[Federal Register Volume 66, Number 245 (Thursday, December 20, 2001)]
[Rules and Regulations]
[Pages 65631-65651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31131]
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DEPARTMENT OF COMMERCE
Office of the Secretary
15 CFR Parts 4, 4a and 4b
[Docket No. 990723201-1208-02]
RIN: 0605-AA14
Public Information, Freedom of Information and Privacy
AGENCY: Department of Commerce.
ACTION: Final rule.
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SUMMARY: This document sets forth revisions of Department of Commerce
(Department) regulations regarding the Freedom of Information Act
(FOIA), Privacy Act (PA),\1\ and declassification and public
availability of national security information. The revisions implement
the Electronic Freedom of Information Act (EFOIA) Amendments of 1996
and Executive Order 12958, include an updated duplication fee, and
streamline, clarify, and update the regulations.
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\1\ The Department intends to comprehensively update its Privacy
Act systems of records, and related provisions in its PA
regulations, in a future Notice of Proposed Rulemaking.
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DATES: Effective December 20, 2001.
FOR FURTHER INFORMATION CONTACT: Andrew W. McCready, 202-482-8044.
SUPPLEMENTARY INFORMATION: On May 31, 2000, the Department published a
proposed rule (65 FR 34606) to revise its existing FOIA and PA
regulations, and to add new provisions to implement the Electronic
Freedom of Information Act (EFOIA) Amendments of 1996 (Pub. L. 104-
231). Interested persons were invited to submit written comments on the
proposed rule. The Department received one set of comments. After due
consideration of the comments, the Department has adopted several of
the modifications the commenter recommended, and has made numerous
other minor revisions to its proposed rule for clarity. The Department
is also increasing the duplication charge from the $.15 announced in
the proposed rule (the current charge is $.07) to $.16 per page, to
reflect an increase in copying costs since the issuance of the proposed
rule.
Discussion of Comments
The comments received were submitted by Public Citizen and the
Freedom of Information Clearinghouse, and are addressed below.
(1) The commenter recommended deleting from Sec. 4.2(b) \2\ the
highlighted phrase in the statement: ``Components shall also make
public inspection facility records created by the Department on or
after November 1, 1996 available electronically through the
Department's `FOIA Home Page' link found at the Department's World Wide
Web site.'' The recommended change is more consistent with the FOIA
than is the proposed language above, and thus the Department has
deleted the highlighted phrase.
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\2\ Section 4.2(b) in the proposed rule is Sec. 4.2(c) in the
final rule set forth below.
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(2) The commenter recommended changing the cut-off date in
Sec. 4.5(a) for determining records responsive to a request from the
date the request is received to the date that processing of the request
begins. Many of the requests the Department receives require a search
to be conducted in more than one of its components. Implementing the
commenter's recommendation could create confusion about such requests
involving multiple components, because each component could begin
processing the request on a different date, and thus have a different
cut-off date. Further, the Department's cut-off date is consistent with
the Supreme Court's requirement that for records to be ``agency
records'' subject to the FOIA, the agency must be in control of them at
the time the FOIA request is made. Department of Justice v. Tax
Analysts, 492 U.S. 136, 145 (1989). Implementing the commenter's
recommendation could also create uncertainty with regard to determining
what records are responsive to the request, and preventing their
inadvertent disposition between the time the request is received and
processing begins. That is, components could be placed in a situation
in which
[[Page 65632]]
they would not be authorized to determine what records are responsive
to a request until processing, including search, begins, even though
records in the component's control when the request is received would
still be potentially subject to the request.
(3) The commenter recommended that in Sec. 4.5(b) the Department
clarify the meaning of ``primary interest,'' and state that records
will be referred only when referral is necessary because the
originating agency has a substantial interest in the record, and the
referral is not likely to substantially delay the release or otherwise
place unreasonable burdens on the requester.
The Department has decided not to modify the definition of
``primary interest,'' but will clarify its meaning by moving the
sentence ``Ordinarily, the agency that originated a record will be
presumed to have the primary interest in it.'' from the end of
Sec. 4.5(b) to immediately after the first sentence in Sec. 4.5(b),
where the phrase ``primary interest'' first appears. Defining ``primary
interest'' more specifically to cover possible future rare instances
when the agency that originated a document would not have the primary
interest in it would require lengthy explanations of limited
usefulness.
The Department also will not amend its regulations to state that
records will be referred only when referral is necessary because the
originating agency has a substantial interest in the record, and when
the referral is not likely to substantially delay the release or
otherwise place unreasonable burdens on the requester. In the vast
majority of cases, the agency that originated a record has the primary,
or principal, interest in it, and is in the best position to determine
whether to release it. In those rare instances when the originating
agency does not have the primary interest in it, the Department's
regulations would not require referral to that agency. Revising the
Department's regulations, as the commenter suggests, to require
Department officials to make case-by-case determinations on whether a
referral would be likely to substantially delay a release or otherwise
place unreasonable burdens on the requester, would require those
officials to make difficult and inherently subjective decisions, and
thus is administratively unworkable.
(4) The commenter objected to a sentence in Sec. 4.6(c)(3) that
refusal to reasonably modify the scope of a request or arrange an
alternate time frame may affect a requester's ability to obtain
judicial review. The sentence is misleading and the Department has
deleted it.
(5) The commenter objected to the scope of the grounds upon which
Sec. 4.9(b) would require business submitters to assert any objections
to disclosure by the Department of records submitted by them. The
Department had proposed that ``the statement [from the business
submitter] must specify all grounds for withholding any portion of the
information under any exemption of the FOIA.'' The commenter
recommended that the regulation require submitters to specify only the
grounds for withholding their records under exemptions (b)(4) and
(b)(6), which protect the individual interests of the submitter, but
not to require them to assert exemptions intended to protect Government
interests. The Department agrees in part with the comment, and has
deleted the requirement that the statement specify all grounds for
withholding information under any FOIA exemption. The Department has,
however, decided to require submitters to specify only grounds for
withholding under exemption (b)(4), and not also under exemption
(b)(6), because the Department does not routinely notify persons about
whom the Department possesses information potentially subject to
exemption (b)(6). Thus, requiring business submitters to object to
disclosure of potential (b)(6) information without requiring other
persons about whom the Department possesses similar (b)(6) information
to do so would be unfair.
Other Considerations
It has been determined that this rule is significant under
Executive Order 12866.
This rule does not contain a ``collection of information'' as
defined by the Paperwork Reduction Act.
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the Chief Counsel for Regulation has certified to the Chief
Counsel for Advocacy of the Small Business Administration that this
rule will not have a significant economic impact on a substantial
number of small entities. Under the FOIA, agencies may recover only the
direct costs of searching for, reviewing, and duplicating the records
processed for requesters. Thus, the fees the Department assesses are
ordinarily nominal. Further, the number of ``small entities'' that make
FOIA requests is relatively small compared to the number of individuals
who make such requests.
List of Subjects
15 CFR Part 4
Administrative practice and procedure, Freedom of Information,
Privacy, Public information.
15 CFR Part 4a
Administrative practice and procedure, Classified information.
15 CFR Part 4b
Privacy.
For the reasons stated in the preamble, the Department of Commerce
amends 15 CFR as set forth below:
1. Revise Part 4 to read as follows:
PART 4--DISCLOSURE OF GOVERNMENT INFORMATION
Subpart A--Freedom of Information Act
Sec.
4.1 General.
4.2 Public reference facilities.
4.3 Records under the FOIA.
4.4 Requirements for making requests.
4.5 Responsibility for responding to requests.
4.6 Time limits and expedited processing.
4.7 Responses to requests.
4.8 Classified information.
4.9 Business Information.
4.10 Appeals from initial determinations or untimely delays.
4.11 Fees.
Subpart B--Privacy Act
4.21 Purpose and scope.
4.22 Definitions.
4.23 Procedures for making inquiries.
4.24 Procedures for making requests for records.
4.25 Disclosure of requested records to individuals.
4.26 Special procedures: Medical records.
4.27 Procedures for making requests for correction or amendment.
4.28 Agency review of requests for correction or amendment.
4.29 Appeal of initial adverse agency determination on correction
or amendment.
4.30 Disclosure of record to person other than the individual to
whom it pertains.
4.31 Fees.
4.32 Penalties.
4.33 General exemptions.
4.34 Specific exemptions.
Appendix A to Part 4--Freedom of Information Public Inspection
Facilities, and Addresses for Requests for Records Under the Freedom
of Information Act and Privacy Act, and Requests for Correction or
Amendment Under the Privacy Act.
Appendix B to Part 4--Officials Authorized to Deny Requests for
Records Under the Freedom of Information Act, and Requests for
Records and Requests for Correction or Amendment Under the Privacy
Act.
Appendix C to Part 4--Systems of Records Noticed by Other Federal
Agencies and Applicable to Records of the Department, and
Applicability of this Part Thereto.
[[Page 65633]]
Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C.
553; 31 U.S.C. 3717; 44 U.S.C. 3101; Reorganization Plan No. 5 of
1950.
Subpart A--Freedom of Information Act
Sec. 4.1 General.
(a) The information in this part is furnished for the guidance of
the public and in compliance with the requirements of the Freedom of
Information Act (FOIA), as amended (5 U.S.C. 552). This part sets forth
the procedures the Department of Commerce (Department) and its
components follow to make publicly available the materials and indices
specified in 5 U.S.C. 552(a)(2) and records requested under 5 U.S.C.
552(a)(3). Information routinely provided to the public as part of a
regular Department activity (for example, press releases issued by the
Office of Public Affairs) may be provided to the public without
following this part.
(b) As used in this subpart, component means any office, division,
bureau or other unit of the Department listed in Appendix A to this
part (except that a regional office of a larger office or other unit
does not constitute a separate component).
Sec. 4.2 Public reference facilities.
(a) The Department maintains public reference facilities (listed in
Appendix A to this part) that contain the records the FOIA requires to
be made regularly available for public inspection and copying;
furnishes information; receives and processes requests for records
under the FOIA; and otherwise assists the public concerning Department
operations under the FOIA.
(b) Each component of the Department shall determine which of its
records are required to be made available for public inspection and
copying, and make those records available either in its own public
reference facility or in the Department's Central Reference and Records
Inspection Facility. Each component shall maintain and make available
for public inspection and copying a current subject-matter index of its
public inspection facility records. Each index shall be updated
regularly, at least quarterly, with respect to newly included records.
In accordance with 5 U.S.C. 552(a)(2), the Department has determined
that it is unnecessary and impracticable to publish quarterly or more
frequently and distribute copies of the index and supplements thereto.
(c) Each component shall make public inspection facility records
created on or after November 1, 1996 available electronically through
the Department's ``FOIA Home Page'' link found at the Department's
World Wide Web site (http://www.doc.gov). Information available at the
site shall include:
(1) Each component's index of its public inspection facility
records, which indicates which records are available electronically;
and
(2) The general index referred to in paragraph (d)(3) of this
section.
(d) The Department shall maintain and make available for public
inspection and copying:
(1) A current index providing identifying information for the
public as to any matter that is issued, adopted, or promulgated after
July 4, 1997, and that is retained as a record and is required to be
made available or published. Copies of the index are available upon
request after payment of the direct cost of duplication;
(2) Copies of records that have been released and that the
component that maintains them determines, because of their subject
matter, have become or are likely to become the subject of subsequent
requests for substantially the same records;
(3) A general index of the records described in paragraph (d)(2) of
this section;
(4) Final opinions and orders, including concurring and dissenting
opinions made in the adjudication of cases;
(5) Those statements of policy and interpretations that have been
adopted by a component and are not published in the Federal Register;
and
(6) Administrative staff manuals and instructions to staff that
affect a member of the public.
Sec. 4.3 Records under the FOIA.
(a) Records under the FOIA include all Government records,
regardless of format, medium or physical characteristics, and include
electronic records and information, audiotapes, videotapes, and
photographs.
(b) Under the FOIA, the Department has no obligation to create,
compile, or obtain from outside the Department a record to satisfy a
request. In complying with a request for electronic data, whether the
Department creates or compiles records (as by undertaking significant
programming work) or merely extracts them from an existing database may
be unclear. The Department shall in any case undertake reasonable
efforts to search for the information in electronic format.
(c) Department officials may, upon request, create and provide new
records pursuant to user fee statutes, such as the first paragraph of
15 U.S.C. 1525, or in accordance with authority otherwise provided by
law. Such creation and provision of records is outside the scope of the
FOIA.
(d) Components shall preserve all correspondence pertaining to the
requests they receive under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized by
Title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Components shall not
dispose of records while they are the subject of a pending request,
appeal, or lawsuit under the FOIA.
Sec. 4.4 Requirements for making requests.
(a) A request for records of the Department which are not
customarily made available to the public as part of the Department's
regular informational services must be in writing (and may be sent by
mail, facsimile, or E-mail), and shall be processed under the FOIA,
regardless whether the FOIA is mentioned in the request. Requests
should be mailed to the Department component identified in Appendix A
to this part that maintains those records, or may be sent by facsimile
or E-mail to the numbers or addresses, respectively, listed at the
Department's ``FOIA Home Page'' link found at the Department's World
Wide Web site (http://www.doc.gov).\1\ If the proper component cannot
be determined, the request should be sent to the central facility
identified in Appendix A to this part. The central facility will
forward the request to the component(s) it believes most likely to have
the requested records. For the quickest handling, the request (and
envelope, if the request is mailed) should be marked ``Freedom of
Information Act Request.''
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\1\ The United States Patent and Trademark Office (USPTO), which
is established as an agency of the United States within the
Department of Commerce, operates under its own FOIA regulations at
37 CFR part 102, subpart A. Accordingly, requests for USPTO records
should be sent directly to the USPTO.
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(b) For requests for records about oneself, Sec. 4.24 contains
additional requirements. For requests for records about another
individual, either a written authorization signed by the individual
permitting disclosure of his or her records to the requester or proof
that the individual is deceased (for example, a copy of a death
certificate or an obituary) facilitates processing the request.
