[Federal Register Volume 65, Number 92 (Thursday, May 11, 2000)]
[Proposed Rules]
[Pages 30369-30375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11504]


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OVERSEAS PRIVATE INVESTMENT CORPORATION

22 CFR Part 706

RIN 3420-ZA00


Information Disclosure

AGENCY: Overseas Private Investment Corporation.

ACTION: Proposed rule.

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SUMMARY: This proposed rule revises the Overseas Private Investment 
Corporation's (``OPIC'') Freedom of Information Act (``FOIA'') 
regulations by

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making substantive and administrative changes. These revisions are 
intended to supersede OPIC's current FOIA regulations, located at this 
Part. The proposed rule incorporates the FOIA revisions contained in 
the Electronic Freedom of Information Act Amendments of 1996 
(``EFOIA''), conforms OPIC's regulations to current OPIC FOIA 
practices, and converts the regulations to a plain English format. The 
proposed rule also reflects the disclosure principles established by 
the President and the Attorney General in their FOIA Policy Memorandum 
of October 4, 1993. Finally, the proposed rule adds a notice to OPIC's 
business submitters concerning access to OPIC records that have been 
transferred to the legal custody and control of the National Archives 
of the United States (``National Archives'').

DATES: Comments must be received by June 12, 2000; however, late filed 
comments will be considered to the extent practicable.

ADDRESSES: Mail or hand-deliver comments to Laura A. Naide, FOIA 
Director, Overseas Private Investment Corporation, 1100 New York 
Avenue, N.W., Washington, D.C. 20527, fax them to Ms. Naide at (202) 
408-0297, or send them by electronic mail to [email protected]. Please 
send comments by only one method. Comments will be available for review 
upon request.

FOR FURTHER INFORMATION CONTACT: Laura A. Naide, FOIA Director, (202) 
336-8426, or Eli H. Landy, FOIA Counsel, (202) 336-8418.

SUPPLEMENTARY INFORMATION: This revision of Part 706 incorporates 
changes to the language and structure of the regulations and adds new 
provisions to implement the EFOIA (Pub. L. 104-231). New provisions 
implementing the amendments are found at Sec. 706.12 (defining 
``search'' to include electronic searches), Sec. 706.21 (electronic 
reading room), Sec. 706.31 (format of disclosure), Sec. 706.32 (timing 
of responses), and Sec. 706.33 (material withheld). OPIC is already 
complying with these statutory requirements; this proposed revision 
serves as OPIC's formal codification of the applicable law and its 
practice.
    Under the EFOIA, an agency may provide by regulation for multiple 
``tracks'' in responding to FOIA requests, depending upon the amount of 
time and work entailed in responding to different kinds of requests 
(``multitrack processing''). OPIC has decided not to propose multitrack 
processing. Because OPIC receives a limited number of FOIA requests 
each year and is able to respond to the great majority of them on a 
timely basis, OPIC does not need to provide separate processing tracks 
for more complicated versus simpler FOIA requests.
    Proposed revisions of OPIC's fee schedule can be found at 
Sec. 706.34. The duplication charge will remain fifteen cents per page, 
while the document search and review charges will increase to $16 and 
$35 per hour, respectively. The amount at or below which OPIC will not 
charge a fee is set at $15.
    This revision also notifies OPIC's business submitters of the 
Federal Records Act requirement that OPIC transfer legal custody and 
control of certain records to the National Archives pursuant to 
applicable federal records schedules.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
the head of OPIC has certified that this regulation, as promulgated, 
will not have a significant economic impact on a substantial number of 
small entities. The proposed rule implements the FOIA, a statute 
concerning the release of federal records, and does not economically 
impact Federal Government relations with the private sector. Further, 
under the FOIA, agencies may recover only the direct costs of searching 
for, reviewing, and duplicating the records processed for requesters. 
Based on OPIC's experience, these fees are nominal.

Executive Order 12866

    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Office of Management and Budget has determined that this proposed rule 
is a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), Regulatory Planning and Review, and, accordingly, that 
Office has reviewed this rule.

Unfunded Mandates Reform Act of 1995

    This regulation will not result in the expenditure by State, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
regulation will not result in an annual effect on the economy of 
$100,000,000 or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 22 CFR Part 706

    Confidential business information, Freedom of information.

