from the date of billing until payment is received

by the USTR. USTR will follow the provisions of the Debt Collection Act

of 1982, Public Law 97-265 (October 25, 1982), and its administrative

procedures, including the use of consumer reporting agencies,

collection agencies, and offset.

(b) Aggregating requests. Multiple requests involving related

matters may be aggregated for two purposes. When USTR reasonably

believes that a requester or, on rare occasions, a group of requesters

acting in concert, is:

(1) Attempting to break a request down into a series of requests

for the purpose of evading the assessment of fees, USTR may aggregate

any such requests and charge accordingly. One element to be considered

in determining whether a belief would be reasonable is the time period

over which the requests have occurred.

(2) When USTR reasonably believes that such a request constitutes a

single request, which would otherwise satisfy the unusual circumstances

set forth in Sec. 2004.6(d), and the request involves clearly related

matters. Multiple requests involving unrelated matters shall not be

aggregated.

(c) Charges for a search without disclosure. USTR may assess

charges for time spent searching, even if it fails to locate the

records or if records located are determined to be exempt from

disclosure. If USTR estimates that search charges are likely to exceed

$25, it shall notify the requester of the estimated amount of fees,

unless the requester has indicated in advance his willingness to pay

fees as high as those anticipated. Such a notice shall offer the

requester the opportunity to confer with agency personnel with the

object of reformulating the request to meet his or her needs at a lower

cost.

(d) Advance payments. USTR may not require a requester to make an

advance payment, i.e., payment before work is commenced or continued on

a request, unless:

(1) USTR estimates or determines that allowable charges that a

requester may be required to pay are likely to exceed $250. Then, USTR

will notify the requester of the likely cost and obtain satisfactory

assurance of full payment where the requester has a history of prompt

payment of FOIA fees, or require an advance payment of an amount up to

the full estimated charges in the case of requesters with no history of

payment; or

(2) A requester has previously failed to pay a fee charged in a

timely fashion (i.e., within 30 days of the date of the billing). Then,

USTR may require the requester to pay the full amount owed plus any

applicable interest as provided in paragraph (a) of this section or

demonstrate that he or she has, in fact, paid the fee, and to make an

advance payment of the full amount of the estimated fee before the

agency begins to process a new request or a pending request from the

requester.

(3) When USTR acts under paragraph (d)(1) or (2) of this section,

the administrative time limits prescribed in the FOIA, 5 U.S.C.

552(a)(6) (i.e., 10 working days from receipt of initial requests and

20 working days from receipt of appeals from initial denial, plus

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

has received fee payments described in this paragraph (d).

(e) Waiver or reduction of charges. Fees otherwise chargeable in

connection with a request for disclosure of a record shall be waived or

reduced where it is determined that disclosure is in the interest of

USTR or in the public interest because it is:

(1) Likely to contribute significantly to public understanding of

the operations or activities of the Government and

(2) Is not primarily in the commercial interest of the requester.

Subpart B--Rules Governing Disclosure

Sec. 2004.11 Notification regarding requests for confidential business

information.

(a) In general. Business information obtained by USTR from a

submitter will be disclosed under the FOIA only consistent with the

procedures established in this section.

(b) Definitions. For the purposes of this section:

(1) Business information means commercial or financial information

obtained by USTR from a submitter that may be protected from disclosure

under exemption 4 of the FOIA (see Sec. 2004.13).

(2) Submitter means any person or entity from whom USTR obtains

business information, directly or indirectly. The term includes but is

not limited to corporations; state, local and tribal governments; and

foreign governments.

(c) Designation of business information. A submitter of business

information will use good-faith efforts to designate, by appropriate

markings, either at the time of submission or at a reasonable time

therafter, any portions of its submission that is considers to be

protected from disclosure under exemption 4.

(d) Notice to submitters. USTR 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 to object to disclosure of

any specified portion of that information under paragraph (f) of this

section. The notice shall either describe the business information

requested or include copies of the requested records or record portions

containing the information.

[[Page 10165]]

(e) Where notice is required. Notice shall be given to the

submitter wherever:

(1) The information has been designated in good faith by the

submitter as information considered protected from disclosure under

exemption 4; or

(2) USTR has reason to believe that the information may be

protected from disclosure under exemption 4.

(f) Opportunity to object to disclosure. USTR will allow a

submitter a reasonable period of time to respond to the notice

described in paragraph (d) of this section. If a submitter has any

objection to disclosure, it is required to submit a detailed written

statement. The statement must specify all grounds for withholding any

portion of the information under any exemption of the FOIA and, in the

case of exemption 4, it must show why the information is a trade secret

or commercial or financial information that is privileged or

confidential. In the event that a submitter fails to respond to the

notice within the time specified in it, the submitter will be

considered to have no objection to disclosure of the information. In

most cases this will result in a disclosure of information. Information

provided by a submitter regarding the application of the exemption may

itself be subject to disclosure under the FOIA.

(g) Notice of intent to disclose. USTR shall consider a submitter's

objections and specific grounds for nondisclosure in deciding whether

to disclose business information. Whenever USTR decides to disclose

business information over the objection of a submitter, USTR shall give

the submitter written notice, which shall include:

(1) A statement of reason(s) why each of the submitter's disclosure

objections was not sustained;

(2) A description of the business information to be disclosed; and

(3) A specified disclosure date, which shall be a reasonable time

subsequent to the notice.