(c) The records requested must be described in enough detail to
enable Department personnel to locate them with a reasonable amount of
effort. If
[[Page 65634]]
possible, a request should include specific information about each
record sought, such as the date, title or name, author, recipient, and
subject matter of the record, and the name and location of the office
where the record is located. Also, if records about a court case are
sought, the title of the case, the court in which the case was filed,
and the nature of the case should be included. If known, any file
designations or descriptions of the requested records should be
included. In general, the more specifically the request describes the
records sought, the greater the likelihood that the Department will be
able to locate those records. If a component determines that a request
does not reasonably describe records, it shall inform the requester
what additional information is needed or how the request is otherwise
insufficient, to enable the requester to modify the request to meet the
requirements of this section.
Sec. 4.5 Responsibility for responding to requests.
(a) In general. Except as stated in paragraph (b) of this section,
the proper component of the Department to respond to a request for
records is the component that first receives the request and has
responsive records, or the component to which the Departmental Freedom
of Information Officer assigns lead responsibility for responding to
the request. Records responsive to a request shall include only those
records within the Department's possession and control as of the date
the proper component receives the request.
(b) Consultations and referrals. If a component receives a request
for a record in its possession in which another Federal agency subject
to the FOIA has the primary interest, the component shall refer the
record to that agency for direct response to the requester. Ordinarily,
the agency that originated a record will be presumed to have the
primary interest in it. A component shall consult with another Federal
agency before responding to a requester if the component receives a
request for a record in which another Federal agency subject to the
FOIA has a significant interest, but not the primary interest; or
another Federal agency not subject to the FOIA has the primary interest
or a significant interest (see Sec. 4.8 for additional information
about referrals of classified information).
(c) Notice of referral. Whenever a component refers a document to
another Federal agency for direct response to the requester, it
ordinarily shall notify the requester in writing of the referral and
inform the requester of the name of the agency to which the document
was referred.
(d) Timing of responses to consultations and referrals. All
consultations and referrals shall be handled in chronological order,
based on when the FOIA request was received by the first Federal
agency.
(e) Agreements regarding consultations and referrals. Components
may make agreements with other Federal agencies to eliminate the need
for consultations or referrals for particular types of records.
Sec. 4.6 Time limits and expedited processing.
(a) In general. Components ordinarily shall respond to requests
according to their order of receipt.
(b) Initial response and appeal. Subject to paragraph (c)(1) of
this section, an initial response shall be made within 20 working days
(i.e., excluding Saturdays, Sundays, and legal public holidays) of the
receipt of a request for a record under this part by the proper
component identified in accordance with Sec. 4.5(a), and an appeal
shall be decided within 20 working days of its receipt by the Office of
the General Counsel.
(c) Unusual circumstances. (1) In unusual circumstances as
specified in paragraph (c)(2) of this section, an official listed in
Appendix B to this part may extend the time limits in paragraph (b) of
this section by notifying the requester in writing as soon as
practicable of the unusual circumstances and of the date by which
processing of the request is expected to be completed. If the extension
is for more than ten working days, the component shall provide the
requester an opportunity either to modify the request so that it may be
processed within the applicable time limit, or to arrange an
alternative time frame for processing the request or a modified
request.
(2) As used in this section, unusual circumstances means, but only
to the extent reasonably necessary to properly process the particular
request:
(i) The need to search for and collect the requested records from
field facilities or other establishments separate from the office
processing the request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records that are the subject
of a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another component or Federal agency having a
substantial interest in the determination of the request.
(3) If a component reasonably believes that multiple requests
submitted by a requester, or by a group of requesters acting in
concert, constitute a single request that would otherwise involve
unusual circumstances, and the requests involve clearly related
matters, the component may aggregate them. Multiple requests involving
unrelated matters will not be aggregated.
(d) Multitrack processing. (1) A component may use two or more
processing tracks by distinguishing between simple and more complex
requests based on the number of pages involved, or some other measure
of the amount of work and/or time needed to process the request, and
whether the request qualifies for expedited processing as described in
paragraph (e) of this section.
(2) A component using multitrack processing may provide requesters
in its slower track(s) with an opportunity to limit the scope of their
requests in order to qualify for faster processing. A component doing
so shall contact the requester by telephone, E-mail, or letter,
whichever is most efficient in each case.
(e) Expedited processing. (1) Requests and appeals shall be taken
out of order and given expedited treatment whenever it is determined
that they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) The loss of substantial due process rights;
(iii) A matter of widespread and exceptional media interest
involving questions about the Government's integrity which affect
public confidence; or
(iv) An urgency to inform the public about an actual or alleged
Federal Government activity, if made by a person primarily engaged in
disseminating information.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. For a prompt
determination, a request for expedited processing should be sent to the
component listed in Appendix A to this part that maintains the records
requested.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
person's knowledge and belief, explaining in detail the basis for
requesting expedited processing. For example, a requester within the
category
[[Page 65635]]
described in paragraph (e)(1)(iv) of this section, if not a full-time
member of the news media, must establish that he or she is a person
whose main professional activity or occupation is information
dissemination, though it need not be his or her sole occupation. A
requester within the category described in paragraph (e)(1)(iv) of this
section must also establish a particular urgency to inform the public
about the Government activity involved in the request, beyond the
public's right to know about Government activity generally.
(4) Within ten calendar days of its receipt of a request for
expedited processing, the proper component shall decide whether to
grant it and shall notify the requester of the decision. Solely for
purposes of calculating the foregoing time limit, any request for
expedited processing shall always be considered received on the actual
date of receipt by the proper component. If a request for expedited
processing is granted, the request shall be given priority and
processed as soon as practicable, subject to Sec. 4.11(i). If a request
for expedited processing is denied, any appeal of that decision shall
be acted on expeditiously.
Sec. 4.7 Responses to requests.
(a) Grants of requests. If a component makes a determination to
grant a request in whole or in part, it shall notify the requester in
writing. The component shall inform the requester in the notice of any
fee to be charged under Sec. 4.11 and disclose records to the requester
promptly upon payment of any applicable fee. Records disclosed in part
shall be marked or annotated to show the applicable FOIA exemption(s)
and the amount of information deleted, unless doing so would harm an
interest protected by an applicable exemption. The location of the
information deleted shall also be indicated on the record, if feasible.
(b) Adverse determinations of requests. If a component makes an
adverse determination regarding a request, it shall notify the
requester of that determination in writing. An adverse determination is
a denial of a request in any respect, namely: a determination to
withhold any requested record in whole or in part; a determination that
a requested record does not exist or cannot be located; a determination
that a record is not readily reproducible in the form or format sought
by the requester; a determination that what has been requested is not a
record subject to the FOIA (except that a determination under
Sec. 4.11(j) that records are to be made available under a fee statute
other than the FOIA is not an adverse determination); a determination
against the requester on any disputed fee matter, including a denial of
a request for a reduction or waiver of fees; or a denial of a request
for expedited processing. Each denial letter shall be signed by an
official listed in Appendix B to this part, and shall include:
(1) The name and title or position of the denying official;
(2) A brief statement of the reason(s) for the denial, including
applicable FOIA exemption(s);
(3) An estimate of the volume of records or information withheld,
in number of pages or some other reasonable form of estimation. This
estimate need not be provided if the volume is otherwise indicated
through deletions on records disclosed in part, or if providing an
estimate would harm an interest protected by an applicable FOIA
exemption; and
(4) A statement that the denial may be appealed, and a list of the
requirements for filing an appeal under Sec. 4.10(b).
Sec. 4.8 Classified Information.
In processing a request for information classified under Executive
Order 12958 or any other executive order concerning the classification
of records, the information shall be reviewed to determine whether it
should remain classified. Ordinarily the component or other Federal
agency that classified the information should conduct the review,
except that if a record contains information that has been derivatively
classified by a component because it contains information classified by
another component or agency, the component shall refer the
responsibility for responding to the request to the component or agency
that classified the underlying information. Information determined to
no longer require classification shall not be withheld on the basis of
FOIA exemption (b)(1) (5 U.S.C. 552(b)(1)), but should be reviewed to
assess whether any other FOIA exemptions should be invoked. Appeals
involving classified information shall be processed in accordance with
Sec. 4.10(c).
Sec. 4.9 Business Information.
(a) In general. Business information obtained by the Department
from a submitter will be disclosed under the FOIA only under this
section.
(b) Definitions. For the purposes of this section:
(1) Business information means commercial or financial information,
obtained by the Department from a submitter, which may be protected
from disclosure under FOIA exemption (b)(4) (5 U.S.C. 552(b)(4)).
(2) Submitter means any person or entity outside the Federal
Government from which the Department obtains business information,
directly or indirectly. The term includes corporations; state, local
and tribal governments; and foreign governments.
(c) Designation of business information. A submitter of business
information should designate by appropriate markings, either at the
time of submission or at a reasonable time thereafter, any portions of
its submission that it considers protected from disclosure under FOIA
exemption (b)(4). These designations will expire ten years after the
date of the submission unless the submitter requests, and provides
justification for, a longer period.
(d) Notice to submitters. A component shall provide a submitter
with prompt written notice of a FOIA request or administrative appeal
that seeks its business information whenever required under paragraph
(e) of this section, except as provided in paragraph (h) of this
section, in order to give the submitter an opportunity under paragraph
(f) of this section to object to disclosure of any specified portion of
that information. Such written notice shall be sent via certified mail,
return receipt requested, or similar means. The notice shall either
describe the business information requested or include copies of the
requested records containing the information. If notification of a
large number of submitters is required, notification may be made by
posting or publishing the notice in a place reasonably likely to
accomplish notification.
(e) When notice is required. Notice shall be given to the submitter
whenever:
(1) The submitter has designated the information in good faith as
protected from disclosure under FOIA exemption (b)(4); or
(2) The component has reason to believe that the information may be
protected from disclosure under FOIA exemption (b)(4).
(f) Opportunity to object to disclosure. A component shall allow a
submitter seven working days (i.e., excluding Saturdays, Sundays, and
legal public holidays) from the date of receipt of the written notice
described in paragraph (d) of this section to provide the component
with a statement of any objection to disclosure. The statement must
identify any portions of the information the submitter requests to be
withheld under FOIA exemption (b)(4), and describe how each qualifies
for
[[Page 65636]]
protection under the exemption: that is, why the information is a trade
secret, or commercial or financial information that is privileged or
confidential. If a submitter fails to respond to the notice within the
time specified, the submitter will be considered to have no objection
to disclosure of the information. Information a submitter provides
under this paragraph may itself be subject to disclosure under the
FOIA.
(g) Notice of intent to disclose. A component shall consider a
submitter's objections and specific grounds under the FOIA for
nondisclosure in deciding whether to disclose business information. If
a component decides to disclose business information over a submitter's
objection, the component shall give the submitter written notice via
certified mail, return receipt requested, or similar means, which shall
include:
(1) A statement of reason(s) why the submitter's objections to
disclosure were not sustained;
(2) A description of the business information to be disclosed; and
(3) A statement that the component intends to disclose the
information seven working days from the date the submitter receives the
notice.
(h) Exceptions to notice requirements. The notice requirements of
paragraphs (d) and (g) of this section shall not apply if:
(1) The component determines that the information should not be
disclosed;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other
than the FOIA) or by a regulation issued in accordance with Executive
Order 12600; or
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous, in which case the component
shall provide the submitter written notice of any final decision to
disclose the information seven working days from the date the submitter
receives the notice.
(i) Notice to submitter of FOIA lawsuit. Whenever a requester files
a lawsuit seeking to compel the disclosure of business information, the
component shall promptly notify the submitter.
(j) Corresponding notice to requester. Whenever a component
provides a submitter with notice and an opportunity to object to
disclosure under paragraph (d) of this section, the component shall
also notify the requester. Whenever a submitter files a lawsuit seeking
to prevent the disclosure of business information, the component shall
notify the requester.
Sec. 4.10 Appeals from initial determinations or untimely delays.
(a) If a request for records is initially denied in whole or in
part, or has not been timely determined, or if a requester receives an
adverse initial determination regarding any other matter under this
subpart (as described in Sec. 4.7(b)), the requester may file a written
appeal, which must be received by the Office of General Counsel within
thirty calendar days of the date of the written denial or, if there has
been no determination, may be submitted anytime after the due date,
including the last extension under Sec. 4.6(c), of the determination.
(b) Appeals shall be decided by the Assistant General Counsel for
Administration (AGC-Admin), except that appeals from requests initially
denied by the AGC-Admin shall be decided by the General Counsel.
Appeals should be addressed to the AGC-Admin, or the General Counsel if
the records were initially denied by the AGC-Admin. The address of both
is: U.S. Department of Commerce, Office of General Counsel, Room 5875,
14th Street and Constitution Avenue NW, Washington, DC 20230. Both the
letter and the appeal envelope should be clearly marked ``Freedom of
Information Appeal''. The appeal must include a copy of the original
request, the initial denial, if any, and a statement of the reasons why
the records requested should be made available and why the initial
denial, if any, was in error. No opportunity for personal appearance,
oral argument or hearing on appeal is provided.
(c) Upon receipt of an appeal involving records initially denied on
the basis of FOIA exemption (b)(1), the records shall be forwarded to
the Deputy Assistant Secretary for Security (DAS) for a
declassification review. The DAS may overrule previous classification
determinations in whole or in part if continued protection in the
interest of national security is no longer required, or no longer
required at the same level. The DAS shall advise the AGC-Admin, or the
General Counsel, as appropriate, of his or her decision.
(d) If an appeal is granted, the person who filed the appeal shall
be immediately notified and copies of the releasable documents shall be
made available promptly thereafter upon receipt of appropriate fees
determined in accordance with Sec. 4.11.