    For the reasons stated in the preamble, OPIC proposes to revise 22 
CFR Part 706 to read as follows:

PART 706--INFORMATION DISCLOSURE

Subpart A--General
Sec.
706.11   General provisions.
706.12   Definitions.
Subpart B--Procedures for Obtaining Publicly Available Records
706.21   What types of OPIC records are publicly available, and how 
do I obtain access to or copies of these records?
Subpart C--Procedures for Obtaining Records Under the FOIA
706.31   How do I request copies of or access to OPIC records that 
are not otherwise available to the public?
706.32   When will I receive a response to my FOIA request?
706.33   How will OPIC respond to my FOIA request?
706.34   What, if any, fees will I be charged?
706.35   When will OPIC reduce or waive fees?
706.36   How may I appeal a partial or total denial of records?
Subpart D--Rights of Submitters of Confidential Business Information
706.41   How should business submitters designate business 
information in materials submitted to OPIC?
706.42   When will OPIC notify business submitters of a pending FOIA 
request?
706.43   Who will OPIC notify if a FOIA civil lawsuit is filed?
706.44   What happens to business information contained in OPIC 
records transferred to the National Archives of the United States?

    Authority: 5 U.S.C. 552; 44 U.S.C. 2901, et seq.; Executive 
Order 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.

Subpart A--General


Sec. 706.11  General provisions.

    (a) Purpose. The purpose of this part is to help interested parties 
obtain access to the Overseas Private Investment Corporation's (OPIC's)

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records. Many OPIC records may be accessed by the public without filing 
a formal request under the Freedom of Information Act (FOIA). Records 
that are not routinely available, however, must be requested under the 
FOIA. This part also informs OPIC's business submitters of their right 
to be notified of a request for disclosure of business information and 
to object to such disclosure. Finally, this part provides information 
about FOIA requests for records that OPIC has transferred to the 
National Archives of the United States (National Archives).
    (b) Policy. OPIC's policy is to make its records available to the 
public to the greatest extent possible, in keeping with the spirit of 
the FOIA. This policy includes providing reasonably segregable 
information from documents that also contain information that may be 
withheld under the FOIA. However, implementation of this policy also 
reflects OPIC's view that the soundness and viability of many of its 
programs depend in large measure upon full and reliable commercial, 
financial, technical and business information received from applicants 
for assistance and that the willingness of those applicants to provide 
such information depends on OPIC's ability to hold it in confidence. 
Consequently, except as provided by applicable law and this part, 
information provided to OPIC in confidence will not be disclosed 
without the submitter's consent.
    (c) Scope. This part applies to all agency records in OPIC's 
possession and control. This part does not compel OPIC to create 
records or to ask outside parties to provide documents in order to 
satisfy a FOIA request. OPIC may, however, in its discretion and in 
consultation with a FOIA requester, create a new record as a partial or 
complete response to a FOIA request. In responding to requests for 
information, OPIC will consider only those records within its 
possession and control as of the date of the request. This regulation 
does not apply to requests for records under the Privacy Act, 5 U.S.C. 
552a. OPIC regulations governing such requests are located at 22 CFR 
part 707.
    (d) OPIC Internet site. OPIC maintains an Internet site at 
www.opic.gov. This site contains information on OPIC functions, 
activities, programs, and transactions. OPIC encourages all prospective 
requesters of information, whether under FOIA or otherwise, to visit 
its Internet site prior to submitting a request.
    (e) OPIC address. OPIC is located at 1100 New York Avenue, N.W., 
Washington, D.C. 20527. All correspondence should be sent to this 
address.


Sec. 706.12  Definitions.

