[Federal Register Volume 61, Number 162 (Tuesday, August 20, 1996)]
[Rules and Regulations]
[Pages 43002-43008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20880]


=======================================================================
-----------------------------------------------------------------------

UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Part 212


Public Information

AGENCY: United States Agency for International Development.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: These amendments make technical revisions to the Agency's 
Freedom of Information Act Regulations as set forth in 5 U.S.C. 553(d).

EFFECTIVE DATE: August 20, 1996.

FOR FURTHER INFORMATION CONTACT:
Willette L. Smith, Customer Outreach and Oversight Staff, Office of 
Administrative Services, 703/516-1849, Fax 703/516-1894.

SUPPLEMENTARY INFORMATION: Revisions and updated have been made to the 
following sections of 22 of Chapter II of Title 22: (a) 212.25--change 
of addresses for Public Reading Room; (b) 212.33 procedure for making 
requests for agency's records; (c) 212.34 procedures for responding to 
requests for records; (d) 212.35 (b) revised method of calculating 
processing fees and 212.35(e) added an appeal rights to fee waiver 
decision; 212.36 change appeal time period and update address of 
Appeal's Officer; 212.38 revised Agency's predisclosure notification 
procedures for processing request for confidential commercial 
information.
    This rule is not a major rule for the purposes of Executive Order 
12291 of February 17, 1981. As required by the Regulatory Flexibility 
Act, it is hereby certified that this rule will not have a significant 
impact on small business entities.

List of Subjects in 22 CFR Part 212

    Freedom of information.

    For the reasons set forth in the preamble, Part 212 of Chapter II 
of Title 22 of the Code of Federal Regulations is revised to read as 
follows:

PART 212--PUBLIC INFORMATION

Subpart A--General

Sec.
212.1  Statement of policy.

Subpart B--Publication in the Federal Register

212.11  Materials to be published.
212.12  Effect of nonpublication.
212.13  Incorporation by reference.

Subpart C--Availability of Information for Public Inspection and 
Copying

212.21  Public records.
212.22  Protection of personal privacy.
212.23  Current index.
212.24  Effect of noncompliance.
212.25  Procedures for obtaining materials under this subpart.

Subpart D--Access to Agency Records

212.31  Availability of agency records.
212.32  Identification of records.
212.33  Procedure for making requests.
212.34  Procedures for responding to requests for records.
212.35  Schedule of fees and methods of payment for services 
rendered.
212.36  Denial of request for access to records.
212.37  Procedures for agency consideration of appeals.
212.38  Predisclosure notification procedures for confidential 
commercial information.

Subpart E--Exemptions From Disclosure

212.41  Exemptions from publication and disclosure requirements of 
subparts B, C, and D.
212.42  Exemption from 5 U.S.C. 552.

Subpart F--Opening of Records for Nonofficial Research Purposes.

212.51  General Policy

    Authority: 22 U.S.C. 2381(a).

Subpart A--General


Sec. 212.1  Statement of policy.

    (a) It is the policy of the United States Agency for International 
Development (hereinafter ``USAID'' or ``the Agency'') that information 
about its objectives and operations be freely available to the public 
in accordance with the provisions of the Freedom of Information Act 
(``FOIA''), 5 U.S.C. 552, as amended; the President's Memorandum for 
Heads of Departments and Agencies regarding the FOIA, 29 Weekly Comp. 
Pres. Doc. 1999 (October 4, 1993); and the Attorney General's 
Memorandum of the same title and date. The Director, Office of 
Administrative Services, Bureau for Management, or his/her designee, is 
responsible on behalf of the Agency for administration of the 
provisions of the regulations set forth in this part.
    (b) In addition, concerning the International Cooperation and 
Development Agency (``IDCA''), pursuant to executive order and 
delegations of authority USAID is responsible not only for management 
of its own affairs but also for those of IDCA. The policy of IDCA in 
the FOIA area has been determined by USAID to be identical to that of 
USAID, as stated in this section. Therefore, all policies and 
procedures set forth in this part apply equally to IDCA as to USAID; 
and it is intended that references in this part to ``USAID'' or ``the 
Agency'' shall, wherever appropriate, include or mean a reference to 
IDCA. Accordingly, all IDCA FOIA-related matters shall be referred to 
and processed by USAID staff under this part as though they were USAID 
matters.
    (c) All records of USAID shall be made available to the public upon 
compliance with the procedures established in Sec. 212.33, except to 
the extent a determination is made to withhold a record exemptible 
under 5 U.S.C. 552(b). Such a determination shall be made pursuant to 
procedures set forth in Sec. 212.36, 212.37 and 212.38.
    (d) The term ``record'' as used in this part includes all books, 
papers, maps, photographs, or other documentary material or copies 
thereof, regardless of physical form or characteristics, made in or 
received by USAID (including its missions or offices abroad), and 
preserved as evidence of its organization, functions, policies, 
decisions, procedures, operations, or other activities. The term does 
not include copies of the records of other U.S. Government agencies, 
foreign governments, international organizations, or non-governmental 
entities which do not evidence organization, functions, policies, 
decisions, procedures, operations, or activities of USAID.

