[Federal Register Volume 59, Number 237 (Monday, December 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30497]


[[Page Unknown]]

[Federal Register: December 12, 1994]


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DEPARTMENT OF ENERGY

10 CFR Part 1004

RIN 1901-AA62

 

Freedom of Information

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) amends its regulations 
concerning its policies on disclosure of information. The purpose of 
this rulemaking is to state the agency's policy on contractor records 
requested under the Freedom of Information Act (FOIA).

EFFECTIVE DATE: January 11, 1995.

FOR FURTHER INFORMATION CONTACT: Abel Lopez, Office of General Counsel, 
GC-80, U.S. Department of Energy, 1000 Independence Avenue SW., 
Washington, DC 20585, (202) 586-8618.

SUPPLEMENTARY INFORMATION: The Freedom of Information Reform Act of 
1986, Pub. L. No. 99-570, 100 Stat. 3207-49, requires that each agency 
promulgate regulations to establish procedures and guidelines to 
process requests received under FOIA. This final rule amends DOE's FOIA 
regulation and supersedes DOE Order 1700.1 to state the DOE policy on 
access to contractor records.
    Under existing law, information becomes part of the agency's 
records only when the Government either created or obtained the 
information and has control over the information at the time of a FOIA 
request. See, e.g., Department of Justice v. Tax Analysts, 492 U.S. 
136, 142-145 (1989). The Supreme Court has reasoned that FOIA imposes 
no obligations on agencies to create or retain records and that use of 
federal funds and the Government's potential access to records do not 
necessarily transform records into ``agency records'' subject to FOIA, 
unless the agency in fact obtains the records. Forsham v. Harris, 445 
U.S. 169, 180-186 (1980), Kissinger v. Reporters Committee for Freedom 
of the Press, 445 U.S. 136, 151-153 (1980).
    Nonetheless, as reflected in DOE Order 1700.1, DOE's past policy, 
however, has been to disclose information owned by DOE, whether or not 
the Government has actual possession of the information at the time of 
the request. Under DOE Order 1700.1, moreover, records not owned by DOE 
pursuant to a contract are disclosed under FOIA only if the DOE has 
possession of them.
    The court in Committee to Bridge the Gap v. Department of Energy, 
No. CV 90-3568-ER (C.D. Cal. Oct 15, 1991), held that the DOE's policy 
on contractor records constitutes a substantive rule under the 
Administrative Procedure Act, and, therefore, DOE's treatment of 
contractor records should be promulgated through formal notice and 
comment rulemaking. Thus, this final rule supersedes DOE Order 1700.1 
and establishes DOE's policy to provide for more public access to 
information than is mandated by existing law.
    On October 23, 1991, DOE published in the Federal Register (56 FR 
55036), a proposal to amend the regulations that included a statement 
of the DOE policy on contractor records. The proposed policy provided 
that, with certain exceptions, contractor records that were the 
property of the Government were subject to disclosure under FOIA, 
whether or not DOE had possession of the documents at the time of a 
request. Forty-three comments were received by the agency on the 
proposed policy. The comments criticizing the proposed policy on 
contractor records broke into the two groups. One group of commentors 
took exception to the proposed DOE contractor records policy because it 
extended the scope of documents available under FOIA beyond that which 
is required by existing case law to include records not in the 
possession of DOE. These commentors stated that, regardless of 
ownership, DOE should apply FOIA only to records in the possession of 
DOE in order to protect the confidentiality of certain information. The 
second group of commentors opined that since government funds are 
expended to create contractor records, all such records should be made 
available to the public under FOIA.
    DOE has reviewed all the comments and has determined to adopt the 
contractor records policy proposed in October 1991 as modified below as 
a final rule. Although DOE appreciates the views of both groups of 
commentors regarding access to contractor records, the contractor 
records policy adopted by DOE promotes openness in government and 
continues to provide the public access to DOE contractor records. Some 
members of the public commented that the proposed rule would subject 
the public's right of access to contractor records to the vicissitudes 
of DOE's policies regarding contractual provisions on ownership of 
records. However, DOE's management and operating contracts provide that 
most records acquired or generated by the contractor in its performance 
of the contract are the property of the government. Additionally, the 
government has a general right to inspect, copy, and audit records 
acquired or generated by the contractor in connection with contract 
performance, including those records not owned by the government. The 
new rule makes clear that even were a requested record not owned under 
the contract by the government, DOE can exercise its contractual rights 
to acquire possession of the record if necessary to maximize public 
disclosure of records concerning health, safety, and the environment.
    The new policy also recognizes the necessity to maintain the 
confidentiality of certain privileged and commercially sensitive 
information to protect legitimate contractor interests and the 
integrity of the Government's operations. The contractor records policy 
adopted today is not intended to affect any records management 
responsibilities of a DOE contractor under the Records Disposal Act, 44 
U.S.C. Sec. 3301.
    DOE expects to republish in the Federal Register the remainder of 
the revisions proposed as a Final Rule in the near future.