    For purposes of this part, the following definitions shall apply:
    All other requesters. Requesters other than commercial use 
requesters, educational and non-commercial scientific requesters, or 
representatives of the news media.
    Business information. Trade secrets and confidential or privileged 
commercial or financial information obtained from any person, 
including, but not necessarily limited to, information contained in 
individual case files relating to such activities as insurance, loans 
and loan guaranties.
    Business submitter. Any person that provides business information 
to OPIC.
    Educational institution. A preschool, a public or private 
elementary or secondary school, an institution of undergraduate or 
graduate higher education, or an institution of professional or 
vocational education.
    FOIA. The Freedom of Information Act, as amended, 5 U.S.C. 552.
    Non-commercial scientific institution. An institution that is 
operated for the purpose of conducting scientific research, the results 
of which are not intended to promote any particular product or 
industry, and that is not operated solely for purposes of furthering a 
business, trade, or profit interest.
    OPIC. The Overseas Private Investment Corporation.
    Person. An individual, partnership, corporation, association, or 
organization, other than a federal government agency.
    Record. All papers, memoranda, or other documentary material, or 
copies thereof, regardless of physical form or characteristics, created 
or received by OPIC and within OPIC's possession and control. Record 
does not include publications that are available to the public through 
the Federal Register, sale or free distribution.
    Redaction. The process of removing non-disclosable material from a 
record so that the remainder may be released.
    Representative of the news media. A person actively gathering 
information on behalf of an entity organized and operated to publish or 
broadcast news to the public. Freelance journalists shall qualify as 
representatives of the news media when they can demonstrate that a 
request is reasonably likely to lead to publication.
    Request. Any request made to OPIC under the FOIA.
    Requester. Any person making a request.
    Review. The examination of a record located in response to a 
request in order to determine whether any portion of the record is 
exempt from disclosure. Review also includes processing any record for 
disclosure--for example, doing all that is necessary to redact and 
prepare the record for disclosure. Review also includes time spent 
considering any formal objection to disclosure made by a business 
submitter, but does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    Search. The process of looking for and retrieving records or 
information responsive to a request. It includes page-by-page or line-
by-line identification of information within records and also includes 
reasonable efforts to locate and retrieve information from records 
maintained in electronic form or format.
    Working days. All calendar days excluding Saturdays, Sundays, 
Federal Government holidays, and any other day on which OPIC is not 
open for business.

Subpart B--Procedures for Obtaining Publicly Available Records


Sec. 706.21  What types of OPIC records are publicly available, and how 
do I obtain access to or copies of these records?

    (a) Electronic access. (1) Many OPIC records are readily available 
to the public by electronic access, including OPIC's Annual Report, 
OPIC's Program Handbook, OPIC press releases, and application forms for 
OPIC assistance. Persons seeking information are encouraged to visit 
OPIC's Internet site at: www.opic.gov.
    (2) Records relating to OPIC's FOIA program, including records 
required by the FOIA to be made electronically available, records which 
have been the subject of frequent FOIA requests, and OPIC's annual FOIA 
Report are available in OPIC's Electronic Reading Room. OPIC's 
Electronic Reading Room may be accessed through the ``FOIA'' link on 
OPIC's Internet site at: www.opic.gov. The Electronic Reading Room also 
contains an index of records available electronically. Generally, only 
records created after November 1, 1996 are available electronically.
    (b) Offline access. Publicly-available OPIC materials are readily 
available on OPIC's Internet site at www.opic.gov. If you do not have 
access to the Internet, you may obtain many of the same materials by 
contacting one or more of the sources listed as follows:
    (1) General information. General information (e.g., OPIC's Annual 
Report, OPIC's Program Handbook, and

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application forms for OPIC assistance) are available from OPIC's 
Information Officer. To obtain access to or copies of these records, 
call (202) 336-8400 and ask to be connected with the Information 
Officer or write to the Information Officer.
    (2) Claims information. OPIC's Department of Legal Affairs 
maintains public information files relating to the determination of 
claims filed under OPIC's political risk insurance contracts and a list 
of all claims resolved by cash settlements or guaranties. To obtain 
access to or copies of these records, call (202) 336-8400 and ask to be 
connected with the Claims Assistant in Legal Affairs or write to the 
Claims Assistant, Department of Legal Affairs.
    (3) Materials concerning OPIC's Board of Directors. The Corporate 
Secretary maintains public information files containing the minutes of 
the public portions of Board of Directors meetings, as well as public-
releasable Board resolutions. To obtain access to or copies of these 
records, call (202) 336-8400 and ask to be connected with the Corporate 
Secretary or write to the Corporate Secretary.
    (4) Press releases. OPIC's Press Office maintains copies of OPIC's 
press releases. To obtain access to or copies of these records, call 
(202) 336-8400 and ask to be connected with the Press Office or write 
to the Press Office.
    (5) Reading room material. Pursuant to the FOIA, OPIC maintains 
certain documents for public inspection and photocopying, including 
documents that have been the subject of frequent FOIA requests. To 
obtain access to or copies of these records, call (202) 336-8400 and 
ask to be connected with the FOIA Director or write to the FOIA 
Director. OPIC maintains an index of FOIA reading room records, which 
is updated regularly.

