[Federal Register Volume 64, Number 240 (Wednesday, December 15, 1999)]
[Rules and Regulations]
[Pages 69901-69903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32495]


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OFFICE OF NATIONAL DRUG CONTROL POLICY

21 CFR Part 1401

RIN 3201-ZA02


Freedom of Information Act

AGENCY: Office of National Drug Control Policy.

ACTION: Final rule.

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SUMMARY: The Office of National Drug Control Policy revises this rule 
to comply with the Electronic Freedom of Information Act. The rule 
defines records as defined in the Act, establishes an electronic 
reading room, institutes an expedited process for handling requests and 
conforms to the statutory time limitations for a response.

DATES: Effective December 15, 1999.

ADDRESSES: Send comments to Executive Office of the President, Office 
of National Drug Control Policy, Office of Legal Counsel, Attention 
General Counsel, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Daniel R. Petersen, (202) 395-6745.

SUPPLEMENTARY INFORMATION: This rule is not a major rule for the 
purposes of Executive Order 12866. As required by the Regulatory 
Flexibility Act, ONDCP certifies that this proposed rule would not have 
a significant impact on small business entities.

List of Subjects in 21 CFR Part 1401

    Freedom of information, Organization and functions (Government 
agencies).

    For the reasons stated in the preamble, the Office of National Drug 
Control Policy revises 21 CFR part 1401 to read as follows:

PART 1401--PUBLIC AVAILABILITY OF INFORMATION

Sec.
1401.1 Purpose.
1401.2 The Office of National Drug Control Policy--organization and 
functions.
1401.3 Definitions.
1401.4 Access to information.
1401.5 How to request records.
1401.6 Expedited process.
1401.7 Prompt response.
1401.8 Extension of time.
1401.9 Appeals.
1401.10 Fees to be charged--general.
1401.11 Fees to be charged--miscellaneous provisions.
1401.12 Fees to be charged--categories of requesters.
1401.13 Waiver or reduction of fees.

    Authority: 5 U.S.C. 552.


Sec. 1401.1  Purpose.

    The purpose of this part is to prescribe rules, guidelines and 
procedures to implement the Freedom of Information Act (FOIA), as 
amended, 5 U.S.C. 552.


Sec. 1401.2  The Office of National Drug Control Policy--organization 
and functions.

    (a) The Office of National Drug Control Policy (ONDCP) was created 
by the Anti-Drug Abuse Act of 1988, 21 U.S.C. 1501 et seq., and 
reestablished under 21 U.S.C. 1701 et seq. The mission of ONDCP is to 
coordinate the anti-drug efforts of the various agencies and 
departments of the Federal government, to consult with States and 
localities and assist their anti-drug efforts, to conduct a national 
media campaign, and to annually promulgate the National Drug Control 
Strategy.
    (b) ONDCP is headed by the Director of National Drug Control 
Policy. The Director is assisted by a Deputy Director of National Drug 
Control Policy, a Deputy Director for Supply Reduction, a Deputy 
Director for Demand Reduction, and a Deputy Director for State and 
Local Affairs.
    (c) Offices within ONDCP include Chief of Staff, and the Offices of 
Legal Counsel, Strategic Planning, Legislative Affairs, Programs Budget 
and Evaluation, Supply Reduction, Demand Reduction, Public Affairs, 
State and Local Affairs, and the Financial Management Office.
    (d) The Office of Public Affairs is responsible for providing 
information to the press and to the general public. If members of the 
public have general questions about ONDCP that can be answered by 
telephone, they may call the Office of Public Affairs at (202) 395-
6618. This number should not be used to make FOIA requests. All oral 
requests for information under FOIA will be rejected.


Sec. 1401.3  Definitions.