Procedural Information

Executive Order 12866

    It has been determined that this action is not a ``significant 
regulatory action'' under the Executive Order 12866, ``Regulatory 
Planning and Review,'' (58 FR 51735, October 4, 1993). Accordingly, 
this action was not subject to review under that executive order by the 
Office of Information and Regulatory Affairs of the Office of 
Management and Budget.

Executive Order 12612

    Executive Order 12612 requires that regulations or rules be 
reviewed for direct effects on States, on the relationship between the 
national government and the States, or in the distribution of power 
among various levels of government. If there are sufficient substantial 
direct effects, then Executive Order 12612 requires preparation of a 
federalism assessment to be used in all decisions involved in 
promulgating or implementing a regulation or rule.
    Today's regulatory action does not affect any traditional State 
function. There are therefore no substantial effects requiring 
evaluation or assessment under Executive Order 12612.

Regulatory Flexibility Analysis

    This regulation was reviewed under the Regulatory Flexibility Act, 
5 U.S.C. 601 et seq., which requires preparation of a regulatory 
flexibility analysis for any regulations that will have a significant 
economic impact on a substantial number of small entities. DOE finds 
that sections 603 and 604 of that Act do not apply to this rule because 
it will not have a significant economic impact on a substantial number 
of small entities. Thus the preparation of a regulatory flexibility 
analysis is not warranted.

National Environmental Policy Act

    There is no impact on the human environment under the regulatory 
amendments being issued today. Accordingly, DOE has determined that 
this is not a major Federal action on which significant impact upon the 
quality of the human environment and, therefore, preparation of an 
environmental assessment or an environmental impact statement is not 
required and categorically excluded from preparation under the National 
Environmental Policy Act pursuant to Appendix A6 of 10 CFR Part 1021.

Paperwork Reduction Act

    This rule will not require a collection of information, and, 
accordingly, clearance is not required by the Office of Management and 
Budget under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et 
seq.).

Executive Order 12778

    Section 2 of Executive Order 12778 instructs each agency to adhere 
to certain requirements in promulgating new regulations and reviewing 
existing regulations. These requirements, set forth in sections 2(a) 
and (b)(2), include eliminating drafting errors and needless ambiguity, 
drafting the regulations to minimize litigation, providing clear and 
certain legal standards for affected conduct, and promoting 
simplification and burden reductions. Agencies are also instructed to 
make every effort to ensure that the regulation specifies clearly a 
preemptive effect, effect on existing Federal law or regulation, and 
retroactive effect; describes any administrative proceedings; and 
defines key terms. The DOE certifies that today's final rule meets the 
requirements of sections 2(a) and (b)(2) of Executive Order 12778.

List of Subjects in 10 CFR Part 1004

    Freedom of Information.

    Issued in Washington, DC on December 7, 1994.
Robert R. Nordhaus,
General Counsel.

    For the reasons set out in the preamble, chapter X of title 10, 
part 1004 of the Code of Federal Regulations is amended as set forth 
below.

PART 1004--FREEDOM OF INFORMATION

    1. The authority citation for Part 1004 continues to read as 
follows:

    Authority: 5 U.S.C. 552.

    2. Section 1004.3 is amended by revising the section heading, 
reserving paragraph (d), and adding paragraph (e) as follows:


Sec. 1004.3  Public reading facilities and policy on contractor 
records.

* * * * *
    (d) [Reserved]
    (e) Contractor Records.
    (1) When a contract with DOE provides that any records acquired or 
generated by the contractor in its performance of the contract shall be 
the property of the Government, DOE will make available to the public 
such records that are in the possession of the Government or the 
contractor, unless the records are exempt from public disclosure under 
5 U.S.C. 552(b)(2).
    (2) Notwithstanding paragraph (e)(1) of this section, records owned 
by the Government under contract that contain information or technical 
data having commercial value as defined in Sec. 1004.3(e)(4) or 
information for which the contractor claims a privilege recognized 
under federal or state law shall be made available only when they are 
in the possession of the Government and not otherwise exempt under 5 
U.S.C. 552(b).
    (3) The policies stated in this paragraph:
    (i) Do not affect or alter contractors' obligations to provide to 
DOE upon request any records that DOE owns under contract, or DOE's 
rights under contract to obtain any contractor records and to determine 
their disposition, including public dissemination; and
    (ii) Will be applied by DOE to maximize public disclosure of 
records that pertain to concerns about the environment, public health 
or safety, or employee grievances.
    (4) For purposes of Sec. 1004.3(e)(2), ``technical data and 
information having commercial value'' means technical data and related 
commercial or financial information which is generated or acquired by a 
contractor and possessed by that contractor, and whose disclosure the 
contractor certifies to DOE would cause competitive harm to the 
commercial value or use of the information or data.

[FR Doc. 94-30497 Filed 12-9-94; 8:45 am]
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