Subpart C--Procedures for Obtaining Records Under the FOIA


Sec. 706.31  How do I request copies of or access to OPIC records that 
are not otherwise available to the public?

    (a) Submitting a request. To request records that are not otherwise 
available to the public, submit a written request to OPIC's FOIA 
Director either by mail, by hand delivery, or by facsimile transmission 
to (202) 408-0297. You must sign your request, or it must be signed on 
your behalf, and the request must state that you are requesting records 
under the FOIA. Your request is considered received by OPIC upon actual 
receipt by OPIC's FOIA Director.
    (b) Format. Although FOIA requests do not need to follow a specific 
format, you must include the following information:
    (1) You must reasonably describe the records you seek. This means 
that you must provide enough detail to enable OPIC personnel to locate 
the records with a reasonable amount of effort. Whenever possible, your 
request should include specific information about each record sought, 
such as the date, title or name, author, recipient, and subject matter 
of the record. Any request that does not reasonably describe the 
records sought will not be considered received by OPIC until the 
request is clarified. OPIC will make reasonable efforts to contact you 
to clarify your request, as necessary.
    (2) You must state the format (e.g., paper, computer disk, etc.) in 
which you would like OPIC to provide the requested records. If you 
don't state a preference, you will receive any released records in the 
format most convenient to OPIC.
    (3) You must include your mailing address and telephone number.
    (4) You must state your willingness to pay all costs chargeable 
under this part or, alternately, your willingness to pay fees up to a 
specified limit. If you believe that you qualify for a partial or total 
fee waiver, you should request a waiver and provide justification as 
required by Sec. 706.35. If your request does not contain a fee 
statement or a request for a fee waiver, OPIC will advise you of the 
requirements of this paragraph (b)(4). If you fail to respond within 
ten working days of such notification, OPIC will not continue to 
process your request.


Sec. 706.32  When will I receive a response to my FOIA request?

    (a) General. The FOIA requires OPIC to respond within twenty 
working days after the date on which OPIC's FOIA Director received the 
request.
    (b) Order of processing. Generally, OPIC responds to FOIA requests 
in the order in which they are received.
    (c) Extensions. (1) In unusual circumstances, OPIC may require an 
extension of time in which to respond to your request. OPIC will 
provide written notice to you whenever such unusual circumstances 
exist. Unusual circumstances may include: the need to search for and 
collect requested records from storage facilities located outside 
OPIC's premises; the need to search for, collect, and appropriately 
examine a voluminous amount of separate and distinct records that are 
requested in a single request; or the need for consultation with 
another agency having a substantial interest in the request. If the 
extension is expected to exceed ten working days, OPIC will offer you 
the opportunity to:
    (i) Alter your request so that processing may be accelerated; or
    (ii) Propose an alternative, feasible time frame for processing the 
request.
    (2) Where OPIC reasonably believes that multiple requests submitted 
by a requester, or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances, and the requests involve clearly related matters, they 
may be aggregated for purposes of this section.
    (d) Expedited processing. (1) OPIC will expedite processing of your 
FOIA request if you provide information indicating that one of the 
following factors is present:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) An urgent need 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.
    (2) You may make a request for expedited processing at the time you 
submit your FOIA request or at any later time. If you make such a 
request, you must submit a statement, certified to be true and correct 
to the best of your belief, explaining in detail the basis for 
requesting expedited processing. OPIC will notify you of its 
determination concerning your request for expedited processing within 
ten days after the date of your request. You may appeal a denial of a 
request for expedited processing under the provisions at Sec. 706.36. 
OPIC will grant expedited consideration to any such appeal.


Sec. 706.33  How will OPIC respond to my FOIA request?

