[Federal Register Volume 61, Number 150 (Friday, August 2, 1996)]
[Rules and Regulations]
[Pages 40332-40336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18884]


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ARMS CONTROL AND DISARMAMENT AGENCY

22 CFR Part 602


Freedom of Information Policy and Procedures

Agency: Arms Control and Disarmament Agency.

Action: Final rule.

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Summary: The United States Arms Control and Disarmament Agency (ACDA) 
is revising and restating in their entirety its rules that govern the 
availability and release of information. Clarifying these rules will 
help the public to interact better with ACDA and is part of ACDA's 
effort to update and streamline its regulations.

Effective Date: August 2, 1996.

For Further Information Contact: Frederick Smith, Jr., United States 
Arms Control and Disarmament Agency, Room 5635, 320 21st Street, N.W., 
Washington, DC 20451, telephone (202) 647-3596.

Supplementary Information: On May 30, 1996, ACDA published a notice of 
proposed rulemaking (61 FR 27031-27036) with a 39-day comment period. 
No comments were received during the comment period. Accordingly, the 
rules are adopted as proposed.

List of Subjects in 22 CFR Part 602

    Freedom of Information Act.

    Chapter VI of Title 22 of the Code of Federal Regulations is 
amended by revising part 602 to read as follows:

PART 602--FREEDOM OF INFORMATION POLICY AND PROCEDURES

    Authority: 5 U.S.C. 552; 22 U.S.C. 2581; and 31 U.S.C. 9701.

Subpart A--Basic Policy

Sec.
602.1  Scope of part.
602.2  Definitions.
602.3  General policy.

Subpart B--Procedure for Requesting Records

602.10  Requests for records.
602.11  Requests in person.
602.12  Availability of records at the ACDA Office of Public 
Affairs.
602.13  Copies of records.
602.14  Records of other agencies, governments and international 
organizations.
602.15  Overseas requests.
602.16  Responses and time limits on requests.
602.17  Time extensions.
602.18  Inability to comply with requests.
602.19  Predisclosure notification for confidential commercial 
information.

[[Page 40333]]

Subpart C--Fees
602.20  Fees for records search, review, copying, certification, and 
related services.
602.21  Waiver or reduction of fees.
602.22  [Reserved]
602.23  GPO and free publications.
602.24  Method of payment.
Subpart D--Denials of Records
602.30  Denials.
602.31  Exemptions.
Subpart E--Review of Denials of Records
602.40  Procedure for appealing initial determinations to withhold 
records.
602.41  Decision on appeal.
Subpart F--Annual Report to the Congress

602.50  Requirements for annual report.

    Authority: U.S.C. 552; 22 U.S.C. 2581; and 31 U.S.C. 9701.

Subpart A--Basic Policy


Sec. 602.1  Scope of part.

    This part 602 establishes the policies, responsibilities and 
procedures for release to members of the public of records which are 
under the jurisdiction of the U.S. Arms Control and Disarmament Agency.


Sec. 602.2  Definitions.

    As used throughout this part, the following terms have the meanings 
set forth in this section:
    (a) The term Agency and the acronym ACDA stand for the U.S. Arms 
Control and Disarmament Agency.
    (b) The term records includes all books, papers, maps, photographs, 
or other documentary materials, regardless of physical form or 
characteristics, made or received by the Agency in pursuance of Federal 
law or in connection with the transaction of public business and 
preserved or appropriate for preservation by the Agency or its 
legitimate successor as evidence of the organization, functions, 
policies, decisions, procedures, operations, or other activities of the 
Government or because of the informational value of data contained 
therein. Library or museum material made or acquired solely for 
reference or exhibition purposes is not included within the definition 
of the term ``records.''
    (c) Deputy Director means the Deputy Director of the Agency.
    (d) The acronym FOIA stands for the Freedom of Information Act, as 
amended (5 U.S.C. 552).


Sec. 602.3  General policy.

