[Federal Register Volume 64, Number 58 (Friday, March 26, 1999)]
[Proposed Rules]
[Pages 14668-14676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7222]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

45 CFR Part 5

RIN 0991-AB00


Revision of the Department of Health and Human Services Freedom 
of Information Act Regulations and Implementation of the Electronic 
Freedom of Information Act Amendments of 1996

AGENCY: Department of Health and Human Services.

ACTION: Proposed rule.

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SUMMARY: This document sets forth proposed revisions to the 
Department's Freedom of Information regulations. The regulations have 
been streamlined and condensed, in accord with principles of the 
National Performance Review, and incorporated more ``user-friendly'' 
language wherever possible. These proposed revisions also contain new 
provisions implementing the Electronic Freedom of Information Act 
Amendments of 1996.

DATES: Submit comments on this proposed regulation on or before May 26, 
1999.

ADDRESSES: Address all comments concerning this proposed rule to 
Rosario Cirrincione, Freedom of Information and Privacy Acts Division, 
Office of the Assistant Secretary for Public Affairs, U.S. Department 
Health and Human Services, Hubert H. Humphrey Building, 200 
Independence Avenue SW., Washington, DC 20201-0004.

FOR FURTHER INFORMATION CONTACT: Rosario Cirrincione (202) 690-7453.

SUPPLEMENTARY INFORMATION: These comprehensive revisions of 45 CFR part 
5 incorporate changes to the language and structure of the regulations 
and add new provisions to implement the Electronic Freedom of 
Information Act Amendments of 1996 (Pub. L. 104-231). The Department's 
current Freedom of Information Act regulations are no longer in 
compliance with the law in that they do not reflect the provisions of 
the 1996 Amendments. This revised regulation is intended to bring the 
Department into compliance and to inform the public as to how we will 
implement the law in the light of the Amendments.

New Provisions

    A. The following new definitions are added to the regulation:
    1. Electronic mail or e-mail means a communication of information 
electronically from one personal computer user to another.
    2. Expedited processing means placing a request in a special queue 
for processing ahead of requests which had been received earlier. 
Within any special queue as well as within any regular queues we may 
also maintain, requests will continue to be processed on a ``first in, 
first out'' basis.
    3. Form means the medium in which the record is physically 
incorporated (e.g., paper, floppy disk, CD-ROM, etc.).
    4. Format means a particular manner of storing or presenting the 
information within a given medium, such as a particular computer 
software used to generate or reproduce the record.
    5. Reproduction means duplicating an existing record for release, 
in whole or in part, to a requester under the Freedom of Information 
Act. As appropriate to the medium of release, records may be 
photocopied, microfilmed, or electronically copied onto tape or disc.
    B. Response Times. The proposed regulation reflects the expanded 
time frame, from 10 working days to 20 working days, permitted for 
routine responses.
    C. Expedited Processing. Expedited processing is provided in cases 
where the requester demonstrates that failure to obtain the records on 
an expedited basis could reasonably be expected to pose an imminent 
threat to the life or physical safety of an individual, or, when the 
requester is a person primarily engaged in disseminating information, a 
showing is made that there exists an urgency to inform the public 
concerning an actual or alleged Federal Government activity. Other 
requests for expedited processing will be considered on a case by case 
basis. The decision to grant expedited processing rests with the FOI 
Officer, but may be appealed.
    D. What Is Not A FOIA Request. The proposed regulation attempts to 
correct a common misunderstanding by clarifying that the Freedom of 
Information Act is not the proper mechanism to seek answers to specific 
questions of program policy, appeal adjudication of program or 
administrative decisions, or to provide input into HHS program decision 
making.
    E. Electronic Records. The proposed regulation emphasizes that 
electronic records, including e-mail, are also subject to the Act, and 
that every reasonable effort will be made to provide records in the 
form and format requested.
    F. Listing of FOIA Exemptions. Because they are a matter of law, 
not regulation, and are readily available elsewhere, the proposed 
regulation does not repeat the listing of FOIA exemptions contained in 
the previous regulation.
    Similar revisions to the Freedom of Information Act Regulations of 
Executive Branch Agencies are occurring throughout the Government. 
Public hearings are not planned but public comment on the proposed rule 
is invited. Instructions as to where to mail public comments are 
included, above.
    We have examined the impacts of this proposal under Executive Order 
12866 and the Regulatory Flexibility Act (5 U.S.C. 601 to 612). 
Executive Order 12866 directs agencies to assess all costs and benefits 
of available regulatory alternatives and, when regulation is necessary, 
to select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety, and other 
advantages). Under the

[[Page 14669]]

Regulatory Flexibility Act, unless an agency certifies that a rule will 
not have a significant economic impact on a substantial number of small 
entities, the agency must analyze regulatory options that would 
minimize the impact of the rule on small entities. Title II of the 
Unfunded Mandates Reform Act (2 U.S.C. 1532) requires that agencies 
prepare an assessment of anticipated costs and benefits before 
proposing any rule that may result in an expenditure in any 1 year by 
state, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation).
    HHS has reviewed this rule and has determined that it is consistent 
with the regulatory philosophy and principles identified in Executive 
Order 12866, and these two statutes. With respect to the Regulatory 
Flexibility Act, the Secretary certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Because the proposed rule does not impose any mandates on state, local, 
or tribal governments, or the private sector that will result in a 1-
year expenditure of $100 million or more, HHS is not required to 
perform a cost-benefit analysis under the Unfunded Mandates Reform Act.

List of subjects in 45 CFR Part 5

    Administrative practices and procedure, Freedom of information.

    Dated: December 10, 1998.
Donna E. Shalala,
Secretary.

    For the reasons set out in the preamble, the Secretary proposes to 
revise 45 CFR part 5 to read as follows:

PART 5--FREEDOM OF INFORMATION REGULATIONS

Subpart A--Basic Policy

Sec.
5.1  Purpose.
5.2  Policy.
5.3  Scope.
5.4  Relationship between the FOIA and the Privacy Act of 1974.
5.5  Definitions.

Subpart B--Obtaining a Record

5.21  How to request records.
5.22  Expedited processing.
5.23  Requests not handled under the FOIA.
5.24  Referral of request outside the Department.
5.25  Responding to your request.