(e) If no determination on an appeal has been sent to the requester
within the twenty working day period specified in Sec. 4.6(b) or the
last extension thereof, the requester is deemed to have exhausted all
administrative remedies with respect to the request, giving rise to a
right of judicial review under 5 U.S.C. 552(a)(6)(C). If the requester
initiates a court action against the Department based on the provision
in this paragraph, the administrative appeal process may continue.
(f) The determination on an appeal shall be in writing and, when it
denies records in whole or in part, the letter to the requester shall
include:
(1) A brief explanation of the basis for the denial, including a
list of the applicable FOIA exemptions and a description of how they
apply;
(2) A statement that the decision is final for the Department;
(3) Notification that judicial review of the denial is available in
the district court of the United States in the district in which the
requester resides, or has his or her principal place of business, or in
which the agency records are located, or in the District of Columbia;
and
(4) The name and title or position of the official responsible for
denying the appeal.
Sec. 4.11 Fees.
(a) In general. Components shall charge for processing requests
under the FOIA in accordance with paragraph (c) of this section, except
when fees are limited under paragraph (d) of this section or when a
waiver or reduction of fees is granted under paragraph (k) of this
section. A component shall collect all applicable fees before sending
copies of requested records to a requester. Requesters must pay fees by
check or money order made payable to the Treasury of the United States.
(b) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
person who seeks information for a use or purpose that furthers his or
her commercial, trade, or profit interests, which can include
furthering those interests through litigation. Components shall
determine, whenever reasonably possible, the use to which a requester
will put the requested records. If it appears that the requester will
put the records to a commercial use, or if a component has reasonable
cause to doubt a requester's asserted non-commercial use, the component
shall provide the requester a reasonable opportunity to submit further
clarification.
(2) Direct costs means those expenses a component incurs in
providing a particular service. Such expenses would include, for
example, the labor costs of the employee performing the service (the
basic rate of pay for the employee, plus 16 percent of that rate to
cover
[[Page 65637]]
benefits). Not included in direct costs are overhead expenses such as
the costs of space, heating, or lighting of the facility in which the
service is performed.
(3) Duplication means the making of a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies may take the form of paper, microform, audiovisual materials, or
electronic records (for example, magnetic tape or disk), among others.
A component shall honor a requester's specified preference of form or
format of disclosure if the component can reproduce the record in the
requested form or format with reasonable effort.
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, or an institution of vocational education,
that operates a program of scholarly research. To be in this category,
a requester must show that the request is authorized by and is made
under the auspices of a qualifying institution, and that the records
are sought to further scholarly research rather than for a commercial
use.
(5) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis, as that term is defined in
paragraph (b)(1) of this section, and that is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry. To be in this
category, a requester must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are sought to further scientific research rather than for a
commercial use.
(6) Representative of the news media, or news media requester means
any person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ``news''
means information that is about current events or that would be of
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only if they can qualify as
disseminators of ``news'') that make their products available for
purchase or subscription by the general public. For ``freelance''
journalists to be regarded as working for a news organization, they
must demonstrate a solid basis for expecting publication through that
organization. A publication contract would be the clearest proof, but
components shall also look to the past publication record of a
requester in making this determination. To be in this category, a
requester must not be seeking the requested records for a commercial
use. However, a request for records supporting the news-dissemination
function of the requester shall not be considered to be for a
commercial use.
(7) Review means the examination of a record located in response to
a request in order to determine whether any portion of it is exempt
from disclosure. It also includes processing any record for disclosure,
for example, redacting it and marking any applicable exemptions. Review
costs are recoverable even if a record ultimately is not disclosed.
Review time does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
(8) Search means the process of looking for and retrieving records
or information responsive to a request. It includes page-by-page or
line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. Components shall
ensure that searches are done in the most efficient and least expensive
manner reasonably possible.
(c) Fees. In responding to FOIA requests, components shall charge
the fees summarized in chart form in paragraphs (c)(1) and (c)(2) of
this section and explained in paragraphs (c)(3) through (c)(5) of this
section, unless a waiver or reduction of fees has been granted under
paragraph (k) of this section.
(1) The four categories and chargeable fees are:
------------------------------------------------------------------------
Category Chargeable fees
------------------------------------------------------------------------
(i) Commercial Use Requesters.......... Search, Review, and
Duplication.
(ii) Educational and Non-commercial Duplication (excluding the cost
Scientific Institution Requesters. of the first 100 pages).
(iii) Representatives of the News Media Duplication (excluding the cost
of the first 100 pages).
(iv) All Other Requesters.............. Search and Duplication
(excluding the cost of the
first 2 hours of search and
100 pages).
------------------------------------------------------------------------
(2) Uniform fee schedule.
------------------------------------------------------------------------
Service Rate
------------------------------------------------------------------------
(i) Manual search...................... Actual salary rate of employee
involved, plus 16 percent of
salary rate.
(ii) Computerized search............... Actual direct cost, including
operator time.
(iii) Duplication of records:
(A) Paper copy reproduction........ $.16 per page
(B) Other reproduction (e.g., Actual direct cost, including
computer disk or printout, operator time.
microfilm, microfiche, or
microform).
(iv) Review of records (including Actual salary rate of employee
redaction). conducting review, plus 16
percent of salary rate.
------------------------------------------------------------------------
(3) Search. (i) Search fees shall be charged for all requests--
other than requests made by educational institutions, noncommercial
scientific institutions, or representatives of the news media--subject
to the limitations of paragraph (d) of this section. Components shall
charge for time spent searching even if they do not locate any
responsive records or if they withhold any records located as entirely
exempt from disclosure. Search fees shall be the direct costs of
conducting the search by the involved employees.
(ii) For computer searches of records, requesters will be charged
the direct costs of conducting the search, although certain requesters
(as provided in
[[Page 65638]]
paragraph (d)(1) of this section) will be charged no search fee and
certain other requesters (as provided in paragraph (d)(3) of this
section) are entitled to the cost equivalent of two hours of manual
search time without charge.
(4) Duplication. Duplication fees shall be charged to all
requesters, subject to the limitations of paragraph (d) of this
section. For a paper photocopy of a record (no more than one copy of
which need be supplied), the fee shall be $.16 cents per page. For
copies produced by computer, such as tapes or printouts, components
shall charge the direct costs, including operator time, of producing
the copy. For other forms of duplication, components shall charge the
direct costs of that duplication.
(5) Review. Review fees shall be charged to requesters who make a
commercial use request. Review fees shall be charged only for the
initial record review, in which a component determines whether an
exemption applies to a particular record at the initial request level.
No charge shall be imposed for review at the administrative appeal
level for an exemption already applied. However, records withheld under
an exemption that is subsequently determined not to apply may be
reviewed again to determine whether any other exemption not previously
considered applies, and the costs of that review are chargeable. Review
fees shall be the direct costs of conducting the review by the involved
employees.
(d) Limitations on charging fees.
(1) No search fee shall be charged for requests from educational
institutions, noncommercial scientific institutions, or representatives
of the news media.
(2) No search fee or review fee shall be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(3) Except for requesters seeking records for a commercial use,
components shall provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent);
and
(ii) The first two hours of search (or the cost equivalent).
(4) If a total fee calculated under paragraph (c) of this section
is $20.00 or less for any request, no fee shall be charged. If such
total fee is more than $20.00, the full amount of such fee shall be
charged.
(5) The provisions of paragraphs (d) (3) and (4) of this section
work together. This means that for requesters other than those seeking
records for a commercial use, no fee shall be charged unless the cost
of search in excess of two hours plus the cost of duplication in excess
of 100 pages totals more than $20.00.
(e) Notice of anticipated fees over $20.00. If a component
determines or estimates that the total fee to be charged under this
section will be more than $20.00, the component shall notify the
requester of the actual or estimated fee, unless the requester has
stated in writing a willingness to pay a fee as high as that
anticipated. If only a portion of the fee can be estimated readily, the
component shall advise the requester that the estimated fee may be only
a portion of the total fee. If the component has notified a requester
that the actual or estimated fee is more than $20.00, the component
shall not consider the request received for purposes of calculating the
time limit in Sec. 4.6(b) to respond to a request, or process it
further, until the requester agrees to pay the anticipated total fee.
Any agreement to pay should be memorialized in writing. A notice under
this paragraph shall offer the requester an opportunity to contact
Departmental personnel to discuss modifying the request to meet the
requester's needs at a lower cost.
(f) Charges for other services. Apart from the other provisions of
this section, if a component decides, as a matter of administrative
discretion, to comply with a request for special services, the
component shall charge the direct cost of providing them. Such services
could include certifying that records are true copies or sending
records by other than ordinary mail.
(g) Charging interest. Components shall charge interest on any
unpaid bill starting on the 31st calendar day following the date of
billing the requester. Interest charges shall be assessed at the rate
provided in 31 U.S.C. 3717 and accrue from the date of the billing
until the component receives payment. Components shall take all steps
authorized by the Debt Collection Act of 1982, as amended by the Debt
Collection Improvement Act of 1996, to effect payment, including
offset, disclosure to consumer reporting agencies, and use of
collection agencies.
(h) Aggregating requests. If a component reasonably believes that a
requester or a group of requesters acting together is attempting to
divide a request into a series of requests for the purpose of avoiding
fees, the component may aggregate those requests and charge
accordingly. Among the factors a component shall consider in deciding
whether to aggregate are the closeness in time between the component's
receipt of the requests, and the relatedness of the matters about which
the requests are made. A component may generally presume that multiple
requests that involve related matters made by the same requester or a
closely related group of requesters within a 30 calendar day period
have been made in order to avoid fees. If requests are separated by a
longer period, a component shall aggregate them only if a solid basis
exists for determining that aggregation is warranted under all the
circumstances involved. Multiple requests involving unrelated matters
shall not be aggregated.
(i) Advance payments. (1) For requests other than those described
in paragraphs (i)(2) and (3) of this section, a component shall not
require the requester to make an advance payment: a payment made before
work is begun or continued on a request. Payment owed for work already
completed (i.e., a payment before copies are sent to a requester) is
not an advance payment.
(2) If a component determines or estimates that a total fee to be
charged under this section will be more than $250.00, the component
shall not consider the request received for purposes of calculating the
time limit in Sec. 4.6(b) to respond to a request, or process it
further, until it receives payment from the requester of the entire
anticipated fee.
(3) If a requester has previously failed to pay a properly charged
FOIA fee to any component or other Federal agency within 30 calendar
days of the date of billing, a component shall require the requester to
pay the full amount due, plus any applicable interest, and to make an
advance payment of the full amount of any anticipated fee, before the
component begins to process a new request or continues to process a
pending request from that requester. For purposes of calculating the
time limit in Sec. 4.6(b) to respond to a request, the component shall
not consider the request received until it receives full payment of all
applicable fees and interest in this paragraph.
(4) Upon the completion of processing of a request, if a specific
fee is determined to be payable and appropriate notice has been given
to the requester, a component shall make records available to the
requester only upon receipt of full payment of the fee.
(j) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute (except for the FOIA) that specifically requires an agency to
set and collect fees for particular types of records. If records
responsive to requests are maintained for distribution by agencies
operating such statutorily based fee schedule programs, components
shall inform
[[Page 65639]]
requesters how to obtain records from those sources. Provision of such
records is not handled under the FOIA.
(k) Requirements for waiver or reduction of fees. (1) Records
responsive to a request will be furnished without charge, or at a
charge reduced below that established under paragraph (c) of this
section, if the requester asks for such a waiver in writing and the
responsible component determines, after consideration of information
provided by the requester, that the requester has demonstrated that:
(i) Disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the Government; and
(ii) Disclosure of the information is not primarily in the
commercial interest of the requester.
(2) To determine whether the first fee waiver requirement is met,
components shall consider the following factors:
(i) The subject of the request: whether the subject of the
requested records concerns the operations or activities of the
Government. The subject of the requested records must concern
identifiable operations or activities of the Federal Government, with a
connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed:
whether the disclosure is ``likely to contribute'' to an understanding
of Government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about Government
operations or activities in order to be ``likely to contribute'' to an
increased public understanding of those operations or activities. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not be
likely to contribute to such understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: whether disclosure of the
requested information will contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area and ability and intention to effectively
convey information to the public shall be considered. It shall be
presumed that a representative of the news media satisfies this
consideration. Merely providing information to media sources is
insufficient to satisfy this consideration.
(iv) The significance of the contribution to public understanding:
whether the disclosure is likely to contribute ``significantly'' to
public understanding of Government operations or activities. The
public's understanding of the subject in question prior to the
disclosure must be significantly enhanced by the disclosure.
(3) To determine whether the second fee waiver requirement (i.e.,
that disclosure is not primarily in the commercial interest of the
requester) is met, components shall consider the following factors:
(i) The existence and magnitude of a commercial interest: whether
the requester has a commercial interest that would be furthered by the
requested disclosure. Components shall consider any commercial interest
of the requester (with reference to the definition of ``commercial use
request'' in paragraph (b)(1) of this section), or of any person on
whose behalf the requester may be acting, that would be furthered by
the requested disclosure. Requesters shall be given an opportunity to
provide explanatory information regarding this consideration.
(ii) The primary interest in disclosure: whether any identified
commercial interest of the requester is sufficiently great, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified if the public interest standard (paragraph
(k)(1)(i) of this section) is satisfied and the public interest is
greater than any identified commercial interest in disclosure.
Components ordinarily shall presume that if a news media requester has
satisfied the public interest standard, the public interest is the
primary interest served by disclosure to that requester. Disclosure to
data brokers or others who merely compile and market Government
information for direct economic return shall not be presumed to
primarily serve the public interest.
(4) If only some of the records to be released satisfy the
requirements for a fee waiver, a waiver shall be granted for those
records.
(5) Requests for the waiver or reduction of fees should address the
factors listed in paragraphs (k)(2) and (3) of this section, insofar as
they apply to each request.
Subpart B--Privacy Act
Sec. 4.21 Purpose and scope.
