[Federal Register Volume 65, Number 170 (Thursday, August 31, 2000)]
[Rules and Regulations]
[Pages 52916-52931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22356]



[[Page 52916]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

United States Patent and Trademark Office

37 CFR Part 102

RIN 0651-AB21


Public Information, Freedom of Information and Privacy

AGENCY: United States Patent and Trademark Office, Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The United States Patent and Trademark Office (USPTO) adds 
regulations implementing the Freedom of Information Act (FOIA), 
including the Electronic Freedom of Information Act (EFOIA) Amendments 
of 1996, and the Privacy Act (PA).

DATES: Effective October 2, 2000.

FOR FURTHER INFORMATION CONTACT: Joseph G. Piccolo, 703-305-9035.

SUPPLEMENTARY INFORMATION: This rule was proposed in a notice of 
proposed rulemaking published at 65 FR 41903 on July 7, 2000. 
Background information on this rule may be found in that notice. A 
public-interest group sent a comment with eleven recommendations. A 
section of a bar association submitted a comment with a single 
recommendation.

Discussion of Comments

    (1) The first comment recommended deletion of the phrase ``created 
by USPTO'' in Sec. 102.2(b). The comment appears to interpret the 
phrase as a limitation on what the FOIA Officer may have posted on the 
USPTO Web page. Since the comment's interpretation is not consistent 
with the plain language of the rule, the recommendation will not be 
adopted.
    (2) The first comment recommended changing the date for determining 
responsive records in Sec. 102.5(a) from the date of the request to the 
date of the response because requesters might be injured by processing 
delays. The recommendation is not adopted because it would exacerbate 
the problem it intends to address. The comment's proposal creates a 
circular definition for the response date because completion of 
processing would trigger a new search requiring further processing. 
Such a practice would increase processing time for all cases and would 
likely lead to inconsistent results. This recommendation is not adopted 
because it is not required by law and it would be administratively 
unworkable.
    (3) The first comment recommended that Sec. 102.5(b) be revised to 
limit referrals to other agencies to situations in which the other 
agency retained control over the requested record and the referral 
would not delay a response. The first part of the recommendation is not 
workable because the originating agency is often the best, even the 
only, agency in a position to determine the releasability of the 
record. The second part of the test is impossible to predict before the 
referral is made and, in any case, could require USPTO to waive another 
agency's exemptions routinely without consultation. Moreover, the 
comment appears to interpret the rule as barring the FOIA Officer from 
responding to a request that has been referred to another agency for 
consultation. Since that interpretation is not consistent with the 
plain language of the rule, the recommendation is not adopted.
    (4) The first comment recommends eliminating what it characterizes 
as a ``pre-suit, non-judicial extension of time for the completion of 
requests'' in Sec. 102.6(c)(3). The paragraph in question does not 
provide for such extensions. Since the rule simply places requesters on 
notice that there may be circumstances in which a backlog may excuse a 
delay, the recommendation is not adopted.
    (5) The first comment recommends elimination of the last sentence 
of Sec. 102.6(c)(3). The comment interprets the sentence as suggesting 
a jurisdictional bar to judicial review when a requester refuses to 
work with USPTO to permit a timely response. The sentence simply notes 
that a court might take a requester's conduct into account before 
reaching the merits of a complaint. Since the comment's interpretation 
is not consistent with the language of the rule, the recommendation is 
not adopted.
    (6) The first comment recommends that Sec. 102.6(d)(1) be revised 
to provide specific standards for multitracking. There is no basis in 
USPTO for more specific standards for multitracking at this time. When 
more specific standards become necessary, USPTO will promulgate them in 
accordance with 5 U.S.C. 552(a)(6)(D)(i).
    (7) The first comment recommends revising the sections that require 
payment before the search results are released. The comment 
characterizes this requirement as an impermissible advance payment. The 
comment's characterization is inconsistent with Strout v. United States 
Parole Comm'n, 40 F.3d 136, 139 (6th Cir. 1994). Paragraph 102.11(i) 
explicitly bars the FOIA Officer from requiring advance payment except 
as permitted by statute and the case law. The recommendation is not 
adopted.
    (8) The first comment recommends eliminating the provision in 
Sec. 102.11(i)(4) that a request in which advance payment may be 
required is not considered received until the advance payment is 
received. Adopting the recommendation would create the paradoxical 
situation in which the USPTO response is untimely even though the 
advanced payment was never received or was received so late that no 
response was possible. The only alternative USPTO would have would be 
to process the request without any assurance that it would be paid in 
precisely the situation where the statute permits a requirement of 
advance payment. The rule provides a reasonable interpretation of the 
statute that eliminates the paradox. The recommendation is not adopted.
    (9) The first comment recommends eliminating the last sentence of 
Sec. 102.11(k)(2)(ii). The comment appears to interpret this provision 
as barring the FOIA Officer from granting a fee waiver to a second 
requester of previously released information. The plain language of the 
rule does not compel that result, but rather requires the FOIA Officer 
to evaluate that issue in the context of a specific request. Since the 
comment's interpretation is not consistent with the language of the 
rule, the recommendation is not adopted.
    (10) The first comment recommends eliminating the provision in 
Sec. 102.9(f) that permits the submitter of business information from 
pointing out all available exemptions from disclosure. It is not clear 
from the comment what basis USPTO would have to censor a business 
submitter from pointing out any exemption that might meet its interest 
in keeping its confidential information from disclosure. Moreover, the 
point of the rule is to ensure that a business submitter makes its 
entire case in a single response rather than advancing exemptions in a 
piecemeal fashion. The recommendation is not adopted.
    (11) The first comment recommends revising the last sentence of 
Sec. 102.10(d), which provides that an administrative appeal may 
continue after a requester has initiated a civil action. The comment 
appears to interpret paragraph (d) as requiring some requesters to 
choose between continuing an administrative appeal and filing a civil 
action. The sentence does not force such an election, but rather simply 
puts requesters on notice of a practice that is not universal in 
judicial review of USPTO action. Since the comment's interpretation is 
not consistent with the