    (a) In accordance with section 2 of the Arms Control and 
Disarmament Act, as amended (22 U.S.C. 2551), it is the policy of ACDA 
to carry out as one of its primary functions the dissemination and 
coordination of public information concerning arms control, 
nonproliferation, and disarmament.
    (b) In compliance with the FOIA, ACDA will make available upon 
request by members of the public to the fullest extent practicable all 
Agency records under its jurisdiction, as described in the FOIA, except 
to the extent that they may be exempt from disclosure under the FOIA 
and Sec. 602.31
.Subpart B--Procedure for Requesting Records
.Sec. 602.10  Requests for records.
    .(a) A written request for records should be addressed to: FOIA 
Officer, U.S. Arms Control and Disarmament Agency, 320 21st Street, 
NW., Washington, DC 20451. To facilitate processing, the letter of 
request and envelope should be conspicuously marked ``FOIA request.''
    .(b) The request should identify the desired record or reasonably 
describe it. The identification should be as specific as possible so 
that a record can be found readily. Blanket requests or requests for 
``the entire file of'' or ``all matters relating to'' a specified 
subject will not be accepted. The Agency will make any reasonable 
effort to assist the requester in sharpening the request to eliminate 
extraneous and unwanted materials and to keep search and copying fees 
to a minimum.
    .(c) If a fee is chargeable under subpart C of this part for search 
or duplication costs incurred in connection with a request for an 
Agency record, the request should include the anticipated fee or should 
ask for a determination of such fee. Any chargeable fee must be paid in 
full prior to issuance of requested materials. The method of payment is 
described in Sec. 602.24.
.Sec. 602.11  Requests in person.
    .A member of the public may request an Agency record by making an 
appointment to apply in person between the hours of 8:30 a.m. and 4 
p.m. at the ACDA Office of Public Affairs, 320 21st Street, NW., 
Washington, DC 20451. Form ACDA-21, Public Information Service Request, 
is available at the ACDA Office of Public Affairs for the convenience 
of members of the public in requesting Agency records.
.Sec. 602.12  Availability of records at the ACDA Office of Public 
Affairs.
    .(a) A current index identifying all available records is kept on 
file at the ACDA Office of Public Affairs. Copies of this index may be 
obtained free upon request.
    .(b) In addition, the ACDA Office of Public Affairs will maintain 
or have available, unless authorized to be withheld, certain types of 
unclassified records, including but not necessarily limited to the 
following:
    (1) A copy of the ACDA Manual and other Agency regulations, 
including a copy of title 22 of the Code of Federal Regulations (CFR) 
and any other title of the CFR in which Agency regulations have been 
published;
    (2) Copies of arms control and disarmament treaties or agreements 
in force;
    (3) Research contracts between the Agency and universities or other 
non-Government organizations; and
    (4) Reimbursable agreements with other Government agencies.
    (c) Copies of records available to the public may be inspected by a 
requester in the ACDA Office of Public Affairs during the business 
hours stated in Sec. 602.11. Copies of records made available for 
inspection may not be removed by any requester from the ACDA Office of 
Public Affairs.


Sec. 602.13  Copies of records.

    (a) The Agency will provide copies of requested records of the same 
type and quality that it would provide to personnel of another U.S. 
Government agency in the course of official business. It will not 
accept requests for special types of copying processes or for special 
standards of quality of reproduction.
    (b) Copies of records requested will be reproduced as promptly as 
possible and mailed to the requester. Chargeable fees will be 
determined according to the schedule set forth in subpart C of this 
part. The FOIA Officer is authorized to limit copies of each requested 
record to ten or fewer when there exists an extraordinary demand for 
the number of available copies or when requirements place excessive 
demands on the Agency's copying facilities.


Sec. 602.14  Records of other agencies, governments and international 
organizations.