(a) This subpart establishes policies and procedures for
implementing the Privacy Act of 1974, as amended (5 U.S.C. 552a). The
main objectives of the subpart are to facilitate full exercise of
rights conferred on individuals under the Act, and to protect the
privacy of individuals on whom the Department maintains records in
systems of records under the Act.
(b) The Department shall act promptly and in accordance with the
Act upon receipt of any inquiry, request or appeal from a citizen of
the United States or an alien lawfully admitted for permanent residence
into the United States, regardless of the individual's age. Further,
the Department shall maintain only such information on individuals as
is relevant and necessary to the performance of its lawful functions;
maintain that information with such accuracy, relevancy, timeliness,
and completeness as is reasonably necessary to assure fairness in
determinations made by the Department about the individual; obtain
information from the individual to the extent practicable; and take
every reasonable step to protect that information from unwarranted
disclosure. The Department shall maintain no record describing how an
individual exercises rights guaranteed by the First Amendment unless
expressly authorized to do so by statute or by the individual about
whom the record is maintained, or unless to do so is pertinent to and
within the scope of an authorized law enforcement activity. An
individual's name and address shall not be sold or rented by the
Department unless such action is specifically authorized by law.
(c) This subpart applies to all components of the Department.
Components may promulgate supplementary orders and rules not
inconsistent with this subpart.
(d) The Assistant Secretary for Administration is delegated
responsibility for maintaining this subpart, for issuing such orders
and directives internal to the Department as are necessary for full
compliance with the Act, and for publishing all required notices
concerning systems of records.
(e) Matters outside the scope of this subpart include:
(1) Requests for records that do not pertain to the requester, or
to the individual about whom the request is made if the requester is
the parent or guardian of the individual;
(2) Requests involving information pertaining to an individual that
is in a record or file but not within the scope of a system of records
notice published in the Federal Register;
(3) Requests to correct a record if a grievance procedure is
available to the individual either by regulation or through a provision
in a collective
[[Page 65640]]
bargaining agreement with the Department or a component of the
Department, and the individual has initiated, or expressed in writing
the intention of initiating, such a grievance procedure; and
(4) Requests for employee-employer services and counseling that
were routinely granted prior to enactment of the Act, including, but
not limited to, test calculations of retirement benefits, explanations
of health and life insurance programs, and explanations of tax
withholding options.
(f) Any request for records that pertains to the requester, or to
the individual about whom the request is made if the requester is the
parent or guardian of the individual, shall be processed under the Act
and this subpart and under the Freedom of Information Act and the
Department's implementing regulations at subpart A of this part,
regardless whether the Act or the Freedom of Information Act is
mentioned in the request.
Sec. 4.22 Definitions.
(a) All terms used in this subpart which are defined in 5 U.S.C.
552a shall have the same meaning herein.
(b) As used in this subpart:
(1) Act means the ``Privacy Act of 1974, as amended (5 U.S.C.
552a)''.
(2) Appeal means a request by an individual to review and reverse
an initial denial of a request from that individual for correction or
amendment.
(3) Component means any office, division, bureau or other unit of
the Department listed in Appendix A to this part (except that a
regional office of a larger office or other unit does not constitute a
separate component).
(4) Department means the Department of Commerce.
(5) Inquiry means either a request for general information
regarding the Act and this subpart or a request from an individual (or
that individual's parent or guardian) that the Department determine
whether it has any record in a system of records that pertains to that
individual.
(6) Person means any human being and also shall include, but is not
limited to, corporations, associations, partnerships, trustees,
receivers, personal representatives, and public or private
organizations.
(7) Privacy Officer means those officials, identified in Appendix B
to this part, who are authorized to receive and act upon inquiries,
requests for access, and requests for correction or amendment.
(8) Request for access means a request from an individual or an
individual's parent or guardian to see a record pertaining to that
individual in a particular system of records.
(9) Request for correction or amendment means a request from an
individual or an individual's parent or guardian that the Department
change (by correction, amendment, addition or deletion) a particular
record pertaining to that individual in a system of records.
Sec. 4.23 Procedures for making inquiries.
(a) Any individual, regardless of age, who is a citizen of the
United States or an alien lawfully admitted for permanent residence
into the United States may submit an inquiry to the Department. The
inquiry should be made either in person or by mail addressed to the
appropriate component identified in Appendix A to this part or to the
official identified in the notification procedures paragraph of the
systems of records notice published in the Federal Register.\2\ If an
individual believes the Department maintains a record pertaining to him
or her but does not know which system of records might contain such a
record and/or which component of the Department maintains the system of
records, assistance in person or by mail will be provided at the first
address listed in Appendix A to this part.
---------------------------------------------------------------------------
\2\ The United States Patent and Trademark Office (USPTO), which
is established as an agency of the United States within the
Department of Commerce, operates under its own PA regulations at 37
CFR part 102, subpart B. Accordingly, requests concerning records
maintained by the USPTO should be sent directly to the USPTO.
---------------------------------------------------------------------------
(b) Inquiries submitted by mail should include the words ``PRIVACY
ACT INQUIRY'' in capital letters at the top of the letter and on the
face of the envelope. If the inquiry is for general information
regarding the Act and this subpart, no particular information is
required. The Department reserves the right to require compliance with
the identification procedures appearing at Sec. 4.24(d). If the inquiry
is a request that the Department determine whether it has a record
pertaining to the individual, the following information should be
submitted:
(1) Name of individual whose record is sought;
(2) Statement that individual whose record is sought is either a
U.S. citizen or an alien lawfully admitted for permanent residence;
(3) Identifying data that will help locate the record (for example,
maiden name, occupational license number, period or place of
employment, etc.);
(4) Record sought, by description and by record system name, if
known;
(5) Action requested (that is, sending information on how to
exercise rights under the Act; determining whether requested record
exists; gaining access to requested record; or obtaining copy of
requested record);
(6) Copy of court guardianship order or minor's birth certificate,
as provided in Sec. 4.24(d)(3), but only if requester is guardian or
parent of individual whose record is sought;
(7) Requester's name (printed), signature, address, and (optional)
telephone number;
(8) Date; and,
(9) Certification of request by notary or other official, but only
if
(i) Request is for notification that requested record exists, for
access to requested record, or for copy of requested record;
(ii) Record is not available to any person under 5 U.S.C. 552; and
(iii) Requester does not appear before an employee of the
Department for verification of identity.
(c) Any inquiry which is not addressed as specified in paragraph
(a) of this section or which is not marked as specified in paragraph
(b) of this section will be so addressed and marked by Department
personnel and forwarded immediately to the responsible Privacy Officer.
An inquiry which is not properly addressed by the individual will not
be deemed to have been ``received'' for purposes of measuring the time
period for response until actual receipt by the Privacy Officer. In
each instance when an inquiry so forwarded is received, the Privacy
Officer shall notify the individual that his or her inquiry was
improperly addressed and the date the inquiry was received at the
proper address.
(d)(1) Each inquiry received shall be acted upon promptly by the
responsible Privacy Officer. Every effort will be made to respond
within ten working days (i.e., excluding Saturdays, Sundays and legal
public holidays) of the date of receipt at the proper address. If a
response cannot be made within ten working days, the Privacy Officer
shall send an acknowledgment during that period providing information
on the status of the inquiry and asking for such further information as
may be necessary to process the inquiry. The first correspondence sent
by the Privacy Officer to the requester shall contain the Department's
control number assigned to the request, as well as a statement that the
requester should use that number in all future contacts with the
Department. The Department shall use that control number in all
subsequent correspondence.
(2) If the Privacy Officer fails to send an acknowledgment within
ten working days, as provided in paragraph (d)(1) of
[[Page 65641]]
this section, the requester may ask the Assistant General Counsel for
Administration to take corrective action. No failure of a Privacy
Officer to send an acknowledgment shall confer administrative finality
for purposes of judicial review.
(e) An individual shall not be required to state a reason for or
otherwise justify his or her inquiry.
(f) Special note should be taken that certain agencies are
responsible for publishing notices of systems of records having
Government-wide application to other agencies, including the
Department. The agencies known to be publishing these general notices
and the types of records covered therein appear in Appendix C to this
part. These general notices do not identify the Privacy Officers in the
Department to whom inquiries should be presented or mailed. The
provisions of this section, and particularly paragraph (a) of this
section, should be followed in making inquiries with respect to such
records. Such records in the Department are subject to the provisions
of this part to the extent indicated in Appendix C to this part. The
exemptions, if any, determined by the agency publishing a general
notice shall be invoked and applied by the Department after
consultation, as necessary, with that other agency.
Sec. 4.24 Procedures for making requests for records.
(a) Any individual, regardless of age, who is a citizen of the
United States or an alien lawfully admitted for permanent residence
into the United States may submit a request to the Department for
access to records. The request should be made either in person or by
mail addressed to the appropriate office listed in Appendix A to this
part.
(b) Requests submitted by mail should include the words ``PRIVACY
ACT REQUEST'' in capital letters at the top of the letter and on the
face of the envelope. Any request which is not addressed as specified
in paragraph (a) of this section or which is not marked as specified in
this paragraph will be so addressed and marked by Department personnel
and forwarded immediately to the responsible Privacy Officer. A request
which is not properly addressed by the individual will not be deemed to
have been ``received'' for purposes of measuring time periods for
response until actual receipt by the Privacy Officer. In each instance
when a request so forwarded is received, the Privacy Officer shall
notify the individual that his or her request was improperly addressed
and the date the request was received at the proper address.
(c) If the request follows an inquiry under Sec. 4.23 in connection
with which the individual's identity was established by the Department,
the individual need only indicate the record to which access is sought,
provide the Department control number assigned to the request, and sign
and date the request. If the request is not preceded by an inquiry
under Sec. 4.23, the procedures of this section should be followed.
(d) The requirements for identification of individuals seeking
access to records are:
(1) In person. Each individual making a request in person shall be
required to present satisfactory proof of identity. The means of proof,
in the order of preference and priority, are:
(i) A document bearing the individual's photograph (for example,
driver's license, passport or military or civilian identification
card);
(ii) A document, preferably issued for participation in a
Federally-sponsored program, bearing the individual's signature (for
example, unemployment insurance book, employer's identification card,
national credit card, and professional, craft or union membership
card); and,
(iii) A document bearing neither the photograph nor the signature
of the individual, preferably issued for participation in a Federally-
sponsored program (for example, Medicaid card). If the individual can
provide no suitable documentation of identity, the Department will
require a signed statement asserting the individual's identity and
stipulating that the individual understands the penalty provision of 5
U.S.C. 552a(i)(3) recited in Sec. 4.32(a). In order to avoid any
unwarranted disclosure of an individual's records, the Department
reserves the right to determine the adequacy of proof of identity
offered by any individual, particularly if the request involves a
sensitive record.
(2) Not in person. If the individual making a request does not
appear in person before a Privacy Officer or other employee authorized
to determine identity, a certification of a notary public or equivalent
officer empowered to administer oaths must accompany the request under
the circumstances prescribed in Sec. 4.23(b)(9). The certification in
or attached to the letter must be substantially in accordance with the
following text:
City of ________ County of ________.ss (Name of individual), who
affixed (his) (her) signature below in my presence, came before me,
a (title), in and for the aforesaid County and State, this ____ day
of ______, 20__, and established (his) (her) identity to my
satisfaction.
My commission expires ________.
(Signature)
(3) Parents of minors and legal guardians. An individual acting as
the parent of a minor or the legal guardian of the individual to whom a
record pertains shall establish his or her personal identity in the
same manner prescribed in either paragraph (d)(1) or (d)(2) of this
section. In addition, such other individual shall establish his or her
identity in the representative capacity of parent or legal guardian. In
the case of the parent of a minor, the proof of identity shall be a
certified or authenticated copy of the minor's birth certificate. In
the case of a legal guardian of an individual who has been declared
incompetent due to physical or mental incapacity or age by a court of
competent jurisdiction, the proof of identity shall be a certified or
authenticated copy of the court's order. For purposes of the Act, a
parent or legal guardian may represent only a living individual, not a
decedent. A parent or legal guardian may be accompanied during personal
access to a record by another individual, provided the provisions of
Sec. 4.25(f) are satisfied.
(e) If the provisions of this subpart are alleged to impede an
individual in exercising his or her right to access, the Department
will consider, from an individual making a request, alternative
suggestions regarding proof of identity and access to records.
(f) An individual shall not be required to state a reason for or
otherwise justify his or her request for access to a record.
Sec. 4.25 Disclosure of requested records to individuals.
(a)(1) The responsible Privacy Officer shall act promptly upon each
request. Every effort will be made to respond within ten working days
(i.e., excluding Saturdays, Sundays and legal public holidays) of the
date of receipt. If a response cannot be made within ten working days
due to unusual circumstances, the Privacy Officer shall send an
acknowledgment during that period providing information on the status
of the request and asking for any further information that may be
necessary to process the request. ``Unusual circumstances'' shall
include circumstances in which:
(i) A search for and collection of requested records from inactive
storage, field facilities or other establishments is required;
(ii) A voluminous amount of data is involved;
(iii) Information on other individuals must be separated or
expunged from the particular record; or
[[Page 65642]]
(iv) Consultations with other agencies having a substantial
interest in the determination of the request are necessary.
(2) If the Privacy Officer fails to send an acknowledgment within
ten working days, as provided in paragraph (a)(1) of this section, the
requester may ask the Assistant General Counsel for Administration to
take corrective action. No failure of a Privacy Officer to send an
acknowledgment shall confer administrative finality for purposes of
judicial review.
