[Federal Register Volume 64, Number 155 (Thursday, August 12, 1999)]
[Rules and Regulations]
[Pages 43902-43904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20821]


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DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Part 390

[Docket No. 99-034F]


Electronic Freedom of Information Act

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends the administrative procedures of the 
Food Safety and Inspection Service (FSIS) by implementing the 
provisions of the Department of Agriculture's (USDA) final rule 
entitled USDA Freedom of Information Act. Issued on May 4, 1999, the 
departmental rule authorizes substantive administrative changes to be 
made by agencies to conform to the requirements of the Electronic 
Freedom of Information Act (EFOIA) Amendments of 1996 and instructs 
agencies to promulgate regulations implementing certain of its 
requirements. Therefore, FSIS is amending its regulations to comply 
with the departmental regulations. The regulations establish a fourth 
category of ``reading room records'' in electronic format and require 
the Agency to make all records it has created on or after November 1, 
1996 available electronically on a World Wide Web site by November 1, 
1997. The electronic availability obligation applies not only to 
records in the new fourth reading room category but also to more 
traditional reading room records created by the Agency, such as staff 
manuals and other materials regularly requested by the public.

DATES: This final rule is effective August 12, 1999.

FOR FURTHER INFORMATION CONTACT: Ms. Cheryl Hicks, Director, Executive 
Management and Coordination Staff, FSIS, at (202) 690-3881 or by FAX at 
(202) 205-0158.

SUPPLEMENTARY INFORMATION:

Background

    The Freedom of Information Act (FOIA) evolved from the 1958 
Administrative Procedure Act disclosure requirement. FOIA was enacted 
in 1966. In 1967, it was codified as section 552 of Title 5 of the 
United States Code (U.S.C.). FOIA establishes a presumptive right for 
any member of the public to obtain identifiable, existing records of 
Federal departments and agencies without indicating a reason or need 
for seeking the information. Any member of the public may use the FOIA 
to gain access to Government information. However, agencies also may 
deny access to records, or portions of records, which fall under 
enumerated exemptions, such as information that is classified for 
national defense or business information involving trade secrets.
    As is the case with all Federal agencies, FSIS is subject to the 
provisions of FOIA, which require agencies to make certain documents 
available for public inspection and duplication and to process requests 
from the public for documents. FOIA requests received by FSIS are often 
for documents produced daily by inspection personnel stationed in more 
than 6,000 meat, poultry, and egg processing plants throughout the 
country and in U.S. territories.
    FSIS receives approximately 1,000 FOIA requests each year. About 40 
percent of the requests processed by the

[[Page 43903]]

Agency involve documents of 200 pages or more. However, document length 
can range from a single page to 5,000 pages. Because Federal agencies 
are required to maintain copies of any information that is released to 
the public, FSIS now maintains voluminous paper files associated with 
its FOIA function.
    In 1996, Congress enacted the Electronic Freedom of Information Act 
Amendments of 1996 (Pub. L. 104-231; 110 Stat. 3048). These amendments 
acknowledge the widespread use of computers and other means of 
electronic telecommunications by Federal agencies and address the 
subject of electronic records for the first time in the history of the 
statute.
    USDA issued its implementing regulation on May 4, 1999 (63 FR 
24467). Specifically, the final rule requires FSIS and other 
departmental agencies to make available on-line, for public inspection 
and reproduction, copies of any records that, because of the nature of 
their subject matter, are likely to elicit additional requests. The 
regulation requires that agencies provide information in the form 
requested (for example, paper or computer diskette) if the information 
is readily reproducible in that form. The regulation also extends the 
time for responding to a FOIA request from 10 to 20 working days 
(excepting Saturdays, Sundays, and Federal holidays), modifies the 
requirements for reporting FOIA activities to Congress, and specifies 
cases in which agencies may extend the time in which it will respond to 
a FOIA request. The regulation also includes provisions regarding the 
availability of documents in electronic form, the treatment of 
electronic records, the establishment of electronic reading rooms, and 
the tracking and expedited processing of requested materials.
    Other important features:
     Agencies may process requests according to the level of 
effort rather than on a strict first-in, first-out basis.
     When denying a request, an agency must try to estimate the 
volume of any denied material and provide that estimate to the 
requester, unless doing so would harm an interest protected by an 
exemption.
     Agencies redacting electronically transmitted materials 
must provide a record of the location and extent of any deletions made.
     Certain categories of requesters would receive priority 
treatment of their requests if failure to obtain information would pose 
an imminent threat to life or physical safety or if there is an urgency 
in informing the public about Federal activity.
     If the extra 10 working days is still insufficient time to 
respond to an unusually burdensome request, an agency must inform the 
requester that the request cannot be processed within the statutory 
time limits. The agency will provide the requester an opportunity to 
limit the scope of the request or arrange a negotiated deadline for 
processing the request. If the requester refuses and then seeks 
judicial review, that refusal will be considered as a factor in 
determining whether ``exceptional circumstances'' exist.
     ``Exceptional circumstances'' will not include a delay 
that results from a predictable agency workload of FOIA requests unless 
the agency demonstrates reasonable progress in reducing its backlog.
    This final rule does not affect substantively any member of the 
public, but constitutes a modification in administrative procedures 
that requires FSIS to update its public information system by adding an 
electronic component. Therefore, under the administrative procedure 
provisions in 5 U.S.C. 553, it is found upon good cause that public 
participation in this rulemaking procedure is impracticable and 
unnecessary, and good cause is found for making this final rule 
effective less than 30 days after publication in the Federal Register.

