[Federal Register Volume 63, Number 40 (Monday, March 2, 1998)]
[Proposed Rules]
[Pages 10159-10166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4046]


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

OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

15 CFR Part 2004


Proposed Revisions to the Agency's Freedom of Information Act 
Regulations

AGENCY: The Office of the United States Trade Representative.

ACTION: Proposed rule.

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

SUMMARY: This document sets forth proposed revisions of the Office of 
the United States Trade Representative's (``USTR'') regulations under 
the Freedom of Information Act (FOIA). The proposed revisions reflect 
the principles established by President Clinton and Attorney General 
Reno in their FOIA Policy Memoranda of October 4, 1993. The proposed 
regulations also reflect updated cost figures to be used in calculating 
and charging fees. Additionally, the proposed regulations contain new 
provisions implementing the Electronic Freedom of Information Act 
Amendments of 1996.

DATES: Submit comments on or before April 1, 1998.

ADDRESSES: Address all comments concerning this proposed rule to 
Elizabeth Hyman, Office of the General Counsel, Office of the United 
States Trade Representative, 600 17th Street, N.W., Washington, D.C. 
20508.

FOR FURTHER INFORMATION CONTACT:
Ms. Elizabeth Hyman at (202) 395-3432.

SUPPLEMENTARY INFORMATION: This document sets forth proposed revisions 
of the Office of the United States Trade Representative's regulations 
under the Freedom of Information Act.
    New provisions implementing the Electronic Freedom of Information 
Act Amendments of 1996 are found at Sec. 2004.3(c)(4) (electronic 
reading room), Sec. 2004.6 (timing of response), Sec. 2004.5(b) and 
Sec. 2004.13(c) (deletion marking), Sec. 2004.5(c)(2) (volume 
estimation), Sec. 2004.3(b)(2) and Sec. 2004.8(b)(3) (format of 
disclosure), and Sec. 2004.8(b)(8) (electronic searches). For specific 
sections and subsections implementing of the regulations implementing 
the Electronic Freedom of Information Act Amendments of 1996, the 
following effective dates apply:

Section 2004.3(c)(4)--electronic reading room--November 1, 1997
Section 2004.6(d), (e), and (f)--processing requests under unusual 
circumstances, multi-track systems, and with expedited treatment--
October 2, 1997; and
Section 2004.5(c)(2)--Volume estimation--October 2, 1997.

Regulatory Flexibility Act

    The United States Trade Representative, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 606(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant impact on a substantial number of small entities. 
This is because costs assessed by USTR will be nominal. Under the 
Freedom of Information Act, agencies may recover only the direct costs 
for searching for, reviewing, and duplicating the records processed for 
requesters. Further, the ``small entities'' that make FOIA requests, as 
compared with individual requesters and other requesters, are 
relatively few in number.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, Sec. 1(b), Principles of Regulation. The Office 
of Management and Budget has determined that this rule is a 
``significant regulatory action'' under Executive Order 12866, Sec. 
3(f), Regulatory Planning and Review, and accordingly this rule has 
been reviewed by that office.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

[[Page 10160]]

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Sec. 804 of the Small 
Business Regulatory Enforcement Act of 1996. This rule will not result 
in an annual effect on the economy of $100,000,000 or more; a major 
increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Paperwork Reduction Act

    This part does not impose any reporting or record keeping 
requirements under the Paperwork Reduction Act of 1995.

List of Subjects in 15 CFR Part 2004

    Freedom of information.

    For the reasons stated in the preamble, the Office of the United 
States Trade Representative proposes to amend 15 CFR Ch. XX by revising 
Part 2004 to read as follows:

PART 2004--FREEDOM OF INFORMATION POLICIES AND PROCEDURES

Subpart A--Procedures Regarding FOIA Requests to USTR

Sec.
2004.1  General.
2004.2  Public reading room.
2004.3  Material available to public.
2004.4  Requirements for making requests.
2004.5  Responses to requests.
2004.6  Time limits and expedited processing.
2004.7  Administrative appeals.
2004.8  Fees--definitions.
2004.9  Fee designations.
2004.10  Miscellaneous fee provisions.

Subpart B--Rules governing disclosure

2004.11  Notification regarding requests for confidential business 
information.
2004.12  Classified information.
2004.13  Records which may be exempt from disclosure.
2004.14  Annual report to Congress.

    Authority: 5 U.S.C. 552, 31 U.S.C. 3717, 44 U.S.C. chapter 35.

Subpart A--Procedures Regarding FOIA Requests to USTR


Sec. 2004.1  General.