(b) Grant of access: (1) Notification. An individual shall be
granted access to a record pertaining to him or her, unless the
provisions of paragraph (g)(1) of this section apply. The Privacy
Officer shall notify the individual of a determination to grant access,
and provide the following information:
(i) The methods of access, as set forth in paragraph (b)(2) of this
section;
(ii) The place at which the record may be inspected;
(iii) The earliest date on which the record may be inspected and
the period of time that the records will remain available for
inspection. In no event shall the earliest date be later than thirty
calendar days from the date of notification;
(iv) The estimated date by which a copy of the record will be
mailed and the fee estimate pursuant to Sec. 4.31. In no event shall
the estimated date be later than thirty calendar days from the date of
notification;
(v) The fact that the individual, if he or she wishes, may be
accompanied by another individual during personal access, subject to
the procedures set forth in paragraph (f) of this section; and,
(vi) Any additional prerequisites for granting access to a specific
record.
(2) Methods of access. The following methods of access to records
by an individual may be available depending on the circumstances of a
given situation:
(i) Inspection in person may be had in the office specified by the
Privacy Officer granting access, during the hours indicated in Appendix
A to this part;
(ii) Transfer of records to a Federal facility more convenient to
the individual may be arranged, but only if the Privacy Officer
determines that a suitable facility is available, that the individual's
access can be properly supervised at that facility, and that
transmittal of the records to that facility will not unduly interfere
with operations of the Department or involve unreasonable costs, in
terms of both money and manpower; and,
(iii) Copies may be mailed at the request of the individual,
subject to payment of the fees prescribed in Sec. 4.31. The Department,
at its own initiative, may elect to provide a copy by mail, in which
case no fee will be charged the individual.
(c) Access to medical records is governed by the provisions of
Sec. 4.26.
(d) The Department shall supply such other information and
assistance at the time of access as to make the record intelligible to
the individual.
(e) The Department reserves the right to limit access to copies and
abstracts of original records, rather than the original records. This
election would be appropriate, for example, when the record is in an
automated data medium such as tape or disc, when the record contains
information on other individuals, and when deletion of information is
permissible under exemptions (for example, 5 U.S.C. 552a(k)(2)). In no
event shall original records of the Department be made available to the
individual except under the immediate supervision of the Privacy
Officer or his or her designee.
(f) Any individual who requests access to a record pertaining to
that individual may be accompanied by another individual of his or her
choice. ``Accompanied'' includes discussing the record in the presence
of the other individual. The individual to whom the record pertains
shall authorize the presence of the other individual in writing. The
authorization shall include the name of the other individual, a
specific description of the record to which access is sought, the
Department control number assigned to the request, the date, and the
signature of the individual to whom the record pertains. The other
individual shall sign the authorization in the presence of the Privacy
Officer. An individual shall not be required to state a reason or
otherwise justify his or her decision to be accompanied by another
individual during personal access to a record.
(g) Initial denial of access: (1) Grounds. Access by an individual
to a record that pertains to that individual will be denied only upon a
determination by the Privacy Officer that:
(i) The record is exempt under Sec. 4.33 or 4.34, or exempt by
determination of another agency publishing notice of the system of
records, as described in Sec. 4.23(f);
(ii) The record is information compiled in reasonable anticipation
of a civil action or proceeding;
(iii) The provisions of Sec. 4.26 pertaining to medical records
temporarily have been invoked; or,
(iv) The individual unreasonably has failed to comply with the
procedural requirements of this part.
(2) Notification. The Privacy Officer shall give notice of denial
of access to records to the individual in writing, and the notice shall
include the following information:
(i) The Privacy Officer's name and title or position;
(ii) The date of the denial;
(iii) The reasons for the denial, including citation to the
appropriate section of the Act and this part;
(iv) The individual's opportunities, if any, for further
administrative consideration, including the identity and address of the
responsible official. If no further administrative consideration within
the Department is available, the notice shall state that the denial is
administratively final; and,
(v) If stated to be administratively final within the Department,
the individual's right to judicial review provided under 5
U.S.C.552a(g)(1), as limited by 5 U.S.C. 552a(g)(5).
(3) Administrative review. If a Privacy Officer issues an initial
denial of a request, the individual's opportunities for further
consideration shall be as follows:
(i) As to denial under paragraph (g)(1)(i) of this section, two
opportunities for further consideration are available in the
alternative:
(A) If the individual contests the application of an exemption to
the records, the review procedures in Sec. 4.25(g)(3)(ii) shall apply;
or,
(B) If the individual challenges the validity of the exemption
itself, the individual must file a petition for the issuance,
amendment, or repeal of a rule under 5 U.S.C. 553(e). If the exemption
was determined by the Department, such petition shall be filed with the
Assistant Secretary for Administration. If the exemption was determined
by another agency (as described in Sec. 4.23(f)), the Department will
provide the individual with the name and address of the other agency
and any relief sought by the individual shall be that provided by the
regulations of the other agency. Within the Department, no such denial
is administratively final until such a petition has been filed by the
individual and disposed of on the merits by the Assistant Secretary for
Administration.
(ii) As to denial under paragraphs (g)(1)(ii) of this section,
(g)(1)(iv) of this section or (to the limited extent provided in
paragraph (g)(3)(i)(A) of this section) paragraph (g)(1)(i) of this
section, the individual may file for review with the Assistant General
Counsel for Administration, as
[[Page 65643]]
indicated in the Privacy Officer's initial denial notification. The
individual and the Department shall follow the procedures in Sec. 4.28
to the maximum extent practicable.
(iii) As to denial under paragraph (g)(1)(iii) of this section, no
further administrative consideration within the Department is available
because the denial is not administratively final until expiration of
the time period indicated in Sec. 4.26(a).
(h) If a request is partially granted and partially denied, the
Privacy Officer shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
Sec. 4.26 Special procedures: Medical records.
(a) No response to any request for access to medical records from
an individual will be issued by the Privacy Officer for a period of
seven working days (i.e., excluding Saturdays, Sundays and legal public
holidays) from the date of receipt.
(b) For every request from an individual for access to medical
records, the Privacy Officer shall:
(1) Inform the individual of the waiting period prescribed in
paragraph (a) of this section;
(2) Seek from the individual the name and address of the
individual's physician and/or psychologist;
(3) Seek from the individual written consent for the Department to
consult the individual's physician and/or psychologist, if the
Department believes such consultation is advisable;
(4) Seek written consent from the individual for the Department to
provide the medical records to the individual's physician or
psychologist, if the Department believes access to the record by the
individual is best effected under the guidance of the individual's
physician or psychologist; and,
(5) Forward the individual's medical record to the Department's
medical officer for review and a determination on whether consultation
with or transmittal of the medical records to the individual's
physician or psychologist is warranted. If consultation with or
transmittal of such records to the individual's physician or
psychologist is determined to be warranted, the Department's medical
officer shall so consult or transmit. Whether or not such a
consultation or transmittal occurs, the Department's medical officer
shall provide instruction to the Privacy Officer regarding the
conditions of access by the individual to his or her medical records.
(c) If an individual refuses in writing to give the names and
consents set forth in paragraphs (c)(2) through (c)(4) of this section,
the Department shall give the individual access to said records by
means of a copy, provided without cost to the requester, sent
registered mail, return receipt requested.
Sec. 4.27 Procedures for making requests for correction or amendment.
(a) Any individual, regardless of age, who is a citizen of the
United States or an alien lawfully admitted for permanent residence
into the United States may submit a request for correction or amendment
to the Department. The request should be made either in person or by
mail addressed to the Privacy Officer who processed the individual's
request for access to the record, and to whom is delegated authority to
make initial determinations on requests for correction or amendment.
The offices of Privacy Officers are open to the public between the
hours of 9 a.m. and 4 p.m. Monday through Friday (excluding Saturdays,
Sundays, and legal public holidays).
(b) Requests submitted by mail should include the words ``PRIVACY
ACT REQUEST'' in capital letters at the top of the letter and on the
face of the envelope. Any request that is not addressed as specified in
paragraph (a) of this section or that is not marked as specified in
this paragraph will be so addressed and marked by Department personnel
and forwarded immediately to the responsible Privacy Officer. A request
that is not properly addressed by the individual will not be deemed to
have been ``received'' for purposes of measuring the time period for
response until actual receipt by the Privacy Officer. In each instance
when a request so forwarded is received, the Privacy Officer shall
notify the individual that his or her request was improperly addressed
and the date the request was received at the proper address.
(c) Since the request, in all cases, will follow a request for
access under Sec. 4.25, the individual's identity will be established
by his or her signature on the request and use of the Department
control number assigned to the request.
(d) A request for correction or amendment should include the
following:
(1) Specific identification of the record sought to be corrected or
amended (for example, description, title, date, paragraph, sentence,
line and words);
(2) The specific wording to be deleted, if any;
(3) The specific wording to be inserted or added, if any, and the
exact place at which it is to be inserted or added; and,
(4) A statement of the basis for the requested correction or
amendment, with all available supporting documents and materials that
substantiate the statement. The statement should identify the criterion
of the Act being invoked, that is, whether the information in the
record is unnecessary, inaccurate, irrelevant, untimely or incomplete.
Sec. 4.28 Agency review of requests for correction or amendment.
(a)(1)(i) Not later than ten working days (i.e., excluding
Saturdays, Sundays and legal public holidays) after receipt of a
request to correct or amend a record, the Privacy Officer shall send an
acknowledgment providing an estimate of time within which action will
be taken on the request and asking for such further information as may
be necessary to process the request. The estimate of time may take into
account unusual circumstances as described in Sec. 4.25(a). No
acknowledgment will be sent if the request can be reviewed, processed
and the individual notified of the results of review (either compliance
or denial) within the ten working days. Requests filed in person will
be acknowledged in writing at the time submitted.
(ii) If the Privacy Officer fails to send the acknowledgment within
ten working days, as provided in paragraph (a)(1)(i) of this section,
the requester may ask the Assistant General Counsel for Administration
to take corrective action. No failure of a Privacy Officer to send an
acknowledgment shall confer administrative finality for purposes of
judicial review.
(2) Promptly after acknowledging receipt of a request, or after
receiving such further information as might have been requested, or
after arriving at a decision within the ten working days, the Privacy
Officer shall either:
(i) Make the requested correction or amendment and advise the
individual in writing of such action, providing either a copy of the
corrected or amended record or, in cases in which a copy cannot be
provided (for example, erasure of information from a record maintained
only in magnetically-recorded computer files), a statement as to the
means by which the correction or amendment was effected; or,
(ii) Inform the individual in writing that his or her request is
denied and provide the following information:
(A) The Privacy Officer's name and title or position;
(B) The date of the denial;
[[Page 65644]]
(C) The reasons for the denial, including citation to the
appropriate sections of the Act and this subpart; and,
(D) The procedures for appeal of the denial as set forth in
Sec. 4.29, including the address of the Assistant General Counsel for
Administration.
(3) The term promptly in this section means within thirty working
days (i.e., excluding Saturdays, Sundays and legal public holidays). If
the Privacy Officer cannot make the determination within thirty working
days, the individual will be advised in writing of the reason for the
delay and of the estimated date by which the determination will be
made.
(b) Whenever an individual's record is corrected or amended
pursuant to a request from that individual, the Privacy Officer shall
notify all persons and agencies to which the corrected or amended
portion of the record had been disclosed prior to its correction or
amendment, if an accounting of such disclosure required by the Act was
made. The notification shall require a recipient agency maintaining the
record to acknowledge receipt of the notification, to correct or amend
the record, and to apprise any agency or person to which it had
disclosed the record of the substance of the correction or amendment.
(c) The following criteria will be considered by the Privacy
Officer in reviewing a request for correction or amendment:
(1) The sufficiency of the evidence submitted by the individual;
(2) The factual accuracy of the information to be corrected or
amended;
(3) The relevance and necessity of the information in terms of the
purpose for which it was collected;
(4) The timeliness and currency of the information in light of the
purpose for which it was collected;
(5) The completeness of the information in terms of the purpose for
which it was collected;
(6) The degree of risk that denial of the request could unfairly
result in determinations adverse to the individual;
(7) The character of the record sought to be corrected or amended;
and,
(8) The propriety and feasibility of complying with the specific
means of correction or amendment requested by the individual.
(d) The Department will not undertake to gather evidence for the
individual, but does reserve the right to verify the evidence the
individual submits.
(e) Correction or amendment of a record requested by an individual
will be denied only upon a determination by the Privacy Officer that:
(1) The individual has failed to establish, by a preponderance of
the evidence, the propriety of the correction or amendment in light of
the criteria set forth in paragraph (c) of this section;
(2) The record sought to be corrected or amended is part of the
official record in a terminated judicial, quasi-judicial or quasi-
legislative proceeding to which the individual was a party or
participant;
(3) The information in the record sought to be corrected or
amended, or the record sought to be corrected or amended, is the
subject of a pending judicial, quasi-judicial or quasi-legislative
proceeding to which the individual is a party or participant;
(4) The correction or amendment would violate a duly enacted
statute or promulgated regulation; or,
(5) The individual unreasonably has failed to comply with the
procedural requirements of this part.
(f) If a request is partially granted and partially denied, the
Privacy Officer shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
Sec. 4.29 Appeal of initial adverse agency determination on correction
or amendment.
(a) If a request for correction or amendment is denied initially
under Sec. 4.28, the individual may submit a written appeal within
thirty working days (i.e., excluding Saturdays, Sundays and legal
public holidays) of the date of the initial denial. If an appeal is
submitted by mail, the postmark is conclusive as to timeliness.
(b) An appeal should be addressed to the Assistant General Counsel
for Administration, U.S. Department of Commerce, Room 5875, 14th and
Constitution Avenue, NW., Washington, DC 20230. An appeal should
include the words ``PRIVACY APPEAL'' in capital letters at the top of
the letter and on the face of the envelope. An appeal not addressed and
marked as provided herein will be so marked by Department personnel
when it is so identified, and will be forwarded immediately to the
Assistant General Counsel for Administration. An appeal which is not
properly addressed by the individual will not be deemed to have been
``received'' for purposes of measuring the time periods in this section
until actual receipt by the Assistant General Counsel for
Administration. In each instance when an appeal so forwarded is
received, the Assistant General Counsel for Administration shall notify
the individual that his or her appeal was improperly addressed and the
date on which the appeal was received at the proper address.
