[Federal Register Volume 63, Number 232 (Thursday, December 3, 1998)]
[Proposed Rules]
[Pages 66769-66772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32193]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 63, No. 232 / Thursday, December 3, 1998 / 
Proposed Rules  

[[Page 66769]]


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OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2604

RIN 3209-AA22


Proposed Amendments to the Office of Government Ethics Freedom of 
Information Act Regulation

AGENCY: Office of Government Ethics (OGE).

ACTION: Proposed rule amendments.

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SUMMARY: The Office of Government Ethics is proposing to amend its 
rules under the Freedom of Information Act (FOIA) primarily to 
effectuate various provisions under the 1996 Electronic FOIA 
Amendments. The proposed revisions include the new response time for 
FOIA requests, procedures for requesting expedited processing, 
additional categories of documents available in OGE's FOIA reading room 
facility, the availability of certain public information on OGE's Web 
site, and express inclusion of electronic records and automated 
searches along with paper records and manual searches. In addition, 
OGE's proposed amendments would increase the general FOIA search fees 
somewhat. Finally, OGE is proposing some other updating revisions and 
corrections. This rulemaking only deals with such matters at OGE; it is 
not an executive branchwide regulation.

DATES: Comments from the public and the agencies are invited and are 
due by February 1, 1999.

ADDRESSES: William E. Gressman, Associate General Counsel, Office of 
Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 
20005-3917.

FOR FURTHER INFORMATION CONTACT: Mr. Gressman at the Office of 
Government Ethics; telephone: 202-208-8000, ext. 1110; TDD: 202-208-
8025; FAX: 202-208-8037; Internet E-mail address: [email protected] (for E-
mail messages, the subject line should include the following 
reference--Proposed Amendments to the OGE FOIA Regulation).

SUPPLEMENTARY INFORMATION: In this rulemaking, the Office of Government 
Ethics is proposing to amend its regulation at 5 CFR part 2604 under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552. These proposed 
amendments do not concern separate subpart G of part 2604, which sets 
forth certain duplication and mailing fees this Agency can charge under 
the Ethics in Government Act of 1978 (the Ethics Act), 5 U.S.C. 
appendix, for large requests for copies of Standard Form 278 Executive 
Branch Personnel Public Financial Disclosure Reports that are on file 
at OGE.
    The primary focus of these proposed amendments is to effectuate for 
this Agency various provisions under the 1996 Electronic FOIA 
Amendments, Public Law No. 104-231. Thus, in a proposed newly 
redesignated paragraph (a)(1) of Sec. 2604.305, OGE would codify in its 
FOIA regulations the new statutorily prescribed general 20 working day 
response time for responding to FOIA requests. The Office of Government 
Ethics has already been administratively adhering to the new time 
period (though many requests are still answered in less time), along 
with the various other requirements of the Electronic FOIA Amendments. 
The prior statutory response time was 10 working days.
    In addition, OGE proposes to add a new paragraph (a)(2) to 
Sec. 2604.305 to codify the provision for response to requests for 
expedited processing within 10 calendar days. Pursuant to the 
Electronic FOIA Amendments, a person can request expedited processing 
of his or her FOIA request based upon a showing of ``compelling need,'' 
which the requester must certify in writing to be true and complete to 
the best of his or her knowledge and belief. Compelling need is defined 
in the amended FOIA as circumstances in which a failure to obtain 
records requested on an expedited basis could reasonably be expected to 
present an imminent threat to the life or physical safety of an 
individual or, for a person primarily engaged in disseminating 
information, an urgency to inform the public about actual or alleged 
Federal Government activity. The Office of Government Ethics is then to 
respond to expedited processing requests within 10 calendar days, as it 
has been doing as a matter of administrative practice. These provisions 
would be codified in new proposed paragraph (e) of Sec. 2604.301 of 
OGE's FOIA regulation.
    The Office of Government Ethics has decided not to propose 
multitrack processing of its FOIA requests. The Electronic FOIA 
Amendments provide that an agency can provide by regulation for 
multiple ``tracks'' in responding to FOIA requests, depending on the 
amount of time and work entailed in responding to differing kinds of 
requests. Since OGE only receives a limited number of FOIA requests 
each year (currently running at the rate of about 35-45) and is able to 
respond to them on a timely basis, this Agency does not need to provide 
for separate processing tracks for more complicated versus simpler FOIA 
requests. Moreover, in that regard, OGE does not have a FOIA backlog.
    The Electronic FOIA Amendments require that deleted portions of 
copies of documents released in part be identified and that a volume 
estimation of materials withheld in whole be given, unless exempt 
information would thereby be revealed. The Office of Government Ethics 
would codify this requirement in proposed new paragraph (b)(3) of 
Sec. 2604.303 of its FOIA regulation. In a separate, unrelated proposed 
revision to Sec. 2604.303, paragraph (a) would be revised to provide 
expressly that OGE could alternatively consult with another Government 
agency at which responsive records originated and then decide whether 
to grant or deny the request, in lieu of the usual course of referring 
the FOIA request to the originating agency for its direct response to 
the requester.
    The general requirement to honor a form or format request, unless 
the record requested is not readily reproducible in the requested form 
or format, would be set forth in paragraph (c) of Sec. 2604.302, as 
proposed to be revised. The definitions of the terms ``records'' and 
``search'' in Sec. 2604.103 are proposed to be amended to more 
explicitly include electronic records and automated searches (along 
with paper records and manual searches).
    The Office of Government Ethics would also clarify in revised 
subpart B and Sec. 2604.201 headings and text that, as a small agency 
with a limited FOIA practice, it has a FOIA public reading