    (a) OPIC response. You will be notified in writing once OPIC makes 
a determination concerning your request. OPIC will respond by providing 
the requested records to you in whole or in part and/or by denying your 
request in whole or in part, or by notifying you that OPIC will produce 
or withhold, in whole or in part, the requested records. If there are 
fees owing, OPIC will respond to you once you have paid the fees.
    (1) Segregable records. If OPIC determines that part(s) of a record 
are exempt from disclosure under the FOIA, any reasonably segregable 
part of the record will be provided to you after redaction of the 
exempt material. OPIC will mark or annotate any such record to show 
both the amount and the

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location of the redacted information wherever practicable. If 
segregation would render the document meaningless, however, OPIC will 
withhold the entire record.
    (2) Denials. A denial is a determination to withhold any requested 
record in whole or in part, a determination that a requested record 
cannot be located, or a determination that what you requested is not a 
record subject to the FOIA. If OPIC denies all or part of your request, 
you will be provided:
    (i) The name, title, and signature of the person responsible for 
the determination;
    (ii) The statutory basis for non-disclosure;
    (iii) A statement that the denial may be appealed under Sec. 706.36 
and a brief description of the requirements of Sec. 706.36; and
    (iv) If entire documents or document pages are withheld, an 
estimated volume of the amount of material withheld unless providing 
such an estimate would harm an interest protected by the FOIA exemption 
under which the denial is made.
    (b) Referrals to other government agencies. If you request a record 
in OPIC's possession that was created or classified by another Federal 
agency, your request will be referred to that agency for direct 
response to you. OPIC will notify you of any such referral.


Sec. 706.34  What, if any, fees will I be charged?

    (a) General policy. You will generally be charged for costs 
incurred by OPIC in complying with your FOIA request, in accordance 
with paragraph (c) of this section and as required or permitted by law. 
As explained more fully in paragraph (c) of this section, fees will 
vary according to your requester status.
    (1) Search fees are $16 per hour.
    (2) Review fees are $35 per hour.
    (3) Duplication costs are $.15 per page for photocopying, and 
direct costs for all other media (including any operator time 
involved).
    (b) Anticipated fees. Your FOIA request must specifically state 
that all costs chargeable under this section will be paid or, 
alternatively, that they will be paid up to a specified limit. If your 
request makes no reference to anticipated fees and your request is 
expected to involve fees of more than $25, or OPIC estimates that the 
fees will exceed the dollar limit specified in your request, OPIC will 
promptly notify you of the estimated fees.
    (c) Uniform Fee Schedule. Fees will be charged according to your 
requester status.
    (1) Commercial use requesters. Commercial use requesters will be 
charged the cost of all time spent searching for and reviewing for 
release the requested records, and for all duplication costs.
    (2) Educational and non-commercial scientific institution 
requesters. Educational and non-commercial scientific institution 
requesters will be charged only the costs of duplication. No fee will 
be charged for the costs of photocopying the first 100 pages of 
documents or for the first $15 of other media costs. To be eligible for 
inclusion in this category, you must show that your request is being 
made under the auspices of a qualifying educational institution or non-
commercial scientific institution and that the records are sought in 
furtherance of scholarly (if the request is from an educational 
institution) or scientific (if the request is from a non-commercial 
scientific institution) research.
    (3) Representatives of the news media. Representatives of the news 
media will be charged only the costs of duplication. No fee will be 
charged for the costs of photocopying the first 100 pages of documents 
or for the first $15 of other media costs. To be eligible for inclusion 
in this category, you must be a representative of the news media and 
your request must not be made for a commercial use. A request for 
records that supports the news dissemination function of the requester 
is not considered to be a request that is for a commercial use.
    (4) All other requesters. All other requesters will be charged for 
the cost of any search time in excess of two hours, photocopying any 
documents in excess of 100 pages, and any costs in excess of the first 
$15 of other media costs.
    (d) Fees for searches that produce no records. Fees will be charged 
as provided in this section even if OPIC's search and review does not 
generate any disclosable records.
    (e) Special services charges. At its discretion, OPIC may comply 
with requests for special services such as certification of documents 
or shipping methods other than regular U.S. mail. You will be charged 
the direct costs of any such services.
    (f) Advance payments. Where OPIC estimates that allowable fees are 
likely to exceed $250, you will be required to make an advance payment 
of the entire fee before OPIC continues to process your request. You 
will be provided an opportunity to narrow the scope of your request if 
you do not want to pay the entire amount of the estimated fees.
    (g) Restrictions on assessing fees. With the exception of 
commercial use requesters, the FOIA requires agencies to provide the 
first 100 pages of photocopying and the first two hours of search time 
to requesters without charge. Moreover, the FOIA prohibits agencies 
from charging fees to any requester, including commercial use 
requesters, if the cost of collecting the fee would be equal to or 
greater than the fee itself. OPIC has determined that its cost of 
collecting a FOIA fee is $15. In implementing these provisions, OPIC 
will not begin to assess fees until after providing the free search and 
reproduction, except for commercial use requesters. For example, for a 
request that would involve two hours and ten minutes of search time and 
results in 105 pages of documents, OPIC will determine the cost of only 
10 minutes of search time and only five pages of reproduction. If this 
cost is equal to or less than the cost of collecting the fee, there 
will be no charge to the requester.
    (h) Failure to pay fees. (1) OPIC will begin assessing interest 
charges on the 31st day following the date of billing. Interest will be 
at the rate prescribed in section 3717 of Title 31 of the United States 
Code.
    (2) If you previously failed to pay a FOIA fee to OPIC in a timely 
fashion, you must pay the full amount owed plus any applicable interest 
as provided above and make an advance payment of the full amount of the 
estimated fee before OPIC processes a new FOIA request from you.
    (3) When OPIC acts under paragraph (h)(1) or (2) of this section, 
the administrative time limits for processing FOIA requests (i.e. 20 
working days from receipt of initial request and 20 working days from 
receipt of appeals plus permissible extensions) will begin only after 
OPIC has received full payment of all applicable fees and interest.