Subpart C--Release and Denial of Records

5.31  Designation of authorized officials.
5.32  Release of records.
5.33  Denial of requests.
5.34  Appeal of Denials.
5.35  Time limits.

Subpart D--Fees

5.41  Fees to be charged--categories of requests.
5.42  Fees to be charged--general provisions.
5.43  Fee schedule.
5.44  Procedures for assessing and collecting fees.
5.45  Waiver or reduction of fees.

Subpart E--Records Available for Public Inspection

5.51  Records available.
5.52  Indices of records.

Subpart F--Predisclosure Notification for Certain Kinds of Commercial/
Financial Records

5.61  General.

    Authority: 5 U.S.C. 552, 18 U.S.C. 1905, 31 U.S.C. 9701, 42 
U.S.C. 1306(c), E.O. 12600.

Subpart A--Basic Policy


Sec. 5.1  Purpose.

    This part contains the rules that the Department of Health and 
Human Services (HHS) follows in handling requests for records under the 
Freedom of Information Act (FOIA). It describes how to make FOIA 
requests; who can release records and who can decide not to release 
them; how much time it should take to make a determination regarding 
release; what fees may be charged; what records are available for 
public inspection; why some records are not released; and your right to 
appeal and to then go to court if we still refuse to release records.


Sec. 5.2  Policy.

    As a general policy, HHS follows a balanced approach in 
administering the FOIA. We recognize the right of the public to access 
records in the possession of the Department but also realize that some 
materials are nonetheless protected by the statute. In addition, we 
recognize the legitimate interests of persons or organizations who have 
submitted material to the Department or who would otherwise be affected 
by the release of records. For example, we have no discretion to 
release certain records, such as trade secrets and confidential 
commercial information, which we are prohibited by law from releasing. 
This policy calls for the fullest responsible disclosure consistent 
with those requirements of administrative necessity and confidentiality 
recognized in the Freedom of Information Act. In particular, the 
Department encourages a ``pro-active'' approach to making information 
available through press releases, public information programs, and to 
the greatest degree possible, electronically, through the large number 
of web sites sponsored and maintained by HHS components.


Sec. 5.3  Scope.

    These rules apply to all components of the Department. Some units 
may establish additional rules because of unique program requirements, 
but such rules must be consistent with these rules and must have the 
concurrence of the Assistant Secretary for Public Affairs. Existing 
implementing rules remain in effect to the extent they are consistent 
with the new Departmental regulation. If additional rules are issued, 
they will be published in the Federal Register, and you will be able to 
get copies from our Freedom of Information Officers.


Sec. 5.4  Relationship between the FOIA and the Privacy Act of 1974.

    (a) Coverage. The FOIA and this rule apply to all HHS records, 
including those covered by the Privacy Act. The Privacy Act, 5 U.S.C. 
552a, applies only to records that are about individuals but only if 
those records are in a system of records. ``Individuals'' and ``system 
of records'' are defined in the Privacy Act and in our Privacy Act 
regulation, part 5b of this title.
    (b) Requesting your own records. If you are an individual and 
request records, then to the degree that you are requesting your own 
records in a Privacy Act system of records, we will handle your request 
under the Privacy Act and part 5b of this title. If there is any record 
that we need not release to you under those provisions, we will also 
consider your request under the FOIA and this rule, and we will release 
the record to you if the FOIA requires it.
    (c) Requesting another individual's record. Whether or not you are 
an individual, if you request records that are about an individual 
(other than yourself) and that are in a system of records, we will 
handle your request under the FOIA and this rule. (However, if our 
disclosure in response to your request would be permitted by the 
Privacy Act's disclosure provisions, 5 U.S.C. 552a(b), for reasons 
other than the requirements of the FOIA, and if we decide to make the 
disclosure, then we will not handle your request under the FOIA and 
this rule. For example, when we make routine use disclosures pursuant 
to requests, we do not handle them under the FOIA and this rule. 
Routine use is defined in the Privacy Act and in part 5b of this 
title.) If we handle your request under the FOIA and this rule and the 
FOIA does not require releasing the records to you, then the Privacy 
Act may prohibit the release and remove our discretion to release.

[[Page 14670]]

Sec. 5.5  Definitions.

