[Federal Register Volume 65, Number 146 (Friday, July 28, 2000)]
[Rules and Regulations]
[Pages 46335-46342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18767]



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  Federal Register / Vol. 65, No. 146 / Friday, July 28, 2000 / Rules 
and Regulations  

[[Page 46335]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 1


USDA Freedom of Information Act Regulations

AGENCY: Department of Agriculture.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture is issuing a final rule revising 
its regulations implementing the Freedom of Information Act (FOIA). 
This final rule implements the Electronic Freedom of Information Act 
Amendments of 1996.

EFFECTIVE DATE: August 28, 2000.

FOR FURTHER INFORMATION CONTACT: Andrea E. Fowler, FOIA Officer, Office 
of Communications, at (202) 720-8164.

SUPPLEMENTARY INFORMATION: On May 4, 1998 (63 FR 24467), USDA requested 
public comment on proposed revisions to its regulations at 7 CFR Part 1 
implementing the Freedom of Information Act. This revision is necessary 
to implement the Electronic Freedom of Information Act Amendments of 
1996, Public Law 104-231 (E-FOIA).
    The proposed rule provided for the expedited processing of certain 
categories of requesters; proposed ``multitrack'' processing 
requirements; incorporated new processing deadlines and appeal rights; 
implemented the E-FOIA provisions requiring agencies to generally 
provide records in the form or format requested, extended agency 
regulations to the processing of electronic records, and provides for 
frequently requested records as a category of reading room records.

Analysis of Public Comments and the Final Rule

    USDA received three comment letters in response to the proposed 
revisions to USDA's FOIA regulations, one from a trade association 
representing news editors and reporters; one from a trade association 
representing private citizens; and one from a natural resource 
community group involved in natural resource issues. The commenters 
raised several issues regarding the proposed rule, generally seeking 
clarification of provisions implementing E-FOIA.
    Regarding section 1.4(a)(4), one of the trade associations 
requested that USDA reconsider the provision which allows USDA agencies 
to decide on a case-by-case basis whether records that have already 
been subject to several requests should be placed in agency reading 
rooms. The commenter would like USDA to change this section to cover 
only records that have not been subject to subsequent FOIA requests 
instead of records that have been subject to several requests. The 
regulation tracks the language of the statute. Therefore, USDA believes 
that this section of the regulation as proposed is appropriate.
    Regarding section 1.9(b)(2), the community group and the 
association of news editors and reporters requested that USDA broaden 
the circumstances for expedited processing of FOIA requests. USDA 
believes, as a matter of policy, that expanding the criteria as 
embodied in the proposed regulation as suggested by the commenters 
would be counter to even-handed treatment of the public. In essence, 
the commenters desire that self-selected requesters be placed in line 
ahead of most members of the requesting public. One specific suggestion 
to USDA was to include the Department of Justice regulatory provision 
allowing expedited treatment when a request involves the loss of 
substantial due process rights. In this connection, USDA points out 
that one of the primary missions of the Department of Justice is the 
administration of criminal justice. USDA does not share the 
administration of criminal justice as one of its primary missions, and 
believes that the addition of loss of substantial due process rights as 
a ground for expedited processing is not necessary.
    Regarding section 1.9(2)(c) the association of news editors and 
reporters requested that USDA incorporate a provision similar to that 
adopted by the Department of Justice and the Federal Deposit Insurance 
Corporation in their FOIA regulations with regard to the formality of 
certifications needed to obtain expedited treatment. More specifically, 
and consistently with E-FOIA, the USDA proposed rule provided that a 
requester is entitled to expedited treatment only where failure to 
obtain the records expeditiously could pose an imminent threat to the 
life or physical safety of a person, or where the requester is a person 
primarily engaged in disseminating information and there is an urgency 
to inform the public concerning actual or alleged agency activity. A 
requester seeking expedited processing must submit a certified 
statement describing the basis for requesting expedited treatment. The 
Department of Justice and Federal Deposit Insurance Corporation 
regulations, however, provide that the formality of certification may 
be waived as a matter of administrative discretion. The association of 
news editors and reporters requests that USDA incorporate a similar 
waiver provision. The certification required by USDA is straightforward 
and, therefore, we do not expect that it will be burdensome for 
eligible requesters to submit a certification with their initial 
requests.
    The association of news editors and reporters requested that USDA 
incorporate language that the denial of a request for expedited 
processing should be appealable. This language is already included in 
proposed section 1.9 of the regulations.
    Regarding section 1.5, the community group requested that USDA 
remove the requirement that all requests for records shall be deemed to 
have been made pursuant to FOIA by changing the word ``shall'' to 
``should''; and change the requirement that when a requester wants 
documents relating to pending litigation that the requester identify 
the court and its location. We believe that considering all requests 
for records under FOIA will confer more rights on the requester, and 
therefore we will keep the word ``shall'' in the language. Also, we 
believe that identifying the court and its location is part of the 
requirement to reasonably describe the documents requested.
    Regarding section 1.6, the community group requested that USDA 
remove this section which pertains to aggregating requests, asserting 
that it violates the due process clause of the constitution.