(c) The individual's appeal shall be signed by the individual, and
shall include a statement of the reasons why the initial denial is
believed to be in error, and the Department's control number assigned
to the request. The Privacy Officer who issued the initial denial shall
furnish to the Assistant General Counsel for Administration the record
the individual requests to be corrected or amended, and all
correspondence between the Privacy Officer and the requester. Although
the foregoing normally will comprise the entire record on appeal, the
Assistant General Counsel for Administration may seek any additional
information necessary to ensure that the final determination is fair
and equitable and, in such instances, disclose the additional
information to the individual to the greatest extent possible, and
provide an opportunity for comment thereon.
(d) No personal appearance or hearing on appeal will be allowed.
(e) The Assistant General Counsel for Administration shall act upon
the appeal and issue a final determination in writing not later than
thirty working days (i.e., excluding Saturdays, Sundays and legal
public holidays) from the date on which the appeal is received, except
that the Assistant General Counsel for Administration may extend the
thirty days upon deciding that a fair and equitable review cannot be
made within that period, but only if the individual is advised in
writing of the reason for the extension and the estimated date by which
a final determination will issue. The estimated date should not be
later than the sixtieth working day after receipt of the appeal unless
unusual circumstances, as described in Sec. 4.25(a), are met.
(f) If the appeal is determined in favor of the individual, the
final determination shall include the specific corrections or
amendments to be made and a copy thereof shall be transmitted promptly
to the individual and to the Privacy Officer who issued the initial
denial. Upon receipt of such final determination, the Privacy Officer
shall promptly take the actions set forth in Sec. 4.28(a)(2)(i) and
(b).
(g) If the appeal is denied, the final determination shall be
transmitted promptly to the individual and state the reasons for the
denial. The notice of final determination also shall inform the
individual that:
(1) The individual has a right under the Act to file with the
Assistant General Counsel for Administration a
[[Page 65645]]
concise statement of reasons for disagreeing with the final
determination. The statement ordinarily should not exceed one page and
the Department reserves the right to reject an excessively lengthy
statement. It should provide the Department control number assigned to
the request, indicate the date of the final determination and be signed
by the individual. The Assistant General Counsel for Administration
shall acknowledge receipt of such statement and inform the individual
of the date on which it was received;
(2) Any such disagreement statement submitted by the individual
would be noted in the disputed record, and filed with it;
(3) The purposes and uses to which the statement would be put are
those applicable to the record in which it is noted, and that a copy of
the statement would be provided to persons and agencies to which the
record is disclosed subsequent to the date of receipt of such
statement;
(4) The Department would append to any such disagreement statement
a copy of the final determination or summary thereof, which also would
be provided to persons and agencies to which the disagreement statement
is disclosed; and
(5) The individual has a right to judicial review of the final
determination under 5 U.S.C. 552a(g)(1)(A), as limited by 5 U.S.C.
552a(g)(5).
(h) In making the final determination, the Assistant General
Counsel for Administration shall employ the criteria set forth in
Sec. 4.28(c) and shall deny an appeal only on the grounds set forth in
Sec. 4.28(e).
(i) If an appeal is partially granted and partially denied, the
Assistant General Counsel for Administration shall follow the
appropriate procedures of this section as to the records within the
grant and the records within the denial.
(j) Although a copy of the final determination or a summary thereof
will be treated as part of the individual's record for purposes of
disclosure in instances where the individual has filed a disagreement
statement, it will not be subject to correction or amendment by the
individual.
(k) The provisions of paragraphs (g)(1) through (g)(3) of this
section satisfy the requirements of 5 U.S.C. 552a(e)(3).
Sec. 4.30 Disclosure of record to person other than the individual to
whom it pertains.
(a) The Department may disclose a record pertaining to an
individual to a person other than the individual to whom it pertains
only in the following instances:
(1) Upon written request by the individual, including authorization
under Sec. 4.25(f);
(2) With the prior written consent of the individual;
(3) To a parent or legal guardian under 5 U.S.C. 552a(h);
(4) When required by the Act and not covered explicitly by the
provisions of 5 U.S.C. 552a(b); and
(5) When permitted under 5 U.S.C. 552a(b)(1) through (12), as
follows:\3\
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\3\ 5 U.S.C. 552b(b)(4) has no application within the
Department.
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(i) To those officers and employees of the agency that maintains
the record who have a need for the record in the performance of their
duties;
(ii) Required under 5 U.S.C. 552;
(iii) For a routine use as defined in 5 U.S.C. 552a(a)(7);
(iv) To the Bureau of the Census for purposes of planning or
carrying out a census or survey or related activity pursuant to the
provisions of Title 13 of the U.S. Code;
(v) To a requester who has provided the agency with advance
adequate written assurance that the record will be used solely as a
statistical research or reporting record, and the record is to be
transferred in a form that is not individually identifiable;
(vi) To the National Archives and Records Administration as a
record that has sufficient historical or other value to warrant its
continued preservation by the United States Government, or for
evaluation by the Archivist of the United States, or the designee of
the Archivist, to determine whether the record has such value;
(vii) To another agency or to an instrumentality of any
governmental jurisdiction within or under the control of the United
States for a civil or criminal law enforcement activity if the activity
is authorized by law, and if the head of the agency or instrumentality
has made a written request to the agency which maintains the record,
specifying the particular portion desired and the law enforcement
activity for which the record is sought;
(viii) To a person pursuant to a showing of compelling
circumstances affecting the health or safety of an individual if upon
such disclosure notification is transmitted to the last known address
of such individual;
(ix) To either House of Congress, or, to the extent of matter
within its jurisdiction, any committee or subcommittee thereof, any
joint committee of Congress or subcommittee of any such joint
committee;
(x) To the Comptroller General, or any of his or her authorized
representatives, in the course of the performance of the duties of the
General Accounting Office;
(xi) Pursuant to the order of a court of competent jurisdiction; or
(xii) To a consumer reporting agency in accordance with 31 U.S.C.
3711(e).
(b) The situations referred to in paragraph (a)(4) of this section
include the following:
(1) 5 U.S.C. 552a(c)(4) requires dissemination of a corrected or
amended record or notation of a disagreement statement by the
Department in certain circumstances;
(2) 5 U.S.C. 552a(d) requires disclosure of records to the
individual to whom they pertain, upon request; and
(3) 5 U.S.C. 552a(g) authorizes civil action by an individual and
requires disclosure by the Department to the court.
(c) The Privacy Officer shall make an accounting of each disclosure
by him of any record contained in a system of records in accordance
with 5 U.S.C. 552a(c)(1) and (2). Except for a disclosure made under 5
U.S.C. 552a(b)(7), the Privacy Officer shall make such accounting
available to any individual, insofar as it pertains to that individual,
upon any request submitted in accordance with Sec. 4.24. The Privacy
Officer shall make reasonable efforts to notify any individual when any
record in a system of records is disclosed to any person under
compulsory legal process, promptly upon being informed that such
process has become a matter of public record.
Sec. 4.31 Fees.
(a) The only fee to be charged to an individual under this part is
for duplication of records at the request of the individual. Components
shall charge a fee for duplication of records under the Act in the same
way in which they charge a duplication fee under Sec. 4.11, except as
provided in this section. Accordingly, no fee shall be charged or
collected for: search, retrieval, or review of records; copying at the
initiative of the Department without a request from the individual;
transportation of records; or first-class postage.
(b) The Department shall provide an individual one copy of each
record corrected or amended pursuant to the individual's request
without charge as evidence of the correction or amendment.
(c) As required by the United States Office of Personnel Management
in its published regulations implementing the Act, the Department shall
charge no fee for a single copy of a personnel record
[[Page 65646]]
covered by that agency's Government-wide published notice of systems of
records.
Sec. 4.32 Penalties.
(a) The Act provides, in pertinent part:
Any person who knowingly and willfully requests or obtains any
record concerning an individual from an agency under false pretenses
shall be guilty of a misdemeanor and fined not more than $5,000. (5
U.S.C. 552a(i)(3)).
(b) A person who falsely or fraudulently attempts to obtain records
under the Act also may be subject to prosecution under such other
criminal statutes as 18 U.S.C. 494, 495 and 1001.
Sec. 4.33 General exemptions.
(a) Individuals may not have access to records maintained by the
Department but which were provided by another agency which has
determined by regulation that such information is subject to general
exemption under 5 U.S.C. 552a(j). If such exempt records are within a
request for access, the Department will advise the individual of their
existence and of the name and address of the source agency. For any
further information concerning the record and the exemption, the
individual must contact that source agency.
(b) The general exemptions determined to be necessary and proper
with respect to systems of records maintained by the Department,
including the parts of each system to be exempted, the provisions of
the Act from which they are exempted, and the justification for the
exemption, are as follows:
(1) Individuals identified in Export Transactions--COMMERCE/ITA-1.
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to
be exempt from all provisions of the Act, except 5 U.S.C. 552a(b),
(c)(1) and (2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and
(11), and (i). These exemptions are necessary to ensure the proper
functioning of the law enforcement activity, to protect confidential
sources of information, to fulfill promises of confidentiality, to
maintain the integrity of the law enforcement process, to avoid
premature disclosure of the knowledge of criminal activity and the
evidentiary bases of possible enforcement actions, to prevent
interference with law enforcement proceedings, to avoid disclosure of
investigative techniques, and to avoid endangering law enforcement
personnel. Section 12(c) of the Export Administration Act of 1979, as
amended, also protects this information from disclosure.
(2) Fisheries Law Enforcement Case Files--COMMERCE/NOAA-5. Pursuant
to 5 U.S.C. 552a(j)(2), these records are hereby determined to be
exempt from all provisions of the Act, except 5 U.S.C. 552a (b), (c)
(1) and (2), (e) (4) (A) through (F), (e) (6), (7), (9), (10), and
(11), and (i). These exemptions are necessary to ensure the proper
functioning of the law enforcement activity, to protect confidential
sources of information, to fulfill promises of confidentiality, to
prevent interference with law enforcement proceedings, to avoid the
disclosure of investigative techniques, to avoid the endangering of law
enforcement personnel, to avoid premature disclosure of the knowledge
of criminal activity and the evidentiary bases of possible enforcement
actions, and to maintain the integrity of the law enforcement process.
(3) Investigative and Inspection Records--COMMERCE/DEPT-12.
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to
be exempt from all provisions of the Act, except 5 U.S.C. 552a (b), (c)
(1) and (2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11),
and (i). These exemptions are necessary to ensure the proper operation
of the law enforcement activity, to protect confidential sources of
information, to fulfill promises of confidentiality, to prevent
interference with law enforcement proceedings, to avoid the disclosure
of investigative techniques, to avoid the endangering of law
enforcement personnel, to avoid premature disclosure of the knowledge
of criminal activity and the evidentiary bases of possible enforcement
actions, and to maintain the integrity of the law enforcement process.
Sec. 4.34 Specific exemptions.
(a)(1) Certain systems of records under the Act that are maintained
by the Department may occasionally contain material subject to 5 U.S.C.
552a(k)(1), relating to national defense and foreign policy materials.
The systems of records published in the Federal Register by the
Department that are within this exemption are:
COMMERCE/ITA-1, COMMERCE/ITA-2, COMMERCE/ITA-3, COMMERCE/NOAA-11,
COMMERCE/PAT-TM-4, COMMERCE/DEPT-12, COMMERCE/DEPT-13, and COMMERCE/
DEPT-14.
(2) The Department hereby asserts a claim to exemption of such
materials wherever they might appear in such systems of records, or any
systems of records, at present or in the future. The materials would be
exempt from 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and
(I), and (f), because the materials are required by Executive order to
be kept secret in the interest of the national defense and foreign
policy.
(b) The specific exemptions determined to be necessary and proper
with respect to systems of records maintained by the Department,
including the parts of each system to be exempted, the provisions of
the Act from which they are exempted, and the justification for the
exemption, are as follows:
(1) Exempt under 5 U.S.C. 552a(k)(1). The systems of records exempt
hereunder appear in paragraph (a) of this section. The claims for
exemption of COMMERCE/DEPT-12, COMMERCE/ITA-1, and COMMERCE/NOAA-11
under this paragraph are subject to the condition that the general
exemption claimed in Sec. 4.33(b)(3) is held to be invalid.
(2)(i) Exempt under 5 U.S.C. 552a(k)(2). The systems of records
exempt (some only conditionally), the sections of the Act from which
exempted, and the reasons therefor are as follows:
(A) Individuals identified in Export Administration compliance
proceedings or investigations--COMMERCE/ITA-1, but only on condition
that the general exemption claimed in Sec. 4.33(b)(1) is held to be
invalid;
(B) Individuals involved in export transactions--COMMERCE/ITA-2;
(C) Fisheries Law Enforcement Case Files--COMMERCE/NOAA-11, but
only on condition that the general exemption claimed in Sec. 4.33(b)(2)
is held to be invalid;
(D) Investigative and Inspection Records--COMMERCE/DEPT-12, but
only on condition that the general exemption claimed in Sec. 4.33(b)(3)
is held to be invalid;
(E) Investigative Records--Persons Within the Investigative
Jurisdiction of the Department--COMMERCE/DEPT-13;
(F) Litigation, Claims and Administrative Proceeding Records--
COMMERCE/DEPT-14; and
(ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d),
(e)(1), (e)(4)(G), (H), and (I), and (f). The reasons for asserting the
exemption are to prevent subjects of investigation from frustrating the
investigatory process; to ensure the proper functioning and integrity
of law enforcement activities; to prevent disclosure of investigative
techniques; to maintain the ability to obtain necessary information; to
fulfill commitments made to sources to protect their identities and the
confidentiality of information; and to avoid endangering these sources
and law enforcement personnel. Special note is
[[Page 65647]]
taken that the proviso clause in this exemption imports due process and
procedural protections for the individual. The existence and general
character of the information exempted shall be made known to the
individual to whom it pertains.