    As used in this part,
    Agency means any executive department, military department, 
government corporation, government controlled corporation, or other 
establishment in the executive branch of the Federal Government, or any 
independent regulatory agency. Thus HHS is an agency. A private 
organization is not an agency even if it is performing work under 
contract with the Government or is receiving Federal financial 
assistance. Grantee and contractor records are not subject to the FOIA 
unless they are in the possession of HHS or its agents, such as 
Medicare health insurance carriers and intermediaries.
    Commercial use means, when referring to a request, that the request 
is from or on the behalf of someone who seeks information for a use or 
purpose that furthers the commercial, trade, or profit interests of the 
requester or of a person on whose behalf the request is made. Whether a 
request is for a commercial use depends on the purpose of the request 
and the use to which the records will be put. The identity of the 
requester (e.g., individual, non-profit corporation, for profit 
corporation) or the nature of the records, while in some cases 
indicative of that purpose or use, is not necessarily determinative. 
When a request is from a representative of the news media, a purpose or 
use supporting the requester's new dissemination function is not 
considered a commercial use.
    Department or HHS means the U.S. Department of Health and Human 
Services. It includes Medicare health insurance carriers and 
intermediaries to the extent they are performing functions under 
agreements entered into under sections 1816 and 1842 of the Social 
Security Act, 42 U.S.C. 1395h, 1395u.
    Duplication means the process of making a copy of a record and 
sending it to the requester, to the extent necessary to respond to the 
request. Such copies include paper copy, microfilm, audio visual 
materials, and magnetic tape, cards, and discs.
    Educational institution means a preschool, elementary, or secondary 
school, institution of undergraduate or graduate higher education, or 
institution of professional or vocation education, which operates a 
program of scholarly research.
    Electronic mail or e-mail means a communication of information 
electronically from one personal computer user to another.
    Expedited Processing means placing a request in a special queue for 
processing ahead of other requests which had been received earlier. 
Within any special queue as well as within any regular queues we may 
also maintain, requests will continue to be processed on a ``first in/
first out basis,'' except for requests expedited on the basis of an 
imminent threat to the life or safety of a specific person, which will 
always be placed at the head of the queue.
    Form means the medium in which the record is physically maintained 
(e.g., paper, floppy diskette, CD-ROM, etc.)
    Format means a particular manner of storing or presenting the 
information within a given medium, such as a particular computer 
software used to generate or reproduce the record.
    Freedom of Information or FOIA means section 552 of Title 5, United 
States Code.
    Freedom of Information Officer means any HHS official who has been 
delegated the authority to release or withhold records, and assess, 
waive, or reduce fees in response to FOIA requests.
    Multitrack Processing means a system of separate processing queues 
into which requests are placed based on their complexity and scope. HHS 
components may establish such processing systems if, in their 
judgement, such an arrangement will enable them to provide better 
service to requesters.
    Non-commercial scientific institution means an institution that is 
not operated substantially for purposes of furthering its own or 
someone else's business, trade, or profit interests, and that is 
operated for the purposes of conducting scientific research whose 
results are not intended to promote any particular product or industry.
    Records means any handwritten, typed, printed or electronic 
documents (such as memoranda, letters, studies, tables, charts, drafts, 
transcripts, and minutes) and documentary material in other forms (such 
as magnetic tapes, cards or discs; paper tapes; audio or video 
recordings; maps; photographs; slides; microfilm; and motion pictures). 
It does not include objects or articles such as exhibits, models, 
office equipment, duplicating machines, computers or audiovisual 
processing materials. In particular, it does not include such objects 
or articles even to the extent that there is information inscribed or 
imprinted on them, or electronic instructions embedded in them. Nor 
does it include books, magazines, brochures, pamphlets, or other 
reference material in formally organized and officially designated HHS 
libraries, where such materials are available under the rules of the 
particular library.
    Representative of the news media means a person actively gathering 
information for an entity organized and operated to publish or 
broadcast news to the public. News media entities include television 
and radio broadcasters, publishers of newspapers or periodicals who 
distribute or make their products available for purchase or 
subscription by the general public, and those who may disseminate 
information to the general public, by subscription, through electronic 
means. We will treat freelance journalists as representatives of a news 
media entity if they can show a likelihood of publication through such 
an entity. A publication contract is such a basis, and a requester's 
past publication record may provide such a basis.
    Reproduction means duplicating an existing record for release, in 
whole or in part, to a requester under the Freedom of Information Act. 
As appropriate to the medium of release, records may be photocopied, 
microfilmed, or electronically copied onto tape or disc.
    Request means asking for records, whether or not you specifically 
refer to the Freedom of Information Act. Requests from other Executive 
Branch agencies and Federal court orders for documents are not included 
within this definition. Judicial subpoenas from other than Federal 
courts are requests to the extent provided by part 2 of this title.
    Review means, when used in connection with processing records for a 
commercial use request, examining records to determine what portions, 
if any, may be withheld, and any other processing that is necessary to 
prepare the records for release. It includes only the examining and 
processing that are done the first time we analyze whether a specific 
exemption applies to a particular record or portion of a record. It 
does not include examination done in the appeal stage with respect to 
an exemption that was applied at the initial response stage, nor does 
it include the process of researching or resolving general legal or 
policy issues regarding exemptions.
    Search means looking for records or portions of records responsive 
to a request. It includes reading and interpreting a request, manually 
searching hard copy paper files, electronically searching automated 
files and data bases, and page-by-page and line-by-line examination to 
identify responsive portions of a document. It does not include, 
however, line-by-line examination where merely duplicating an entire 
page would be a less expensive

[[Page 14671]]

and quicker way to comply with a request.

Subpart B--Obtaining a Record


Sec. 5.21  How to request records.

    (a) General. Our policy is to answer all requests as accurately and 
completely as possible from existing records. In order to accomplish 
this most efficiently and with a minimum of misunderstanding, we 
require all requests to be submitted in writing, by postal service, 
facsimile or messenger. All requests, no matter how submitted, must be 
signed by the person making the request and contain the postal address 
of the requester and the name of the person responsible for the payment 
of any fees that may be charged. A phone number where we can reach the 
requester to get clarification of the request or resolve other issues 
concerning the request, is strongly recommended. Providing the request 
in writing assures that all the rights provided by the FOIA and these 
regulations are protected (for example, the right to administratively 
appeal any denials we may make and the right to have our decisions 
reviewed in Federal court).
    (b) Addressing requests. It will help us to handle your request 
sooner if you address it to the Freedom of Information Officer of the 
HHS component that is most likely to have the records you want. (See 
Sec. 5.31 of this part for a list of HHS Freedom of Information 
Officers.) If you cannot determine who is most likely to have the 
records you seek, send the request to: HHS Freedom of Information 
Officer, Room 645-F, Hubert H. Humphrey Building, Department of Health 
and Human Services, 200 Independence Avenue SW, Washington, DC 20201. 
Write the words ``Freedom of Information Act Request'' on the envelope 
and on the letter.
    (c) Details in the letter. You should provide all the details you 
can that will help us identify and locate the records you want. A 
request submitted without details, such as one for ``all records you 
have on (a particular subject),'' is likely to require a great deal of 
search time and be very expensive, even if we find few or no records. 
If you are not sure how to write your request or what details to 
include, communicate with a Freedom of Information Officer.


Sec. 5.22  Expedited processing.