    The Office of the United States Trade Representative (USTR) was 
established in the Executive Office of the President pursuant to the 
Trade Act of 1974, Public Law 93-618, as amended. That law describes 
the principal statutory functions of the Office and its organization. 
The agency's office is located at 600 17th Street, N.W., Washington, 
D.C. 20508. This information is furnished for the guidance of the 
public and in compliance with the requirements of section 552 of title 
5 U.S.C., as amended. Information routinely provided to the public as 
part of a regular agency activity (for example, press releases issued 
by the Office of Public Affairs) may be provided to the public without 
following this subpart. As a matter of policy, USTR makes discretionary 
disclosures of records or information exempt under the FOIA whenever 
disclosure would not foreseeably harm an interest protected by a FOIA 
exemption, but this policy does not create any right enforceable in 
court.


Sec. 2004.2  Public reading room.

    USTR maintains a public reading room at 600 17th Street, N.W., 
Washington, D.C. The reading room contains records that the FOIA 
requires to be made regularly available for public inspection and 
copying.


Sec. 2004.3  Material available to the public.

    (a) In general. Nonexempt records released under the authority of 
this part are considered to be in the public domain. (See Sec. 2004.13 
to determine what exemptions may be applied under FOIA.) Such records 
may also be made available in the USTR reading room in paper form, as 
well as electronically to facilitate public access (described in 
paragraph (c) of this section). Discretionary releases to FOIA 
requesters constitute a waiver of the FOIA exemptions that otherwise 
apply. Disclosure to a properly constituted advisory committee, to 
Congress, to foreign governments or multilateral organizations, or 
other Federal agencies does not waive the exemption.
    (b) Creating a record. (1) A record must exist and be in the 
possession of USTR at the time of the request to be considered subject 
to this part and the FOIA. There is no obligation to create, compile, 
or obtain from outside the agency a record to satisfy a FOIA request.
    (2) In regard to electronic data, the issue of whether records are 
actually created or merely extracted from an existing database is not 
always readily apparent. Consequently, when responding to FOIA requests 
for electronic data where creation of a record, programming, or 
particular format become an issue, USTR shall apply a standard of 
``reasonable efforts.'' In other words, if the capability exists to 
respond to the request and the effort would not significantly interfere 
with the operation of the agency's information systems, then the 
request should be processed. However, the request need not be processed 
where the capability to respond does not exist without a significant 
expenditure of resources, thus interfering with operations. A 
significant expenditure of resources in both time and manpower that 
would cause a significant interference with the operation of USTR's 
automated information system would exceed reasonable efforts.
    (c) Information available in the public reading room. (1) Index of 
available information. USTR will maintain and make available for public 
inspection and copying a current index providing identifying 
information for the public as to any matter which is issued, adopted, 
or promulgated after July 4, 1967, and which is retained as a record 
and is required to be made available or published. Copies of the index 
are available upon request for a fee of the direct cost of duplication.
    (2) Availability of released records. USTR will make available for 
public inspection and copying copies of records which have been 
released and which the agency determines, because of their subject 
matter, have become or are likely to become the subject of subsequent 
requests for substantially the same records.
    (3) Index of released materials. USTRA will maintain and make 
available for public inspection and copying a general index of records 
which have been released and which USTR determines because of their 
subject matter have become or are likely to become the subject of 
subsequent requests for substantially the same records. The index will 
be available by computer telecommunications by December 31, 1999.
    (4) Electronic availability. Records described in this paragraph 
(c)(4) which are created by USTR on or after November 1, 1996, will be 
made available by November 1, 1997, including by computer 
telecommunications, or if those have not been established, by other 
electronic means. Specifically the records are:
    (i) Administrative staff manuals and instructions, or portions 
thereof, that establish USTR policy or intepretations of policy that 
affect a member of the public. This provision does not apply to 
instructions for employees on tactics and techniques to be used in 
performing their duties, or to instructions relating to the internal 
management of USTR.
    (ii) Those requested records that have been released in part or in 
whole, which because of the nature of the subject matter, have become 
or are likely to

[[Page 10161]]

become the subject of subsequent requests for substantially the same 
records.


Sec. 2004.4  Requirements for making requests.