[[Page 46336]]

We do not concur because aggregation of requests is specifically 
permitted by 5 U.S.C. 552(a)(6)(B)(iv).
    Regarding section 1.8, the community group requested that USDA 
provide a better description of multitrack processing and give 
examples. USDA does not have a centralized FOIA process in which 
requests will be processed in a central multitracking process. Each 
agency within USDA which decides to have a multitracking processing 
system will provide a description of its system and how it works in its 
respective agency regulations and directives.
    Regarding section 1.19, the community group requested that USDA 
better describe the term ``promptly available'' as it relates to making 
records available to any person submitting a FOIA request. The group 
also wants us to incorporate Attorney General Reno's October 4, 1993, 
memo on discretionary releases into the regulation. We believe that the 
term ``promptly available'' clearly indicates that FOIA requests should 
be processed as soon as reasonably possible, considering the nature of 
the request, and all the facts and circumstances, including the volume 
and location of responsive records. We also believe that this section 
of the USDA regulation reflects the essence of Attorney General Reno's 
memo to make discretionary releases under FOIA. However, we emphasize 
that this does not reflect a statement of policy that USDA has 
specifically incorporated the Attorney General's memorandum of October 
4, 1993. USDA is mindful of its obligation under the memorandum, but 
also is aware that the memorandum, by its terms, specifically disclaims 
that it extends enforceable procedural rights to requesters.
    The community group requested that USDA provide a process for 
citizens to file a complaint about officials who intentionally violate 
FOIA. We believe that section 1.14 of the USDA regulations already 
provides a process for citizens to complain if they believe officials 
have intentionally violated FOIA. This section allows citizens to 
appeal a denial of a request for records or denial of a fee waiver to a 
different level of the agency. Citizens also have the right to judicial 
review of final appeal denials.
    The community group requested that USDA provide for FOIA requests 
via electronic mail over the Internet. USDA believes that this decision 
is more appropriately left to its individual program agencies and staff 
offices. This is so because of decentralization of FOIA processing 
within USDA and the varying electronic capabilities of the numerous 
agencies and offices that would be affected.
    Finally, upon review, USDA is modifying the language of Section 
1.8(c) to accommodate situations where an agency might have several 
processing tracks, so that the requester will have the opportunity to 
modify the request to qualify for a faster track rather than the 
``fastest'' track, as in the proposed regulation. This approach is more 
logical than simply providing for modification to qualify for the 
``fastest track,'' where there may be several tracks to which the 
request might be assigned.

Executive Order 12866

    Because this rule has been determined to be not significant, the 
Office of Management and Budget (OMB) did not review it under Executive 
Order 12866. This rule will not have any economic impact. Under these 
circumstances, the Secretary has determined that this action will not 
have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule: (1) Preempts State and local laws and 
regulations that are inconsistent 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. However, 
the administrative procedures specified must be exhausted prior to any 
judicial challenge of the application of the provisions of this rule.

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

    USDA certifies that this rule is not subject to the Regulatory 
Flexibility Act (5 U.S.C. 601) because it will not have a significant 
economic impact on a substantial number of small entities. This rule 
implements the Freedom of Information Act (5 U.S.C. 552), a statute 
concerning the release of Federal Government records, and does not 
economically impact Federal Government relations with the private 
sector.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 
35)

    USDA certifies that this rule does not impose any reporting or 
recordkeeping requirements under the Paperwork Reduction Act of 1995.

List of Subjects in 7 CFR Part 1

    Administrative practice and procedure, Freedom of Information, 
Privacy.

    Accordingly, 7 CFR, part 1, is amended as follows:
    1. The authority citation for 7 CFR, part 1, continues to read as 
follows:

    Authority: 5 U.S.C. 301, unless otherwise noted.


    2. Part 1 is amended in subpart A by revising Secs. 1.1 through 
1.20 and Secs. 1.22 through 1.23 and by adding Secs. 1.21, 1.24 and 
1.25 to read as follows:

PART 1--ADMINISTRATIVE REGULATIONS

Subpart A--Official Records

Sec.
1.1   Purpose and scope.
1.2   Policy.
1.3   Agency implementing regulations.
1.4   Public access to certain materials.
1.5   Requests for records.
1.6   Aggregating requests.
1.7   Agency response to requests for records.
1.8   Multitrack processing.
1.9   Expedited processing.
1.10   Search services.
1.11   Review services.
1.12   Handling information from a private business.
1.13   Date of receipt of requests or appeals.
1.14   Appeals.
1.15   General provisions respecting release of records.
1.16   Extension of administrative deadlines.
1.17   Failure to meet administrative deadlines.
1.18   Fee schedule.
1.19   Exemptions and discretionary release.
1.20   Annual report.
1.21   Compilation of new records.
1.22   Authentication.
1.23   Records in formal adjudication proceedings.
1.24   Preservation of records.
1.25   Implementing regulations for the Office of the Secretary and 
the Office of Communications.
Appendix A--Fee Schedule

Subpart A--Official Records

    Authority: 5 U.S.C. 301, 552; 7 U.S.C. 3125a; 31 U.S.C. 9701; 
and 7 CFR 2.28(b)(7)(viii).


Sec. 1.1  Purpose and scope.