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are in conflict with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule. Executive 
Order 12866 and Regulatory Flexibility Act.
    FSIS has determined that this final rule is not a significant 
regulatory action for the following reasons. The rule does not have an 
annual effect on the economy of $100 million or more and does not 
adversely affect the economy or any segment of the economy. Therefore, 
FSIS has determined that this final rule is not a significant rule 
under Executive Order 12866, and it has not undergone review by the 
Office of Management and Budget (OMB).

Executive Order 12898

    Pursuant to Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' FSIS has considered the potential impact of this final 
rule on environmental and health conditions on low-income and minority 
communities and determined that there will be no impact. This rule 
represents a modification in administrative procedures.

Paperwork Reduction Act

    The paperwork requirements for this final rule have been approved 
by OMB under control number 0583-0092.
    This rulemaking is part of the Reinventing Government effort. The 
intent of this action is to reduce the number of future requests for 
identical information and to lessen the paperwork burden and 
duplication costs by encouraging the Agency to use newer technology to 
increase public access to Government information.

List of Subjects in 9 CFR Part 390

    Freedom of information.

    For the reasons discussed in the preamble to this rule, FSIS is 
amending 9 CFR part 390 of the Federal meat and poultry products 
inspection regulations as follows:

PART 390--FREEDOM OF INFORMATION

    1. The authority citation for part 390 continues to read as 
follows:

    Authority: 5 U.S.C. 301, 552; 7 CFR 1.3, 2.7.

    2. Section 390.1 is revised to read as follows:


Sec. 390.1  Scope and purpose.

    This part is issued pursuant to the Freedom of Information Act 
(FOIA) as amended (5 U.S.C. 552), and in accordance with the directives 
of the Department of Agriculture regulations in part 1, subpart A, of 
Title 7. The availability of records, including electronic records 
created on or after November 1, 1996, of the Food Safety and Inspection 
Service (FSIS), and the procedures by which the public may request such 
information, will be governed by the FOIA and by the Department 
regulations as implemented and supplemented by the regulations in this 
part.
    3. Section 390.2 is revised to read as follows:


Sec. 390.2  Published materials.

    FSIS rules and regulations relating to its regulatory 
responsibilities and administrative procedures are published and made 
available to the public in the Federal Register and codified in chapter 
III, title 9, of the Code of Federal Regulations. FSIS also issues 
numerous publications relating to Agency programs, which implement the 
laws listed in the Delegation of Authority, 7 CFR 2.15(a). Most of 
these publications

[[Page 43904]]

are available free from the USDA Publications Division, Office of 
Governmental and Public Affairs, or at established rates from the 
Superintendent of Documents, U.S. Government Printing Office, 
Washington, 20402-9328.
    4. Section 390.3 is revised to read as follows:


Sec. 390.3  Indexes, reference guide, and handbook.

    (a) Pursuant to the regulations in 7 CFR 1.4(c), FSIS will maintain 
and make available for public inspection and copying an index providing 
identifying information regarding the materials required to be 
published or made available under the Freedom of Information Act (5 
U.S.C. 552(a)(2)). The Agency will make the index available by computer 
telecommunications by December 31, 1999. Quarterly publication of the 
index is unnecessary and impractical, since the material is voluminous 
and does not change often enough to justify the expense of quarterly 
publication. The Agency will provide copies of any index, upon request, 
at a cost not to exceed direct cost of duplication.
    (b) FSIS is responsible for preparing reference material or a guide 
for requesting records or information from the Agency. This guide also 
will include an index of all major information systems and a 
description of major information and record locator systems.
    (c) FSIS will prepare a handbook for obtaining information from the 
Agency. The handbook will be available on paper and through electronic 
means, and will discuss how the public can use it to access Agency FOIA 
annual reports. Similarly, the annual reports will refer to the 
handbook and how to obtain it.
    5. Section 390.4 is revised to read as follows:


Sec. 390.4  Facilities for inspection and copying.