Sec. 706.35  When will OPIC waive or reduce fees?

    (a) In accordance with the FOIA's fee waiver provisions, OPIC will 
furnish documents to you without charge or at a reduced charge if 
disclosure of the information you request 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 your commercial interest. In determining whether a fee 
waiver is appropriate, OPIC will consider the following factors:
    (1) Whether the subject of the requested records concerns the

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operations or activities of the government;
    (2) Whether disclosure of the requested information is likely to 
contribute significantly to public understanding of government 
operations or activities;
    (3) Whether you have the intention and ability to disseminate the 
information to the public;
    (4) Whether the information is already in the public domain;
    (5) Whether you have a commercial interest that would be furthered 
by the disclosure; and, if so,
    (6) Whether the magnitude of your identified commercial interest is 
sufficiently large, in comparison with the public interest in 
disclosure, that disclosure is primarily in your commercial interest.
    (b) Justification. In all cases, you have the burden of presenting 
sufficient evidence or information to justify the requested fee waiver 
or reduction.
    (c) Inspection. You may come to OPIC's offices to inspect any 
releasable records that you requested, without charge to you except for 
search, review, and/or duplication fees which are otherwise payable.
    (d) Other provisions. (1) Aggregating requesters. When OPIC 
reasonably believes that a requester or group of requesters is 
attempting to break down a request into a series of requests for the 
purpose of evading the assessment of fees, OPIC will aggregate any such 
requesters and charge accordingly.
    (2) Remittances. All payments under this section should be in the 
form of a check or a bank draft drawn on a bank located in the United 
States. Remittances shall be made payable to the order of United States 
Treasury and mailed to the OPIC FOIA Director.


Sec. 706.36  How may I appeal a partial or total denial of records?

    (a) Procedure. If your request for records has been denied in whole 
or in part, you may file an appeal within twenty working days following 
the date on which you receive OPIC's denial. Your appeal should be 
addressed to OPIC's Vice President and General Counsel. Your appeal is 
considered received by OPIC upon actual receipt by OPIC's Vice 
President and General Counsel. You should clearly mark your envelope 
and appeal letter as a ``Freedom of Information Act Appeal.'' Your 
appeal letter should reasonably describe the information or records 
requested and any other pertinent facts and statements.
    (b) Response. OPIC's Vice President and General Counsel or his/her 
designee will render a written decision within twenty working days 
after the date of OPIC's receipt of the appeal, unless an extension of 
up to ten working days is deemed necessary in accordance with the 
procedures set forth in Sec. 706.32. If your appeal is denied in whole 
or in part, the decision will explain OPIC's rationale for upholding 
the denial. If your appeal is granted in whole or in part, the 
information or requested records will be made available promptly, 
provided the requirements of Sec. 706.34 regarding payment of fees are 
satisfied.

Subpart D--Rights of Submitters of Confidential Business 
Information


Sec. 706.41.  How should business submitters designate business 
information in materials submitted to OPIC?

