[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)] [Rules and Regulations] [Pages 531-536] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-98] [[Page Unknown]] [Federal Register: January 5, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 20 [Docket No. 92N-0244] Freedom of Information Regulations AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Food and Drug Administration (FDA) is amending its public information regulations to reflect changes already adopted by the agency as a result of the 1986 amendments to the Freedom of Information Act (the FOIA), executive branch directives, and judicial standards governing disclosure of agency records under the FOIA. In practice, FDA modified its policies and procedures to comply with these changes as they became effective. The regulations are being updated to reflect these changes. The agency is also adding clarifying language to certain of its public information regulations and making technical changes necessary to update citations and cross-references. DATES: Effective January 5, 1994. Written comments by March 7, 1994. As provided in Sec. 10.40(e) (21 CFR 10.40(e)), FDA is providing an opportunity for public comment on whether the regulations should subsequently be modified or revoked. ADDRESSES: Submit written comments to the Dockets Management Branch (HFA-305), Food and Drug Administration, rm. 1-23, 12420 Parklawn Dr., Rockville, MD 20857. FOR FURTHER INFORMATION CONTACT: Gerald H. Deighton, Freedom of Information Staff (HFI-30), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-443-6310. SUPPLEMENTARY INFORMATION: I. Background FDA's practice and policy under the FOIA have undergone a number of changes as a result of legislation, executive directives, and judicial precedents over the past years. FDA modified and updated its practices and policies to comply with these changes as they became effective. FDA is now formally amending its public information regulations to reflect changes that were required by law and which have already been put into effect. Specifically, FDA is updating its public information regulations to reflect provisions of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508), the Freedom of Information Reform Act of 1986 (Pub. L. 99-570), Executive Order 12600 (June 23, 1987) establishing predisclosure notification procedures, guidelines promulgated by the Office of Management and Budget (OMB) (52 FR 10012 at 10018, March 27, 1987), the revised Department of Health and Human Services (DHHS) regulations at 45 CFR part 5, and the widely adopted District of Columbia (D.C.) Circuit Court of Appeals opinion in Public Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C. Cir. 1983). The agency is also adding language to Secs. 20.53 and 20.85 (21 CFR 20.53 and 20.83) in order to clarify particular aspects of those regulations that have been the subject of some confusion. In addition, FDA is making technical revisions to certain public information regulations to update citations to cross-references that have changed since the last revision of part 20 (21 CFR part 20). II. Procedural Amendments A. Investigatory Records Compiled for Law Enforcement Purposes The language of Sec. 20.64, regarding records compiled for law enforcement purposes, is being changed to conform to the 1986 amendments to the FOIA, which broadened the FOIA exemption 5 U.S.C. 552(b)(7) that protects certain law enforcement records from mandatory public disclosure. B. Disclosure to Congress Section 20.87 is being revised to reflect the provision of the Omnibus Budget Reconciliation Act of 1990 that removed the statutory barrier that previously prohibited FDA from disclosing certain trade secret information to Congress, (Pub. L. 101-508). Section 4755(c)(2) of the Omnibus Budget Reconciliation Act of 1990 amended section 301(j) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 331(j)) in order to permit FDA to disclose to Congress certain trade secret information that is otherwise prohibited from disclosure except to employees of DHHS or to the courts in relevant judicial proceedings. Such disclosures to Congress may only be pursuant to a request from the Senate, the House of Representatives, any committee or subcommittee with jurisdiction over the matter being investigated, or any joint committee of Congress or any subcommittee of such joint committee. C. Trade Secret and Confidential Commercial Information Executive Order 12600, issued June 23, 1987, requires Federal agencies to establish predisclosure notification procedures in certain circumstances before releasing commercial information submitted by businesses. FDA has complied with the terms of the Executive Order since it became effective, and has followed the procedures adopted by DHHS in the regulations published in the Federal Register of November 25, 1988 (53 FR 47697). To clarify these practices and for the convenience of the public, FDA is incorporating DHHS' regulations concerning predisclosure notification into FDA's regulations governing the disclosure of trade secret and confidential commercial information at Sec. 20.61. Accordingly, the standards and procedures promulgated by DHHS at 45 CFR 5.65(c), (d), and (e) are being added to FDA's public information regulations in Sec. 20.61(d), (e), and (f). Section 20.61 also is being amended to reflect the narrow definition of ``trade secret'' that was adopted by the D.C. Circuit Court of Appeals in Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983). That definition requires a direct relationship between the information being protected and the productive process. The definition adopted by the D.C. Circuit in that case has become the most