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

paragraphs (d) and (g) of this section shall not apply if:

(1) USTR determined the information should not be disclosed;

(2) The information lawfully has been published or has been

officially made available to the public;

(3) Disclosure of the information is required by statue (other than

FOIA) or by a regulation issued in accordance with Executive Order

12600 (which pertains to agency rules, opinions, orders and

proceedings); or

(4) The designation made by the submitter under paragraph (c) of

this section appears obviously frivolous--except that, in such a case,

USTR shall, within a reasonable time prior to a specific disclosure

date, give the submitter written notice of any final decision to

disclose the information.

(i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit

seeking to compel the disclosure of business information, USTR shall

promptly notify the submitter.

(j) Corresponding notice to requesters. Whenever USTR provides a

submitter with notice and an opportunity to object to disclosure under

paragraph (d) of this section, USTR shall also notify the requester(s).

Whenever USTR notifies a submitter of its intent to disclose requested

information under paragraph (g), the USTR shall also notify the

requester(s). Whenever a submitter files a lawsuit seeking to prevent

the disclosure of business information, the USTR shall notify the

requester(s).

Sec. 2004.12 Classified information.

(a) A Classification Review Committee has been established within

USTR to make determinations on the applicability of the exemption for

classified documents. The Committee is composed of one Assistant U.S.

Trade Representative representing a regional or bilateral office, the

AUSTR for Trade Policy Coordination and a lawyer from the General

Counsel's office.

(b) The applicability of the exemption for classified information,

Exemption 1 of the FOIA, requires a determination that the record in

question is specifically authorized under the criteria established by

Executive Order 12958 to be kept classified and is in fact properly

classified pursuant to that order. This determination shall be made

whenever possible before the initial denial under Sec. 2004.5. It must

in any case be made prior to the decision of an appeal under

Sec. 2004.7. No denial should be based on the existence of a

classification marking on the record, and there shall be a substantive

review of the validity of the classification to the maximum extent

feasible within the time limits for a denial under Sec. 2004.6.

(c) Whenever a request is made for information that is classified,

or may be appropriate for classification, by another agency under

Executive Order 12958, or any other executive order concerning the

classification of records, USTR shall refer the responsibility for

responding to the request for such information to the agency that

classified the information, or has the primary interest in it, as

appropriate. Whenever a record contains information that has been

derivatively classified by another agency, USTR shall refer the

responsibility for responding to the request regarding that information

to the agency that classified the underlying information. The person

requesting the record will be advised of the date and the addressee of

the referral.

(d) At the request of another agency, the Classification Review

Committee will make recommendations on the release of material

concerning ``national defense or foreign policy'' originally classified

by another agency but which is of significant subject-matter interest

to USTR.

Sec. 2004.13 Records which may be exempt from disclosure.

(a) The following categories of records maintained by USTR may be

exempted from disclosure:

(1) Records specifically authorized under criteria established by

an executive order to be kept confidential in the interest of national

defense or foreign policy and are in fact properly classified pursuant

to such executive order.

(2) Records related solely to the internal personnel rules and

practices of the agency.

(3) Records specifically exempted from disclosure by statute,

including but not limited to information relating to trade negotiations

exempted under 19 U.S.C. 2155(g)(1)(A) and B and 2155(g)(2).

(4) Records of trade secrets and commercial or financial

information obtained from a person and which are privileged or

confidential.

(5) Records which are inter-agency or intra-agency memorandums,

letters, telegrams, or airgrams (or other forms of communication) which

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

litigation with the agency.

(6) Records such as personnel and medical files and similar files

the public disclosure of which would constitute a clearly unwarranted

invasion of personal privacy.

(7) Such other records that fall within exceptions noted in 5

U.S.C. 552(b)(7), (8), and (9).

(b) Any reasonably segregable nonexempt portion of a record shall

be provided to any person requesting such records after deletion of the

portions which are exempt under paragraph (a) of this section. Normally

a portion of a record shall be considered reasonably segregable when

segregation can produce an intelligible record which is not distorted

out of context and does not contradict the record being withheld.

(c) The amount of information deleted shall be indicated on the

released

[[Page 10166]]

portion of the record, unless including that indication would harm an

interest protected by the exemption in paragraph (a) of this section

under which the deletion is made. If technically feasible, the amount

of the information deleted shall be indicated at the place in the

record where such deletion is made.

Sec. 2004.14 Annual report to Congress.

(a) USTR shall compile FOIA statistics on a fiscal year basis

beginning on October 1, 1997, and will submit this report to the

Attorney General of the United States. The report will include:

(1) Number of requests received;

(2) Number of requests processed;

(3) The number of requests for records pending before USTR as of

September 30 of the preceding year, and the median number of days that

such requests had been pending before USTR as of that date;

(4) The number of appeals made by persons under the Act, the

results of such appeals, and the reason for the action by USTR upon

each appeal that results in a denial of information;

(5) A complete list of all statutes that USTR relies upon to

authorize it to withhold information under the Act, a description of

whether a court has upheld the decision of USTR to withhold information

under each such statute, and a concise description of the scope of any

information withheld;

(6) The total amount of fees collected by USTR for processing

requests; and

(7) The number of full-time staff of USTR devoted to processing

requests for records, and the total amount expended in terms of time

and dollars by that staff in processing requests.

(b) USTR shall make the above report available to the public

including by computer telecommunications, or if computer

telecommunications means have not been established by USTR, by other

electronic means.

Susan Esserman,

General Counsel.

[FR Doc. 98-4046 Filed 2-27-98; 8:45 am]

BILLING CODE 3190-01-M