    All business submitters should use good-faith efforts to designate, 
by appropriate markings, either at the time of submission or within a 
reasonable amount of time thereafter, any portions of their submissions 
that they consider to be protected from disclosure under the FOIA. 
These markings will be considered by OPIC in responding to a FOIA 
request, but such markings will not be dispositive as to whether the 
marked information is ultimately released.


Sec. 706.42  When will OPIC notify business submitters of a pending 
FOIA request?

    (a) Except as provided in paragraphs (c) and (e) of this section, 
OPIC's FOIA Director will promptly notify a business submitter in 
writing that a request for disclosure has been made for any business 
information provided by the submitter. This notification will describe 
the nature and scope of the request, advise the submitter of its right 
to submit written objections in response to the request, and inform the 
submitter of OPIC's intent to disclose the business information on the 
expiration of ten working days from the date of the notice. The notice 
will either describe the business information requested or include 
copies of the requested records.
    (b)(1) The business submitter may, at any time prior to the 
disclosure date described in paragraph (a) of this section, submit to 
OPIC's FOIA Director detailed written objections to the disclosure of 
the requested information, specifying the grounds upon which it 
contends that the information should not be disclosed. In setting forth 
such grounds, the submitter should specify, to the maximum extent 
feasible, the basis of its belief that the nondisclosure of any item of 
information requested is mandated or permitted by law. In the case of 
information that the submitter believes to be exempt from disclosure 
under subsection (b)(4) of the FOIA, the submitter shall explain why 
the information is considered a trade secret or commercial or financial 
information that is privileged or confidential and either:
    (i) How disclosure of the information would cause substantial 
competitive harm to the submitter; or
    (ii) Why the information should be considered voluntarily submitted 
and why it is information that would not customarily be publicly 
released by the submitter.
    (2) Information provided by a business submitter pursuant to 
paragraph (b)(1) of this section may itself be subject to disclosure 
under the FOIA.
    (c) The period for providing OPIC with objections to disclosure of 
information may be extended by OPIC upon receipt of a written request 
for an extension from the business submitter. Such written request 
shall set forth the date upon which the objections are expected to be 
completed and shall provide reasonable justification for the extension. 
OPIC may, in its discretion, permit more than one extension.
    (d) OPIC may sustain or deny the submitter's objections, in whole 
or in part. If OPIC denies the submitter's objections, in whole or in 
part, OPIC will promptly notify the business submitter of its 
determination at least five working days prior to release of the 
information. The notification will include:
    (1) A statement of the reasons for OPIC's decision not to sustain 
the business submitter's objections;
    (2) A description of the information to be disclosed, or a copy 
thereof; and
    (3) A specific disclosure date.
    (e) OPIC will not ordinarily notify the business submitter pursuant 
to paragraph (a) of this section if:
    (1) OPIC determines that the FOIA request should be (1) denied;
    (2) The disclosure is required by law (other than pursuant to 5 
U.S.C. 552); or
    (3) The information has been published or otherwise made available 
to the public, including material described in Sec. 706.21.


Sec. 706.43  Who will OPIC notify if a FOIA civil lawsuit is filed?

    Whenever a requester files a lawsuit seeking to compel the 
disclosure of business information, OPIC will promptly notify any 
business submitter(s) that submitted information at issue in the 
lawsuit.

[[Page 30375]]

Sec. 706.44  What happens to business information contained in OPIC 
records transferred to the National Archives of the United States?

    Pursuant to the Federal Records Act, 44 U.S.C. 2901, et seq., OPIC 
transfers legal custody and control of records with permanent 
historical value to the National Archives. These records are 
transferred in accordance with OPIC's records retention schedules, 
which are approved by the Archivist of the United States. Transfers of 
project records generally occur five years after closeout of the 
project (e.g., most records are not transferred to the National 
Archives until they are at least 25 years old). If a FOIA request is 
made for records that have been transferred, the National Archives has 
the sole authority to review the records and determine whether or not 
to apply FOIA exemptions. The National Archives is not required to 
inform OPIC about the FOIA request or to seek OPIC's opinion on 
disclosure of the records.

    Dated: May 3, 2000.
Laura A. Naide,
FOIA Director and Senior Administrative Counsel.
[FR Doc. 00-11504 Filed 5-10-00; 8:45 am]
BILLING CODE 3210-01-P