Subpart B--Publication in the Federal Register


Sec. 212.11  Materials to be published.

    (a) USAID separately states and currently publishes in the Federal 
Register for the information and guidance of the public:
    (1) Descriptions of its central and field organization and the 
established places

[[Page 43003]]

at which, the officers from whom, and the methods whereby, the public 
may secure information, make submittals or requests, or obtain 
decisions;
    (2) Statements of the general course and method by which its 
functions are channelled and determined, including the nature and 
requirements for all formal and informal procedures available;
    (3) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations;
    (4) Substantive rules of general applicability adopted as 
authorized by law, and statements of general policy or interpretations 
of general applicability formulated and adopted by USAID; and
    (5) Every amendment, revision or repeal of the material listed in 
this section.
    (b) USAID Public Notice No. 1 and the USAID Regulations published 
in chapter II of Title 22 and in subtitle A, Chapter 7 of Title 41 of 
the Code of Federal Regulations implement the provisions of this 
section.


Sec. 212.12  Effect of nonpublication.

    The materials referenced in Sec. 212.11 shall not be binding upon 
or otherwise adversely affect a person unless either
    (a) The materials were in fact published in the Federal Register or
    (b) The person otherwise had actual and timely notice of the 
content of such materials.


Sec. 212.13  Incorporation by reference.

    For purposes of this subpart B, USAID matters which are reasonably 
available to the class of persons affected thereby are deemed to be 
published in the Federal Register when they have been incorporated by 
reference therein with the approval of the Director of the Federal 
Register.

Subpart C--Availability of Information for Public Inspection and 
Copying


Sec. 212.21  Public records.

    In accordance with this subpart, USAID makes the following 
information and materials available for public inspection and copying:
    (a) All final opinions (including concurring and dissenting 
options), and all orders made in the adjudication of the cases:
    (b) those statements of policy and interpretations which have been 
adopted by the Agency and are not published in the Federal Register; 
and
    (c) Administrative staff manuals and instructions to staff that 
affect any member of the public.


Sec. 212.22  Protection of personal privacy.

    To the extent required to prevent a clearly unwarranted invasion of 
personal privacy, USAID may delete identifying details when USAID makes 
available or publishes an opinion, statement of policy, interpretation, 
or staff manual or instruction. USAID will, in each such case, explain 
in writing the justification for the deletion.


Sec. 212.23  Current index.

    USAID maintains and makes available for public inspection and 
copying a current index providing identifying information for the 
public as to any matter which has been issued, adopted, or promulgated 
after July 4, 1967, and which is required by Sec. 212.21 to be made 
available or published. Publication of an index is deemed both 
unnecessary and impractical. However, copies of the index are 
available, upon request, for a fee based on the direct cost of 
duplication.


Sec. 212.24  Effect of noncompliance.

    No final order, opinion, statement of policy, interpretation, or 
staff manual or instruction that affects any member of the public will 
be relied upon, used, or cited as precedent by USAID against any 
private party unless it has been indexed and either made available or 
published as provided by this subpart, or unless that private party 
shall have actual and timely notice of the terms thereof.


Sec. 212.25  Procedures for obtaining materials under this subpart.

