Freedom of Information Act

OFFICE OF NATIONAL DRUG CONTROL POLICY

21 CFR Part 1401

RIN 3201-ZA02

Freedom of Information Act

AGENCY: Office of National Drug Control Policy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Office of National Drug Control Policy proposes this rule

to comply with the Electronic Freedom of Information Act. The proposed

rule defines records as defined in the Act, establishes an electronic

reading room, institutes an expedited process for handling requests and

conforms to the statutory time limitations for a response.

DATES: Submit comments on or before November 22, 1999.

ADDRESSES: Send comments to Executive Office of the President, Office

of National Drug Control Policy, Office of Legal Counsel, Attention

General Counsel, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Daniel R. Petersen, (202) 395-6745.

SUPPLEMENTARY INFORMATION: This proposed rule is not a major rule for

the purposes of Executive Order 12866. As required by the Regulatory

Flexibility Act, ONDCP certifies that this proposed rule would not have

a significant impact on small business entities.

List of Subjects in 21 CFR Part 1401

Freedom of information, Organization and functions (Government

agencies).

For the reasons stated in the preamble, the Office of National Drug

Control Policy proposes to revise 21 CFR part 1401 to read as follows:

PART 1401--PUBLIC AVAILABILITY OF INFORMATION

Sec.

1401.1 Purpose.

1401.2 The Office of National Drug Control Policy--organization and

functions.

1401.3 Definitions.

1401.4 Access to information.

1401.5 How to request records.

1401.6 Expedited process.

1401.7 Prompt response.

1401.8 Extension of time.

1401.9 Appeals.

1401.10 Fees to be charged--general.

1401.11 Fees to be charged--miscellaneous provisions.

1401.12 Fees to be charged--categories of requesters.

1401.13 Waiver or reduction of fees.

Authority: 5 U.S.C. 552.

Sec. 1401.1 Purpose.

The purpose of this part is to prescribe rules, guidelines and

procedures to implement the Freedom of Information Act (FOIA), as

amended, 5 U.S.C. 552.

Sec. 1401.2 The Office of National Drug Control Policy--organization

and functions.

(a) The Office of National Drug Control Policy (ONDCP) was created

by the Anti-Drug Abuse Act of 1988, 21 U.S.C. 1501 et seq., and

reestablished under 21 U.S.C. 1701 et seq. The mission of ONDCP is to

coordinate the anti-drug efforts of the various agencies and

departments of the Federal government, to consult with States and

localities and assist their anti-drug efforts, to conduct a national

media campaign, and to annually promulgate the National Drug Control

Strategy.

(b) ONDCP is headed by the Director of National Drug Control

Policy. The Director is assisted by a Deputy Director of National Drug

Control Policy, a Deputy Director for Supply Reduction, a Deputy

Director for Demand Reduction, and a Deputy Director for State and

Local Affairs.

(c) Offices within ONDCP include Chief of Staff, and the Offices of

Legal Counsel, Strategic Planning, Legislative Affairs, Programs Budget

and Evaluation, Supply Reduction, Demand Reduction, Public Affairs,

State and Local Affairs, and the Financial Management Office.

(d) The Office of Public Affairs is responsible for providing

information to the press and to the general public. If members of the

public have general questions about ONDCP that can be answered by

telephone, they may call the Office of Public Affairs at (202) 395-

6618. This number should not be used to make FOIA requests. All oral

requests for information under FOIA will be rejected.

Sec. 1401.3 Definitions.

For the purpose of this part:

(a) All the terms defined in the Freedom of Information Act apply.

(b) Commercial-use request means a request from or on behalf of one

who seeks information for a cause or purpose that furthers the

commercial, trade or profit interests of the requester or the person or

institution on whose behalf the request is made. In determining whether

a requester properly belongs in this category, ONDCP will consider the

intended use of the information.

(c) Direct costs means the expense actually expended to search,

review, or duplicate in response to a FOIA request. For example, direct

costs include 116% of the salary of the employee performing work and

the actual costs incurred while operating equipment.

(d) Duplicate means the process of making a copy of a document.

Such copies may take the form of paper, microform, audio-visual

materials, or machine-readable documentation. ONDCP will provide a copy

of the material in a form that is usable by the requester.

(e) Educational institution means preschool, a public or private

elementary or secondary school, an institution of undergraduate higher

education, an institution of graduate higher education, an institution

of professional education, or an institution of vocational education

that operates a program or programs of scholarly research.