    You may ask that your request be handled in an expedited fashion.
    (a) Reasons for expedited processing. We will expedite the 
processing of your request if you demonstrate:
    (1) That failure to obtain the requested records on an expedited 
basis could reasonably be expected to pose an imminent threat to the 
life or physical safety of a specific individual; or
    (2) With respect to a request made by a person primarily engaged in 
disseminating information, that there exists an urgency to inform the 
public concerning actual or alleged Federal Government activity. (A 
routine publication deadline, of itself, shall not constitute urgency.)
    (3) We will consider other reasons for expedited processing on a 
case-by-case basis. (One situation that may warrant expedited 
processing in some cases occurs where lack of such processing will 
deprive you of information for which you have a substantial need for 
purposes of litigation with a governmental agency. If you ask for 
expedited processing on this basis, you must show that you submitted 
the request as soon as possible after learning of the need for the 
records.)
    (b) Process for asking for expedited processing. You must make your 
request for expedited processing in writing. You must include a 
complete explanation of the reasons that you believe justify expediting 
the processing of your request. You must certify in writing that the 
explanation is true and correct to the best of your knowledge and 
belief. Such a certification is required, but it does not, by itself, 
entitle you to expedited processing. You must address the request for 
expedited processing to the FOI Officer whose component has the records 
you want. (See Sec. 5.31 of this part for a list of FOI Officers in 
HHS.) If the records are in more than one component of HHS, you must 
address your request for expedited processing to the HHS FOI Officer.
    (c) The decision. The FOI Officer will decide whether to expedite 
the processing of your request for records. The decision will be made, 
and notice of the decision will be sent to you, within ten calendar 
days after the date of your request for expedited processing. The date 
of your request will be the date it is received in the FOI office of 
the component maintaining the records requested.
    (d) Granting the request. Granting a request for expedited 
processing does not constitute a promise to meet any particular 
deadline that you may try to impose on us for responding to your 
request for records.
    (e) Denying the request. If we deny your request for expedited 
processing, we will process your request for records with other non-
expedited requests for records, on a first-in/first-out basis. You may 
appeal a decision to deny expedited processing. The denial letter will 
explain the appeal process and will identify the official authorized to 
decide an appeal of the decision. You must address the appeal to the 
official identified in the denial letter. We will make a decision on 
your appeal expeditiously and we will notify you promptly of that 
decision. If we deny your appeal, you may seek judicial review of that 
decision in the United States District Court in the district where you 
reside or have your principal place of business, in the district where 
the records are situated, or in the District of Columbia.


Sec. 5.23  Requests not handled under the FOIA.

    (a) We will not handle your request under the FOIA and this 
regulation to the extent that it asks for records that are currently 
available, either from HHS or another part of the Federal Government, 
under a statute other than the FOIA that provides for charging fees for 
those records. For example, we will not handle your request under the 
FOIA and these regulations to the extent that it asks for records 
currently available from the Government Printing Office or the National 
Technical Information Service.
    (b) We will not handle your request under the FOIA and this 
regulation to the extent that it asks for records that are distributed 
by an HHS program office as part of its regular program activity, for 
example, health education brochures distributed by the National 
Institutes of Health.
    (c) We will not handle your request under the FOIA and this 
regulation to the extent that it asks for specific answers to questions 
regarding program policies of any component of HHS, seeks adjudication 
of decisions made in the administration of any our programs, or 
attempts to circumvent established procedures providing for input into 
our decision making processes. There are other mechanisms available to 
address each of these kinds of concerns.


Sec. 5.24  Referral of requests outside the Department.

    If you request records that were created by, or provided to us by, 
another Federal agency, we may refer the records and your request (or 
the portion of your request which would be answered by those records) 
to that agency for response. We may likewise refer your request for 
classified records to the agency that classified them. In these cases, 
the other agency will process and respond to your request (or that 
portion of your request) under that agency's regulations. You will not 
need

[[Page 14672]]

to make a separate request to that agency. We will notify you when we 
refer your request to another agency.


Sec. 5.25  Responding to your request.

    (a) Retrieving records. The Department is required to furnish 
copies of records only when they are in our possession or we can 
retrieve them from storage. If we have stored the records you want in 
the National Archives or another storage center, we will retrieve and 
review them for possible disclosure. However, the Federal Government 
destroys many old records, so sometimes, it is impossible to fill 
requests. Various laws, regulations, and manuals give the time periods 
for keeping records before they may be destroyed. You will find further 
information about the retention of records in the Records Disposal Act 
of 1944, 44 U.S.C. 3301 through 3314; the Federal Property Management 
Regulations, 41 CFR 101-11.4; the General Records Schedules of the 
National Archives and Records Administration; and in the HHS Handbook; 
Files Maintenance and Records Disposition.
    (b) Furnishing records. As stated above, the Department is required 
to furnish copies only of those records we have or can retrieve. We 
need not ask or compel state governments or other entities to produce 
records not in our possession in order to respond to a FOIA request. 
Neither are we required to create records, perform research, or 
aggregate data from a variety of unrelated sources. We will, however, 
conduct electronic searches of electronic files and/or data bases when 
they are likely to contain the requested records, unless such a search 
would significantly interfere with the operation of the electronic 
information system. We will provide the records in the form or format 
you request, if the existing record is readily reproducible in that 
form or format. Requesters will be required to pay the actual costs of 
reproducing a record in a form or format in which it is not already 
maintained by the responding Departmental component, including the cost 
of programming to produce an electronic record. We will not, however, 
purchase special equipment or software for the sole purpose of 
satisfying a requester's desire for a specific form or format, nor will 
we ship records from one organizational or geographic component to 
another for the sole purpose of reproducing them in the form or format 
asked for by the requester. Regardless of the form or format in which 
the responsive records are provided, we will usually provide only one 
copy of the record to the requester.

Subpart C--Release and Denial of Records


Sec. 5.31  Designation of authorized officials.