    (a) The materials required to be made available for public 
inspection and copying in accordance with this subpart are available to 
members of the public at USAID's Public Reading Room, Room 1113, 1621 
North Kent Street, Rosslyn, Virginia 22209, which is open from 9 a.m. 
to 5 p.m., Monday through Friday, except on holidays. All such 
materials are available in electronic form (disks) only; to a 
reasonable degree, assistance will be provided in use of necessary 
equipment.
    (b) Requests for materials which are available under this subpart 
should follow the procedures under Sec. 212.33(a) of this part.
    (c) The direct costs of any necessary duplication will be charged 
in accordance with the fee schedule set forth in Sec. 212.35.
    (d) USAID Missions and offices in countries abroad are not 
responsible for the maintenance of the index and materials available 
under this subpart. However, insofar as they do have these materials, 
they will make them available to citizens of the United States who are 
present in their respective countries upon application made either or 
in person in writing to the USAID Director, or other principal USAID 
officer, c/o American Embassy in the applicable country.

Subpart D--Access to Agency Records


Sec. 212.31  Availability of agency records.

    Upon receiving a request which reasonably describes a USAID record, 
and which is made in accordance with the provisions of this subpart, 
USAID will make such records, except the following, promptly available 
to the requesting party:
    (a) Matters published in the Federal Register pursuant to subpart 
B;
    (b) Matters made available to the public pursuant to subpart C; and
    (c) Matters exempt from disclosure pursuant to Sec. 212.41 or 
Sec. 241.42 of this part.


Sec. 212.32  Identification of records.

    The request for a record by a member of the public must contain a 
reasonably specific description of the particular record sought so that 
a USAID officer who is familiar with the subject matter of the request 
may be able to locate the record with a reasonable amount of effort. A 
description that includes as much information as possible, such as the 
subject matter, format, approximate date and, where pertinent, the name 
of the country or person involved, will facilitate the search for the 
requested record.


Sec. 212.33  Procedure for making requests.

    (a) Requests for records, other than records available at the 
Public Reading Room identified in Sec. 212.24(a), may be made by a 
member of the public in writing only to the Chief, Customer Outreach 
and Oversight Staff, Room 1113, SA-16, Agency for International 
Development, Department of State, 320 21st Street, N.W., Washington, 
D.C. 20523-1608. The request and the envelope must be plainly marked 
``FOIA Request.'' Requests may be made orally, that is, in person, only 
for records and materials available at the Public Reading Room.
    (b) Requests for records may be made directly to a USAID mission or 
office abroad only by a citizen of the United States who is present in 
that country and must be by written application to the USAID Director 
(or other principal USAID officer), care of the American Embassy in 
that country. Any such written request and its envelope must be plainly 
marked ``FOIA Request.''
    (c) Only signed original (as opposed to electronically transmitted) 
requests are acceptable for procedures pursuant

[[Page 43004]]

to paragraphs (a) and (b) of this section. Telephoned requests, or in-
person requests other than to the Public Reading Room, cannot be 
accepted. If a written request not properly marked ``FOIA Request'' on 
both the letter and envelope is thereby delayed in reaching the Chief, 
Office of Customer Outreach and Oversight Staff, such request will not 
be deemed received by USAID until actually received by that official. 
In the event of such a delay, the person making the request will be 
furnished a notice of the effective date of receipt.


Sec. 212.34  Procedures for responding to requests for records.

    (a) Upon receipt by the Chief, Office of Customer Outreach and 
Oversight Staff, of a reasonably specific request made pursuant to 
Sec. 212.33 of this part, a maximum of ten working days will normally 
be taken to determine to what extent the Agency can provide the 
information requested. Upon the making of that determination, the 
person making the request will be promptly so informed. Copies of the 
releasable documents will be made available promptly thereafter upon 
receipt of applicable fees and charges as set forth in Sec. 212.35.
    (b)(1) In unusual circumstances, USAID may not be able to determine 
the availability of the requested documents within ten working days, in 
which event the person making the request will be informed by written 
notice of the delay, the reasons for the delay and the date on which a 
determination may be expected. In this context, the term ``unusual 
circumstances'' refers to the following situations:
    (i) When there is a need to search for and collect the requested 
records from field facilities or other establishments that are separate 
from the office processing the request;
    (ii) When there is a need to search for, collect, and appropriately 
examine a voluminous amount of separate and distinct records which are 
sought in a single request; or
    (iii) When there is a need for consultation (which will be 
conducted with all practicable speed) with another agency having a 
substantial interest in the determination of the request or among two 
or more components of the Agency, each having substantial subject-
matter interest therein.
    (2) The maximum time in making a determination of availability, in 
the event of such unusual circumstances, will be twenty working days 
from receipt of the request. In the event that only part of the 
permissible ten working days extension is used, then USAID reserves the 
right, if necessary, to use any remainder of such time for the 
determination of an appeal, if one is made.
    (c) If a request is made to USAID for material that is controlled 
or held by another agency, the person making the request will be 
immediately notified that USAID does not have or control the requested 
material and he/she will be advised of the name of the controlling 
agency and of the address from which the material may be requested, 
unless the other agency has, by public regulation, delegated the 
release authority to USAID. If release authority has been delegated, 
USAID will follow the procedures authorized by the delegation in 
determining whether to release the information. If a request for 
material is referred to USAID from another agency, the time period for 
determination of release of the information will not start until the 
request is received by the Chief, Office of Customer Outreach and 
Oversight Staff; and the person making the request will be immediately 
notified of the referral and of the date the request was received in 
USAID. USAID will not accept referral of requests unless and until the 
Chief, Customer Outreach and Oversight Staff, or his/her designee, 
determines that the material requested is actually within the scope and 
control of the release authority of USAID.
    (d) If only a part of a record is exempt from disclosure, then any 
reasonably segregable portion of such record will be furnished after 
deletion of the portions which are exempt, provided that the segregable 
portion constitutes an intelligible record which is not distorted out 
of context or contradictory to the substance of the entire record 
before segregation.