widely adopted judicial test for defining trade secret information under the FOIA and is already codified in the DHHS FOIA regulations at 45 CFR 5.65(a). This amendment to Sec. 20.61 will not affect agency practice because FDA has distinguished between trade secret and confidential commercial information in accordance with the definition in the Public Citizen Health Research Group v. FDA case since that case was decided. D. Fees and Fee Waivers Sections 20.42 and 20.43 are being amended to reflect changes required by the 1986 amendments to the FOIA concerning fees and fee waivers and the OMB guidelines promulgated to implement those changes. FDA is adopting the standards and procedures promulgated by DHHS at 45 CFR 5.41 through 5.45, except that 45 CFR 5.42(g) is excluded from Sec. 20.42 because 45 CFR 5.42(g) pertains only to the Social Security Administration. In general, the regulations being adopted codify the descriptions of categories of requesters, the new fee structure and fee limitations, and the revised standards for fee waivers or reductions established by the 1986 amendments to the FOIA. Section 20.41 is being amended to remove the paragraphs that refer to $25 as the amount that triggers a requirement for prepayment of FOIA fees. The guidelines promulgated by OMB and the DHHS regulations include an advance payment provision for fees that exceed $250. That requirement is being included in revised Sec. 20.42. III. Clarifications A. Indexing Trade Secrets and Confidential Commercial or Financial Information A recent report by the General Accounting Office (GAO) criticized FDA's regulation concerning Sec. 20.53 Indexing trade secrets and confidential or financial information. GAO believed that it would be an abrogation of the agency's responsibilities to disclose information in those circumstances when a submitter failed to intervene to defend against the release of its records. The report hypothesized circumstances in which a firm could suffer severe financial loss because it could not afford legal representation to defend the competitive value of its commercial information. Although the regulation has been in effect for almost two decades, such a situation has never materialized. The agency continues to believe that the burden of defending business related records should be borne by the owner and submitter of such information, who is in the best position to explain the competitive harm that may result from disclosure. A company's unwillingness to take steps to protect the information it has submitted to the agency and to index the records at issue is ordinarily evidence to FDA that disclosure of the information is not likely to cause the submitter substantial competitive harm. However, the agency has never and would not at any time abandon its responsibilities to protect information that is truly prohibited from release. Although the situation has never previously arisen, there may be exceptional circumstances that would make it unreasonable for FDA to expect a submitter to participate as an intervenor in defending the proprietary value of its records. Accordingly, the language of the regulation is being amended to clarify that a company's failure to intervene to defend the exempt status of its information and to itemize and index the disputed records is not treated as an automatic waiver of the submitter's interest in protection of the information. B. Disclosure to Other Federal Agencies A 1991 contract report ``FDA Safeguards Against Improper Disclosure of Financially Sensitive Information,'' which was undertaken as part of the FDA Commissioner's integrity initiative, recommended that FDA obtain written pledges of confidentiality when it provides nonpublic information to other Federal agencies, such as the Securities Exchange Commission (SEC), as part of cooperative law enforcement efforts. FDA's regulations governing the disclosure of information to other Federal agencies, Sec. 20.85, is intended to require written commitments of confidentiality, and staff manual guides and internal agency guidance have consistently instructed personnel to obtain such written commitments. However, because the 1991 report named above suggested some confusion among FDA and other Department and Federal employees, FDA is adding the word ``written'' to Sec. 20.85 so that the regulation clearly states that such disclosures can only be made pursuant to a ``written'' agreement. IV. Technical Changes Section 20.100 is being revised to update cross-references that have changed because agency regulations have been amended or new regulations have been promulgated since the last revision of part 20. Because the agency's current practice with respect to disclosure of records will not change as a result of any of these amendments, and because the amendments set forth in section I. of this document are required either by statute, executive branch directives, or judicial decisions, FDA finds for good cause under Sec. 10.40(e) that notice and public procedure are unnecessary (5 U.S.C. 553(b)(3)(B) and (d)). However, under Sec. 10.40(e), FDA is providing an opportunity for comment to determine whether the regulations should subsequently be modified or revoked. V. Request for Comments Interested persons may, on or before March 7, 1994 submit to the Dockets Management Branch (address above) written comments regarding this final rule. Two copies of any comments are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the office above between 9 a.m. and 4 p.m., Monday through Friday. VI. Environmental Impact The agency has determined under 21 CFR 25.24(a)(8) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. VII. Economic Impact FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects; distributive impacts; and equity). The Regulatory Flexibility Act (Pub. L. 96-354) requires analyzing options for regulatory relief for small businesses. This rule amends the regulations for FDA's practice and policy under the FOIA. Because the amendments merely update the regulations to reflect procedural changes already adopted by the agency as a result of legislation, executive branch directives, or legal precedents, no additional impact is anticipated. Accordingly, FDA finds that this final rule is not a significant regulatory action as defined by Executive Order 12866. In compliance with the Regulatory Flexibility Act, the agency certifies that the final rule will not have a significant impact on a substantial number of small businesses. List of Subjects in 21 CFR Part 20 Confidential business information, Courts, Freedom of information, Government employees. Therefore, under the Federal Food, Drug, and Cosmetic Act, the Public Health Service Act, and the Freedom of Information Act, and under the authority delegated to the Commissioner of Food and Drugs, 21 CFR part 20 is amended as follows: PART 20--PUBLIC INFORMATION 1. The authority citation for 21 CFR part 20 continues to read as follows: Authority: Secs. 201-903 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321-393); secs. 301, 302, 303, 307, 310, 311, 351, 352, 354-360F, 361, 362, 1701-1706, 2101 of the Public Health Service Act (42 U.S.C. 241, 242, 242a, 242l, 242n, 243, 262, 263, 263b-263n, 264, 265, 300u-300u-5, 300aa-1); 5 U.S.C. 552; 18 U.S.C. 1905. Sec. 20.41 [Amended] 2. Section 20.41 Time limitations is amended by removing paragraphs (b)(5), (c), and (d). 3. Section 20.42 is revised to read as follows: Sec. 20.42 Fees to be charged. (a) Categories of requests. Paragraphs (a)(1) through (3) of this section state, for each category of request, the type of fees that the Food and Drug Administration will generally charge. However, for each of these categories, the fees may be limited, waived, or reduced for the reasons given in paragraphs (b) and (c) of this section and in Sec. 20.43 or for other reasons. (1) Commercial use request. If the request is for a commercial use, the Food and Drug Administration will charge for the costs of search, review, and duplication. (2) Educational and scientific institutions and news media. If the request is from an educational institution or a noncommercial scientific institution, operated primarily for scholarly or scientific research, or a representative of the news media, and the request is not for a commercial use, the Food and Drug Administration will charge only for the duplication of documents. Also, the Food and Drug Administration will not charge the copying costs for the first 100 pages of duplication. (3) Other requests. If the request is not the kind described in paragraph (a)(1) or (a)(2) of this section, then the Food and Drug Administration will charge only for the search and the duplication. Also, the Food and Drug Administration will not charge for the first 2 hours of search time or for the copying costs of the first 100 pages of duplication. (b) General provisions. (1) The Food and Drug Administration may charge search fees even if the records found are exempt from disclosure or if no records are found. (2) If, under paragraph (a)(3) of this section, there is no charge for the first 2 hours of search time, and those 2 hours are spent on a computer search, then the 2 free hours are the first 2 hours of the operator's own operation. If the operator spends less than 2 hours on the search, the total search fees will be reduced by the average hourly rate for the operator's time, multiplied by 2. (3) If, under paragraph (a)(2) or (a)(3) of this section, there is no charge for the first 100 pages of duplication, then those 100 pages are the first 100 pages of photocopies of standard size pages, or the first 100 pages of computer printout. If this method to calculate the fee reduction cannot be used, then the total duplication fee will be reduced by the normal charge for photocopying a standard size page, multiplied by 100. (4) No charge will be made if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee. (5) If it is determined that a requester (acting either alone or together with others) is breaking down a single request into a series of requests in order to avoid (or reduce) the fees charged, all these requests may be aggregated for purposes of calculating the fees charged. (6) Interest will be charged on unpaid bills beginning on the 31st day following the day the bill was sent. Provisions in 45 CFR part 30, the Department of Health and Human Services regulations governing claims collection, will be used in assessing interest, administrative costs, and penalties, and in taking actions to encourage payment. (c) Fee schedule. The Food and Drug Administration charges the following fees: (1) Manual searching for or reviewing of records. When the search or review is performed by employees at grade GS-1 through GS-8, an hourly rate based on the salary of a GS-5, step 7, employee; when done by a GS-9 through GS-14, an hourly rate based on the salary of a GS-12, step 4, employee; and when done by a GS-15 or above, an hourly rate based on the salary of a GS-15, step 7, employee. In each case, the hourly rate will be computed by taking the current hourly rate for the specified grade and step, adding 16 percent of that rate to cover benefits, and rounding to the nearest whole dollar. As of January 1, 1993, these rates were $12, $24, and $43 respectively. When a search involves employees at more than one of these levels, the Food and Drug Administration