    (a) Requests for records that were originated by or are primarily 
the concern of another U.S. Government department or agency shall be 
forwarded to the particular department or agency involved, and the 
requester notified in writing.
    (b) Requests for records that have been furnished to the Agency by 
foreign governments or by international organizations will not normally 
be released unless the organization or government concerned has 
indicated that the particular information should or may be made public. 
Where international organizations or foreign governments concerned have 
not made such a determination, the requester will be so advised, and if 
possible, furnished

[[Page 40334]]

the address to which the request may be sent.


Sec. 602.15  Overseas requests.

    Pursuant to the general policy outlined in Sec. 602.3, ACDA has 
made arrangements to provide the United States Information Agency 
(USIA) with material for dissemination abroad, such as information on 
official U.S. positions on arms control and disarmament policy. 
Requests originating in an area served by a USIA office which are 
received at Agency headquarters, will be referred to USIA when 
appropriate for direct response to the requester.


Sec. 602.16  Responses and time limits on requests.

    (a) The FOIA requires an initial determination on a request for an 
Agency record to be made within ten working days after receipt of the 
request.
    (b) If it is determined that the requested record (or portions 
thereof) will be made available, the requested material will be 
forwarded promptly after the initial determination, provided any 
applicable fee has been paid in full.
    (c) If prior to making an initial determination it is anticipated 
that the costs chargeable for a request will amount to more than $25.00 
or more than the amount of the payment accompanying the request, 
whichever is larger, the requester shall be promptly notified of the 
total amount of the anticipated fee or such portion thereof as can 
readily be estimated. In these instances, an advance deposit in the 
estimated amount of the search, review, and copying costs may be 
required. The request for an advance deposit shall extend an offer to 
the requester to consult with Agency personnel in order to reformulate 
the request in a manner that will reduce the fee, yet still meet the 
needs of the requester.
    (d) In instances where the Agency has requested an advance deposit, 
the date of receipt of the deposit will be considered as the request 
date which begins the period of response by the Agency.
    (e) Receipt of a request for Agency records will be determined by 
the time and date the request is received.
    (f) Where an obvious delay in receipt of a request has occurred, 
such as in cases where the requester has failed to address the request 
properly, or where a delay has been caused in the mails, the Agency 
will dispatch to the requester an acknowledgment of the receipt of the 
request.


Sec. 602.17  Time extensions.

    (a) In unusual circumstances, the time limit for an initial or 
final determination may be extended, but not to exceed a total of ten 
working days in the aggregate in the processing of any specific request 
for an Agency record.
    (b) ``Unusual circumstances'' means, but only to the extent 
reasonably necessary to the proper processing of the particular case:
    (1) The need to search for and collect the requested records from 
other establishments that are physically separate from ACDA 
headquarters;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request.


Sec. 602.18  Inability to comply with requests.

    (a) When a request cannot be fulfilled, the requester will be so 
informed with reasons, and any fees returned after deduction of 
applicable search costs. Such reasons may include, but are not limited 
to the following:
    (1) Insufficient or vague identifying information which makes 
identification or location of the record impossible;
    (2) No such record in existence;
    (3) Record available for purchase from the Government Printing 
Office or elsewhere; or
    (4) Records destroyed pursuant to the Records Disposal Act.
    (b) Inability to comply with requests shall be processed the same 
as denials of records, i.e., notification to the requester shall be in 
writing, shall set forth the reasons therefor, shall be signed by the 
name and title of the FOIA Officer, and shall include an explanation of 
the requester's right to appeal, including the address to which an 
appeal may be directed.