Sec. 212.35  Schedule of fees and method of payment for services 
rendered.

    (a) Definitions. (1) Direct costs means those expenditures which 
the Agency actually incurs in searching for and duplicating (and in the 
case of commercial requesters, reviewing) documents in order to respond 
to a FOIA request.
    (2) Search includes all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within documents. Line-by-line search will 
not be done when duplicating an entire document would prove the less 
expensive and quicker method of complying with a request. (``Search'' 
for this purpose is distinguished from ``review'' (see paragraph (a)(4) 
of this section).
    (3) Duplication refers to the process of making a copy of a 
document available to the FOIA requester. Copies can take the form of 
paper copy, microfilm or audiovisual materials (among others) and will 
be in a form that is reasonably usable by requesters.
    (4) Review refers to the process of examining documents located in 
response to a commercial use request (see paragraph (a)(5) of this 
section) to determine whether any portion of any document located is 
permitted to be withheld. It also includes processing any documents for 
disclosure, e.g., doing all that is necessary to redact those documents 
of exempt material and otherwise preparing them for release. Review 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (5) Commercial use request refers to a request from or on behalf of 
one who seeks information for a use or purpose that is related to 
commerce, trade, or the profit interest of the requester or of the 
person on whose behalf the request is made. In determining whether a 
requester properly belongs in this category, the Agency will determine 
the use to which a requester will put the documents requested. Where 
the Agency has reasonable cause to doubt the use to which a requester 
will put the records sought, or where that use is not clear from the 
request itself, the Agency may seek additional clarification before 
assigning the request to a specific category.
    (6) Educational institution refers to a preschool, a public or 
private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education which operates a program or programs of scholarly research.
    (7) Non-commercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis as that term is 
referenced in paragraph (a)(5) of this section and which is operated 
solely for the purpose of conducting scientific research, the results 
of which are not intended to promote any particular product or 
industry.
    (8) Representative of the news media refers to 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 in those instances when they can

[[Page 43005]]