    This subpart establishes policy, procedures, requirements, and 
responsibilities for administration and coordination of the Freedom of 
Information Act (``FOIA''), 5 U.S.C. 552, pursuant to which any person 
may obtain official records. It also provides rules pertaining to the 
disclosure of records pursuant to compulsory process. This subpart also 
serves as the implementing regulations (referred to in Sec. 1.3, 
``Agency implementing regulations'') for the Office of the Secretary 
(the immediate offices of the Secretary, Deputy Secretary, Under 
Secretaries and Assistant Secretaries) and for the Office of 
Communications. The Office of Communications has the

[[Page 46337]]

primary responsibility for implementation of the FOIA in the Department 
of Agriculture (``USDA'' or ``Department''). The term ``agency'' or 
``agencies'' is used throughout this subpart to include both USDA 
program agencies and staff offices.


Sec. 1.2  Policy.

    (a) Agencies of USDA shall comply with the time limits set forth in 
the FOIA and in this subpart for responding to and processing requests 
and appeals for agency records, unless there are unusual circumstances 
within the meaning of 5 U.S.C. 552(a)(6)(B) and Sec. 1.16(b). An agency 
shall notify a requester in writing whenever it is unable to respond to 
or process a request or appeal within the time limits established by 
the FOIA.
    (b) All agencies of the Department shall comply with the fee 
schedule provided as appendix A to this subpart, with regard to the 
charging of fees for providing copies of records and related services 
to requesters.


Sec. 1.3  Agency implementing regulations.

    Each agency of the Department shall promulgate regulations setting 
forth the following:
    (a) The location and hours of operation of the agency office or 
offices where members of the public may gain access to those materials 
required by 5 U.S.C. 552(a)(2) and Sec. 1.4 to be made available for 
public inspection and copying.
    (b) Information regarding the publication and distribution (by sale 
or otherwise) of indexes and supplements to indexes that are maintained 
in accordance with the requirements of 5 U.S.C. 552(a)(2) and 
Sec. 1.4(c);
    (c) The title and mailing address of the official or officials of 
the agency authorized to receive requests for records submitted in 
accordance with Sec. 1.5(a), and to make determinations regarding 
whether to grant or deny such requests. Authority to make such 
determinations includes authority to:
    (1) Extend the 20 working day administrative deadline for reply 
pursuant to Sec. 1.16;
    (2) Make discretionary releases pursuant to Sec. 1.19(b);
    (3) Make determinations regarding the charging of fees pursuant to 
appendix A to this subpart;
    (d) The title and mailing address of the agency official who is 
authorized to receive appeals submitted in accordance with Sec. 1.14 
and to make determinations regarding whether to grant or deny such 
appeals. Authority to determine appeals includes authority to:
    (1) Extend the 20 working day administrative deadline for reply 
pursuant to Sec. 1.16 (to the extent the maximum extension authorized 
by Sec. 1.16(c) was not used with regard to the initial request;
    (2) Make discretionary releases pursuant to Sec. 1.19(b);
    (3) Make determinations regarding the charging of fees pursuant to 
appendix A to this subpart; and
    (e) Other information which would be of concern to a person wishing 
to request records from that agency in accordance with this subpart.


Sec. 1.4  Public access to certain materials.

    (a) In accordance with 5 U.S.C. 552(a)(2), each agency within the 
Department shall make the following materials available for public 
inspection and copying (unless they are promptly published and copies 
offered for sale):
    (1) Final opinions, including concurring and dissenting opinions, 
as well as orders, made in the adjudication of cases;
    (2) Those statements of policy and interpretation which have been 
adopted by the agency and are not published in the Federal Register;
    (3) Administrative staff manuals and instructions to staff that 
affect a member of the public;
    (4) Copies of all records, regardless of form or format, which have 
been released pursuant to a FOIA request under 5 U.S.C. 552(a)(3), and 
which because of the nature of their subject matter, have become or are 
likely to become the subject of subsequent requests for substantially 
the same records. Agencies shall decide on a case by case basis whether 
records fall into this category, based on the following factors:
    (i) Previous experience with similar records;
    (ii) The particular characteristics of the records involved, 
including their nature and the type of information contained in them; 
and
    (iii) The identity and number of requesters and whether there is 
widespread media, historical, academic, or commercial interest in the 
records.
    (5) A general index of the records referred to in paragraph (a)(4) 
of this section.
    (b) Records encompassed within paragraphs (a)(1) through (a)(5) of 
this section created on or after November 1, 1996, shall be made 
available to the public by computer telecommunications or, if computer 
telecommunications means have not been established by the agency, by 
other electronic means.
    (c) Each agency of the Department shall maintain and make available 
for public inspection and copying current indexes providing identifying 
information regarding any matter issued, adopted or promulgated after 
July 4, 1967, and required by paragraph (a) of this section to be make 
available or published. Each agency shall publish and make available 
for distribution copies of such indexes and supplements to such indexes 
at least quarterly, unless it determines by notice published in the 
Federal Register that publication would be unnecessary and 
impracticable. After issuance of such notice, each agency shall provide 
copies of any index upon request at a cost not to exceed the direct 
cost of duplication.
    (d) Each agency is responsible for preparing reference material or 
a guide for requesting records or information from that agency. This 
guide shall also include an index of all major information systems, and 
a description of major information and record locator systems.
    (e) Each agency shall also prepare a handbook for obtaining 
information from that agency. The handbook should be a short, simple 
explanation to the public of what the FOIA is designed to do, and how a 
member of the public can use it to access government records. The 
handbook should be available on paper and through electronic means, and 
it should identify how a requester can access agency Freedom of 
Information Act annual reports. Similarly, the annual reports should 
refer to the handbook and how to obtain it.
    (f) It is appropriate to make frequently requested records 
available in accordance with paragraph (a)(4) of this section in 
situations where public access in a timely manner is important, and it 
is not intended to apply where there may be a limited number of 
requests over a short period of time from a few requesters. Agencies 
may remove a record from this access medium when the appropriate 
official determines that it is unlikely there will be substantial 
further requests for that document.