    (a) Freedom of Information Officers. To provide coordination and 
consistency throughout HHS in responding to FOIA requests, only Freedom 
of Information Officers have the authority to release or deny records, 
or waive or reduce FOIA fees.
    (1) HHS Freedom of Information Officer. Only the HHS Freedom of 
Information Officer may determine whether to release or deny records, 
or waive or reduce FOIA fees, in any of the following situations:
    (i) The records you seek include records addressed to, sent from, 
or created by an official or office of the Office of the Secretary, 
including its staff offices, or of any Regional Director's Office;
    (ii) The records you seek include any records of the Administration 
for Children and Families, including its regional offices, or any 
organizational unit of HHS not specifically identified below;
    (iii) The records you seek include records of more than one of the 
HHS components listed below and are not limited to the components 
listed in paragraph (a)(3)(iii), (v)-(vi), (viii)-(xi) of this section.
    (2) PHS Freedom of Information Officer. If the records you seek are 
exclusively records of the Office of Public Health and Science, or of 
the Parklawn components of the Program Support Center, or if the 
records involve more than one of the components listed in paragraph 
(a)(3)(iii), (v)-(vi), (viii)-(xi) of this section, including records 
in the regional offices, only the PHS Freedom of Information Officer 
may determine whether to release or deny those records, or waive or 
reduce associated FOIA fees.
    (3) Except as indicated above, each of the Operating Divisions of 
the Department has its own Freedom of Information Officer to process 
requests for records which are exclusively records of that Operating 
Division. Because organizational titles vary from component to 
component and may change as the result of organizational realignments, 
we will not use the specific organizational titles of officials who 
serve as the Operating Divisions' Freedom of Information Officers. 
Regardless of titles, Freedom of Information Officers are so designated 
by the Heads of their respective Operating Divisions and are 
frequently, but not necessarily, the primary Public Affairs officials 
or Chief Information Officers of those Operating Divisions. These 
officials may, with the concurrence of the Assistant Secretary for 
Public Affairs, delegate their authority to release or deny records, or 
reduce or deny FOIA fees. The persons to whom these authorities are 
delegated are also known as Freedom of Information Officers. The 
addresses and telephone numbers of Departmental Freedom of Information 
Officers are listed below.
    (i) HHS Freedom of Information Officer, Room 645-F, Hubert H. 
Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201. 
Tel: (202) 690-7453.
    (ii) PHS Freedom of Information Officer, Room 13-C-24, Parklawn 
Building, 5600 Fishers Lane, Rockville, Maryland 20857. Tel: (301) 443-
5252.
    (iii) Freedom of Information Officer, Agency for Health Care Policy 
and Research, Executive Office Center, Suite 501, 2101 East Jefferson 
Street, Rockville, Maryland 20852. Tel: (301) 594-1364, ext. 1342.
    (iv) Freedom of Information Officer, Administration on Aging, Room 
4655, 330 Independence Avenue, SW., Washington, DC 20201. Tel: (202) 
205-2814.
    (v) Freedom of Information Officer, Centers for Disease Control and 
Prevention, and/or the Agency for Toxic Substances and Disease 
Registry, 1600 Clifton Road, NE., Atlanta, Georgia 30333. Tel: (770) 
639-7270.
    (vi) Freedom of Information Officer, Food and Drug Administration, 
Room 12-A-16, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 
20857. Tel: (301) 827-6500.
    (vii) Freedom of Information Officer, Health Care Financing 
Administration, Room N2-20-16, North Building, 7500 Security Boulevard, 
Baltimore, Maryland 21244. Tel: (410) 786-5353.
    (viii) Freedom of Information Officer, Health Resources and 
Services Administration, Room 1134, Parklawn Building, 5600 Fishers 
Lane, Rockville, Maryland 20857. Tel: (301) 443-2865.
    (ix) Freedom of Information Officer, Indian Health Service, Suite 
450, Twinbrook Metro Plaza, 12300 Twinbrook Parkway, Rockville, 
Maryland 20857. Tel: (301) 443-1116.
    (x) Freedom of Information Officer, National Institutes of Health, 
Room 2B39, Building 31, 9000 Rockville Pike, Bethesda, Maryland 20892. 
Tel: (301) 496-5633.
    (xi) Freedom of Information Officer, Substance Abuse and Mental 
Health Services Administration, Room 12-C-15, Parklawn Building, 5600 
Fishers

[[Page 14673]]

Lane, Rockville, Maryland 20857. Tel: (301) 443-8956.
    (b) [Reserved]


Sec. 5.32  Release of Records.

    (a) Records previously released. If we have released a record, or 
part of a record, to others in the past, we will ordinarily release it 
to you also. We will not release it to you, however, if a statute 
forbids this disclosure to you, and we will not necessarily release it 
to you if an exemption applies in your situation and did not apply, or 
applied differently, in the previous situations. For example, a record 
about himself/herself, released to a requester, may contain personal 
information which would be removed if that record had to be released to 
another party.
    (b) Unauthorized disclosure. The principle stated in paragraph (a) 
of this section, does not apply to any release of material which was 
unauthorized.
    (c) Poor copy. If we cannot make a legible copy of a record to be 
released, we do not attempt to reconstruct it. Instead, we furnish the 
best copy possible and note the poor quality in our reply.


Sec. 5.33  Denial of Requests.

    (a) Information found but records denied in whole or in part. All 
official denials are in writing and are signed by the person who made 
the decision to deny all or part of your request. The denial will 
include the following details, to the extent that we can do so without 
revealing information that is protected by the FOIA: an estimate of the 
volume of material that is being denied, a description of the withheld 
material in general terms, the reasons for the denial (including 
references to the specific exemption(s) of the FOIA authorizing the 
withholding or deletion), and an explanation of your right to appeal 
the decision (including the identity of the official to whom you should 
address any appeal). If we deny information by deleting it from a 
record and releasing the remaining portion of the record, we will 
indicate on the released portion the amount of the deleted material to 
the extent that we can do so without revealing information that is 
protected by the FOIA. We will indicate this at the place of the 
deletion if that is technically feasible.
    (b) Unproductive searches. We will make a diligent search for 
records to satisfy your request. Nevertheless, we may not be able to 
find the records you want using the information you provided, or the 
records may not exist. If we advise you that we have been unable to 
find the records you seek despite a diligent search, although we do not 
consider this to be a denial of your request, we will also advise you 
of your right to appeal the adequacy of our search.


Sec. 5.34  Appeal of denials.

    (a) Right of appeal. You have the right to appeal a partial or full 
denial of your FOIA request, our failure to find records responsive to 
your request or a denial of your request for expedited processing or a 
waiver of fees. To do so, you must put your appeal in writing and send 
it to the appeal official identified in the letter denying the records, 
or expedited processing, or a waiver of fees, or informing you that we 
could not find responsive records. You must send your appeal within 30 
days from the date you receive that letter or from the date you 
received any records released as a partial grant of your request.
    (b) Letter of appeal. The appeal letter should state the reason why 
you believe that the FOIA exemption(s) we cited does not apply to the 
records you requested, or give reasons why they should be released 
regardless of whether the exemption(s) applies. If you are appealing 
the adequacy of our search, you should explain why you believe the 
records actually do exist and where you believe they may be found.
    (c) Review process. Before making a decision on any FOIA appeal, 
the designated reviewing official will consult with the Office of the 
General Counsel to ensure that the rights and interests of all parties 
affected by the appeal decision are protected. The concurrence of the 
Assistant Secretary for Public Affairs is also required on all appeal 
decisions. The response to an appeal made by the reviewing official 
constitutes the Department's final action on the request. If the 
reviewing official grants your appeal of a denial of records, in whole 
or in part, we will send the releasable documents to you promptly or 
else explain the reasons for any delay and inform you of the 
approximate date you can expect to receive copies of newly released 
materials. If the decision is to deny your appeal, the official will 
state the reasons for the decision in writing and inform you of the 
FOIA provision for judicial review.