qualify as disseminators of ``news'' who make their products available 
for purchase or subscription by the general public). These examples are 
not intended to be all-inclusive. Moreover, as traditional methods of 
news delivery evolve (e.g., electronic dissemination of newspapers 
through telecommunications services), such alternative media would be 
included in this category. In the case of ``freelance'' journalists, 
they may be regarded as working for a news organization if they can 
demonstrate a sound basis for expecting publication through such an 
organization, even though not actually employed by it. A publication 
contract would be the clearest evidence, but the Agency may also look 
to the past publication record of the requester in making this 
determination.
    (b) Fees to be charged. The following specific fees shall be 
applicable with respect to services rendered to members of the public 
under this part:
    (1) Commercial use requesters. Fees are intended to cover the full 
estimated direct costs of researching for, reviewing for release, and 
duplicating the records requested. Search costs are computed based on 
the following formula: hours spent by Agency personnel, whatever their 
grade and location, and rounded up to the nearest full hour, and 
including locality pay for Washington-based personnel only, at the 
basic annual rate then payable to U.S. Government employees at the GS-
9/Step 4 level, times 1.17 (to factor in related benefits) and divided 
by 2080 (hours per work year). Review costs are computed based on the 
same formula but, instead, using the rate then payable to employees at 
the GS-13/Step 4 level. Duplicating costs are $0.20 per page. Search 
costs will be assessed even though no records may be found or even if, 
after review, there is no disclosure of records.
    (2) Educational and non-commercial scientific institution 
requester. The Agency will provide documents to requesters in this 
category for the cost of duplication alone ($0.20 per page), excluding 
charges for the first 100 pages. To be eligible for inclusion in this 
category, requesters must show that a request is being made under the 
auspices of a qualifying institution and that the records are sought in 
furtherance of scholarly research, if the request is from an 
educational institution or scientific research, if the request is from 
a non-commercial scientific institution. Requesters eligible for free 
search must (as with all FOIA requesters) reasonably describe the 
records sought.
    (3) Requesters who are representatives of the news media. The 
Agency will provide documents to requesters in this category for the 
cost of reproduction alone ($0.20 per page), excluding charges for the 
first 100 pages. To be eligible for inclusion in this category a 
requester must meet the criteria in paragraph (a)(8) of this section, 
and his/her request must not be made for commercial use. In reference 
to this class of requesters, a request for records supporting the news 
dissemination function of the requester shall not be considered to be a 
request that is for a commercial use. Requesters eligible for free 
search must also reasonably describe the records sought.
    (4) All other requesters. The Agency will charge requesters who do 
not fit into any of the categories in paragraphs (b) (1), (2), and (3) 
of this section fees which recover the full direct cost of search, and 
for reproducing records that are responsive to the request, except that 
the first 100 pages and the first two hours of search time shall be 
furnished without charge. The hourly rates outlined in paragraph (b)(1) 
of this section will prevail. Requesters must reasonably describe the 
records sought. Moreover, requests from subjects for records filed in 
the Agency's Privacy Act System of Records will continue to be treated 
under the fee provisions of the Privacy Act of 1975 except that the 
first 100 pages of reproduction will be furnished without charge.
    (c) Non-payment of fees. (1) The Agency will begin assessing 
interest charges on the thirty-first day following the day on which the 
requester is advised of the fee charge. Interest will be at the rate 
prescribed in 31 U.S.C. 3717.
    (2) Where a requester has previously failed to copy a fee charged 
in a timely fashion (i.e. within thirty days of the billing date), the 
Agency will require the requester to pay the full amount owed plus any 
applicable interest as provided in paragraph (c)(1) of this section, 
and to make an advance payment of the full amount of the remaining 
estimated fee before the Agency begins to process a new request or 
continues processing a then-pending request from the requester.
    (3) When the Agency acts under paragraph (c) (1) or (2) of this 
section the administrative time limits prescribed in subsection (a)(6) 
of the FOIA (i.e., ten working days from receipt of initial request and 
twenty working days from receipt of appeals from initial denial plus 
permissible extensions of these time limits) will begin only after the 
Agency has received fee payments described in this section.
    (d) Advance payments or confirmation. Where USAID estimates or 
determines that allowable charges to a requester are likely to exceed 
$250, USAID will require a requester to make an advance payment of the 
entire estimated charges before continuing to process the request. 
Where the estimated charges are in the $25-$250 range, then USAID in 
its discretion, before processing the request, may require either--
    (1) An advance deposit of the entire estimated charges or (2) 
Written confirmation of the requester's willingness, when billed, to 
pay such charges.
    (e) Waiving or reducing fee. In accordance with section (4)(A)(ii) 
of the FOIA, the Agency will furnish documents without charge or at 
reduced charges if disclosure of the information is ``in the public 
interest'' in that such disclosure 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. A requester may at any time, up to a period not to 
exceed thirty days from the final USAID decision concerning his/her 
request, request such waiver or reduction of fee by letter addressed to 
the Chief, Customer Outreach and Oversight Staff; such request shall 
address the above criteria for waiver. Such request will initially be 
decided by the Chief, Customer Outreach and Oversight Staff, or his/her 
designee; such decision will normally be made, and the requester so 
advised, within ten working days of its receipt. The requester, if 
dissatisfied with that decision, may appeal pursuant to the same 
procedures as apply under Sec. 212.36 and Sec. 212.37 of this part.
    (f) Restrictions on assessing fees. With the exception of 
requesters seeking documents for a commercial use, Section (4)(A)(iv) 
of the FOIA, as amended, requires agencies to provide the first 100 
pages of duplication and the first two hours of search time without 
charge. Moreover, this section prohibits agencies from charging fees to 
any requester, including commercial use requesters, if the cost of 
collecting a fee would be equal to or greater than the fee itself. 
These provisions work together so that, except for commercial use 
requesters, the Agency will not begin to assess fees until it has 
provided such free search and reproduction. For example, for a request 
that involved two hours and ten minutes of search time and resulted in 
105 pages of documents, the Agency will determine the cost of only ten 
minutes of search time and only five pages of reproduction. If this