[[Page 66770]]

room facility, rather that a ``room'' per se. Thus, upon request, OGE 
makes available information required to be made available under FOIA 
paragraph (a)(2) and certain other publicly available information in 
its reception or conference room areas. Such materials created by OGE 
since October 1, 1996 (and in certain cases before then, if feasible), 
are also available via computer telecommunications on OGE's Internet 
Web site at the following address: http://www.usoge.gov. The Web site 
is referenced in new proposed paragraph (a)(2) of Sec. 2604.201 of the 
OGE FOIA regulation. The Electronic FOIA Amendments also added a new 
category of such publicly available materials, copies of records 
created by OGE which are requested and released to individual FOIA 
requesters which, because of the nature of their subject matter, OGE 
determines have become or are likely to become the subject of 
subsequent requests for substantially the same records, together with a 
general index thereof. In accordance with Department of Justice 
guidance, any such materials must be the subject of at least three FOIA 
requests. The Office of Government Ethics would add reference to such 
documents at proposed new paragraph (b)(4) of Sec. 2604.201 of its FOIA 
regulation. Further, OGE would add a new paragraph (d) to Sec. 2604.201 
regarding permissible deletions from records covered in this section in 
order to prevent a clearly unwarranted invasion of personal privacy.
    In Sec. 2604.501(b)(1)(i), OGE is proposing to raise the hourly 
rate for manual searches for responsive records by a homogeneous class 
of OGE personnel by 10% to reflect increased salaries and overhead 
since the OGE FOIA regulations were issued in February 1995. The new 
proposed rates would be $11.00 an hour (versus $10.00 currently) for 
such searches by clerical staff and $22.00 an hour (versus $20.00) for 
such searches by professional staff. The charge for individual staff 
searches would remain unchanged at the particular salary rate (basic 
pay plus 16%) of the individual employee making the search.
    Finally, OGE is proposing to make a couple of updating changes and 
corrections to its FOIA regulation, including adding its current 
telephone and FAX numbers.

Matters of Regulatory Procedure

Executive Order 12866

    In issuing these proposed amendments to its Freedom of Information 
Act regulation, OGE has adhered to the regulatory philosophy and the 
applicable principles of regulation set forth in section 1 of Executive 
Order 12866, Regulatory Planning and Review. These proposed amendments 
have also been reviewed by the Office of Management and Budget under 
that Executive order.

Regulatory Flexibility Act

    As Office of Government Ethics Director, I certify under the 
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this notice of 
proposed rulemaking will not have a significant economic impact on a 
substantial number of small entities because it would only affect 
Freedom of Information Act matters at OGE.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
because these proposed amendments do not contain any information 
collection requirements that require the approval of the Office of 
Management and Budget.

List of Subjects in 5 CFR Part 2604

    Administrative practice and procedure, Archives and records, 
Confidential business information, Conflict of interests, Freedom of 
Information, Government employees.

    Approved: October 5, 1998.
Stephen D. Potts,
Director, Office of Government Ethics.
    For the reasons set forth in the preamble, the Office of Government 
Ethics is proposing to amend 5 CFR part 2604 as follows:

PART 2604--[AMENDED]

    1. The authority citation for part 2604 continues to read as 
follows:

    Authority: 5 U.S.C. 552; 5 U.S.C. App. (Ethics in Government Act 
of 1978); E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.