(f) Noncommercial scientific institution means an institution that

is not operated on a commercial basis as that term is defined above,

and that is operated solely for the purpose of conducting scientific

research not intended to promote any particular product or industry.

(g) Records and any other terms used in this part in reference to

information includes any information that would be an agency record

subject to the requirements of this part when maintained in any format,

including electronic format.

(h) Representative of the news media means any person actively

gathering news for an entity that is organized and operated to publish

or broadcast news to the public. News is information about current

events or information that would be of interest to the public. Examples

of the news media include television or radio stations that broadcast

to the public at large and publishers of news periodicals that

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make their products available to the general public for purchase or

subscription. Freelance journalists may be regarded as working for the

news media where they demonstrate a reasonable basis for expecting

publication through that organization, even though not actually

employed by it.

(i) Request means a letter or other written communication seeking

records or information under FOIA.

(j) Review means the process of examining documents that are

located during a search to determine if any portion should lawfully be

withheld. It is the processing of determining disclosability.

(k) Search means to review, manually or by automated means, agency

records for the purpose of locating those records responsive to a

request.

Sec. 1401.4 Access to information.

The Office of National Drug Control Policy makes available

information pertaining to matters issued, adopted, or promulgated by

ONDCP, that are within the scope of 5 U.S.C. 552(a)(2). A public

reading area and the ONDCP FOIA Handbook are located at http://

www.whitehousedrugpolicy.gov/about/about.html.

Sec. 1401.5 How to request records.

(a) Each request must reasonably describe the record(s) sought

including the type of document, specific event or action, originator of

the record, date or time period, subject matter, location, and all

other pertinent data.

(b) Requests must be received by ONDCP through the mail or by

electronic facsimile transmission. Mailed requests must be addressed to

Executive Office of the President, Office of National Drug Control

Policy, Office of Legal Counsel, Washington, DC 20503. The applicable

fax number is (202) 395-5543.

(c) The words ``FOIA REQUEST'' or ``REQUEST FOR RECORDS'' must be

clearly marked on the cover-letter, letter and envelope. The time

limitations imposed by Sec. 1401.7 will not begin until the Office of

the General Counsel identifies a letter or fax as a FOIA request.

Sec. 1401.6 Expedited process.

(a) Requests and appeals will be given expedited treatment whenever

ONDCP determines either:

(1) The lack of expedited treatment could reasonably be expected to

pose an imminent threat to the life or physical safety of an

individual; or

(2) An urgency to inform the public about an actual or alleged

federal government activity occurs and the request is made by a person

primarily engaged in disseminating information.

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

the initial request for records or at a later time.

(c) 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. A requester within the category in

paragraph (a)(2) of this section also must establish a particular

urgency to inform the public about the government activity involved in

the request, beyond the public's right to know about government

activity generally. The formality of certification may be waived as a

matter of administrative discretion.

(d) Within ten days of receipt of a request for expedited

processing, ONDCP will decide whether to grant it and will notify the

requester of the decision. If a request for expedited treatment is

granted, the request will be given priority and will be processed as

soon as practicable. If a request for expedited processing is denied,

any appeal of that decision will be acted on expeditiously.

Sec. 1401.7 Prompt response.

The General Counsel, or designee, will determine within 20 days

(excepting Saturdays, Sundays and legal public holidays) after the

receipt of a FOIA request whether it is appropriate to grant the

request and will provide written notification to the person making the

request. If the request is denied, the written notification will

include the names of the individuals who participated in the

determination, the reasons for the denial, and that an appeal may be

lodged within the Office of National Drug Control Policy.

Sec. 1401.8 Extension of time.

(a) In unusual circumstances, the Office of General Counsel may

extend the time limit prescribed in Sec. 1401.7 or Sec. 1401.9 by

written notice to the FOIA requester. The notice will state the reasons

for the extension and the date a determination is expected. The

extension period may be divided among the initial request and an appeal

but will not exceed a total of 10 working days (excepting Saturdays,

Sundays, or legal public holidays).

(b) The phrase ``unusual circumstances'' means:

(1) The requested records are located in establishments that are

separated from the office processing the request;

(2) A voluminous amount of separate and distinct records are

demanded in a single request; or

(3) Another agency or two or more components in the same agency

have substantial interest in the determination of the request.