[[Page 43006]]

cost is equal to or less than the cost of processing the payment 
instrument--a figure which the Agency will from time to time review and 
determine--then there will be no charge to the requester.
    (g) Other provisions--(1) Charges for unsuccessful search. The 
Agency will assess charges for time spent searching even if the Agency 
fails to locate the records or if records located are determined to be 
exempt from disclosure.
    (2) Aggregating requesters. When the Agency reasonably believes 
that a requester or group of requesters is attempting to break a 
request down into a series of requests for the purpose of evading the 
assessment of fees, the Agency will aggregate any such requesters and 
charge accordingly.
    (3) Effect of the Debt Collection Act of 1982 (Public Law 97-365). 
The Agency will use the authorities of the Debt Collection Act, 
including disclosure to consumer reporting agencies and use of 
collection agencies, where appropriate, to encourage repayment.
    (4) Remittances. (i) Remittances will be in U.S. Dollars in the 
form of either a personal check or bank draft drawn on a bank in the 
United States or a money order.
    (ii) Remittances shall be made payable to the order of the U.S. 
Treasury and mailed to the Chief, Customer Outreach and Oversight 
Staff, at the address set forth in Sec. 212.33(a) of this part.


Sec. 212.36  Denial of request for access to records.

    (a) If it is determined that the Agency cannot comply with all or 
part of a request for records, the person making the request shall be 
immediately notified of the determination, the reasons for the 
determination, the name and title of each officer responsible for the 
denial, and the right of the person to appeal the adverse 
determination.
    (b) The denial of a request for records may be made, initially, 
only by the Chief, Customer Outreach and Oversight Staff, or his/her 
designee.
    (c) (1) Any person who has been denied access to records pursuant 
to this section may appeal the relevant decision not later than thirty 
days after the date of the notification of denial or, in the case of a 
partial denial, not later than thirty days after the date the 
releasable documents are actually furnished to the person making the 
request, whichever is later. The appeal shall be in writing addressed 
to the Agency's FOIA Appeals Officer, who is:

The Director, Office of Administrative Services, Bureau for 
Management, Room 803, SA-2, Agency for International Development, 
21st and Virginia Ave., N.W., Washington, D.C., 20523-0217.

    (2) In order for the Agency to make a timely response to the 
appeal, both the text of the appeal and its envelope must be plainly 
marked ``FOIA Appeal''. The appeal must contain a reasonable 
description of the record sought and withheld, a copy of the initial 
decision to deny access and any other information that will enable the 
Appeals Officer to make the final decision.


Sec. 212.37  Procedures for agency consideration of appeals.

    (a) Upon receipt of the appeal by the Appeals Officer, a maximum of 
twenty working days will normally be taken to decide the appeal. In 
unusual circumstances, as defined in Sec. 212.34, the twenty working 
days may be extended by ten working days or by the number of days not 
used in the original denial of the request.
    (b) If the appeal is granted, the person making the appeal shall be 
immediately notified and copies of the releasable documents shall be 
made available promptly thereafter upon receipt of appropriate fees as 
set forth in Sec. 212.35. If the appeal is denied in whole or part, the 
person making the request shall be immediately notified of the 
decisions and of the provisions for judicial review of the Agency's 
denial of the request.
    (c) In the event a determination is not issued within the 
applicable time limit and the person making the request therefore 
chooses to sue the Agency, the Agency-level determination process shall 
nonetheless continue.
    (d) If an appeal not properly marked ``FOIA Appeal'' on the text of 
the appeal and/or envelope is thereby delayed in reaching the Appeals 
Officer, it will not be deemed received by the Appeals Officer until 
actually received by him/her. In such event, the person making the 
appeal will be furnished notice of the effective date of receipt.