Sec. 1.5    Requests for records.

    (a) Any person who wishes to inspect or obtain copies of any record 
of any agency of the Department shall submit a request in writing and 
address the request to the official designated in regulations 
promulgated by that agency. The requester may ask for a fee waiver. All 
such requests for records shall be deemed to have been made pursuant to 
the Freedom of Information Act, regardless of whether the request 
specifically mentions the Freedom of Information Act. To facilitate 
processing of a request, the requester should place the phrase ``FOIA 
REQUEST'' in capital letters on the front of the envelope or on

[[Page 46338]]

the cover sheet of the facsimile transmittal.
    (b) A request must reasonably describe the records to enable agency 
personnel to locate them with reasonable effort. Where possible, a 
requester should supply specific information regarding dates, titles, 
names of individuals, names of offices, and names of agencies or other 
organizations that may help identify the records. If the request 
relates to a matter in pending litigation, the requester should 
identify the court and its location.
    (c) If an agency determines that a request does not reasonably 
describe the records, the agency shall inform the requester of this 
fact and extend the requester an opportunity to clarify the request or 
to confer promptly with knowledgeable agency personnel to attempt to 
identify the records the requester is seeking. The ``date of receipt'' 
in such instances, for purposes of Sec. 1.13, shall be the date of 
receipt of the amended or clarified request.
    (d) If a request for records or a fee waiver made under this 
subpart is denied, the requester shall have the right to appeal the 
denial. Requesters also may appeal agency determinations of a 
requester's status for purposes of fee levels under sec. 5 of appendix 
A to this subpart. All appeals must be in writing and addressed to the 
official designated in regulations promulgated by the agency which 
denied the request. To facilitate processing of an appeal, the 
requester should place the phrase ``FOIA APPEAL'' in capital letters on 
the front of the envelope or on the cover sheet of the fax transmittal.
    (e) Requests that are not addressed to a specific agency in USDA, 
or which pertain to more than one USDA agency, or which are sent to the 
wrong agency of USDA, should be forwarded to the Department's FOIA 
Officer in the Office of Communications, U.S. Department of 
Agriculture, Washington, DC 20250.
    (f) The Department FOIA Officer will determine which agency or 
agencies should process the request, and, where necessary, refer the 
request to the appropriate agency or agencies. The Department FOIA 
Officer will also notify the requester of the referral and of the name 
of each agency to which the request has been referred.
    (g) A request will be properly received when it is in the 
possession of the component agency that has responsibility for 
maintaining the requested records.
    (h) Each agency shall develop and maintain a record of all written 
requests and appeals received in that agency. The record shall include 
the names of the requester; a brief summary of the information 
requested; whether the request or appeal was granted, denied, or 
partially denied; the exemption from mandatory disclosure under 5 
U.S.C. 552(b) upon which any denial was based; and the amount of any 
fees associated with the request or appeal.


Sec. 1.6  Aggregating requests.

    When an agency reasonably believes that a requester, or a group of 
requesters acting in concert, is attempting to break a request down 
into a series of requests for the purpose of evading the assessment of 
fees, the agency may aggregate any such requests and charge 
accordingly. One element that may be considered in determining whether 
such a belief would be reasonable is the brevity of the time period 
during which the requests have been made.


Sec. 1.7  Agency response to requests for records.

    (a) 5 U.S.C. 552(a)(6)(A)(i) provides that each agency of the 
Department to which a request for records is submitted in accordance 
with Sec. 1.5(a) shall inform the requester of its determination 
concerning that request within 20 working days of its date of receipt 
(excepting Saturdays, Sundays, and legal public holidays), plus any 
extension authorized under Sec. 1.16. If the agency determines to grant 
the request, it shall inform the requester of any conditions 
surrounding the granting of the request (e.g., payment of fees) and the 
approximate date upon which the agency will provide the requested 
records. If the agency grants only a portion of the request, it shall 
treat the portion not granted as a denial, and make a reasonable effort 
to estimate the volume of the records denied and provide this estimate 
to the requester, unless providing such an estimate would harm an 
interest protected by an exemption of the FOIA. If the agency 
determines to deny the request in part or in whole, it shall 
immediately inform the requester of that decision and provide the 
following:
    (1) The reasons for the denial;
    (2) The name and title or position of each person responsible for 
denial of the request;
    (3) The requester's right to appeal such denial and the title and 
address of the official to whom such appeal is to be addressed; and
    (4) The requirement that such appeal be made within 45 days of the 
date of the denial.
    (b) If the reason for not fulfilling a request is that the records 
requested are in the custody of another agency outside USDA, other than 
in the permanent custody of the National Archives and Records 
Administration (``NARA''), the agency shall inform the requester of 
this fact and shall forward the request to that agency or Department 
for processing in accordance with its regulations. If the records are 
in the permanent custody of NARA, the agency shall so inform the 
requester. Information about obtaining access to records at NARA may be 
obtained through the NARA Archival Information Locator (NAIL) Database 
at http://www/nara.gov/nara.nail.html, or by calling NARA at (301) 713-
6800. If the agency has no knowledge of requested records or if no 
records exist, the agency shall notify the requester of that fact.