    For the purpose of this part:
    (a) All the terms defined in the Freedom of Information Act apply.
    (b) Commercial-use request means a request from or on behalf of one 
who seeks information for a cause or purpose that furthers the 
commercial, trade or profit interests of the requester or the person or 
institution on whose behalf the request is made. In determining whether 
a requester properly belongs in this category, ONDCP will consider the 
intended use of the information.
    (c) Direct costs means the expense actually expended to search, 
review, or duplicate in response to a FOIA request. For example, direct 
costs include 116% of the salary of the employee performing work and 
the actual costs incurred while operating equipment.
    (d) Duplicate means the process of making a copy of a document. 
Such copies may take the form of paper, microform, audio-visual 
materials, or machine-readable documentation. ONDCP will provide a copy 
of the material in a form that is usable by the requester.
    (e) Educational institution means preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education 
that operates a program or programs of scholarly research.
    (f) Noncommercial scientific institution means an institution that 
is not operated on a commercial basis as that term is defined in this 
section, and that is operated solely for the purpose of conducting 
scientific research not intended to promote any particular product or 
industry.
    (g) Records and any other terms used in this part in reference to 
information includes any information that would be an agency record 
subject to the requirements of this part when maintained in any format, 
including electronic format.
    (h) Representative of the news media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. News is information about current 
events or information that would be of interest to the public. Examples 
of the news media include television or radio stations that broadcast 
to the public at large and publishers of news periodicals that make 
their products available to the general public for purchase or 
subscription. Freelance journalists may be regarded as working for the 
news media where they demonstrate a reasonable basis for expecting 
publication through that organization, even though not actually 
employed by it.
    (i) Request means a letter or other written communication seeking 
records or information under FOIA.
    (j) Review means the process of examining documents that are 
located during a search to determine if any portion should lawfully be 
withheld. It is the processing of determining disclosability.

[[Page 69902]]

    (k) Search means to review, manually or by automated means, agency 
records for the purpose of locating those records responsive to a 
request.


Sec. 1401.4  Access to information.

    The Office of National Drug Control Policy makes available 
information pertaining to matters issued, adopted, or promulgated by 
ONDCP, that are within the scope of 5 U.S.C. 552(a)(2). A public 
reading area and the ONDCP FOIA Handbook are located at http://
www.whitehousedrugpolicy.gov/about/about.html.


Sec. 1401.5  How to request records.

    (a) Each request must reasonably describe the record(s) sought 
including the type of document, specific event or action, originator of 
the record, date or time period, subject matter, location, and all 
other pertinent data.
    (b) Requests must be received by ONDCP through the mail or by 
electronic facsimile transmission. Mailed requests must be addressed to 
Executive Office of the President, Office of National Drug Control 
Policy, Office of Legal Counsel, Washington, DC 20503. The applicable 
fax number is (202) 395-5543.
    (c) The words ``FOIA REQUEST'' or ``REQUEST FOR RECORDS'' must be 
clearly marked on the cover-letter, letter and envelope. The time 
limitations imposed by Sec. 1401.7 will not begin until the Office of 
the General Counsel identifies a letter or fax as a FOIA request.


Sec. 1401.6  Expedited process.

    (a) Requests and appeals will be given expedited treatment whenever 
ONDCP determines either:
    (1) The lack of expedited treatment could reasonably be expected to 
pose an imminent threat to the life or physical safety of an 
individual; or
    (2) An urgency to inform the public about an actual or alleged 
federal government activity occurs and the request is made by a person 
primarily engaged in disseminating information.
    (b) A request for expedited processing may be made at the time of 
the initial request for records or at a later time.
    (c) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that 
person's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. A requester within the category in 
paragraph (a)(2) of this section also must establish a particular 
urgency to inform the public about the government activity involved in 
the request, beyond the public's right to know about government 
activity generally. The formality of certification may be waived as a 
matter of administrative discretion.
    (d) Within ten days of receipt of a request for expedited 
processing, ONDCP will decide whether to grant it and will notify the 
requester of the decision. If a request for expedited treatment is 
granted, the request will be given priority and will be processed as 
soon as practicable. If a request for expedited processing is denied, 
any appeal of that decision will be acted on expeditiously.


Sec. 1401.7  Prompt response.

    The General Counsel, or designee, will determine within 20 days 
(excepting Saturdays, Sundays and legal public holidays) after the 
receipt of a FOIA request whether it is appropriate to grant the 
request and will provide written notification to the person making the 
request. If the request is denied, the written notification will 
include the names of the individuals who participated in the 
determination, the reasons for the denial, and that an appeal may be 
lodged within the Office of National Drug Control Policy.


Sec. 1401.8  Extension of time.

    (a) In unusual circumstances, the Office of General Counsel may 
extend the time limit prescribed in Sec. 1401.7 or Sec. 1401.9 by 
written notice to the FOIA requester. The notice will state the reasons 
for the extension and the date a determination is expected. The 
extension period may be divided among the initial request and an appeal 
but will not exceed a total of 10 working days (excepting Saturdays, 
Sundays, or legal public holidays).
    (b) The phrase ``unusual circumstances'' means:
    (1) The requested records are located in establishments that are 
separated from the office processing the request;
    (2) A voluminous amount of separate and distinct records are 
demanded in a single request; or
    (3) Another agency or two or more components in the same agency 
have substantial interest in the determination of the request.
    (c) Where unusual circumstance exist, ONDCP may provide an 
opportunity for amendment of the initial request so that the request 
may be timely processed. Refusal by the person to reasonably modify the 
request or arrange an alternative time frame shall be considered as a 
factor for purposes of 5 U.S.C. 552 (a)(6)(C).
    (d) ONDCP may aggregate requests by a requester or a group of 
requestors where multiple requests reasonably appear to be a single 
request.