Sec. 602.19  Predisclosure notification for confidential commercial 
information

    (a) When notification is required. If a request under the FOIA 
seeks a record that contains information submitted by a person or 
entity outside the Federal government that arguably is exempt from 
disclosure under exemption 4 of the FOIA because disclosure could 
reasonably be expected to cause substantial competitive harm, the 
Agency shall notify the submitter that such a request has been made 
whenever:
    (1) The submitter has made a good faith designation of information, 
less than ten years old, as confidential commercial or financial 
information, or
    (2) The Agency has reason to believe that disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm.
    (b) Notification to submitter. The notice to the submitter shall 
either describe the exact nature of the business information requested 
or provide copies of the records or portions of records containing the 
information. The notice shall afford the submitter a reasonable period 
of time, based on the amount and/or complexity of the information, 
within which to object to disclosure.
    (c) Objection by submitter. Any objection by a submitter to 
disclosure must be made in writing and sent to: FOIA Officer, U.S. Arms 
Control and Disarmament Agency, 320 21st Street, NW., Washington, DC 
20451. It should identify the portion(s) of the information to which 
disclosure is objected, and should include a detailed statement of all 
claimed grounds for withholding any of the information under the FOIA 
and, in the case of exemption 4, an explanation of why the information 
constitutes a trade secret or commercial or financial information that 
is privileged and confidential, including a specification of any claim 
of competitive or other business harm that would result from 
disclosure.
    (d) Notification to requester. The Agency shall notify the 
requester in writing when any notification to a submitter is made 
pursuant to paragraph (a) of this section.
    (e) When notification is not required. Notification to a submitter 
is not required if:
    (1) The Agency determines that the information requested should not 
be disclosed;
    (2) Disclosure is required by statute (other than FOIA) or by 
regulation; or
    (3) The information has previously been lawfully published or 
officially made available to the public.
    (f) Notice of intent to disclose. If the Agency determines that 
despite the objection of the submitter the requested information should 
be disclosed, in whole or in part, it shall notify both the requester 
and the submitter of the decision and shall provide to the submitter in 
writing:
    (1) A brief explanation of why the submitter's objections were not 
sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date that provides a reasonable period 
of time between receipt of the notice and the disclosure date.
    (g) Notice of lawsuit. (1) Whenever a requester brings legal action 
to compel disclosure of information covered by paragraph (a) of this 
section, the Agency

[[Page 40335]]

shall promptly notify the submitter in writing.
    (2) Whenever a submitter brings legal action to prevent disclosure 
of information covered by paragraph (a) of this section, the Agency 
shall promptly notify the requester in writing.

Subpart C--Fees


Sec. 620.20  Fees for records search, review, copying, certification, 
and related services.

    The fees for search, review, and copying services for Agency 
records under the FOIA or the Privacy Act are as follows:
    (a) When documents are requested for commercial use, requesters 
will be assessed the full direct costs for searching for, reviewing for 
release, and copying the records sought. A ``commercial use'' request 
refers to a request from or on behalf of one who seeks information for 
a use or purpose that furthers the commercial, trade, or profit 
interests of the requester or the person on whose behalf the request is 
made.
    (b) Requesters from educational and noncommercial scientific 
institutions will be assessed only copying costs.
    (c) Requesters who are representatives of the news media (persons 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public) will be assessed only copying 
costs.
    (d) All other requesters will be assessed fees which recover the 
full and reasonable direct cost of searching for, reviewing for 
release, and copying records that are responsive to the request.
    (e) Requesters from educational and noncommercial scientific 
institutions, representatives of the news media, and all other 
noncommercial users, will not be assessed for the first 100 pages of 
copying or the first two hours of search time. Commercial use 
requesters will not be entitled to these free services.
    (f) The search and review hourly fees will be based upon employee 
grade levels in order to recoup the full, allowable direct costs 
attributable to their performance of these functions.
    (g) The fee for paper copy reproduction will be $.20 per page.
    (h) The fee for duplication of computer tape or printout 
reproduction or other reproduction (e.g., microfiche) will be the 
actual, cost, including operator time.
    (i) If the cost of collecting any fee would be equal to or greater 
than the fee itself, it will not be assessed.
    (j) A fee may be charged for searches that are not productive and 
for searches for records or parts of records that subsequently are 
determined to be exempt from disclosure.
    (k) Interest charges may be assessed on any unpaid bill starting on 
the 31st day following the day on which the billing was sent, at the 
rate prescribed in 31 U.S.C. 3717 and will accrue from the date of 
billing. The Debt Collection Act, including disclosure to consumer 
reporting agencies and the use of collection agencies, will be utilized 
to encourage payment where appropriate.
    (l) If search charges are likely to exceed $25.00, the requester 
will be notified of the estimated fees unless the requester's 
willingness to pay whatever fee is assessed has been provided in 
advance.
    (m) An advance payment (before work is commenced or continued on a 
request) may be required if the charges are likely to exceed $250.00. 
Requesters who have previously failed to pay a fee in a timely fashion 
(i.e., within 30 days of the date of billing) may be required to pay 
this amount plus any applicable interest (or demonstrate that the fee 
has been paid) and them make an advance payment of the full amount of 
the estimated fee before the new or pending request is processed.