will charge the rate appropriate for each. (2) Computer searching and printing. The actual cost of operating the computer plus charges for the time spent by the operator, at the rates given in paragraph (c)(1) of this section. (3) Photocopying standard size pages. $0.10 per page. Freedom of Information Officers may charge lower fees for particular documents where: (i) The document has already been printed in large numbers; (ii) The program office determines that using existing stock to answer this request, and any other anticipated Freedom of Information requests, will not interfere with program requirements; and (iii) The Freedom of Information Officer determines that the lower fee is adequate to recover the prorated share of the original printing costs. (4) Photocopying odd-size documents (such as punchcards or blueprints), or reproducing other records (such as tapes). The actual costs of operating the machine, plus the actual cost of the materials used, plus charges for the time spent by the operator, at the rates given in paragraph (c)(1) of this section. (5) Certifying that records are true copies. This service is not required by the Freedom of Information Act. If the Food and Drug Administration agrees to provide certification, there is a $10 charge per certification. (6) Sending records by express mail, certified mail, or other special methods. This service is not required by the Freedom of Information Act. If the Food and Drug Administration agrees to provide this service, actual costs will be charged. (7) Performing any other special service in connection with a request to which the Food and Drug Administration has agreed. Actual costs of operating any machinery, plus actual cost of any materials used, plus charges for the time of the Food and Drug Administration's employees, at the rates given in paragraph (c)(1) of this section. (d) Procedures for assessing and collecting fees. (1) Agreement to pay. The Food and Drug Administration generally assumes that a requester is willing to pay the fees charged for services associated with the request. The requester may specify a limit on the amount to be spent. If it appears that the fees will exceed the limit, the Food and Drug Administration will consult the requester to determine whether to proceed with the search. (2) Advance payment. If a requester has failed to pay previous bills in a timely fashion, or if the Food and Drug Administration's initial review of the request indicates that the charges will exceed $250, the requester will be required to pay past due fees and/or the estimated fees, or a deposit, before the search for the requested records begins. In such cases, the requester will be notified promptly upon receipt of the request, and the administrative time limits prescribed in Sec. 20.41 will begin only after there is an agreement with the requester over payment of fees, or a decision that fee waiver or reduction is appropriate. (3) Billing and payment. Ordinarily, the requester will be required to pay all fees before the Food and Drug Administration will furnish the records. At its discretion, the Food and Drug Administration may send the requester a bill along with or following the records. For example, the Food and Drug Administration may do this if the requester has a history of prompt payment. The Food and Drug Administration may also, at its discretion, aggregate the charges for certain time periods in order to avoid sending numerous small bills to frequent requesters, or to businesses or agents representing requesters. For example, the Food and Drug Administration might send a bill to such a requester once a month. Fees should be paid in accordance with the instructions furnished by the person who responds to the request. 4. Section 20.43 is revised to read as follows: Sec. 20.43 Waiver or reduction of fees. (a) Standard. The Associate Commissioner for Public Affairs will waive or reduce the fees that would otherwise be charged if disclosure of the information meets both of the following tests: (1) Is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government; and (2) It is not primarily in the commercial interest of the requester. These two tests are explained in paragraphs (b) and (c) of this section. (b) Public interest. Disclosure of information satisfies the first test only if it furthers the specific public interest of being likely to contribute significantly to public understanding of Government operations or activities, regardless of any other public interest it may further. In analyzing this question, the Food and Drug Administration will consider the following factors: (1) Whether the records to be disclosed pertain to the operations or activities of the Federal Government; (2) Whether disclosure of the records would reveal any meaningful information about Government operations or activities that is not already public knowledge; (3) Whether disclosure will advance the understanding of the general public as distinguished from a narrow segment of interested persons. Under this factor, the Food and Drug Administration may consider whether the requester is in a position to contribute to public understanding. For example, the Food and Drug Administration may consider whether the requester has such knowledge or expertise as may be necessary to understand the information, and whether the requester's intended use of the information would be likely to disseminate the information to the public. An unsupported claim to be doing research for a book or article does not demonstrate that likelihood, while such a claim by a representative of the news media is better evidence; and (4) Whether the contribution to public understanding will