Sec. 1401.9  Appeals.

    An appeal to the ONDCP must explain in writing the legal and 
factual basis for the appeal. It must be received by mail at the 
address specified in Sec. 1401.5 within 30 days of receipt of a denial. 
The Director or designee will decide the appeal within 20 days 
(excepting Saturdays, Sundays, and legal public holidays). If the 
Director or designee deny an appeal in whole or in part, the written 
determination will contain the reason for the denial, the names of the 
individuals who participated in the determination, and the provisions 
for judicial review.


Sec. 1401.10  Fees to be charged--general.

    ONDCP will recoup the full allowable costs it incurs in response to 
a FOIA request.
    (a) Manual search for records. ONDCP will charge 116% of the salary 
of the individual(s) making a search.
    (b) Computerized search for records. ONDCP will charge 116% of the 
salary of the programmer/operator and the apportionable time of the 
central processing unit directly attributed to the search.
    (c) Review of records. ONDCP will charge 116% of the salary of the 
individual(s) conducting a review. Records or portions of records 
withheld under an exemption subsequently determined not to apply may be 
reviewed to determine the applicability of exemptions not considered. 
The cost for a subsequent review is assessable.
    (d) Duplication of records. Request for copies prepared by computer 
will cost 116% of the apportionable operator time and the cost of the 
tape or disk. Other methods of duplication will cost 116% of the salary 
of the individual copying the data plus 15 cents per copy of 8\1/2\ x 
11 inch original.
    (e) Other charges. ONDCP will recover the costs of providing other 
services such as certifying records or sending records by special 
methods.


Sec. 1401.11  Fees to be charged--miscellaneous provisions.

    (a) Remittance shall be mailed to the Office of Legal Counsel, 
ONDCP, Washington DC 20503, and made payable to the order of the 
Treasury of the United States on a postal money order or personal check 
or bank draft drawn on a bank in the United States.
    (b) ONDCP may require advance payment where the estimated fee 
exceeds $250, or a requester previously failed to pay within 30 days of 
the billing date.
    (c) ONDCP may assess interest charges beginning the 31st day of 
billing. Interest will be at the rate

[[Page 69903]]

prescribed in section 3717 of title 31 of the United States Code and 
will accrue from the date of the billing.
    (d) ONDCP may assess search charges where records are not located 
or where records are exempt from disclosure.
    (e) ONDCP may aggregate individual requests and charge accordingly 
for requests seeking portions of a document or documents.


Sec. 1401.12  Fees to be charged--categories of requesters.

    (a) There are four categories of FOIA requesters: commercial use 
requesters; educational and non-commercial scientific institutions; 
representatives of the news media; and all other requesters.
    (b) The specific levels of fees for each of these categories are:
    (1) Commercial use requesters. ONDCP will recover the full direct 
cost of providing search, review and duplication services. Commercial 
use requesters will not receive free search-time or free reproduction 
of documents.
    (2) Educational and non-commercial scientific institution 
requesters. ONDCP will charge the cost of reproduction, excluding 
charges for the first 100 pages. Requesters must demonstrate the 
request is authorized by and under the auspices of a qualifying 
institution and that the records are sought for scholarly or scientific 
research not a commercial use.
    (3) Requesters who are representatives of the news media. ONDCP 
will charge the cost of reproduction, excluding charges for the first 
100 pages. Requesters must meet the criteria in Sec. 1401.3(h), and the 
request must not be made for a commercial use. A request that supports 
the news dissemination function of the requester shall not be 
considered a commercial use.
    (4) All other requesters. ONDCP will recover the full direct cost 
of the search and the reproduction of records, excluding the first 100 
pages of reproduction and the first two hours of search time. Requests 
for records concerning the requester will be treated under the fee 
provisions of the Privacy Act of 1974, 5 U.S.C. 552a, which permits 
fees only for reproduction.


Sec. 1401.13  Waiver or reduction of fees.

    Fees chargeable in connection with a request may be waived or 
reduced where ONDCP determines that disclosure is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government and is 
not primarily in the commercial interest of the requester.
Barry McCaffrey,
Director.
[FR Doc. 99-32495 Filed 12-14-99; 8:45 am]
BILLING CODE 3180-02-U