Sec. 1.8  Multitrack processing.

    (a) When an agency has a significant number of requests, the nature 
of which precludes a determination within 20 working days, the requests 
may be processed in a multitrack processing system, based on the date 
of receipt, the amount of work and time involved in processing the 
request, and whether the request qualifies for expedited processing.
    (b) Agencies may establish as many processing tracks as 
appropriate; processing within each track shall be based on a first-in, 
first-out concept, and rank-ordered by the date of receipt of the 
request.
    (c) Agencies may provide a requester whose request does not qualify 
for the fastest track an opportunity to limit the scope of the request 
in order to qualify for a faster track. This multitrack processing 
system does not lessen agency responsibility to exercise due diligence 
in processing requests in the most expeditious manner possible.
    (d) Agencies shall process requests in each track on a ``first-in, 
first-out'' basis, unless there are unusual circumstances as set forth 
in Sec. 1.16, or the requester is entitled to expedited processing as 
set forth in Sec. 1.9.


Sec. 1.9  Expedited processing.

    (a) A requester may apply for expedited processing at the time of 
the initial request for records. Within ten calendar days of its 
receipt of a request for expedited processing, an agency shall decide 
whether to grant it, and shall notify the requester of the decision. 
Once the determination has been made to grant expedited processing, an 
agency shall process the request as soon as practicable. If a request 
for expedited processing is denied, the agency shall act expeditiously 
on any appeal of that decision.

[[Page 46339]]

    (b) A request or appeal will be taken out of order and given 
expedited treatment whenever the agency determines that the requester 
has established either of the following criteria:
    (1) 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
    (2) An urgency to inform the public about an actual or alleged 
federal government activity, if made by an individual primarily engaged 
in disseminating information. Representatives of the news media would 
normally qualify as individuals primarily engaged in disseminating 
information; however, other requesters must demonstrate that their 
primary activity involves publishing or otherwise disseminating 
information to the public as a whole, and not just a particular segment 
or group. ``Urgency'' contemplates that the information has a 
particular value that will be lost if not disseminated quickly. 
Ordinarily this means a breaking news story of general public interest. 
Information of historical interest only or information sought for 
litigation or commercial activities would not meet the test of urgency, 
nor would a news media publication or broadcast deadline unrelated to 
the news breaking nature of the information.
    (c) A requester who seeks expedited processing must provide a 
written statement that the requester has certified to be true and 
correct to the best of the requester's knowledge, explaining in detail 
the basis for requesting expedited processing. The agency will not 
consider the request to have been received unless accompanied by a 
written, certified statement, and will be under no obligation to 
consider the request for expedited processing until it receives such a 
written, certified statement.
    (d) the same procedures apply to requests for expedited processing 
of administrative appeals.


Sec. 1.10  Search services.

    Search services are services of agency personnel--clerical or 
professional--used in trying to find the records, that are responsive 
to a request. Search services includes both manual and electronic 
searches and time spent examining records for the purpose of finding 
information that is within the scope of the request. Search services 
also include services to transport personnel to places of record 
storage, or records to the location of personnel for the purpose of the 
search, if such services are reasonably necessary.


Sec. 1.11  Review services.

    (a) Review services are services of agency personnel--clerical or 
professional--in examining records, both paper and electronic, located 
in response to a request that is for a commercial use (as specified in 
sec. 6 of appendix A to this subpart) to determine whether any portion 
of any record located is exempt from mandatory disclosure.
    (b) Review services include processing any records for disclosure 
e.g., doing all that is necessary to redact exempt portions and 
otherwise prepare records for release.
    (c) Review services do not include the time spent resolving general 
legal or policy issues regarding the application of exemptions.


Sec. 1.12  Handling information from a private business.