be a significant one, i.e., will the public's understanding of the Government's operations be substantially greater as a result of the disclosure. (c) Not primarily in the requester's commercial interest. If disclosure passes the test of furthering the specific public interest described in paragraph (b) of this section, the Food and Drug Administration will determine whether disclosure also furthers the requester's commercial interest and, if so, whether this effect outweighs the advancement of that public interest. In applying this second test, the Food and Drug Administration will consider the following factors: (1) Whether disclosure would further a commercial interest of the requester, or of someone on whose behalf the requester is acting. Commercial interests include interests relating to business, trade, and profit. Both profit and nonprofit-making corporations have commercial interests, as well as individuals, unions, and other associations. The interest of a representative of the news media in using the information for news dissemination purposes will not be considered a commercial interest. (2) If disclosure would further a commercial interest of the requester, whether that effect outweighs the advancement of the public interest as defined in paragraph (b) of this section. (d) Deciding between waiver and reduction. If the disclosure of the information requested passes both tests described in paragraphs (b) and (c) of this section, the Food and Drug Administration will normally waive fees. However, in some cases the Food and Drug Administration may decide only to reduce the fees. For example, the Food and Drug Administration may do this when disclosure of some but not all of the requested records passes the tests. (e) Procedure for requesting a waiver or reduction. A requester must request a waiver or reduction of fees at the same time as the request for records. The requester should explain why a waiver or reduction is proper under the factors set forth in paragraphs (a) through (d) of this section. Only the Associate Commissioner for Public Affairs may make the decision whether to waive or reduce the fees. If the Food and Drug Administration does not completely grant the request for a waiver or reduction, the denial letter will designate a review official. The requester may appeal the denial to that official. The appeal letter should address reasons for the Associate Commissioner's decision that are set forth in the denial letter. 5. Section 20.53 is amended by revising the last sentence to read as follows: Sec. 20.53 Indexing trade secrets and confidential commercial or financial information. * * * If the affected person fails to intervene to defend the exempt status of the records and to itemize and index the disputed records, the Food and Drug Administration will take this failure into consideration in deciding whether that person has waived such exemption so as to require the Food and Drug Administration to promptly make the records available for public disclosure. 6. Section 20.61 is amended by revising paragraph (a) and by adding new paragraphs (d), (e), and (f) to read as follows: Sec. 20.61 Trade secrets and commercial or financial information which is privileged or confidential. (a) A trade secret may consist of any commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort. There must be a direct relationship between the trade secret and the productive process. * * * * * (d) A person who submits records to the Government may designate part or all of the information in such records as exempt from disclosure under exemption 4 of the Freedom of Information Act. The person may make this designation either at the time the records are submitted to the Government or within a reasonable time thereafter. The designation must be in writing. Where a legend is required by a request for proposals or request for quotations, pursuant to 48 CFR 352.215-12, then that legend is necessary for this purpose. Any such designation will expire 10 years after the records were submitted to the Government. (e) The procedures in this paragraph apply to records on which the submitter has designated information as provided in paragraph (d) of this section. These procedures also apply to records that were submitted to the Food and Drug Administration when the agency has substantial reason to believe that information in the records could reasonably be considered exempt under exemption 4 of the Freedom of Information Act. Certain exceptions to these procedures are set forth in paragraph (f) of this section. (1) When the Food and Drug Administration receives a request for such records and determines that disclosure may be required, the Food and Drug Administration will make reasonable efforts to notify the submitter about these facts. The notice will include a copy of the request, and it will inform the submitter about the procedures and time limits for submission and consideration of objections to disclosure. If the Food and Drug Administration must notify a large number of submitters, notification may be done by posting or publishing a notice in a place where the submitters are reasonably likely to become aware of it. (2) The submitter has 5 working days from receipt of the notice to object to disclosure of any part of the records and to state all bases for its objections. (3) The Food and Drug Administration will give consideration to all bases that have been stated in a timely manner by the submitter. If the Food and Drug Administration decides to disclose the records, the Food and Drug Administration will notify the submitter in writing. This notice will briefly explain why the agency did not sustain the submitter's