Sec. 602.21  Waiver or reduction of fees.

    Documents shall be furnished without any charge or at a charge 
reduced below the fees set forth in Sec. 602.20 if disclosure of the 
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 is not primarily in the commercial 
interest of the requester. The following six factors will be employed 
in determining when such fees shall be waived or reduced:
    (a) The subject of the request: Whether the subject of the 
requested records concerns ``the operations or activities of the 
government;''
    (b) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities;
    (c) The contribution to an understanding of the subject by the 
general public likely to result from disclosure: Whether disclosure of 
the information will contribute to the ``public understanding;''
    (d) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities;
    (e) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure; and, if so
    (f) The primary interest in disclosure: Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the 
requester.''


Sec. 602.22  [Reserved]


Sec. 602.23  GPO and free publications.

    (a) The index of records available in the Agency's Office of Public 
Affairs will list the sales offices of records published by the 
Government Printing Office (GPO). The Agency will refer each requester 
to the appropriate sales office and refund any fee payments 
accompanying the request. Published records out of print at the GPO may 
be copied by the Agency for the requester at the requester's expense in 
accordance with the fee schedule established for copying service. In 
some instances the Agency may have extra copies of out of print GPO 
records. These extra copies will be provided to requesters at the 
printed GPO price.
    (b) The Agency makes some publications or records available to the 
public without charge. These regulations neither change that practice 
nor require payment of a fee by a requester unless the original stock 
has been exhausted any copying services are necessary to satisfy a 
request.


Sec. 602.24  Method of payment.

    (a) Payment may be in the form of cash, a personal check or bank 
draft drawn on a bank in the United States, or a postal money order. 
Remittances shall be made payable to the Treasury of the United States 
and mailed or delivered to the FOIA Officer, U.S. Arms Control and 
Disarmament Agency, 320 21st Street, NW., Washington, DC 20451. Cash 
should not be sent by mail.
    (b) A receipt for fees paid will be given upon request.

Subpart D--Denials of Records


Sec. 602.30  Denials.

    (a) Requests for inspection or copies of records may be denied 
where the information or record is exempt from disclosure for reasons 
stated in Sec. 602.31.
    (b) Denials shall be in writing, shall set forth the reasons 
therefor, shall be signed by the FOIA Officer and shall include an 
explanation of the requester's right to appeal, including the address 
to which an appeal may be directed.

[[Page 40336]]

Sec. 602.31  Exemptions.

    The requirements of this part to make Agency records available do 
not apply to matters that are:
    (a) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense 
or foreign policy and are in fact properly classified pursuant to such 
Executive Order;
    (b) Related solely to the internal personnel rules and practices of 
the Agency;
    (c) Specifically exempted from disclosure by statute;
    (d) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (e) Inter-agency or intra-agency memoranda or letters that would 
not be available by law to a private party in litigation with the 
Agency;
    (f) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (g) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information.
    (1) Could reasonably be expected to interfere with enforcement 
proceedings;
    (2) Would deprive a person of a right to a fair trial or 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 that furnished information on a 
confidential basis, and, in the case of a record or information 
compiled by a criminal law enforcement authority in the course of a 
criminal investigation, or by an agency conducting a lawful national 
security intelligence investigation, information furnished by a 
confidential source;
    (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.
    (h) Contained in or related to examination, operating or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial 
institutions; or
    (i) Geological and geophysical information and data, including 
maps, concerning wells.