(c) Where unusual circumstance exist, ONDCP may provide an

opportunity for amendment of the initial request so that the request

may be timely processed. Refusal by the person to reasonably modify the

request or arrange an alternative time frame shall be considered as a

factor for purposes of 5 U.S.C. 552 (a)(6)(C).

(d) ONDCP may aggregate requests by a requester or a group of

requestors where multiple requests reasonably appear to be a single

request.

Sec. 1401.9 Appeals.

An appeal to the ONDCP must explain in writing the legal and

factual basis for the appeal. It must be received by mail at the

address specified in Section 1401.5 within 30 days of receipt of a

denial. The Director or designee will decide the appeal within 20 days

(excepting Saturdays, Sundays, and legal public holidays). If the

Director or designee deny an appeal in whole or in part, the written

determination will contain the reason for the denial, the names of the

individuals who participated in the determination, and the provisions

for judicial review.

Sec. 1401.10 Fees to be charged--general.

ONDCP will recoup the full allowable costs it incurs in response to

a FOIA request.

(a) Manual search for records. ONDCP will charge 116% of the salary

of the individual(s) making a search.

(b) Computerized search for records. ONDCP will charge 116% of the

salary of the programmer/operator and the apportionable time of the

central processing unit directly attributed to the search.

(c) Review of records. ONDCP will charge 116% of the salary of the

individual(s) conducting a review. Records or portions of records

withheld under an exemption subsequently determined not to apply may be

reviewed to determine the applicability of exemptions not considered.

The cost for a subsequent review is assessable.

(d) Duplication of records. Request for copies prepared by computer

will cost 116% of the apportionable operator time and the cost of the

tape or disk. Other methods of duplication will cost 116% of the salary

of the individual copying the data plus 15 cents per copy of 8\1/2\ x

11 inch original.

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(e) Other charges. ONDCP will recover the costs of providing other

services such as certifying records or sending records by special

methods.

Sec. 1401.11 Fees to be charged--miscellaneous provisions.

(a) Remittance shall be mailed to the Office of Legal Counsel,

ONDCP, Washington DC 20503, and made payable to the order of the

Treasury of the United States on a postal money order or personal check

or bank draft drawn on a bank in the United States.

(b) ONDCP may require advance payment where the estimated fee

exceeds $250, or a requester previously failed to pay within 30 days of

the billing date.

(c) ONDCP may assess interest charges beginning the 31st day of

billing. Interest will be at the rate prescribed in section 3717 of

title 31 of the United States Code and will accrue from the date of the

billing.

(d) ONDCP may assess search charges where records are not located

or where records are exempt from disclosure.

(e) ONDCP may aggregate individual requests and charge accordingly

for requests seeking portions of a document or documents.

Sec. 1401.12 Fees to be charged--categories of requesters.

(a) There are four categories of FOIA requesters: commercial use

requesters; educational and non-commercial scientific institutions;

representatives of the news media; and all other requesters.

(b) The specific levels of fees for each of these categories are:

(1) Commercial use requesters. ONDCP will recover the full direct

cost of providing search, review and duplication services. Commercial

use requesters will not receive free search-time or free reproduction

of documents.

(2) Educational and non-commercial scientific institution

requesters. ONDCP will charge the cost of reproduction, excluding

charges for the first 100 pages. Requesters must demonstrate the

request is authorized by and under the auspices of a qualifying

institution and that the records are sought for scholarly or scientific

research not a commercial use.

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

will charge the cost of reproduction, excluding charges for the first

100 pages. Requesters must meet the criteria in Sec. 1401.3(h), and the

request must not be made for a commercial use. A request that supports

the news dissemination function of the requester shall not be

considered a commercial use.

(4) All other requesters. ONDCP will recover the full direct cost

of the search and the reproduction of records, excluding the first 100

pages of reproduction and the first two hours of search time. Requests

for records concerning the requester will be treated under the fee

provisions of the Privacy Act of 1974, 5 U.S.C. 552a, which permits

fees only for reproduction.

Sec. 1401.13 Waiver or reduction of fees.

Fees chargeable in connection with a request may be waived or

reduced where ONDCP determines that disclosure is in the public

interest because it 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.

Janet Crist,

Chief of Staff.

[FR Doc. 99-24491 Filed 9-21-99; 8:45 am]

BILLING CODE 3180-02-P