(3)(i) Exempt under 5 U.S.C. 552a(k) (4). The systems of records
exempt, the sections of the Act from which exempted, and the reasons
therefor are as follows:
(A) Agriculture Census Records for 1974 and 1978--COMMERCE/CENSUS-
1;
(B) Individual and Household Statistical Surveys and Special Census
Studies Records-- COMMERCE/CENSUS-3;
(C) Minority-Owned Business Enterprises Survey Records-- COMMERCE/
CENSUS-4;
(D) Population and Housing Census Records of the 1960 and
Subsequent Censuses--COMMERCE/ CENSUS-5;
(E) Population Census Personal Service Records for 1900 and All
Subsequent Decennial Censuses--COMMERCE/CENSUS-6; and
(F) Special Censuses of Population Conducted for State and Local
Government--COMMERCE/CENSUS-7.
(G) Statistical Administrative Records System--COMMERCE/CENSUS-8.
(ii) The foregoing are exempted from 5 U.S.C. 552a(c)(3), (d),
(e)(1), (e)(4)(G) (H), and (I), and (f). The reasons for asserting the
exemption are to comply with the prescription of Title 13 of the United
States Code, especially sections 8 and 9 relating to prohibitions
against disclosure, and to avoid needless consideration of these
records whose sole statistical use comports fully with a basic purpose
of the Act, namely, that no adverse determinations are made from these
records as to any identifiable individual.
(4)(i) Exempt under 5 U.S.C. 552a(k)(5). The systems of records
exempt (some only conditionally), the sections of the Act from which
exempted, and the reasons therefor are as follows:
(A) Applications to U.S. Merchant Marine Academy (USMMA)--COMMERCE/
MA-1;
(B) USMMA Midshipman Medical Files--COMMERCE/MA-17;
(C) USMMA Midshipman Personnel Files--COMMERCE/MA-18;
(D) USMMA Non-Appropriated fund Employees--COMMERCE/MA-19;
(E) Applicants for the NOAA Corps--COMMERCE/NOAA-4;
(F) Commissioned Officer Official Personnel Folders--COMMERCE/NOAA-
7;
(G) Conflict of Interest Records, Appointed Officials--COMMERCE/
DEPT-3;
(H) Investigative and Inspection Records--COMMERCE/DEPT-12, but
only on condition that the general exemption claimed in Sec. 4.33(b)(3)
is held to be invalid;
(I) Investigative Records--Persons Within the Investigative
Jurisdiction of the Department--COMMERCE/DEPT-13; and
(J) Litigation, Claims, and Administrative Proceeding Records--
COMMERCE/DEPT-14.
(ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d),
(e)(1), (e)(4) (G), (H), and (I), and (f). The reasons for asserting
the exemption are to maintain the ability to obtain candid and
necessary information, to fulfill commitments made to sources to
protect the confidentiality of information, to avoid endangering these
sources and, ultimately, to facilitate proper selection or continuance
of the best applicants or persons for a given position or contract.
Special note is made of the limitation on the extent to which this
exemption may be asserted. The existence and general character of the
information exempted will be made known to the individual to whom it
pertains.
(c) At the present time, the Department claims no exemption under 5
U.S.C. 552a(k) (3), (6) and (7).
Appendix A to Part 4--Freedom of Information Public Inspection
Facilities, and Addresses for Requests for Records Under the Freedom of
Information Act and Privacy Act, and Requests for Correction or
Amendment Under the Privacy Act
Each address listed below is the respective component's mailing
address for receipt and processing of requests for records under the
Freedom of Information Act and Privacy Act, for requests for
correction or amendment under the Privacy Act and, unless otherwise
noted, its public inspection facility for records available to the
public under the Freedom of Information Act. Requests should be
addressed to the component the requester knows or has reason to
believe has possession of, control over, or primary concern with the
records sought. Otherwise, requests should be addressed to the
Central Reference and Records Inspection Facility. The telephone
number for each component is included after its address. Public
inspection facilities are open to the public Monday through Friday
(excluding Saturdays, Sundays, and legal public holidays) between 9
a.m. and 4 p.m. local time of the facility at issue. Certain public
inspection facility records of components are also available
electronically through the Department's ``FOIA Home Page'' link
found at the Department's World Wide Web site (http://www.doc.gov)),
as described in Sec. 4.2(b). The Departmental Freedom of Information
Officer is authorized to revise this appendix to reflect changes in
the information contained in it. Any such revisions shall be posted
at the Department's ``FOIA Home Page'' link found at the
Department's World Wide Web site (http://www.doc.gov).
(1) Department of Commerce Freedom of Information Central
Reference and Records Inspection Facility, U.S. Department of
Commerce, Room 6022, 14th and Constitution Avenue, NW, Washington,
DC 20230; (202) 482-4115. This facility serves the Office of the
Secretary, all other components of the Department not identified
below, and those components identified below that do not have
separate public inspection facilities.
(2) Bureau of the Census, Policy Office, U.S. Department of
Commerce, Federal Building 3, Room 2430, Suitland, Maryland 20233;
(301) 457-2520. This agency maintains a separate public inspection
facility in Room 2455, Federal Building 3, Suitland, Maryland 20233.
(3) Bureau of Economic Analysis/Economics and Statistics
Administration, Office of the Under Secretary for Economic Affairs,
Department of Commerce, Room 4836, 14th and Constitution Avenue, NW,
Washington, DC 20230; (202) 482-3308. This component does not
maintain a separate public inspection facility.
(4) Bureau of Export Administration, Office of Administration,
U.S. Department of Commerce, Room 6883, 14th and Constitution
Avenue, NW, Washington, DC 20230; (202) 482-0500. This component
does not maintain a separate public inspection facility.
(5) Economic Development Administration, Office of the Chief
Counsel, U.S. Department of Commerce, Room 7005, 14th and
Constitution Avenue, NW, Washington, DC 20230; (202) 482-4687.
Regional EDA offices (none of the following regional EDA offices
maintains a separate public inspection facility):
(i) Philadelphia Regional Office, EDA, U.S. Department of
Commerce, Curtis Center, Suite 140 South, Independence Square West,
Philadelphia, Pennsylvania 19106; (215) 597-7896.
(ii) Atlanta Regional Office, EDA, U.S. Department of Commerce,
401 West Peachtree Street, NW, Suite 1820, Atlanta, GA 30308; (404)
730-3006.
(iii) Denver Regional Office, EDA, U.S. Department of Commerce,
Room 670, 1244 Speer Boulevard, Denver, Colorado 80204; (303) 844-
4716.
(iv) Chicago Regional Office, EDA, U.S. Department of Commerce,
111 North Canal Street, Suite 855, Chicago, IL 60606; (312) 353-
8580.
(v) Seattle Regional Office, EDA, U.S. Department of Commerce,
Jackson Federal Building, Room 1856, 915 Second Avenue, Seattle WA
98174; (206) 220-7701.
(vi) Austin Regional Office, EDA, U.S. Department of Commerce,
327 Congress Avenue, Suite 200, Austin, Texas 78701; (512) 381-8169.
(6) International Trade Administration, Office of Organization
and Management Support, U.S. Department of Commerce, Room 4001, 14th
and Constitution Avenue, NW, Washington, DC 20230; (202) 482-3032.
[[Page 65648]]
(7) Minority Business Development Agency, Data Resources
Division, U.S. Department of Commerce, Room 5084, 14th and
Constitution Avenue, NW, Washington, DC 20230; (202) 482-2025. This
agency does not maintain a separate public inspection facility.
(8) National Institute of Standards and Technology, Management
and Organization Division, Administration Building, Room A525, 100
Bureau Drive, Gaithersburg, Maryland 20899; (301) 975-4054. This
agency maintains a separate public inspection facility in Room E-
106, Administration Building, Gaithersburg, Maryland.
(9) National Oceanic and Atmospheric Administration, Public
Reference Facility (OFAx2) 1315 East West Highway (SSMC3), Room
10730, Silver Spring, Maryland 20910; (301) 713-3540.
(10) National Technical Information Service, Office of
Administration, 5285 Port Royal Road, Springfield, Virginia 22161;
(703) 605-6449. This agency does not maintain a separate public
inspection facility.
(11) National Telecommunications and Information Administration,
Office of the Chief Counsel, U.S. Department of Commerce, Room 4713,
14th and Constitution Avenue, NW, Washington, DC 20230; (202) 482-
1816. This component does not maintain a separate public inspection
facility.
(12) Office of Inspector General, Counsel to the Inspector
General, U.S. Department of Commerce, Room 7892, 14th and
Constitution Avenue, NW, Washington, DC 20230; (202) 482-5992. This
component does not maintain a separate public inspection facility.
(13) Technology Administration, Office of the Under Secretary,
U.S. Department of Commerce, Room 4835, 14th and Constitution
Avenue, NW, Washington, DC 20230; (202) 482-1984. This component
does not maintain a separate public inspection facility.
Appendix B to Part 4-- Officials Authorized to Deny Requests for
Records Under the Freedom of Information Act, and Requests for Records
and Requests for Correction or Amendment Under the Privacy Act
The officials of the Department listed below and their superiors
have authority, with respect to the records for which each is
responsible, to deny requests for records under the FOIA,\1\ and
requests for records and requests for correction or amendment under the
PA. In addition, the Departmental Freedom of Information Officer and
the Freedom of Information Officer for the Office of the Secretary have
the foregoing FOIA and PA denial authority for all records of the
Department, and the Departmental Freedom of Information officer is
authorized to assign that authority, on a case-by-case basis only, to
any of the officials listed below, if the records responsive to a
request include records for which more than one official listed below
is responsible. The Departmental Freedom of Information Officer is
authorized to revise this appendix to reflect changes in designation of
denial officials. Any such revisions shall be posted at the
Department's ``FOIA Home Page'' link found at the Department's World
Wide Web site (http://www.doc.gov).
---------------------------------------------------------------------------
\1\ The foregoing officials have sole authority under
Sec. 4.7(b) to deny requests for records in any respect, including,
for example, denying requests for reduction or waiver of fees.
---------------------------------------------------------------------------
Office of the Secretary
Office of the Secretary: Executive Secretary; Freedom of Information
Officer
Office of Business Liaison: Director
Office of Public Affairs: Director; Deputy Director; Press
Secretary; Deputy Press Secretary
Assistant Secretary for Legislative and Intergovernmental Affairs;
Deputy Assistant Secretary for Legislative and Intergovernmental
Affairs
Office of the Inspector General: Counsel to the Inspector General;
Deputy Counsel to the Inspector General
Office of the General Counsel: Deputy General Counsel; Assistant
General Counsel for Administration
Office of Executive Support: Director
Assistant Secretary for Administration
Office of Civil Rights: Director
Office of Budget: Director
Office of Management and Organization: Director
Office of Chief Information Officer: Director
Office of Executive Budgeting and Assistance Management: Director
Office of Executive Assistance Management: Director; Grants Officer
Departmental Freedom of Information Officer.
Office of Financial Management: Director
Office of Human Resources Management: Director; Deputy Director.