Subpart E--Review of Denials of Records


Sec. 602.40  Procedure for appealing initial determinations to withhold 
records.

    (a) A member of the public who has requested an Agency record in 
accordance with subpart B of this part and who has received an initial 
determination that does comply fully with the request, may appeal such 
a determination.
    (b) The appeal shall:
    (1) Be in writing;
    (2) Be initiated within 30 working days of the initial 
determination denying the request;
    (3) Include a copy of the initial written request, a copy of the 
letter of denial, and the requester's reasons for appealing the denial; 
and
    (4) Be addressed to the Deputy Director, U.S. Arms Control and 
Disarmament Agency, 320 21st Street, NW., Washington, DC 20451.
    (c) The 30-day period for appealing a denial begins on he date of 
the denial letter. The 30-day limitation may be waived by the Agency 
for good cause shown. The Agency will consider any request closed if, 
within 30 working days after a complete or partial denial, the 
requester fails to appeal the denial.


Sec. 602.41  Decision on appeal.

    (a) Review and final determination on an appeal shall be made by 
the Deputy Director.
    (b) [Reserved]
    (c) Review of an appeal shall be made on the submitted record. No 
personal appearance, oral argument, or hearing shall be permitted.
    (d) The final determination on an appeal from a denial shall be 
made by the Deputy Director within 20 working days of receipt of the 
appeal by the Agency.
    (e) If the final determination is to release the withheld material, 
the requester will be notified immediately and the material will be 
forwarded promptly in accordance with the procedure described in 
Sec. 602.16 for notifications of initial determinations.
    (f) If the final determination is to continue to withhold material 
in whole or in part, the requester will be notified immediately of the 
determination, the reasons therefore, and the right to judicial review.
    (g) All decisions will be indexed and available for inspection and 
copying in the same manner as other Agency final orders and opinions, 
if any, under 5 U.S.C. 552(a)(2).

Subpart F--Annual report to the Congress


Sec. 602.50  Requirements for annual report.

    (a) On or before March 1 of each calendar year, ACDA shall submit a 
report covering the preceding calendar year to the Speaker of the House 
of Representatives and the President of the Senate for referral to the 
appropriate committees of the Congress. The report shall include the 
following information:
    (1) The number of determinations made by ACDA not to comply with 
requests for records made to the Agency under this part and the reasons 
for each such determination;
    (2) The number of appeals made by persons under subpart E of this 
part, the result of such appeals, and the reason for the action upon 
each appeal that results in a denial of information;
    (3) The names and titles or positions of each person responsible 
for the denial of records requested under this part, and the number of 
instances of participation for each;
    (4) The results of each proceeding conducted pursuant to 5 U.S.C. 
552(a)(4)(F), including a report of the disciplinary action taken 
against the officer or employee who was primarily responsible for 
improperly withholding records or an explanation of why disciplinary 
action was not taken;
    (5) A copy of this part 602 and any other rule or regulation made 
by ACDA regarding 5 U.S.C. 552;
    (6) A copy of the fee schedule and the total amount of fees 
collected by ACDA for making records available under this part; and
    (7) such other information as indicates efforts to administer fully 
this part.
    (b) The FOIA Officer will be responsible for preparing the report 
for review and submission to the Congress.

    Dated: July 15, 1996.
Mary Elizabeth Hoinkes,
General Counsel.
[FR Doc. 96-18884 Filed 8-1-96; 8:45 am]
BILLING CODE 6820-32-M