Sec. 5.35  Time limits.

    (a) General. The FOIA sets certain time limits for us to decide 
whether to disclose the records you requested, and to decide appeals. 
If we fail to meet these deadlines, you may proceed as if we had denied 
your request or appeal. We will try diligently to comply with the time 
limits, but if it appears that processing your request may take longer 
than we would wish, we may contact you to determine if a more focused 
request might satisfy your needs. If a narrower scope will not suffice, 
or still will not permit us to process your request within the basic 
time limits, we will inform you of the actual time we estimate that it 
will take to answer your request. Time limits begin when your request 
is initially received in the office of the FOIA Officer responsible for 
releasing or denying those records, or of the official responsible for 
deciding the appeal. FOIA and appeals offices acknowledge receipt of 
requests and appeals when they are received, so if you have not heard 
from us within a reasonable time (usually about two weeks), you should 
call or write to be sure that your request or appeal was not 
misaddressed or misrouted.
    (b) Time allowed.
    (1)We will decide whether to release the records within twenty (20) 
working days after your request reaches the appropriate FOIA office, as 
identified in Sec. 5.31. When we decide to release records, we will 
provide the records or let you know when you can expect them, or will 
make arrangements with you to inspect them, as soon as possible after 
that decision.
    (2)We will decide an appeal within twenty (20) working days after 
the appeal reaches the appropriate appeal official.
    (c) Extension of time limits. FOIA Officers or review officials may 
extend the time limits in unusual circumstances. Extensions at the 
request stage and at the appeal stage may not exceed a total of 10 
working days, except as provided by paragraph (d) of this section. We 
will notify you in writing of any extension. ``Unusual circumstances'' 
include situations when we must:
    (1) Search for and collect records from field facilities, storage 
centers, or locations other than the office processing the request;
    (2) Search for, collect, or examine a great many records in 
response to a single request;
    (3) Consult with another office or agency that has a substantial 
interest in the determination of the request;
    (4) Conduct negotiations with submitters and requesters of 
information to determine the nature and extent of non-disclosable 
proprietary materials.
    (d) Extensions longer than 10 days. If unusual circumstances, as 
defined in paragraph (c) of this section, exist, and if we do not 
believe that we can process your request even within the extra ten-day 
period described in paragraph (c) of this section, we will notify you 
of that conclusion. We will also give you the

[[Page 14674]]

opportunity to narrow the scope of your request so that it can be 
processed in a shorter time, and/or to agree on a time frame longer 
than the extra ten working days for our processing of your request.
    (e) Aggregating requests. If a group of requests by the same 
requester, or by a group of requesters acting together, involve related 
matters and appear to actually constitute a single request, we may 
aggregate them in order to determine whether unusual circumstances, as 
defined above, exist.

Subpart D--Fees


Sec. 5.41  Fees to be charged--categories of requests.

    The paragraphs below state, for each category of request, the type 
of fees that we will generally charge. For each of these categories, 
however, the fees may be limited, waived, or reduced for the reasons 
given in Secs. 5.42 through 5.45, or for other reasons.
    (a) Commercial use request. If your request is for a commercial 
use, HHS will charge you the costs of search, review, and duplication.
    (b) Educational and scientific institutions and news media. If you 
are an educational institution or non-commercial scientific 
institution, operated primarily for scholarly or scientific research, 
or a representative of the news media, and your request is not for a 
commercial use, HHS will charge you only for the duplication of 
records. Also, HHS will not charge you the copying costs for the first 
100 pages of duplication or its equivalent, depending on the medium 
involved.
    (c) Other requesters. If your request is not the kind described by 
paragraph (a) or (b) of this section, HHS will charge you only for the 
search and the duplication. Also, we will not charge you for the first 
two hours of search time, or for the copying costs of the first 100 
pages of duplication or its equivalent.


Sec. 5.42  Fees to be charged--general provisions.

    (a) We may charge you search fees even if the records we find are 
exempt from disclosure, or even if we do not find any records at all.
    (b) If we are not charging you for the first two hours of search 
time, under Sec. 5.41(c), and the search is done electronically 
(including doing computer programming), we will charge you search costs 
only to the extent that they exceed the equivalent of two hours salary 
for a search of paper records calculated as prescribed in Sec. 5.43.
    (c) If we are not charging you for the first 100 pages of 
duplication, under Sec. 5.41 (b) or (c), then those 100 pages are the 
first 100 pages of photocopies of standard size pages, or if the record 
is provided in another form, the cost of duplication will be reduced by 
an amount equivalent to the cost of photocopying 100 standard size 
pages.
    (d) We will not charge you any fee at all if the costs of billing 
and processing the fee are likely to equal or exceed the amount of the 
fee. These amounts vary significantly from component to component. For 
requests processed by the HHS Freedom of Information Office, this 
amount was $25 as of May 1998.
    (e) If we determine that you (acting alone or in concert with 
others) are breaking down a single request into a series of requests in 
order to avoid (or reduce) the fees charged, we may aggregate all these 
requests for purpose of calculating the fees to be charged.
    (f) We will charge interest on unpaid bills beginning on the 31st 
day following the day the bill was sent. We will use the provisions of 
part 30 of this title in assessing interest, administrative costs and 
penalties, and in taking actions to encourage payment.


Sec. 5.43  Fee schedule.