    (a) All identifiable records of the Office of the United States 
Trade Representative (USTR) shall be made available to the public upon 
compliance with the procedures established in this part, except to the 
extent that a determination is made to withhold a record subject to 
exemption under 5 U.S.C. 552(b) and (c).
    (b) All requests for records must be in writing and shall be 
addressed to Freedom of Information Officer, Office of the United 
States Trade Representative, 600 17th Street, N.W., Washington, D.C. 
20508.
    (c) Description of records sought. The requester must describe the 
records that he/she seeks in enough detail to enable USTR personnel to 
locate them with a reasonable amount of effort. Whenever possible, the 
request should include specific information about each record sought, 
such as the date, title or name, author, recipient, and subject matter 
of the record. In addition, if the requester desires records pertaining 
to a specific trade negotiation or dispute, he/she should provide the 
specific name of the proceeding or negotiation, and the nature of that 
case or matter. As a general rule, the greater the specificity about 
the records or type or records wanted, the more likely USTR will be 
able to locate those records in response to your request. If USTR 
determines that a request does not reasonably describe records, it 
shall notify the requester either of the additional information needed 
or explain why the request is otherwise insufficient. USTR also shall 
give the requester an opportunity to discuss the request so that it may 
be modified to meet the requirements of this section.
    (d) Agreement to pay fees. If the requester makes a FOIA request, 
it shall be considered an agreement by the requester to pay all 
applicable fees charged under Sec. 2004.9, unless he/she seeks a waiver 
of fees. USTR ordinarily will confirm this agreement in an 
acknowledgment letter. When making a request, the requester may state a 
willingness to pay a specific maximum amount without further 
consultation.


Sec. 2004.5  Responses to requests.

    (a) Acknowledgments of requests. On receipt of a request, USTR 
ordinarily shall send an acknowledgment letter to the requester which 
shall confirm, or ask for confirmation, of the requester's agreement or 
willingness to pay fees under Sec. 2004.9, and provide an assigned 
request number for further reference.
    (b) Consultations and referrals. (1) Determining the Origin of the 
Record. When USTR receives a request for a record in its possession, it 
shall determine whether another agency of the Federal Government is 
better able to determine whether the record is exempt from disclosure 
under the FOIA and, if so, whether it should be disclosed as a matter 
of administrative discretion. If USTR determines that it is best able 
to respond to the request, then it shall do so. If USTR determines that 
it is not best able to process the record then it shall either respond 
to the request regarding that record after having consulted with the 
agency best able to determine whether to disclose it, and with any 
other agency that has a substantial interest in it; or USTR shall refer 
the responsibility for responding to the request to another agency that 
originated the record (but only if that agency is subject to the FOIA). 
Ordinarily the agency that originated a record will be presumed to be 
best able to determine whether to disclose it.
    (2) Notice of referral. Whenever USTR refers all or any part of the 
responsibility for responding to a request to another agency, it 
ordinarily shall notify the requester of the referral, the agency to 
which the request has been referred, and the part of the request that 
has been referred.
    (3) Timing of responses to consultations and referrals. All 
consultations and referrals will be handled according to the date the 
FOIA request by the first agency.
    (b) Grants of requests. Once USTR makes a determination to grant a 
request in whole or in part, it shall notify the requester in writing. 
USTR shall inform the requester in the notice of any fee charged under 
Sec. 2004.9 and shall disclose records to the requester promptly on 
payment of any applicable fee. Records disclosed in part shall be 
marked or annotated to show both the amount and the location of the 
information deleted wherever practicable.
    (c) Adverse determinations of the request. If USTR makes an adverse 
determination denying the request in any respect, it shall notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, consist of: a determination to withhold any 
requested document in part or in whole; a determination that a 
requested document does not exist or cannot be located; a determination 
that what has been requested is not a record subject to the Act; a 
determination on any disputed fee matter, including a denial of a 
request for a fee waiver; and a denial of a request for expedited 
treatment. The denial letter shall include:
    (1) A brief statement of the reason(s) for the denial, including 
any FOIA exemption applied by USTR in denying the request;
    (2) An estimate of the volume of records or information withheld, 
in number of pages or in some other reasonable form of estimation. This 
estimate does not need to be provided if the volume is otherwise 
indicated through deletions on records disclosed in part, or if 
providing an estimate would harm an interest protected by an applicable 
exemption; and
    (3) A statement that the denial may be appealed under Sec. 2004.6 
and a description of the requirements of that section.


Sec. 2004.6  Time limits and expedited processing.

