[Federal Register Volume 64, Number 100 (Tuesday, May 25, 1999)]
[Rules and Regulations]
[Pages 28089-28091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13145]



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 Rules and Regulations
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  Federal Register / Vol. 64, No. 100 / Tuesday, May 25, 1999 / Rules 
and Regulations  

[[Page 28089]]


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OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2604

RIN 3209-AA22


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

AGENCY: Office of Government Ethics (OGE).

ACTION: Final rule amendments.

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SUMMARY: The Office of Government Ethics is amending its rules under 
the Freedom of Information Act (FOIA) primarily to effectuate various 
provisions under the 1996 Electronic FOIA Amendments. The 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 amendments increase the general 
FOIA search fees somewhat. Finally, OGE is making some other changes, 
including updating revisions and corrections. This rulemaking only 
deals with such matters at OGE; it is not an executive branchwide 
regulation.

EFFECTIVE DATE: June 24, 1999.

FOR FURTHER INFORMATION CONTACT: William E. Gressman, Associate General 
Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue, 
NW., Washington, DC 20005-3917; telephone: 202-208-8000, ext. 1110; 
TDD: 202-208-8025; FAX: 202-208-8037.

SUPPLEMENTARY INFORMATION: In this rulemaking, the Office of Government 
Ethics is amending its regulation at 5 CFR part 2604 under the Freedom 
of Information Act (FOIA), 5 U.S.C. 552. On December 3, 1998, OGE 
published proposed rule amendments to its FOIA regulation at 63 FR 
66769-66772. Comments from the public and the agencies were requested, 
to be submitted by February 1, 1999. No comments were received on the 
proposed amendments, and OGE is therefore adopting them as final with 
just a few clarifying changes noted below. A summary highlighting the 
most significant amendments follows. The amendments were explained in 
somewhat greater detail in the preamble to the proposed rule.
    The primary focus of these amendments is to codify in OGE's FOIA 
regulation various requirements under the 1996 Electronic FOIA 
Amendments, Public Law No. 104-231. Thus, in a newly redesignated 
paragraph (a)(1) of Sec. 2604.305, OGE would codify in its FOIA 
regulation the new statutorily prescribed general 20 working day 
response time for responding to FOIA requests. In addition, OGE is 
adding a new paragraph (a)(2) to Sec. 2604.305 on response to requests 
for expedited processing within 10 calendar days where the requester 
shows and certifies ``compelling need'' as defined in the amended law 
and new paragraph (e) of Sec. 2604.301 of OGE's FOIA regulation.
    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 
is codifying this requirement in new paragraph (b)(3) of Sec. 2604.303 
of its FOIA regulation. In a separate revision to Sec. 2604.303, 
paragraph (a) is being revised to provide expressly that OGE can, in 
addition to referral of a request (or portion thereof), alternatively 
consult with another Government agency in cases where responsive 
records originated at the other agency and then respond to a requester 
with respect thereto.
    The general requirement to honor a form or format request, unless 
the record requested is not readily reproducible in the requested form 
or format, is set forth in revised paragraph (c) of Sec. 2604.302. The 
definitions of the terms ``records'' and ``search'' in Sec. 2604.103 
now more explicitly include electronic records and automated searches 
(along with paper records and manual searches).
    The Office of Government Ethics is also clarifying in the revised 
headings and text of subpart B, Sec. 2604.201 and now, in this final 
rule, Sec. 2604.202 as well that, as a small agency with a limited FOIA 
practice, it has a FOIA public reading room facility, rather that a 
``room'' per se. Reading room facility 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 World 
Wide Web site at the following Uniform Resource Locator address: http:/
/www.usoge.gov. The Web site is referenced in new 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 OGE determines have become 
or are likely to become the subject of multiple requests, together with 
a general index thereof. The Office of Government Ethics is adding 
reference to such documents at new paragraph (b)(4) of Sec. 2604.201 of 
its FOIA regulation. Further, OGE is adding 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 raising 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 initially issued in February 1995.
    In addition, OGE notes that in revised subpart F on annual FOIA 
reports it is describing the items of information now required under 
the Electronic FOIA Amendments and Department of Justice guidance in 
the annual OGE reports, which are to be submitted to the Justice 
Department and posted on OGE's Web site. This final rule incorporates a 
couple of minor changes to Sec. 2604.602(b)(11), (b)(15) and (b)(16) as 
previously proposed to clarify that administrative appeal information 
is to be provided under 5 U.S.C. 552(a)(6) and to specify that the 
staff time and costs of FOIA processing are estimates and include part-
time/occasional staff (in estimated work years).

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    Finally, OGE is making various other minor changes, updates and 
corrections to its FOIA regulation. Moreover, as noted in the proposed 
rule, OGE is not adopting multitrack processing of its FOIA requests 
due to the limited number of requests received each year and the lack 
of any FOIA backlog.

Matters of Regulatory Procedure

Executive Order 12866

    In issuing these 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 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 these amendments 
will not have a significant economic impact on a substantial number of 
small entities because they 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 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

    Confidential business information, Freedom of information.

    Approved: February 16, 1999.
Stephen D. Potts,
Director, Office of Government Ethics.

    For the reasons set forth in the preamble, the Office of Government 
Ethics is amending 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 
paragraph heading, and in paragraphs (b) and (c);
    d. Removing the telephone number ``(202) 523-5757'' and the FAX 
number ``(202) 523-6325'' in the last 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)(1) * * *
    (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.


Sec. 2604.202  [Amended]

    5. Section 2604.202 is amended by adding between the words ``room'' 
and ``which'' in paragraph (a) the word ``facility''.
    6. Section 2604.301 is amended by removing the telephone number 
``(202) 523-5757'' in the first sentence of 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.
    7. 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

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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.
* * * * *
    8. 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
* * * * *
    9. 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)(1) * * *
    (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]

    10. Section 2604.402 is amended by removing the word ``exemption'' 
in the first sentence of paragraph (b) and adding in its place the word 
``Exemption''.


Sec. 2604.501  [Amended]

    11. 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''.
    12. 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 administrative 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;
    (15) The number of full-time staff and part-time/occasional staff 
(in estimated work years) of OGE devoted to processing requests for 
records under the FOIA; and
    (16) The estimated 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. 99-13145 Filed 5-24-99; 8:45 am]
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