    HHS charges the following fees:
    (a) Manual searching for or reviewing of records--When the search 
or review is performed by employees at grade GS-1 through GS-8, an 
hourly rate based on the salary of a GS-5, step 7, employee; when done 
by a GS-9 through GS-14, an hourly rate based on the salary of a GS-12, 
step 4, employee; and when done by a GS-15 or above, an hourly rate 
based on the salary of a GS-15, step 7, employee. In each case, the 
hourly rate will be computed by taking the hourly rate for the 
specified grade and step, adding 16% of that rate to cover benefits, 
and rounding to the nearest whole dollar. As of November, 1998, these 
rates were $14, $29, and $52, respectively. When a search involves 
employees at more than one of these levels, we will charge the rate 
appropriate for each, multiplied by the amount of time that person was 
involved in the search.
    (b) Computer searching and printing--If we need to use a computer 
for any purpose involving searching for or copying records, or 
providing them in a different form or format, we will charge the actual 
cost of operating the computer, and charge for the time spent by the 
operator and/or programmers at the rate given in paragraph (a) of this 
section.
    (c) Photocopying standard size pages--$0.10 per page. FOIA Officers 
may charge less than $0.10 per page for particular documents where--
    (1) The document has already been printed in large numbers;
    (2) The program office determines that using existing stock to 
answer this request, and other anticipated FOIA requests, will not 
interfere with program requirements; and
    (3) The FOIA Officer determines that the lower fee to be charged is 
adequate to recover the prorated share of the original printing costs.
    (d) Photocopying odd-size documents (such as blueprints), or 
reproducing other records, (such as duplicating tapes or disks)--the 
actual cost of operating the machine, plus the actual cost of materials 
involved, plus charges for the time spent by the operator, at the rates 
given in paragraph (a) of this section.
    (e) Certifying that records are true copies. This service is not 
required by the FOIA. If we agree to provide it, we will charge $10 per 
certification.
    (f) Sending records by express mail or other special methods. This 
service is not required by the FOIA. If we agree to provide it, we will 
only send the records by a method which allows the requester to 
directly pay or be directly charged by the special method carrier.
    (g) Performing any other special service that you request and we 
agree to--Actual costs of operating any machinery, plus actual cost of 
any materials involved, plus charges for the time of our employees, at 
the rates given in paragraph (a) of this section.


Sec. 5.44  Procedures for assessing and collecting fees.

    (a) Agreement to pay. We generally assume that when you request 
records you are willing to pay the fees we charge for services 
associated with your request. You may specify a limit on the amount you 
are willing to spend. We will notify you if it appears that the fees 
will exceed that limit, and we will ask you whether you nevertheless 
want us to proceed with the processing of your request.
    (b) Advance payment. If you have failed to pay previous bills in a 
timely fashion, or if our initial review indicates that we will be 
charging you fees exceeding $250, we will require you to pay your past 
due fees, including penalties, and/or the estimated fees, or a deposit, 
before we start searching for the records you want. If so, we will let 
you know promptly upon receiving your request. In such cases, the 
administrative time limits prescribed in Sec. 5.35 of this part (i.e., 
20 working days from receipt of initial requests and from receipt of 
appeals of initial denials, plus permissible extensions of these time 
limits) will begin only after we come to an agreement with you over 
payment of

[[Page 14675]]

fees, or decide that a fee waiver or reduction is appropriate.
    (c) Billing and payment. Except as indicated in paragraph (b) of 
this section, we will begin processing your request upon receipt. 
However, we will normally require you to pay all fees before we furnish 
the records to you. We may, at our discretion, send you a bill along 
with or following the furnishing of the records. For example, we may do 
this if you have a history of prompt payment. We may also, at our 
discretion, aggregate the charges for certain time periods to avoid 
sending numerous small bills to frequent requesters, or to businesses 
or agents representing requesters. For example, we might send a bill to 
such a requester once a month. Fees should be paid in accordance with 
the instructions provided by the person who responds to your request.


Sec. 5.45  Waiver or reduction of fees.

    (a) Standard.(1) We will waive or reduce the fees we would 
otherwise charge if disclosure of the information meets both the 
following tests:
    (i) It is in the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities 
of the government, and
    (ii) It is not primarily in the commercial interest of the 
requester.
    (2) These two tests are explained in paragraphs (b) and (c) of this 
section. The burden of proof of meeting these tests rests with the 
requester.
    (b) Public interest. The disclosure passes the first test only if 
it furthers the specific public interest of being likely to contribute 
significantly to the public understanding of government operations or 
activities, regardless of any other public interest it may further. In 
analyzing this question, we will consider the following factors:
    (1) How, if at all, do the records to be disclosed pertain to the 
operations or activities of the Federal Government?
    (2) Would disclosure of the records reveal any meaningful 
information about government operations or activities? Can one learn 
from these records anything that is not already public knowledge? Are 
these or essentially equivalent records already available to the public 
through some other source or mechanism?
    (3) Will disclosure advance the understanding of the general public 
as distinguished from a narrow segment of interested persons? This is a 
critical factor under which we may consider whether the requester is in 
a position to contribute to public understanding. For example, what is 
the requester's expertise in the subject area of the request? Is the 
requester's intended use of the information likely to disseminate the 
information among the public at large? Does the requester have the 
ability to affect such dissemination? An unsupported claim to be doing 
research for a book or article does not demonstrate that likelihood, 
while such a claim by a representative of the news media is better 
evidence.
    (4) Will the contribution to public understanding be a significant 
one? Will the public's understanding of the government's operations be 
substantially greater as a result of the disclosure?
    (c) Not primarily in the requester's commercial interest. If the 
disclosure passes the test of furthering the specific public interest 
described in paragraph (b) of this section, we will determine whether 
it also furthers the requester's commercial interest and, if so, 
whether the commercial interest outweighs the advancement of that 
specific public interest. In applying this second test, we will 
consider the following factors:
    (1) Would the disclosure further a commercial interest of the 
requester or of someone on whose behalf the requester is acting? 
``Commercial interests'' include interests relating to business, trade, 
or profit. Not only profit-making corporations have commercial 
interests--so do nonprofit corporations, individuals, unions, and other 
associations. The interest of a representative of the news media in 
using the information for news dissemination purposes will not be 
considered a commercial interest.
    (2) If disclosure would further the commercial interest of the 
requester, would that effect outweigh the advancement of the public 
defined in paragraph (b) of this section? Which effect is primary?
    (d) Deciding between waiver and reduction. If the disclosure passes 
both tests, we will normally waive fees. In some cases, however, we may 
decide only to reduce the fees. For example, we may do this when some, 
but not all of the requested records pass the tests.
    (e) Procedure for requesting a waiver or reduction. You must make 
your request for a waiver or reduction at the same time you make your 
request for records. You should explain why you believe a waiver or 
reduction is proper under the analysis in paragraphs (a) through (d) of 
this section. Only FOIA Officers may make the decision whether to waive 
or reduce fees. If we do not completely grant your request for a waiver 
or reduction, the denial letter will designate a review official. You 
may appeal the denial to that official. In your appeal letter, you 
should discuss whatever reasons are given in our letter for denying 
your request. The process prescribed in Sec. 5.34 of this part will 
apply to these appeals.