    (a) In general. USTR ordinarily shall respond to requests according 
to their order of receipt. USTR will not search for documents 
responsive to a request that were created after the date of receipt by 
USTR of the request.
    (b) Initial response and appeal. Effective October 2, 1997, an 
initial response shall be made within 20 working days (i.e. exempting 
Saturdays, Sundays, and legal public holidays) after the receipt of a 
request for a record under this part by the Freedom of Information 
Officer or his designee. An appeal under Sec. 2004.7 shall be decided 
within 20 days (excepting Saturdays, Sundays, and legal public 
holidays) after the receipt of such an appeal by the Appeals Committee.
    (c) Commencement of time limits. The time limits for initial 
decision and for an appeal decision begins on the date the request or 
appeal is actually received by USTR. If requests or appeals are not 
properly marked ``Freedom of Information Request'' or ``Freedom of 
Information Act Appeal,'' or the request or appeal is inadvertently 
delayed in reaching the respective Freedom of Information Officer or 
the Appeals Committee, they will not be deemed received by USTR until 
actually received by the Freedom of Information Officer or Appeals 
Committee. In such events, the person making the request or appeal will 
be furnished a notice of the effective date of receipt.
    (d) Unusual circumstances. (1) In unusual circumstances as 
specified in paragraph (d)(2) of this section, the Freedom of 
Information Officer or his designee may extend the time limits in 
paragraph (b) of this section by written notice to the person requiring 
a record

[[Page 10162]]

under this part. This notice shall set forth the reasons for such 
extension. No such notice shall specify a date which would result in an 
extension of either the initial determination period, or the appeal 
period, or both, for more than 10 working days. An opportunity will be 
provided to limit the scope of the request so that it may be processed 
within the time limit or to arrange an alternative time frame for 
processing the request or a modified request.
    (2) As used in this section, ``unusual circumstances'' means, but 
only to the extent reasonably necessary to the proper processing of the 
particular request:
    (i) The need to search for and collect the requested records from 
overseas posts or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (iii) The need for consultations, which shall 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 having substantial subject matter interest therein.
    (3) Unusual circumstances do not include a delay that results from 
a predictable agency workload of requests, unless USTR demonstrates 
reasonable progress in reducing its backlog of pending requests. 
Refusal to reasonably modify a scope of a request or arrange an 
alternate time frame may affect a requestor's ability to obtain 
judicial review.
    (e) Multitrack processing. USTR will ordinarily respond to requests 
according to order of receipt. When USTR has a significant number of 
pending requests that prevent a response determination from being made 
within 20 working days, the requests shall be processed in a multitrack 
processing system. USTR may use two or more processing tracks by 
distinguishing between simple and more complex requests based on the 
date of receipt, the amount of time and work involved in processing the 
requests, and whether the request qualifies for expedited processing as 
described in paragraph (f) of this section. USTR may provide requesters 
in its slower track(s) with an opportunity to limit the scope of their 
requests in order to quality for faster processing within the specified 
limits of USTR's faster track(s). USTR will contact the requester 
either by telephone or by letter, whichever is more efficient in each 
case. This multitrack processing system does not obviate the 
responsibility of USTR to exercise due diligence in processing requests 
in the most expeditious manner possible.
    (f) Expedited processing. (1) Requests and appeals will be taken 
out of order and put into a separate queue for expedited treatment 
whenever it is determined they involve:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information to the public; or
    (iii) The loss of substantial due process rights.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. A requester who 
seeks expedited processing must submit a statement, certified to be 
true and correct to the best of that person's knowledge and belief, 
explaining in detail the basis for requesting expedited processing. For 
example, a requester within the category described in paragraph 
(f)(1)(ii) of this section, if not a full-time member of the news 
media, must establish that he or she is a person whose main 
professional activity or occupation is information dissemination, 
though it need not be his or her sole occupation. A requester within 
the category described in paragraph (f)(1)(ii) of this section must 
also establish a particular urgency to inform the public about the 
government activity generally. The formality of certification may be 
waived as a matter of administrative discretion.


Sec. 2004.7  Administrative appeals.

    (a) Appeals of adverse determinations. (1) The requester may appeal 
an adverse determination denying the request or referral in 
Sec. 2004.5(b). The appeal must be in writing and it must be received 
by USTR within 60 days of the date of the letter from USTR denying the 
request. The appeal letter may include as much or as little related 
information as the requester wishes, so long as it clearly identifies 
the determination that is being appealed. For the quickest possible 
handling, the appeal letter and envelope should be marked ``Freedom of 
Information Act Appeal,'' and the letter of appeal should include the 
assigned request number referenced in Sec. 2004.5(a).
    (2) The Office of the United States Trade Representative has 
established an appeals process. An Assistant United States Trade 
Representative (AUSTR) shall review all appeals. In the event that the 
designated official participated in the adverse determination under 
review, or is otherwise unable to render judgement, he or she may 
choose one of two other senior officials of the agency (of the rank of 
Deputy Assistant United States Trade Representative or higher) also 
designated to carry out the function of appellate review. The senior 
officials serving as appellate officials may not simultaneously serve 
on the classification committee discussed in Sec. 2004.12.
    (b) Final determinations on appeals normally shall be made within 
20 working days after receipt. When USTR has a significant number of 
appeals preventing a response determination within 20 working days, the 
appeals shall be processed based on the multi track system discussed in 
Sec. 2004.6.
    (c) 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. 2004.9. If the appeal is denied in whole or part, the 
person making the request shall be immediately notified of the decision 
and of the provision of judicial review of USTR's denial of the 
request.
    (d) In the event a determination is not issued within the 
appropriate time limit, and the person making the request chooses to 
initiate a court action against USTR, the administrative appeal process 
may continue.