Sec. 2604.103  [Amended]

    2. In Sec. 2604.103, the text of the definition of the term 
``Records'' is amended by adding, in the second parenthetical, between 
the words ``as'' and ``punchcards'' the words ``electronic documents, 
electronic mail,'', and the text of the definition of the term 
``Search'' is amended by adding between the words ``material'' and 
``that'' the words ``manually or by automated means''.
    3. The heading of subpart B is revised to read as follows:

Subpart B--FOIA Public Reading Room Facility and Web Site; Index 
Identifying Information for the Public

    4. Section 2604.201 is amended by:
    a. Revising the heading;
    b. Redesignating paragraph (a) as paragraph (a)(1) and adding a new 
paragraph (a)(2);
    c. Adding the word ``facility'' after the word ``room'' at each 
place it appears in newly redesignated paragraph (a)(1), including the 
heading thereof, and in paragraphs (b) and (c);
    d. Removing the telephone number ``(202) 523-5757'' and the FAX 
number ``(202) 523-6325'' in the second sentence of newly redesignated 
paragraph (a)(1) and adding in their place the new telephone number 
``202-208-8000'' and FAX number ``202-208-8037'', respectively;
    e. Removing the word ``and'' at the end of paragraph (b)(3);
    f. Redesignating paragraph (b)(4) as paragraph (b)(5); and
    g. Adding new paragraphs (b)(4) and (d).
    The revision and additions read as follows:


Sec. 2604.201  Public reading room facility and Web site.

    (a) * * *
    (2) Web site. The records listed in paragraph (b) of this section, 
which are created on or after November 1, 1996, or which OGE is 
otherwise able to make electronically available (if feasible), along 
with the OGE FOIA and Public Records Guide and OGE's annual FOIA 
reports, are also available via OGE's Web site (Internet address: 
http://www.usoge.gov).
    (b) * * *
    (4) Copies of records created by OGE that have been released to any 
person under subpart C of this part which, because of the nature of 
their subject matter, OGE determines have become or are likely to 
become the subject of subsequent requests for substantially the same 
records, together with a general index of such records; and
* * * * *
    (d) OGE may delete from the copies of materials made available 
under this section any identifying details necessary to prevent a 
clearly unwarranted invasion of personal privacy. Any such deletions 
will be explained in writing and the extent of such deletions will be 
indicated on the portion of the records that are made available or 
published, unless the indication would harm an interest protected by 
the FOIA exemption pursuant to which the deletions are made. If 
technically feasible, the extent of any such deletions will be 
indicated at the place in the records where they are made.
    5. Section 2604.301 is amended by removing the telephone number 
``(202) 523-5757'' in the first sentence of

[[Page 66771]]

paragraph (a) and adding in its place the following text (with the new 
telephone and FAX numbers) ``202-208-8000, or FAX, 202-208-8037'', and 
by adding a new paragraph (e) to read as follows:


Sec. 2604.301  Requests for records.

* * * * *
    (e) Seeking expedited processing. (1) A requester may seek 
expedited processing of a FOIA request if a compelling need for the 
requested records can be shown.
    (2) ``Compelling need'' means:
    (i) Circumstances in which failure to obtain copies of the 
requested records on an expedited basis could reasonably be expected to 
pose an imminent threat to the life or physical safety of an 
individual; or
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if the request is made by a person 
primarily engaged in disseminating information.
    (3) A requester seeking expedited processing should so indicate in 
the initial request, and should state all the facts supporting the need 
to obtain the requested records quickly. The requester must also 
certify in writing that these facts are true and correct to the best of 
the requester's knowledge and belief.
    6. Section 2604.302 is amended by revising the heading and first 
sentence of paragraph (b) and revising paragraph (c) to read as 
follows:


Sec. 2604.302  Response to requests.

* * * * *
    (b) Referral to, or consultation with, another agency. When a 
requester seeks access to records that originated in another Government 
agency, OGE will normally refer the request to the other agency for 
response; alternatively, OGE may consult with the other agency in the 
course of deciding itself whether to grant or deny a request for access 
to such records. * * *
* * * * *
    (c) Honoring form or format requests. In making any record 
available to a requester, OGE will provide the record in the form or 
format requested, if the record already exists or is readily 
reproducible by OGE in that form or format. If a form or format request 
cannot be honored, OGE will so inform the requester and provide a copy 
of a nonexempt record in its existing form or format or another 
convenient form or format which is readily reproducible. OGE will not, 
however, generally develop a completely new record (as opposed to 
providing a copy of an existing record in a readily reproducible new 
form or format, as requested) of information in order to satisfy a 
request.
* * * * *
    7. Section 2604.303 is amended by removing the word ``and'' 
following paragraph (b)(2), redesignating paragraph (b)(3) as paragraph 
(b)(4), and adding a new paragraph (b)(3) to read as follows:


Sec. 2604.303  Form and content of responses.