    Each USDA agency is responsible for making the final determination 
with regard to the disclosure or nondisclosure of information in agency 
records that has been submitted by a business. When, in the course of 
responding to an FOIA request, an agency cannot readily determine 
whether the information obtained from a person is privileged or 
confidential business information, the policy of USDA is to obtain and 
consider the views of the submitter of the information and to provide 
the submitter an opportunity to object to any decision to disclose the 
information. If a request (including a subpoena duces tecum as 
described in Sec. 1.215) is received in USDA for information that has 
been submitted by a business, the agency shall:
    (a) Provide the business information submitter with prompt 
notification of a request for that information (unless it is readily 
determined by the agency that the information requested should not be 
disclosed or, on the other hand, that the information is not exempt by 
law from disclosure). Afford business information submitter reasonable 
time in which to object to the disclosure of any specified portion of 
the information. The submitter must explain fully all grounds upon 
which disclosure is opposed. For example, if the submitter maintains 
that disclosure is likely to cause substantial harm to it competitive 
position, the submitter must explain item-by-item why disclosure would 
cause such harm. Information provided by a business submitter pursuant 
to this paragraph may itself be subject to disclosure under FOIA;
    (b) Notify the requester of the need to inform the submitter of a 
request for submitted business information;
    (c) Determine whether the requested records are exempt from 
disclosure or must be released;
    (d) Provide business information submitters with notice of any 
determination to disclose such records prior to the disclosure date, in 
order that the matter may be considered for possible judicial 
intervention; and
    (e) Notify business information submitters promptly of all 
instances in which FOIA requesters bring suit seeking to compel 
disclosure of submitted information.


Sec. 1.13  Date of receipt of requests or appeals.

    The date of receipt of a request or appeal shall be the date it is 
received in the agency and office responsible for the administrative 
processing of FOIA requests or appeals.


Sec. 1.14  Appeals.

    (a) Requesters seeking administrative appeal of a denial of a 
request for records or denial of a fee waiver must ensure that the 
appeal is received by the agency within 45 days of the date of the 
denial letter.
    (b) Each agency shall provide for review of appeals by an official 
different from the official or officials designated to make initial 
denials.
    (c) 5 U.S.C. 552(a)(6)(A)(ii) provides that each agency in the 
Department to which an appeal of a denial is submitted shall inform the 
requester of its determination concerning that appeal within 20 working 
days (excepting Saturdays, Sundays, and legal public holidays), plus 
any extension authorized by Sec. 1.16, of its date of receipt. If the 
agency determines to grant the appeal, it shall inform the requester of 
any conditions surrounding the granting of the request (e.g., payment 
of fees) and the approximate date upon which compliance will be 
effected. If the agency grants only a portion of the appeal, it shall 
treat the portion not granted as a denial. If it determines to deny the 
appeal either in part or in whole, it shall inform the requester of 
that decision and of the following:
    (1) The reasons for denial;
    (2) The name and title or position of each person responsible for 
denial of the appeal; and
    (3) The right to judicial review of the denial in accordance with 5 
U.S.C. 552(a)(4).
    (d) Each agency, upon a determination that it wishes to deny an 
appeal, shall send a copy of the records

[[Page 46340]]

requested and of all correspondence relating to the request to the 
Assistant General Counsel, General Law Division, Office of the General 
Counsel (``Assistant General Counsel''). When the volume of records is 
so large as to make sending a copy impracticable, the agency shall 
enclose an informative summary of those records. The agency shall not 
deny an appeal until it receives concurrence from the Assistant General 
Counsel
    (e) The Assistant General Counsel shall promptly review the matter 
(including necessary coordination with the agency) and render all 
necessary assistance to enable the agency to respond to the appeal 
within the administrative deadline or any extension of the 
administrative deadline.


Sec. 1.15  General provisions respecting release of records.

    (a) When releasing documents, agencies shall provide the record in 
any form or format the requester specifies, if the record is readily 
reproducible in that form of format. Agencies shall make reasonable 
efforts to maintain their records in forms or formats that are 
reproducible. In responding to requests for records, agencies shall 
make reasonable efforts to search for records in electronic form or 
format, except when such efforts would significantly interfere with the 
operation of an agency's automated information system. Such 
determinations shall be made on a case-by-case basis.
    (b) In the event a requested record contains some portions that are 
exempt from mandatory disclosure and others that are not, the official 
responding to the request shall ensure that all reasonably segregable 
nonexempt portions are disclosed, and that all exempt portions are 
identified according to the specific exemption or exemptions which are 
applicable. The amount of deleted information shall be indicated on the 
released portion of paper records. Deletions may be marked by use of 
brackets or darkened areas indicating removal of information, or by any 
other method that would reasonable demonstrate the extent of the 
deletion. In the case of electronic deletion, or deletion in 
audiovisual or microfiche records, if technically feasible, the amount 
of redacted information shall be indicated at the place in the records, 
if technically feasible, the amount of redacted information shall be 
indicated at the place in the record where such deletion was made. This 
may be done by use of brackets, shaded areas, or some other 
identifiable technique which will clearly show the limits of the 
deleted information.
    (c) If, in connection with a request or an appeal, a charge is to 
be made in accordance with sec. 8 of appendix A to this subpart, 
agencies shall inform the requester of the fee amount and of the basis 
for the charge. Each agency, in accordance with sec. 8 of appendix A to 
this subpart, may require payment of the entire fee, or a portion of 
the fee, before it provides the requested records. An agency shall 
require full payment of any delinquent fee owed by the requester plus 
any applicable interest prior to releasing records on a subsequent 
request or appeal. If a requester refuses to remit payment in advance, 
an agency may refuse to process the request or appeal with written 
notice to that effect forwarded to the requester. The ``date of 
receipt'' appeal for which advance payment has been required shall be 
the date that payment is received.
    (d) In the event compliance with the request or appeal involves 
inspection of records by the requester rather than providing copies of 
the records, the agency response shall include the name, mailing 
address, and telephone number of the person to be contacted to arrange 
a mutually convenient time for such inspection.
    (e) Whenever duplication fees, or search fees for unsuccessful 
searches (see sec. 4(f) of appendix A to this subpart), are anticipated 
to exceed $25.00, and the requester has not indicated, in advance, a 
willingness to pay fees as high as those anticipated, agencies shall 
notify the requester of the amount of the anticipated fee. If an 
extensive and therefore costly successful search is anticipated, 
agencies also should notify requesters of the anticipated fees. The 
notification shall offer the requester the opportunity to confer with 
agency personnel to reform the request to meet the requester's needs at 
a lower fee. In appropriate cases, an advance deposit in accordance 
with sec. 8 of appendix A to this subpart may be required.