Sec. 2004.8  Fees--definitions.

    (a) In general. USTR will charge fees that recoup the full 
allowable direct costs it incurs. Moreover, it shall use the most 
efficient and least costly methods to comply with requests for 
documents made under the FOIA.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include 
furthering those interests through litigation. USTR shall determine, 
whenever reasonably possible, the use to which a requester will put the 
requested records. When it appears that the requester will put the 
records to a commercial use, either because of the nature of the 
request itself or because USTR has reasonable cause to doubt a 
requester's stated use, USTR shall provide the requester a

[[Page 10163]]

reasonable opportunity to submit further clarification.
    (2) Direct costs means those expenses that an agency actually 
incurs in searching for and duplicating (and, in the case of commercial 
use requests, reviewing) records to respond to a FOIA request. Direct 
costs include, for example, the salary of the employees performing the 
work (the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating duplication 
machinery.
    (3) Duplication means the making of a copy of a record, or the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (for example magnetic tape or disk), among others. 
USTR shall honor a requester's specified preference of form or format 
of disclosure if the record is readily reproducible with reasonable 
efforts in the requested form or format by the office responding to the 
request.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, or an 
institution of professional education, or an institution of vocational 
education, that operates a program of scholarly research. To be in this 
category, a requester must show that the requester is authorized by and 
is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use but are sought to further 
scholarly research.
    (5) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as that term is defined in 
paragraph (b)(1) of this section, and that is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry. To be in this 
category, a requester must show that the request is authorized by and 
is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use but are sought to further 
scientific research.
    (6 ) Representative of the news media, or news media requester, 
means any person actively gathering news for an entity that is 
organized and operated to publish or broadcast news to the public. The 
term ``news'' means information that is about current events or that 
would be of current interest to the public. Examples of news media 
entities include television or radio stations broadcasting to the 
public at large and publishers of periodicals (but only in instances 
where they can qualify as disseminators of ``news'') who make their 
products available for purchase or subscription by the general public. 
For ``freelance'' journalists to be regarded as working for a news 
organization, they must demonstrate a solid basis for expecting 
publication through that organization. A publication contract would be 
the clearest proof, but USTR shall also look to the past publication 
record of a requester in making this determination. To be in this 
category, a requester must not be seeking the requested records for 
commercial use. However, a request for records supporting the news-
dissemination function of the requester shall not be considered to be 
for a commercial use.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt 
from disclosure. It also includes processing any record for 
disclosure--for example, doing all that is necessary to redact and 
prepare it for disclosure. Review costs are recoverable even if a 
record ultimately is not disclosed. Review time includes time spent 
considering any formal objection to disclosure made by a business 
submitter under Sec. 2004.11, but does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format. USTR shall ensure that 
searches are done in the most efficient and least expensive manner 
reasonably possible. For example, USTR shall not search line-by-line 
where duplicating a document would be quicker and less expensive.


Sec. 2004.9  Fee designations.