* * * * *
    (b) * * *
    (3) When only a portion of a document is being withheld, the amount 
of information deleted and the FOIA exemption(s) justifying the 
deletion will generally be indicated on the copy of the released 
portion of the document. If technically feasible, such indications will 
appear at the place in the copy of the document where any deletion is 
made. If a document is withheld in its entirety, an estimate of the 
volume of the withheld material will generally be given. However, 
neither an indication of the amount of information deleted nor an 
estimation of the volume of material withheld will be included in a 
response if doing so would harm an interest protected by any of the 
FOIA exemptions pursuant to which the deletion or withholding is made; 
and
* * * * *
    8. Section 2604.305 is amended by redesignating paragraph (a) as 
paragraph (a)(1), by removing the number ``10'' in newly redesignated 
paragraph (a)(1) and adding in its place the number ``20'', and by 
adding a new paragraph (a)(2) to read as follows:


Sec. 2604.305  Time limits.

    (a) * * *
    (2) Request for expedited processing. When a request for expedited 
processing under Sec. 2604.301(e) is received, the General Counsel will 
respond within ten calendar days from the date of receipt of the 
request, stating whether or not the request for expedited processing 
has been granted. If the request for expedited processing is denied, 
any appeal of that decision will be acted upon expeditiously.
* * * * *


Sec. 2604.402  [Amended]

    9. Section 2604.402 is amended by removing the initial lower case 
``e'' in the word ``exemption'' in the first sentence of paragraph (b) 
and adding in its place an upper case ``E''.


Sec. 2604.501  [Amended]

    10. Section 2604.501 is amended by removing the dollar amounts 
``$10.00'' and ``$20.00'' from the second sentence of paragraph 
(b)(1)(i) and adding in their place the dollar amounts ``$11.00'' and 
``$22.00'', respectively, and by removing the citation to 
``Sec. 2604.104(q)'' in the first sentence of paragraph (b)(3) and 
adding in its place the citation ``Sec. 2604.103''.
    11. Subpart F is revised to read as follows:

Subpart F--Annual OGE FOIA Report


Sec. 2604.601  Electronic posting and submission of annual OGE FOIA 
report.

    On or before February 1 of each year, OGE shall electronically post 
on its Web site and submit to the Office of Information and Privacy at 
the United States Department of Justice a report of its activities 
relating to the Freedom of Information Act (FOIA) during the preceding 
fiscal year.


Sec. 2604.602  Contents of annual OGE FOIA report.

    (a) The Office of Government Ethics will include in its annual FOIA 
report the following information for the preceding fiscal year:
    (1) The number of FOIA requests for records pending before OGE as 
of the end of the fiscal year;
    (2) The median number of calendar days that such requests had been 
pending before OGE as of that date;
    (3) The number of FOIA requests for records received by OGE;
    (4) The number of FOIA requests that OGE processed;
    (5) The median number of calendar days taken by OGE to process 
different types of requests;
    (6) The number of determinations made by OGE not to comply with 
FOIA requests in full or in part;
    (7) The reasons for each such determination;
    (8) A complete list of all statutes upon which OGE relies to 
authorize withholding of information under FOIA Exemption 3, 5 U.S.C. 
552(b)(3);
    (9) A description of whether a court has upheld the decision of the 
agency to withhold information under each such statute;
    (10) A concise description of the scope of any information withheld 
under each such statute;
    (11) The number of appeals made by persons under 5 U.S.C. 
552(a)(6);
    (12) The result of such appeals;
    (13) The reason for the action upon each appeal that results in a 
denial of information;
    (14) The total amount of fees collected by OGE for processing 
requests; and
    (15) The number of full-time staff of OGE devoted to processing 
requests for records under the FOIA; and

[[Page 66772]]

    (16) The total amount expended by OGE for processing such requests.
    (b) In addition, OGE will include in the report such additional 
information about its FOIA activities as is appropriate and useful in 
accordance with Justice Department guidance and as otherwise determined 
by OGE.

[FR Doc. 98-32193 Filed 12-2-98; 8:45 am]
BILLING CODE 6345-01-P