Sec. 1.16  Extension of administrative deadlines.

    (a) In unusual circumstances as specified in this section, when 
additional time is needed to respond to the initial request or to an 
appeal, agencies shall acknowledge the request or the appeal in writing 
within the 20 working day time period, describe the unusual 
circumstances requiring the delay, and indicate the anticipated date 
for a substantive response that may not exceed 10 additional working 
days, except as provided in the following:
    (1) In instances in which the agency, with respect to a particular 
request, has extended the response date by 10 additional working days, 
if the agency finds that it cannot make a response determination within 
the additional 10 working day period, the agency shall notify the 
requester and provide the requester an opportunity to limit the scope 
of the request to allow the agency to process the request within the 
extended time limit, or an alternative time frame for processing the 
request or a modified request.
    (2) If the requester refuses to reasonably modify the request or 
arrange for an alternative time frame for processing the request, the 
FOIA provides that such refusal shall be considered as a factor in 
determining whether there are exceptional circumstances that warrant 
granting additional time for the agency to complete its review of the 
records, as set forth in 5 U.S.C. 552(a)(6)(C)(iii). The term 
``exceptional circumstances'' does not include a delay that results 
from a predictable agency backlog, unless the agency demonstrates 
reasonable progress in reducing its backlog of pending requests.
    (b) As used in this section, ``unusual circumstances'' that may 
justify delay are:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another Department or agency having a 
substantial interest in the determination of the request or among two 
or more components of agency having substantial subject-matter interest 
in the request.

    Note to paragraph (b): Consultation regarding policy or legal 
issues between an agency and the Office of the General Counsel, 
Office of Communications, or the Department of Justice is not a 
basis for extension under this section.

    (c) The 10-day extension authorized by this section may be divided 
between the initial and appellate reviews, but in no event shall the 
total extension exceed 10 working days.
    (d) Nothing in this section shall preclude the agency and the 
requester from agreeing to an extension of time. Any such agreement 
should be confirmed in writing and should specify clearly the total 
time agreed upon.

[[Page 46341]]

Sec. 1.17  Failure to meet administrative deadlines.

    In the event an agency fails to meet the administrative deadlines 
set forth in Secs. 1.7 or 1.14, plus any extension authorized by 
Sec. 1.16, it shall notify the requester, state the reasons for the 
delay, and the date by which it expects to dispatch a determination. 
Although the requester may be deemed to have exhausted his or her 
administrative remedies under 5 U.S.C. 552(a)(6)(C), the agency shall 
continue processing the request as expeditiously as possible and 
dispatch the determination when it is reached in the same manner and 
form as if it had been reached within the applicable deadline.


Sec. 1.18  Fee schedule.

    Pursuant to Sec. 2.28 of this title, the Chief Financial Officer is 
delegated authority to promulgate regulations providing for a uniform 
fee schedule applicable to all agencies of the Department regarding 
requests for records under this subpart. The regulations providing for 
a uniform fee schedule are found in appendix A to this subpart.


Sec. 1.19  Exemptions and discretionary release.

    (a) All agency records, except those specifically exempted from 
mandatory disclosure by one or more provisions of 5 U.S.C. 552(b), 
shall be made promptly available to any person submitting a request 
under this subpart.
    (b) Agencies are authorized, in their sole discretion, to make 
discretionary releases when such release is not otherwise specifically 
prohibited by Executive Order, statute, or regulation.


Sec. 1.20  Annual report.