    (a) Fees. USTR will charge fees as set forth in this paragraph (a) 
unless a fee is under paragraph (b) of this section or would be reduced 
under Sec. 2004.10(e).
    (1) Manual searches for records. For each quarter hour spent by 
clerical personnel in searching for and retrieving a requested record, 
the fee will be $3.50. Where such retrieval cannot be performed 
entirely by clerical personnel--for example, where the identification 
of records within the scope of a request requires the use of 
professional personnel--the fee will be $8.75 per quarter hour. Where 
the time of managerial personnel is required, the fee will be $10.25 
per quarter hour.
    (2) Computer searches for records. USTR will charge at the actual 
direct cost of providing the service. This will include the cost of 
operating the central processing unit (CPU) for that portion of 
operating time that is directly attributable to searching for records 
responsive to a FOIA request and operator/programmer salary 
apportionable to the search.
    (3) Review of records. Only requesters who are seeking documents 
for commercial use may be charged for time spent reviewing records to 
determine whether they are exempt from mandatory disclosure. Charges 
may be assessed only for the initial review, i.e., the review 
undertaken the first time USTR analyzes the applicability of a specific 
exemption to a particular record or portion of a record. Records or 
portions of records withheld in full under an exemption that is 
subsequently determined not to apply may be reviewed again to determine 
the applicability of other exemptions not previously considered. The 
costs for such a subsequent review are assessable.
    (4) Duplication of records. For paper copies, records will be 
duplicated at a rate of $.15 per page. For copies prepared by computer, 
such as diskettes, tapes, or printouts, USTR shall charge the actual 
cost, including operator time, of production of the tape or printout. 
For other methods of reproduction or duplication, USTR will charge the 
actual direct costs of producing the document(s).
    (5) Other charges. USTR will recover the full costs of providing 
services such as those enumerated in this paragraph (a)(5) when it 
elects to provide them.
    (i) Certifying that records are true copies;
    (ii) Sending records by special methods such as express mail.
    (6) Remittances. Remittances shall be in the form either of 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 order of 
the Treasury of the United States and mailed or delivered to the 
Freedom of Information Officer, Office of the United States Trade 
Representative, 600 17th Street, N.W., Washington, D.C. 20508.
    (7) A receipt for fees paid will be given upon request. A refund of 
fees paid for services actually rendered will not be made.
    (b) Limitations on charging fees (1) No search fee will be charged 
for requests by educational institutions, noncommercial scientific 
institutions, or representatives of the news media.

[[Page 10164]]

    (2) No search fee or review will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, 
USTR will provide without charge: the first 100 pages of duplication 
(or the cost equivalent); and the first two hours search (or the cost 
equivalent).
    (4) Whenever a total fee calculated under paragraph (c) of this 
section is $14.00 or less for any request, no fee will be charged.
    (5) The provisions of paragraphs (b)(3) and (4) of this section 
work together. This means that for requesters other than those seeking 
records for a commercial use, no fee will be charged unless the cost of 
search in excess of two hours plus the cost of duplication in excess of 
100 pages totals more than $14.00.
    (c) Notice of anticipated fees in excess of $25.00. When USTR 
determines or estimates that the fees to be charged under this section 
will amount to more than $25.00, the USTR shall notify the requester of 
the actual or estimated amount of fees, unless the requester has 
indicated a willingness to pay fees as high as those anticipated. If 
only a portion of the fee can be estimated readily, the USTR shall 
advise the requester that the estimated fee may be only a portion of 
the total fee. In cases in which a requester has been notified that 
actual or estimated fees may exceed $25.00, the request shall not be 
considered received and further work shall not be done on it until the 
requester agrees to pay the anticipated total fee. Any such agreement 
should be memorialized in writing. A notice under this paragraph will 
offer the requester an opportunity to discuss the matter with USTR in 
order to reformulate the request to meet the requester's needs at a 
lower cost.


Sec. 2004.10  Miscellaneous fee provisions.

    (a) Charging interest. USTR may charge interest on any unpaid bill 
starting on the 31st day following the date of billing the requester. 
Interest charges will be assessed at the rate provided in 31 U.S.C. 
3717 and will accrue from the date of billing until payment is received 
by the USTR. USTR will follow the provisions of the Debt Collection Act 
of 1982, Public Law 97-265 (October 25, 1982), and its administrative 
procedures, including the use of consumer reporting agencies, 
collection agencies, and offset.
    (b) Aggregating requests. Multiple requests involving related 
matters may be aggregated for two purposes. When USTR reasonably 
believes that a requester or, on rare occasions, a group of requesters 
acting in concert, is:
    (1) Attempting to break a request down into a series of requests 
for the purpose of evading the assessment of fees, USTR may aggregate 
any such requests and charge accordingly. One element to be considered 
in determining whether a belief would be reasonable is the time period 
over which the requests have occurred.
    (2) When USTR reasonably believes that such a request constitutes a 
single request, which would otherwise satisfy the unusual circumstances 
set forth in Sec. 2004.6(d), and the request involves clearly related 
matters. Multiple requests involving unrelated matters shall not be 
aggregated.
    (c) Charges for a search without disclosure. USTR may assess 
charges for time spent searching, even if it fails to locate the 
records or if records located are determined to be exempt from 
disclosure. If USTR estimates that search charges are likely to exceed 
$25, it shall notify the requester of the estimated amount of fees, 
unless the requester has indicated in advance his willingness to pay 
fees as high as those anticipated. Such a notice shall offer the 
requester the opportunity to confer with agency personnel with the 
object of reformulating the request to meet his or her needs at a lower 
cost.
    (d) Advance payments. USTR may not require a requester to make an 
advance payment, i.e., payment before work is commenced or continued on 
a request, unless:
    (1) USTR estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250. Then, USTR 
will notify the requester of the likely cost and obtain satisfactory 
assurance of full payment where the requester has a history of prompt 
payment of FOIA fees, or require an advance payment of an amount up to 
the full estimated charges in the case of requesters with no history of 
payment; or
    (2) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing). Then, 
USTR may require the requester to pay the full amount owed plus any 
applicable interest as provided in paragraph (a) of this section or 
demonstrate that he or she has, in fact, paid the fee, and to make an 
advance payment of the full amount of the estimated fee before the 
agency begins to process a new request or a pending request from the 
requester.
    (3) When USTR acts under paragraph (d)(1) or (2) of this section, 
the administrative time limits prescribed in the FOIA, 5 U.S.C. 
552(a)(6) (i.e., 10 working days from receipt of initial requests and 
20 working days from receipt of appeals from initial denial, plus 
permissible extensions of these time limits) will begin only after USTR 
has received fee payments described in this paragraph (d).
    (e) Waiver or reduction of charges. Fees otherwise chargeable in 
connection with a request for disclosure of a record shall be waived or 
reduced where it is determined that disclosure is in the interest of 
USTR or in the public interest because it is:
    (1) Likely to contribute significantly to public understanding of 
the operations or activities of the Government and
    (2) Is not primarily in the commercial interest of the requester.