    Facilities for public inspection and copying of the material 
described in Secs. 390.2 and 390.3 of this part will be provided by 
FSIS pursuant to 7 CFR 1.5(a) in a reading area, on business days 
between the hours of 8:30 a.m. and 4:30 p.m., upon request to the 
Freedom of Information Coordinator or designee at the following 
address:

Freedom of Information Act Coordinator (FOIA), Food Safety and 
Inspection Service, Department of Agriculture, Washington, DC 20250-
3700

    6. Section 390.5 is revised to read as follows:


Sec. 390.5  Request for records.

    (a) The FOIA Coordinator of FSIS is authorized to receive requests 
and to exercise authority under 7 CFR 1.3(a) to--
    (1) Make determinations to grant or deny such requests,
    (2) Extend the 20-day deadline,
    (3) Make discretionary releases of exempt records, except where 
disclosure is specifically prohibited by Executive Order, statute, and 
applicable regulations,
    (4) Consider expedited processing when appropriate,
    (5) Make determinations regarding the charging of fees pursuant to 
the established schedule, and
    (6) Determine the applicability of 7 CFR 1.5 to requests for 
records.
    (b) Requests for FSIS records or information will be made in 
writing in accordance with 7 CFR 1.5 and submitted to the FSIS Freedom 
of Information Act Coordinator at the following address:

Freedom of Information Act Coordinator (FOIA Request), Food Safety 
and Inspection Service, Department of Agriculture, Washington, DC 
20250-3700

    The submitter will identify each record with reasonable specificity 
as prescribed in 7 CFR 1.3. All requests to inspect or obtain copies of 
any record or to obtain a fee waiver must be submitted in writing.
    (c) In exercising authority under 7 CFR 1.3(a)(3) to grant and deny 
requests, the Coordinator or designee will comply with subsection (b) 
of the Freedom of Information Act (5 U.S.C. 552(b)), as amended, which 
requires that any reasonably segregated portion of a document will be 
provided to a person requesting the document after deletion of any 
portions within the scope of the request for which an exemption is 
being claimed under the Act. Therefore, unless the disclosable and 
nondisclosable portions are so inextricably linked that it is not 
reasonably possible to separate them, the document will be released 
with the nondisclosable portions deleted. The Coordinator or designee 
may exercise discretion as limited by 7 CFR l.15 to release the entire 
document or make only a minimum number of deletions. If portions of a 
document in electronic format have been redacted, the Agency must 
indicate, on the released portion of the document, the amount of 
information that has been deleted from a record, unless that indication 
would harm an interest protected by an applicable exemption.
    7. Section 390.6 is revised to read as follows:


Sec. 390.6  Fee schedule.

    Department regulations provide for a schedule of reasonable 
standard charges for document search and duplication. See 7 CFR 1.17. 
Fees to be charged are in 7 CFR part 1, subpart A, appendix A.
    8. Section 390.7 is revised to read as follows:


Sec. 390.7  Appeals.

    (a) If the request for information or for a waiver of search or 
duplication is denied, in whole or in part, the FOIA Coordinator or 
designee will explain in the letter of response the grounds for any 
denial of access and offer the requester an opportunity to file an 
administrative appeal, pursuant to 7 CFR 1.3(a)(4). The appeal should 
be filed in writing within 45 days of the date of denial (departmental 
regulations, 7 CFR 1.14) and addressed as follows:

Administrator, Food Safety and Inspection Service (FOIA Appeals), 
Department of Agriculture, Washington, DC 20250-3700

    (b) The FSIS Administrator is authorized under 7 CFR 1.3(a)(4) to 
extend the 20-day deadline, make discretionary releases, and make 
determinations regarding the charging of fees.
    9. Section 390.8 is revised to read as follows:


Sec. 390.8  Agency response to requests.

    (a) The response to Freedom of Information requests and appeals by 
officials named in Secs. 390.5 and 390.7 of this part shall be governed 
by and made in accordance with 7 CFR 1.7 and the regulations in this 
part.
    (b) If requests for records and information are received by field 
offices, the field office will immediately notify the FOIA Coordinator 
or designee by telephone and transmit the request to the FOIA office. 
In rare instances, the FOIA Coordinator or designee will authorize a 
release of the requested records to the field office receiving the 
request. The request will be considered as having been received on the 
date of arrival in the office of the Coordinator or designee. Any 
person whose request for records has been granted may inspect and copy 
the records (or copies) at the office listed in Sec. 390.4 of this part 
in accordance with the provisions of that section and with Sec. 390.6. 
Copies also may be obtained by mail.

    Done in Washington, DC, on August 4, 1999.
Thomas J. Billy,
Administrator.
[FR Doc. 99-20821 Filed 8-11-99; 8:45 am]
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