    (a) Each agency of the Department shall compile the following 
Freedom of Information Act statistics on a fiscal year basis beginning 
October 1, 1997, and report the following information to the Office of 
Communications no later than November 30 following the fiscal year's 
close:
    (1) The number of requests for records received and the number of 
requests which were processed;
    (2) The number of determinations made not to comply with initial 
requests for records made to it under Sec. 1.5(a), and the reasons for 
each such determinations;
    (3) The number of appeals made by persons under Sec. 1.14(b), the 
result of such appeals, and the reason for the action upon each appeal 
that results in a denial of information.
    (4) A complete list of all statutes that the agency relies upon to 
authorize the agency to withhold information under 5 U.S.C. 552(b)(3), 
a description of whether a court has upheld the decision of the agency 
to withhold information under each such statute, and a concise 
description of the scope of any information withheld;
    (5) The number of requests for records pending before the agency as 
of September 30 of the preceding year, and the median number of days 
that such requests had been pending before the agency as of that date:
    (6) The median number of days taken by the agency to process 
different types of requests;
    (7) The total amount of fees collected by the agency for processing 
requests;
    (8) The number of full-time staff of the agency devoted to 
processing requests for records under this section, and the total 
amount expended by the agency for processing such requests.
    (b) Each agency shall compile the information required by paragraph 
(a) of this section for the preceding fiscal year into a report and 
submit this report to the Director of Communications, Office of 
Communications, no later than November 30 following the fiscal year's 
close.
    (c) The Director of Communications, Office of Communications, shall 
combine the reports from all the agencies within USDA into a 
Departmental report, and shall submit to the Attorney General on or 
before February 1 of each year in accordance with 5 U.S.C. 552(e).
    (d) Each agency shall make the report available to the public 
including by computer telecommunications, or if computer 
telecommunications means have not been established by the agency, by 
other electronic means.


Sec. 1.21  Compilation of new records.

    Nothing in 5 U.S.C. 552 or this subpart requires that any agency 
create a new record in order to fulfill a request for records. However, 
an agency is required to provide a record in a form or format specified 
by a requester, if the record is readily reproducible by the agency in 
the form or format requested. Creation of records may be undertaken 
voluntarily if the agency determines this action to be in the public 
interest or the interest of USDA.


Sec. 1.22  Authentication.

    When a request is received for an authenticated copy of a document 
which the agency determines to make available to the requesting party, 
the agency shall cause a correct copy to be prepared and sent to the 
Office of the General Counsel which shall certify the same and cause 
the seal of the Department to be affixed, except that the Hearing Clerk 
in the Office of Administrative Law Judges may authenticate copies of 
documents in the records of the Hearing Clerk and that the Director of 
the National Appeals Division may authenticate copies of documents in 
the records of the National Appeals Division.


Sec. 1.23  Records in formal adjudication proceedings.

    Records in formal adjudication proceedings are on file in the 
Hearing Clerk's office, Office of Administrative Law Judges, U.S. 
Department of Agriculture, Washington, DC 20250, and shall be made 
available to the public.


Sec. 1.24  Preservation of records.

    Agencies shall preserve all correspondence relating to the requests 
it receives under this subpart, and all records processed pursuant to 
such requests, until such time as the destruction of such 
correspondence and records is authorized pursuant to Title 44 of the 
United States Code, and appropriate records disposition authority 
granted by NARA. Under no circumstances shall records be sent to a 
Federal Records Center, transferred to the permanent custody of NARA, 
or destroyed while they are the subject of a pending request, appeal, 
or civil action under the FOIA.


Sec. 1.25  Implementing regulations for the Office of the Secretary and 
the Office of Communications.

    (a) For the Office of the Secretary and for the Office of 
Communications, the regulations required by Sec. 1.3 are as follows:
    (1) Records available for public inspection and copying may be 
obtained in Room 536-A, Jamie L. Whitten Federal Building, USDA, 
Washington, DC 20250 during the hours of 9 a.m. to 5 p.m. by prior 
appointment;
    (2) Any indexes and supplements which are maintained in accordance 
with the requirements of 5 U.S.C. 552(a)(2) and Sec. 1.5(b) will also 
be available in Room 536-A, Jamie L. Whitten Federal Building, USDA, 
Washington, DC 20250 during the hours of 9 a.m. to 5 p.m.;
    (3) The person authorized to receive Freedom of Information Act 
requests and to determine whether to grant or deny such requests is the 
FOIA Officer, Office of Communications, USDA, Washington, DC 20250;
    (4) The official authorized to receive appeals from denial of FOIA 
requests and to determine whether to grant or deny such appeals is the 
Director of Communications, Office of

[[Page 46342]]

Communications, USDA, Washington, DC 20250.
    (b) The organization and functions of the Office of the Secretary 
and the Office of Communications is as follows:
    (1) The Office of the Secretary provides the overall policy 
guidance and direction of the activities of the Department of 
Agriculture. Department-wide policy statements and announcements are 
made from this office.
    (2) The Office of the Secretary consists of the Secretary, Deputy 
Secretary, Under Secretaries, Assistant Secretaries, and other staff 
members.
    (3) In the absence of the Secretary and the Deputy Secretary, 
responsibility for the operation of the Department of Agriculture is as 
delegated at part 2, subpart A, of this title.
    (4) The Office of Communications provides policy direction, review, 
and coordination of public information programs of the Department of 
Agriculture. The Office of Communications has responsibility for 
maintaining the flow of information to the mass communications media, 
various constituency groups, and the general public.
    (5) The Office of Communications is headed by the Director of 
Communications. In the Director's absence, the Office of Communications 
is headed by the Deputy Director.

Appendix A to Subpart A--Fee Schedule

* * * * *

    Dated: July 18, 2000.
Dan Glickman,
Secretary of Agriculture.

[FR Doc. 00-18767 Filed 7-27-00; 8:45 am]
BILLING CODE 3410-01-M