Subpart B--Rules Governing Disclosure


Sec. 2004.11  Notification regarding requests for confidential business 
information.

    (a) In general. Business information obtained by USTR from a 
submitter will be disclosed under the FOIA only consistent with the 
procedures established in this section.
    (b) Definitions. For the purposes of this section:
    (1) Business information means commercial or financial information 
obtained by USTR from a submitter that may be protected from disclosure 
under exemption 4 of the FOIA (see Sec. 2004.13).
    (2) Submitter means any person or entity from whom USTR obtains 
business information, directly or indirectly. The term includes but is 
not limited to corporations; state, local and tribal governments; and 
foreign governments.
    (c) Designation of business information. A submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
therafter, any portions of its submission that is considers to be 
protected from disclosure under exemption 4.
    (d) Notice to submitters. USTR shall provide a submitter with 
prompt written notice of a FOIA request or administrative appeal that 
seeks its business information whenever required under paragraph (e) of 
this section, except as provided in paragraph (h) of this section, in 
order to give the submitter an opportunity to object to disclosure of 
any specified portion of that information under paragraph (f) of this 
section. The notice shall either describe the business information 
requested or include copies of the requested records or record portions 
containing the information.

[[Page 10165]]

    (e) Where notice is required. Notice shall be given to the 
submitter wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
exemption 4; or
    (2) USTR has reason to believe that the information may be 
protected from disclosure under exemption 4.
    (f) Opportunity to object to disclosure. USTR will allow a 
submitter a reasonable period of time to respond to the notice 
described in paragraph (d) of this section. If a submitter has any 
objection to disclosure, it is required to submit a detailed written 
statement. The statement must specify all grounds for withholding any 
portion of the information under any exemption of the FOIA and, in the 
case of exemption 4, it must show why the information is a trade secret 
or commercial or financial information that is privileged or 
confidential. In the event that a submitter fails to respond to the 
notice within the time specified in it, the submitter will be 
considered to have no objection to disclosure of the information. In 
most cases this will result in a disclosure of information. Information 
provided by a submitter regarding the application of the exemption may 
itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. USTR shall consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose business information. Whenever USTR decides to disclose 
business information over the objection of a submitter, USTR shall give 
the submitter written notice, which shall include:
    (1) A statement of reason(s) why each of the submitter's disclosure 
objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) USTR determined the information should not be disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statue (other than 
FOIA) or by a regulation issued in accordance with Executive Order 
12600 (which pertains to agency rules, opinions, orders and 
proceedings); or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous--except that, in such a case, 
USTR shall, within a reasonable time prior to a specific disclosure 
date, give the submitter written notice of any final decision to 
disclose the information.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, USTR shall 
promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever USTR provides a 
submitter with notice and an opportunity to object to disclosure under 
paragraph (d) of this section, USTR shall also notify the requester(s). 
Whenever USTR notifies a submitter of its intent to disclose requested 
information under paragraph (g), the USTR shall also notify the 
requester(s). Whenever a submitter files a lawsuit seeking to prevent 
the disclosure of business information, the USTR shall notify the 
requester(s).


Sec. 2004.12  Classified information.