Office of Administrative Services: Director
Office of Security: Director, Deputy Director
Office of Acquisition Management: Director
Office of Acquisition Services: Director
Office of Small and Disadvantaged Business Utilization: Director
Bureau of Export Administration
Under Secretary
Deputy Under Secretary
Director, Office of Administration
Director, Office of Planning, Evaluation and Management
Assistant Secretary for Export Administration
Deputy Assistant Secretary for Export Administration
Director, Office of Strategic Industries and Economic Security
Director, Office of Nonproliferation Controls and Treaty Compliance
Director, Office of Strategic Trade and Foreign Policy Controls
Director, Office of Exporter Services
Assistant Secretary for Export Enforcement
Deputy Assistant Secretary for Export Enforcement
Director, Office of Export Enforcement
Director, Office of Enforcement Analysis
Director, Office of Antiboycott Compliance
Economics and Statistics Administration
Office of Administration: Director
Bureau of Economic Analysis: Director
Bureau of the Census: Chief, Policy Office
Economic Development Administration
Freedom of Information Officer
International Trade Administration
Under Secretary for International Trade
Deputy Under Secretary for International Trade
Counselor to the Department
Director, Trade Promotion Coordinating Committee Secretariat
Director, Office of Public Affairs
Director, Office of Legislative and Intergovernmental Affairs
Administration
Chief Financial Officer and Director of Administration
Director, Office of Organization and Management Support
Director, Office of Human Resources Management
Director, Office of Information Resources Management
ITA Freedom of Information Officer
Import Administration
Assistant Secretary for Import Administration
Deputy Assistant Secretary for Antidumping and Countervailing Duty
Enforcement I
Deputy Assistant Secretary for Antidumping and Countervailing Duty
Enforcement II
Deputy Assistant Secretary for Antidumping and Countervailing Duty
Enforcement III
Director for Policy and Analysis
Director, Office of Policy
Director, Office of Accounting
Director, Central Records Unit
Director, Foreign Trade Zones Staff
Director, Statutory Import Programs Staff
Director, Office of Antidumping Countervailing Duty Enforcement I
Director, Office of Antidumping Countervailing Duty Enforcement II
Director, Office of Antidumping Countervailing Duty Enforcement III
Director, Office of Antidumping Countervailing Duty Enforcement IV
Director, Office of Antidumping Countervailing Duty Enforcement V
Director, Office of Antidumping Countervailing Duty Enforcement VI
Director, Office of Antidumping Countervailing Duty Enforcement VII
Director, Office of Antidumping Countervailing Duty Enforcement VIII
Director, Office of Antidumping Countervailing Duty Enforcement IX
Market Access and Compliance
Assistant Secretary for Market Access and Compliance
Deputy Assistant Secretary for Agreements Compliance
Deputy Assistant Secretary for the Middle East and North Africa
Deputy Assistant Secretary for Europe
Deputy Assistant Secretary for the Western Hemisphere
[[Page 65649]]
Deputy Assistant Secretary for Asia and the Pacific
Deputy Assistant Secretary for Africa
Director, Office of Policy Coordination
Director, Office of Multilateral Affairs
Director, Trade Compliance Center
Director, Office of the Middle East and North Africa
Director, Office of European Union and Regional Affairs
Director, Office of Eastern Europe, Russia and Independent States
Director, Office of Latin America and the Caribbean
Director, Office of NAFTA and Inter-American Affairs
Director, Office of China Economic Area
Director, Office of the Pacific Basin
Director, Office of South Asia and Oceania
Director, Office of Japan
Director, Office of Africa
Trade Development
Assistant Secretary for Trade Development
Deputy Assistant Secretary for Transportation and Technology
Industries
Deputy Assistant Secretary for Textiles, Apparel and Consumer Goods
Industries
Deputy Assistant Secretary for Service Industries and Finance
Deputy Assistant Secretary for Basic Industries
Deputy Assistant Secretary for Information Technology Industries
Deputy Assistant Secretary for Environmental Technologies Industries
Deputy Assistant Secretary for Tourism Industries
Director, Office of Export Promotion Coordination
Director, Trade Information Center
Director, Office of Trade and Economic Analysis
Director, Advocacy Center
Director, Office of Planning, Coordination and Resource Management
Director, Office of Aerospace
Director, Office of Automotive Affairs
Director, Office of Microelectronics, Medical Equipment and
Instrumentation
Director, Office of Textiles and Apparel
Director, Office of Consumer Goods
Director, Office of Environmental Technologies
Director, Office of Export Trading Company Affairs
Director, Office of Finance
Director, Office of Service Industries
Director, Office of Metals, Materials and Chemicals
Director, Office of Energy, Infrastructure and Machinery
Director, Office of Electronic Commerce
Director, Office of Information Technologies
Director, Office of Telecommunications Technologies
U.S. and Foreign Commercial Service
Assistant Secretary and Director General
Deputy Director General
Deputy Assistant Secretary for International Operations
Deputy Assistant Secretary for Export Promotion Services
Deputy Assistant Secretary for Domestic Operations
Director, Office of Information Systems
Director, Office of Planning
Director, Office of Foreign Service Human Resources
Director for Europe
Director for Western Hemisphere
Director for East Asia and the Pacific
Director, Multilateral Development Bank Operations
Director, Office of Public/Private Initiatives
Director, Office of Export Information and Marketing Services
Director, Office of Operations
Minority Business Development Administration
Freedom of Information Officer
National Oceanic and Atmospheric Administration
Under Secretary
Assistant Secretary
Director, Office of Public and Constituent Affairs
Director, Office of Marine and Aviation Operations
General Counsel
Assistant Administrator for Ocean Services and Coastal Zone
Management
Assistant Administrator for Fisheries
Assistant Administrator for Weather Services
Assistant Administrator for Satellite and Information Services
Assistant Administrator for Oceanic and Atmospheric Research
Office of Finance and Administration: Chief Financial Officer/Chief
Administrative Officer
Director, Acquisition and Grants Office
Director, Systems Acquisition Office
Director, Human Resources Management Office
Director, Office of Finance
Director, Budget Office
Director, Facilities Office
Director, Information Systems Management Office
Director, Eastern Administrative Support Center
Director, Central Administrative Support Center
Director, Mountain Administrative Support Center
Director, Western Administrative Support Center
Freedom of Information Officer
National Telecommunications and Information Administration
Deputy Assistant Secretary
Chief Counsel
Deputy Chief Counsel
Technology Administration
Under Secretary for Technology
Deputy Under Secretary for Technology
Assistant Secretary for Technology Policy
Chief Counsel
Deputy Chief Counsel
Senior Counsel for Internet Technology
National Institute of Standards and Technology: Director for
Administration and Chief Financial Officer; Chief, Management and
Organization Division; NIST Counsel.
National Technical Information Service: Director; Deputy Director;
Chief Financial Officer/Associate Director for Finance and
Administration.
Appendix C to Part 4--Systems of Records Noticed by Other Federal
Agencies and Applicable to Records of the Department and
Applicability of this Part Thereto
----------------------------------------------------------------------------------------------------------------
Category of records Other Federal Agency
----------------------------------------------------------------------------------------------------------------
Federal Personnel Records............. Office of Personnel Management.\1\
Federal Employee Compensation Act Department of Labor.\2\
Program Program.
Equal Employment Opportunity Appeal Equal Employment Opportunity Commission.\3\
Complaints.
Formal Complaints/Appeals of Adverse Merit Systems Protection Board.\4\
Personnel Actions.
----------------------------------------------------------------------------------------------------------------
\1\ The provisions of this part do not apply to these records covered by notices of systems of records published
by the Office of Personnel Management for all agencies. The regulations of OPM alone apply.
\2\ The provisions of this part apply only initially to these records covered by notices of systems of records
published by the U.S. Department of Labor for all agencies. The regulations of that Department attach at the
point of any denial for access or for correction or amendment.
\3\ The provisions of this part do not apply to these records covered by notices of systems of records published
by the Equal Employment Opportunity Commission for all agencies. The regulations of the Commission alone
apply.
\4\ The provisions of this part do not apply to these records covered by notices of systems of records published
by the Merit Systems Protection Board for all agencies. The regulations of the Board alone apply.
[[Page 65650]]
2. Part 2 is revised to read as follows:
PART 4a--CLASSIFICATION, DECLASSIFICATION, AND PUBLIC AVAILABILITY
OF NATIONAL SECURITY INFORMATION
Sec.
4a.1 General.
4a.2 Deputy Assistant Secretary for Security.
4a.3 Classification levels.
4a.4 Classification authority.
4a.5 Duration of classification.
4a.6 General.
4a.7 Mandatory review for declassification.
4a.8 Access to classified information by individuals outside the
Government.
Authority: E.O. 12958; 47 FR 14874, April 6, 1982; 47 FR 15557,
April 12, 1982.
Sec. 4a.1 General.
Executive Order 12958 provides the only basis for classifying
information within the Department of Commerce (Department), except as
provided in the Atomic Energy Act of 1954, as amended. The Department's
policy is to make information concerning its activities available to
the public, consistent with the need to protect the national defense
and foreign relations of the United States. Accordingly, security
classification shall be applied only to protect the national security.
Sec. 4a.2 Deputy Assistant Secretary for Security.
The Deputy Assistant Secretary for Security (DAS) is responsible
for implementing E.O. 12958 and this part.
Sec. 4a.3 Classification levels.
Information may be classified as national security information by a
designated original classifier of the Department if it is determined
that the information concerns one or more of the categories described
in Sec. 1.5 of E.O. 12958. The levels established by E.O. 12958 (Top
Secret, Secret, and Confidential) are the only terms that may be
applied to national security information. Except as provided by
statute, no other terms shall be used within the Department for the
three classification levels.
Sec. 4a.4 Classification authority.
Authority to originally classify information as Secret or
Confidential may be exercised only by the Secretary of Commerce and by
officials to whom such authority is specifically delegated. No official
of the Department is authorized to originally classify information as
Top Secret.
Sec. 4a.5 Duration of classification.
(a) Information shall remain classified no longer than ten years
from the date of its original classification, except as provided in
Sec. 1.6(d) of E.O. 12958. Under E.O. 12958, information may be
exempted from declassification within ten years if the unauthorized
disclosure of such information could reasonably be expected to cause
damage to the national security for more than ten years and meets one
of the eight criteria listed in Sec. 1.6 (d).
(b) Department of Commerce originally classified information marked
for an indefinite duration of classification under predecessor orders
to E.O. 12958 shall be declassified after twenty years. Classified
information contained in archive records determined to have permanent
historical value under Title 44 of the United States Code shall be
automatically declassified no longer than 25 years from the date of its
original classification, except as provided in Sec. 3.4(d) of E.O.
12958.
Sec. 4a.6 General.
National security information over which the Department exercises
final classification jurisdiction shall be declassified or downgraded
as soon as national security considerations permit. If information is
declassified, it may continue to be exempt from public disclosure by
the Freedom of Information Act (5 U.S.C. 552) or other applicable law.
Sec. 4a.7 Mandatory review for declassification.
(a) Requests. Classified information under the jurisdiction of the
Department is subject to review for declassification upon receipt of a
written request that describes the information with sufficient
specificity to locate it with a reasonable amount of effort. Requests
must be submitted to the Deputy Assistant Secretary for Security, U.S.
Department of Commerce, Room 1069, 14th and Constitution Avenue, NW.,
Washington, DC 20230.
(b) Exemptions. The following are exempt from mandatory review for
declassification:
(1) Information that has been reviewed for declassification within
the past two years;
(2) Information that is the subject of pending litigation;
(3) Information originated by the incumbent President, the
incumbent President's White House Staff, committees, commissions, or
boards appointed by the incumbent President, or other entities within
the Executive Office of the President that solely advise and assist the
incumbent President; and
(4) Information specifically exempt from such review by law.
(c) Processing requirements. (1) The DAS shall acknowledge receipt
of the request directly to the requester. If a request does not
adequately describe the information sought in accordance with paragraph
(a) of this section, the requester shall be notified that unless
additional information is provided, no further action will be taken.
The request shall be forwarded to the component that originated the
information or that has primary interest in the subject matter. The
component assigned action shall review the information in accordance
with Sec. 4a.7(c)(2) through (4) within twenty working days.
(2) The component assigned action shall determine whether, under
the declassification provisions of the U.S. Department of Commerce
Security Manual, the entire document or portions thereof may be
declassified. Declassification of the information shall be accomplished
by a designated declassification authority. Upon declassification the
information shall be remarked. If the information is not partially or
entirely declassified, the reviewing official shall provide the reasons
for denial by citing the applicable provisions of E.O. 12958. If the
classification is a derivative decision based on classified source
material of another Federal agency, the component shall provide the
information to the originator for review.
(3) If information is declassified, the component shall also
determine whether it is releasable under the Freedom of Information
Act. If the information is not releasable, the component shall advise
the DAS that the information has been declassified but that it is
exempt from disclosure, citing the appropriate exemption of the Freedom
of Information Act.
(4) If the request for declassification is denied in whole or in
part, the requester shall be notified of the right to appeal the
determination within sixty calendar days and of the procedures for such
an appeal. If declassified information remains exempt from disclosure
under the Freedom of Information Act, the requester shall be advised of
the appellate procedures under that law.
(d) Fees. If the request requires services for which fees are
chargeable, the component assigned action shall calculate the
anticipated fees to be charged, and may be required to ascertain the
requester's willingness to pay the allowable charges as a precondition
to taking further action on the request, in accordance with Sec. 4.11
of the Department of Commerce Freedom
[[Page 65651]]
of Information Act rules and Sec. 4.31 of the Department's Privacy Act
rules.
(e) Right of appeal. (1) A requester may appeal to the DAS when
information requested under this section is not completely declassified
and released after expiration of the applicable time limits. Within
thirty working days (i.e., excluding Saturdays, Sundays, and legal
public holidays) of receipt of a written appeal:
(i) The DAS shall determine whether continued classification of the
requested information is required in whole or in part;
(ii) If information is declassified, determine whether it is
releasable under the Freedom of Information Act; and
(iii) Notify the requester of his or her determination, making
available any information determined to be releasable. If continued
classification is required under the provisions of the Department of
Commerce National Security Manual, the DAS shall notify the requester
of his or her determination, including the reasons for denial based on
applicable provisions of E.O. 12958, and of the right of final appeal
to the Interagency Security Classification Appeals Panel.
(2) During the declassification review of information under appeal
the DAS may overrule previous determinations in whole or in part if
continued protection in the interest of national security is no longer
required. If the DAS determines that the information no longer requires
classification, it shall be declassified and, unless it is otherwise
exempt from disclosure under the Freedom of Information Act, released
to the requester. The DAS shall advise the original reviewing component
of his or her decision.
Sec. 4a.8 Access to classified information by individuals outside the
Government.
(a) Industrial, Educational, and Commercial Entities. Certain
bidders, contractors, grantees, educational, scientific, or industrial
organizations may receive classified information under the procedures
prescribed by the National Industrial Security Program Operating
Manual.
(b) Access by historical researchers and former Presidential
appointees. An individual engaged in historical research projects or
who has previously occupied a policy-making position to which he or she
was appointed by the President may be authorized access to classified
information for a limited period, provided that the head of the
component with jurisdiction over the information:
(1) Determines in writing that:
(i) Access is consistent with national security;
(ii) The individual has a compelling need for access; and
(iii) The Department's best interest is served by providing access;
(2) Obtains in writing from the individual:
(i) Consent to a review by the Department of any resultant notes
and manuscripts for the purpose of determining that no classified
information is contained in them; and
(ii) Agreement to safeguard classified information in accordance
with applicable requirements; and
(iii) A detailed description of the individual's research;
(3) Ensures that custody of classified information is maintained at
a Department facility;
(4) Limits access granted to former Presidential appointees to
items that the individual originated, reviewed, signed, or received
while serving as a Presidential appointee; and
(5) Receives from the DAS:
(i) A determination that the individual is trustworthy; and
(ii) Approval to grant access to the individual.
(c) An individual seeking access should describe the information
with sufficient specificity to locate and compile it with a reasonable
amount of effort. If the access requested by a historical researcher or
former Presidential appointee requires services for which fees are
chargeable, the responsible component shall notify the individual in
advance.
(d) This section applies only to classified information originated
by the Department, or to information in the sole custody of the
Department. Otherwise, the individual shall be referred to the
classifying agency.
PART 4b--[REMOVED]
3. Remove Part 4b.
Dated: December 6, 2001.
Robert F. Kugelman,
Director, Office of Executive Budgeting and Assistance Management.
[FR Doc. 01-31131 Filed 12-19-01; 8:45 am]
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