Sec. 212.38  Predisclosure notification procedures for confidential 
commercial information.

    (a) In general. Confidential commercial information provided to the 
Agency shall not be disclosed pursuant to a FOIA request except in 
accordance with this section. For purposes of this section, the 
following definitions apply:
    (1) Confidential commercial information means records provided to 
the Agency by a submitter that arguably contain material exempt from 
release under Exemption 4 of FOIA, 5 U.S.C. 552(b)(4), because 
disclosure could reasonably be expected to cause substantial 
competitive harm.
    (2) Submitter means any person or entity who provides confidential 
commercial information to the Agency. The term ``submitter'' includes, 
but is not limited to, corporations, state governments and foreign 
governments.
    (b) Notice to submitters. Whenever the Agency receives a FOIA 
request for confidential commercial information and, pursuant to 
paragraph (c) of this section, the submitter of such information is 
entitled to receive notice of that request, then the Agency shall 
promptly notify the submitter that it has received the request, unless 
such a notice is not required pursuant to paragraph (g) of this 
section. The notice shall be in writing and shall either describe the 
exact nature of the confidential commercial information requested or 
provide a copy of the records or portion of the records containing the 
confidential commercial information. The notice shall be addressed to 
the submitter and mailed, postage prepaid, first class mail, to the 
submitter's last known address. Where notice is required to be given to 
a voluminous number of submitters, in lieu of such a mailing the notice 
may be posted or published in a manner and place reasonably calculated 
to provide notice to the submitters.
    (c) When notice is required; related matters. (1) For confidential 
commercial information submitted prior to January 1, 1988, the Agency 
shall provide a submitter with notice of its receipt of a FOIA request 
whenever:
    (i) The records are less than ten years old and the information has 
been designated by the submitter as confidential commercial 
information; or
    (ii) The Agency has reason to believe that the disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm to the submitter thereof.
    (2) For confidential commercial information submitted to the Agency 
on or after January 1, 1988, the Agency shall provide a submitter with 
notice of its receipt of a FOIA request whenever:
    (i) The submitter has designated the information as confidential 
commercial information pursuant to the requirements of this section; or
    (ii) The Agency has reason to believe that the disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm to the submitter.
    (3) Notice of a request for confidential commercial information 
falling within paragraph (c)(2)(i) of this section shall be required 
for a period of not more than ten years after the date of submission 
unless the submitter

[[Page 43007]]

provides reasonable justification for a designation period of greater 
duration.
    (4) A submitter shall use good-faith efforts to designate by 
appropriate markings, either at the time a record is submitted to the 
Agency or within a reasonable period of time thereafter, those portions 
of the record which it deems to contain confidential commercial 
information. The designation shall be accompanied by a certification 
made by the submitter, its agent or designee that to the best of the 
submitter's knowledge, information and belief, the record does, in 
fact, contain confidential commercial information that theretofore has 
not been disclosed to the public.
    (5) Whenever the Agency provides notice to the submitter in 
accordance with paragraph (c) of this section, the Agency shall at the 
same time provide written notice to the requester that it is affording 
the submitter a reasonable period of time within which to object to the 
disclosure, and that, therefore, the Agency may be required to enlarge 
the time within which it otherwise would respond to the request.
    (d) Opportunity to object to disclosure. To the extent permitted by 
law, the notice required by paragraph (c) of this section shall afford 
a submitter a reasonable period of time within which the submitter or 
its authorized representative may provide the Agency with a written 
objection to the disclosure of the confidential commercial information 
and demonstrate why the submitter believes that the records contain 
confidential commercial information whose disclosure would, probably, 
cause substantial competitive injury to the submitter. Except where a 
certification already has been made in conformance with the 
requirements of paragraph (c)(4) of this section, the objection shall 
be accompanied by certification made by the submitter, its agent or 
designee, that to the best of the submitter's knowledge, information 
and belief, the record does, in fact, contain confidential commercial 
information that theretofore has not been disclosed to the public. 
Information provided by a submitter pursuant to this paragraph may 
itself be subject to disclosure under the FOIA.
    (e) Notice of intent to disclose. (1) The Agency shall give careful 
consideration to objections made by a submitter pursuant to paragraph 
(d) of this section prior to making any administrative determination of 
the issue. Whenever the Agency decides to disclose information despite 
the objection of a submitter, the Agency shall forward to the submitter 
a written notice which shall include:
    (i) A statement of the reasons for which a submitter's disclosure 
objections were not sustained; and
    (ii) A description of the information to be disclosed.
    (2) To the extent permitted by law, the notice required to be given 
by paragraph (e)(1) of this section shall be provided to the submitter 
a reasonable number of days prior to the specific disclosure date.
    (3) Whenever the Agency provides notice to the submitter in 
accordance with paragraphs (e) (1) and (2) of this section, the Agency 
shall at the same time notify the requester
    (i) That such a notice has been given and
    (ii) Of the proposed date for disclosure.
    (f) Notice of lawsuit. When a requester brings suit seeking to 
compel the disclosure of information for which notice is required 
pursuant to paragraph (c) of this section, the Agency shall promptly 
notify the submitter that such suit has been filed.
    (g) Exceptions to notice requirements. The notice requirements of 
this section shall not apply if:
    (1) The Agency determines that the information should not be 
disclosed;
    (2) The information has been published or has been officially made 
available to the public;
    (3) Disclosure of the information is required by an Agency rule 
that;
    (i) Was adopted pursuant to notice and public comment;
    (ii) Specifies narrow classes of records submitted to the Agency 
that are to be released under the FOIA; and
    (iii) Provides in exceptional circumstances for notice when the 
submitter provides written justification, at the time the information 
is submitted or a reasonable time thereafter, that disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm;
    (4) For purposes of paragraph (c) of this section, the information 
requested was not designated by the submitter as exempt from disclosure 
when the submitter had an opportunity to make such designation at the 
time of submission of the information or within a reasonable time 
thereafter, unless;
    (i) The Agency has substantial reason to believe that disclosure of 
the information would result in competitive harm; or
    (ii) The designation made by the submitter appears obviously 
frivolous; except that, in such case, the Agency must provide the 
submitter with written notice of any final administrative disclosure 
determination within a reasonable number of days prior to the specified 
disclosure date.