Subpart E--Records Available for Public Inspection


Sec. 5.51  Records available.

    Records of general interest. We will make available the following 
records of general interest for your inspection and copying. Before 
releasing them, however, we may delete the names of individuals or any 
information that would identify these individuals if release would 
invade their personal privacy to a clearly unwarranted degree (see 
Sec. 5.67 of this part). Records of these sorts created on or after 
November 1, 1996, will be made available through electronic means.
    (a) Orders and final opinions, including concurring and dissenting 
opinions in adjudications, such as Letters of Finding issued by the 
Office of Civil Rights in civil rights complaints.
    (b) Statements of policy and interpretations that we have adopted 
but have not published in the Federal Register.
    (c) Administrative staff manuals and instructions to staff that 
affect the public (we will not make available, however, manuals or 
instructions that reveal unique investigative or audit procedures).
    (d) Records that we have already released in response to a FOIA 
request, and that we believe are being or will be requested frequently 
by other requesters.


Sec. 5.52  Indices of records.

    (a) Inspection and copying. We will maintain and provide for your 
inspection and copying current indices of the records described in 
Sec. 5.51 (a) through (c). We will also publish and distribute copies 
of the indices unless we announce in the Federal Register that it is 
unnecessary or impractical to do so. For assistance in locating indices 
maintained by the Department, you may contact the HHS FOIA Officer at 
the address and phone number shown in Sec. 5.31.
    (b) Major information and records locator systems. HHS participates 
in the Government Information Locator Service (GILS) program which 
makes this information available through a variety of media.
    (c) Electronic listing. On or, in some cases, before December 31, 
1999, a full listing of records made available under Sec. 5.51 of this 
section will be available electronically.
    (d) Record citation as precedent. We will not cite any record 
described in

[[Page 14676]]

Sec. 5.51 (a) through (c) as a precedent for action against a person 
unless we have published the record or have made it available 
electronically or by other means, or unless the person has timely 
notice of the record.

Subpart F--Predisclosure Notification for Certain Kinds of 
Commercial/Financial Records


Sec. 5.61  General.

    (a) Designation of commercial information as confidential. A person 
who submits records to the government may designate part or all of the 
information in such records as information that the person claims is 
exempt from disclosure under exemption 4 of the FOIA. The person may 
make this designation either at the time the records are submitted to 
the government or within a reasonable time thereafter. The designation 
must be in writing. Where a legend is required by a request for 
proposals or request for quotations, pursuant to 48 CFR 352.215-12, 
then that legend is necessary for this purpose. Any such designation 
will expire ten years after the records were submitted to the 
government.
    (b) Predisclosure notification. The procedures in this paragraph 
apply to records on which the submitter has designated information as 
provided in paragraph (a) of this section. They also apply to records 
that were submitted to the government where we have substantial reason 
to believe that the information in the records could reasonably be 
considered exempt under exemption 4 of the FOIA. Certain exceptions to 
these procedures are stated in paragraph (c) of this section.
    (1) When we receive a request for such records, and we determine 
that we may be required to release them, we will make reasonable 
efforts to notify the submitter about these facts. The notice will 
include a copy of the request, and it will inform the submitter about 
the procedures and time limits for submission and consideration of 
objections to disclosure. If we must notify a large number of 
submitters, we may do this by posting or publishing a notice in a place 
where the submitters are reasonably likely to become aware of it, or by 
sending the notice to a person or persons who we reasonably expect will 
give appropriate notification to the submitters or who will act on 
their behalf.
    (2) The submitter will have five working days from receipt of the 
notice to object to disclosure of any part of the records and to state 
all bases for the objections. At the discretion of the FOIA Officer, 
extensions of the time within which to respond may be granted, when 
requested by the submitter. These extensions shall not exceed an 
additional five working days.
    (3) We will give consideration to all bases that have been timely 
stated by the submitter. If we decide to disclose the records, we will 
notify the submitter in writing. This notice will briefly explain why 
we did not sustain his/her objections. We will include with the notice 
a copy of the records about which the submitter objected, as we propose 
to disclose them. The notice will state that we intend to disclose the 
records five working days after the submitter receives the notice 
unless we are ordered by a United States District Court not to release 
them.
    (4) When a requester files suit under the FOIA to obtain records 
covered by this subsection, we will promptly notify the submitter.
    (5) Whenever we send a notice to a submitter under paragraph (b)(1) 
of this section, we will notify the requester that we are giving the 
submitter a notice and an opportunity to object. Whenever we send a 
notice to a submitter under paragraph (b)(3) of this section, we will 
notify the requester of this fact.
    (c) Exceptions to predisclosure notification. The notice 
requirements in paragraph (b) of this section do not apply in the 
following situations:
    (1) We decide not to disclose the records;
    (2) The information has previously been published or made generally 
available;
    (3) Disclosure is required by a regulation, issued after notice and 
opportunity for public comment, that specifies certain narrow 
categories of records that are to be disclosed upon request. However, a 
submitter may still designate such records as described in paragraph 
(a) of this section, and in exceptional cases, we may, at our 
discretion, follow the notice procedures in paragraph (b) of this 
section.
    (4) The designation appears to be obviously frivolous. We will 
still, however, give the submitter the written notice as described in 
paragraph (b)(3) of this section (although this notice need not explain 
our decision or include a copy of the records), and we will notify the 
requester as described in paragraph (b)(5) of this section.
[FR Doc. 99-7222 Filed 3-25-99; 8:45 am]
BILLING CODE 4110-60-M