    (a) A Classification Review Committee has been established within 
USTR to make determinations on the applicability of the exemption for 
classified documents. The Committee is composed of one Assistant U.S. 
Trade Representative representing a regional or bilateral office, the 
AUSTR for Trade Policy Coordination and a lawyer from the General 
Counsel's office.
    (b) The applicability of the exemption for classified information, 
Exemption 1 of the FOIA, requires a determination that the record in 
question is specifically authorized under the criteria established by 
Executive Order 12958 to be kept classified and is in fact properly 
classified pursuant to that order. This determination shall be made 
whenever possible before the initial denial under Sec. 2004.5. It must 
in any case be made prior to the decision of an appeal under 
Sec. 2004.7. No denial should be based on the existence of a 
classification marking on the record, and there shall be a substantive 
review of the validity of the classification to the maximum extent 
feasible within the time limits for a denial under Sec. 2004.6.
    (c) Whenever a request is made for information that is classified, 
or may be appropriate for classification, by another agency under 
Executive Order 12958, or any other executive order concerning the 
classification of records, USTR shall refer the responsibility for 
responding to the request for such information to the agency that 
classified the information, or has the primary interest in it, as 
appropriate. Whenever a record contains information that has been 
derivatively classified by another agency, USTR shall refer the 
responsibility for responding to the request regarding that information 
to the agency that classified the underlying information. The person 
requesting the record will be advised of the date and the addressee of 
the referral.
    (d) At the request of another agency, the Classification Review 
Committee will make recommendations on the release of material 
concerning ``national defense or foreign policy'' originally classified 
by another agency but which is of significant subject-matter interest 
to USTR.


Sec. 2004.13  Records which may be exempt from disclosure.

    (a) The following categories of records maintained by USTR may be 
exempted from disclosure:
    (1) Records specifically authorized under criteria established by 
an executive order to be kept confidential in the interest of national 
defense or foreign policy and are in fact properly classified pursuant 
to such executive order.
    (2) Records related solely to the internal personnel rules and 
practices of the agency.
    (3) Records specifically exempted from disclosure by statute, 
including but not limited to information relating to trade negotiations 
exempted under 19 U.S.C. 2155(g)(1)(A) and B and 2155(g)(2).
    (4) Records of trade secrets and commercial or financial 
information obtained from a person and which are privileged or 
confidential.
    (5) Records which are inter-agency or intra-agency memorandums, 
letters, telegrams, or airgrams (or other forms of communication) which 
would not be available by law to a party other than an agency in 
litigation with the agency.
    (6) Records such as personnel and medical files and similar files 
the public disclosure of which would constitute a clearly unwarranted 
invasion of personal privacy.
    (7) Such other records that fall within exceptions noted in 5 
U.S.C. 552(b)(7), (8), and (9).
    (b) Any reasonably segregable nonexempt portion of a record shall 
be provided to any person requesting such records after deletion of the 
portions which are exempt under paragraph (a) of this section. Normally 
a portion of a record shall be considered reasonably segregable when 
segregation can produce an intelligible record which is not distorted 
out of context and does not contradict the record being withheld.
    (c) The amount of information deleted shall be indicated on the 
released

[[Page 10166]]

portion of the record, unless including that indication would harm an 
interest protected by the exemption in paragraph (a) of this section 
under which the deletion is made. If technically feasible, the amount 
of the information deleted shall be indicated at the place in the 
record where such deletion is made.


Sec. 2004.14  Annual report to Congress.

    (a) USTR shall compile FOIA statistics on a fiscal year basis 
beginning on October 1, 1997, and will submit this report to the 
Attorney General of the United States. The report will include:
    (1) Number of requests received;
    (2) Number of requests processed;
    (3) The number of requests for records pending before USTR as of 
September 30 of the preceding year, and the median number of days that 
such requests had been pending before USTR as of that date;
    (4) The number of appeals made by persons under the Act, the 
results of such appeals, and the reason for the action by USTR upon 
each appeal that results in a denial of information;
    (5) A complete list of all statutes that USTR relies upon to 
authorize it to withhold information under the Act, a description of 
whether a court has upheld the decision of USTR to withhold information 
under each such statute, and a concise description of the scope of any 
information withheld;
    (6) The total amount of fees collected by USTR for processing 
requests; and
    (7) The number of full-time staff of USTR devoted to processing 
requests for records, and the total amount expended in terms of time 
and dollars by that staff in processing requests.
    (b) USTR shall make the above report available to the public 
including by computer telecommunications, or if computer 
telecommunications means have not been established by USTR, by other 
electronic means.

Susan Esserman,
General Counsel.
[FR Doc. 98-4046 Filed 2-27-98; 8:45 am]
BILLING CODE 3190-01-M