Subpart E--Exemptions From Disclosure


Sec. 212.41  Exemptions from publication and disclosure requirements of 
subparts B, C, and D.

    None of the provisions of subparts B, C, and D which provide for 
publication and disclosure of certain information and records shall be 
applicable 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 and confidential;
    (e) Interagency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency 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) Would reasonably be expected to interfere with enforcement 
proceedings;
    (2) Would deprive a person of 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, 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 security 
intelligence investigation, information furnished by a confidential 
source;
    (5) Would disclose techniques and procedure 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

[[Page 43008]]

reports prepared by, on behalf of, or for the use of any agency 
responsible for the regulation or supervision of financial 
institutions; and
    (i) Geological and geophysical information and data (including 
maps) concerning wells.


Sec. 212.42  Exemption from 5 U.S.C. 552.

    Whenever a request is made which involves access to records 
described in paragraph (g) of Sec. 212.41 and the investigation or 
proceedings involves a possible violation of criminal law; and there is 
reason to believe that the subject of the investigation or proceeding 
is not aware of its pendency, and disclosure of the existence of the 
records could reasonably be expected to interfere with enforcement 
proceedings, the Agency may, during only such time as that 
circumstances continues, treat the records as not subject to the 
requirements of 5 U.S.C. 552 and this subpart.

Subpart F--Opening of Records for Nonofficial Research Purposes


Sec. 212.51  General policy.

    (a) The Agency will open its records on an equitable basis to all 
individuals engaged in private research as soon as such action may be 
taken without adversely affecting the national security, the 
maintenance of friendly relations with other nations, the efficient 
operation of the Agency, or the administrative feasibility of servicing 
requests for access to such records.
    (b) Access for research purposes to the classified foreign policy 
records in the Agency's custody will be governed by the regulations of 
the Department of State with respect thereto, as set forth in part 6, 
chapter II of title II of the Code of Federal Regulations. Application 
for such access may be made to the Chief, Customer Outreach and 
Oversight Staff, at the address listed in Sec. 212.33(a) of this part. 
That officer, or his/her designee, in consultation with the Director, 
Historical Office, Department of State, or his/her designee, will 
determine the action to be taken and will so advise the researcher.

    Dated: July 31, 1996.
Willette L. Smith,
Public Affairs Specialist, Office of Admin. Services.
[FR Doc. 96-20880 Filed 8-19-96; 8:45 am]
BILLING CODE 6116-01-M