objections. The Food and Drug Administration will include with the notice a copy of the records about which the submitter objected, as the agency proposes to disclose them. The notice will state that the Food and Drug Administration intends to disclose the records 5 working days after the submitter receives the notice unless a U.S. District Court orders the agency not to release them. (4) If a requester files suit under the Freedom of Information Act to obtain records covered by this paragraph, the Food and Drug Administration will promptly notify the submitter. (5) Whenever the Food and Drug Administration sends a notice to a submitter under paragraph (e)(1) of this section, the Food and Drug Administration will notify the requester that the Food and Drug Administration is giving the submitter a notice and an opportunity to object. Whenever the Food and Drug Administration sends a notice to a submitter under paragraph (e)(3) of this section, the Food and Drug Administration will notify the requester of this fact. (f) The notice requirements in paragraph (e) of this section do not apply in the following situations: (1) The Food and Drug Administration decided not to disclose the records; (2) The information has previously been published or made generally available; (3) Disclosure is required by a regulation issued after notice and opportunity for public comment, that specifies narrow categories of records that are to be disclosed under the Freedom of Information Act, but in this case a submitter may still designate records as described in paragraph (d) of this section, and in exceptional cases, the Food and Drug Administration may, at its discretion, follow the notice procedures in paragraph (e) of this section; (4) The information requested has not been designated by the submitter as exempt from disclosure when the submitter had an opportunity to do so at the time of submission of the information or within a reasonable time thereafter, unless the Food and Drug Administration has substantial reason to believe that disclosure of the information would result in competitive harm; or (5) The designation appears to be obviously frivolous, but in this case the Food and Drug Administration will still give the submitter the written notice required by paragraph (e)(3) of this section (although this notice need not explain our decision or include a copy of the records), and the Food and Drug Administration will notify the requester as described in paragraph (e)(5) of this section. 7. Section 20.64 is amended by revising the section heading and paragraph (a), and by removing the word ``investigatory'' in paragraphs (b), (c) introductory text, (d) introductory text, and (e) to read as follows: Sec. 20.64 Records or information compiled for law enforcement purposes. (a) Records or information compiled for law enforcement purposes may be withheld from public disclosure pursuant to the provisions of this section to the extent that disclosure of such records or information: (1) Could reasonably be expected to interfere with enforcement proceedings; (2) Would deprive a person to a right to a fair trial or an impartial adjudication; (3) Could reasonably be expected to constitute an unwarranted invasion of personal privacy; (4) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis; and information furnished by a confidential source in the case of a record compiled by the Food and Drug Administration or any other criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation; (5) Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions, if such disclosure could reasonably be expected to risk circumvention of the law; or (6) Could reasonably be expected to endanger the life or physical safety of any individual. * * * * * Sec. 20.81 [Amended] 8. Section 20.81 Data and information previously disclosed to the public is amended in paragraph (a)(3) by removing the phrase ``part 312 of this chapter or other''. Sec. 20.85 [Amended] 9. Section 20.85 Disclosure to other Federal government departments and agencies is amended in the last sentence by removing the words ``an agreement'' and adding in their place the words ``a written agreement''. 10. Section 20.87 is amended by revising paragraph (a) to read as follows: Sec. 20.87 Disclosure to Congress. (a) All records of the Food and Drug Administration shall be disclosed to Congress upon an authorized request. * * * * * 11. Section 20.100 is amended by revising paragraphs (c)(7), (c)(14), (c)(16), and (c)(17) and by adding new paragraphs (c)(35) through (c)(40) to read as follows: Sec. 20.100 Applicability; cross-reference to other regulations. * * * * * (c) * * * * * * * * (7) Food additive petitions, in Secs. 171.1(h) and 571.1(h) of this chapter. * * * * * (14) Investigational new drug notice, in Sec. 312.130 of this chapter. * * * * * (16) Master file for a new drug application, in Sec. 312.420 of this chapter. (17) New drug application file, in Sec. 314.430 of this chapter. * * * * * (35) Premarket approval application, in Sec. 814.9 of this chapter. (36) Report of certain adverse experiences with a medical device, in Sec. 803.9 of this chapter. (37) Disqualification determination of an institutional review board, in Sec. 56.122 of this chapter. (38) Disqualification determination of a nonclinical laboratory, in Sec. 58.213 of this chapter. (39) Minutes or records regarding a public advisory committee, in Sec. 14.65(c) of this chapter. (40) Data submitted regarding persons receiving an implanted pacemaker device or lead, in Sec. 805.25 of this chapter. Dated: December 23, 1993. Michael R. Taylor, Deputy Commissioner for Policy. [FR Doc. 94-98 Filed 1-4-94; 8:45 am] BILLING CODE 4160-01-P