[[Page 52917]]

language of the rule, the recommendation is not adopted.
    (12) The second comment recommends that USPTO make the material 
available under Sec. 102.2(c)(4)-(6) also available at the USPTO web 
site (www.uspto.gov). The recommendation is already adopted in 
Sec. 102.2(b) for materials created on or after the effective date of 
the EFOIA amendments, November 1, 1996.

Other Considerations

    This rule is not significant under Executive Order 12866.
    This rule does not contain a ``collection of information'' as 
defined by the Paperwork Reduction Act (44 U.S.C. ch. 35).
    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), USPTO has certified that this rule will not have a significant 
economic impact on a substantial number of small entities.

List of Subjects in 37 CFR Part 102

    Administrative practice and procedure, Freedom of Information, 
Privacy, Public information.

    For the reasons stated in the preamble, amend 37 CFR Chapter I by 
adding Part 102 to read:

PART 102--DISCLOSURE OF GOVERNMENT INFORMATION

Subpart A--Freedom of Information Act
Sec.
102.1   General.
102.2   Public reference facilities.
102.3   Records under FOIA.
102.4   Requirements for making requests.
102.5   Responsibility for responding to requests.
102.6   Time limits and expedited processing.
102.7   Responses to requests.
102.9   Business Information.
102.10   Appeals from initial determinations or untimely delays.
102.11   Fees.
Subpart B--Privacy Act
102.21   Purpose and scope.
102.22   Definitions.
102.23   Procedures for making inquiries.
102.24   Procedures for making requests for records.
102.25   Disclosure of requested records to individuals.
102.26   Special procedures: Medical records.
102.27   Procedures for making requests for correction or amendment.
102.28   Review of requests for correction or amendment.
102.29   Appeal of initial adverse determination on correction or 
amendment.
102.30   Disclosure of record to person other than the individual to 
whom it pertains.
102.31   Fees.
102.32   Penalties.
102.33   General exemptions.
102.34   Specific exemptions.

Appendix to Part 102--Systems of Records Noticed by Other Federal 
Agencies and Applicable to USPTO Records, and Applicability of this 
Part Thereto

    Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 553; 31 U.S.C. 
3717; 35 U.S.C. 2(b)(2), 21, 41, 42, 122; 44 U.S.C. 3101.

Subpart A--Freedom of Information Act


Sec. 102.1  General.

    (a) The information in this part is furnished for the guidance of 
the public and in compliance with the requirements of the Freedom of 
Information Act (FOIA), as amended (5 U.S.C. 552). This part sets forth 
the procedures the United States Patent and Trademark Office (USPTO) 
follows to make publicly available the materials and indices specified 
in 5 U.S.C. 552(a)(2) and records requested under 5 U.S.C. 552(a)(3). 
Information routinely provided to the public as part of a regular USPTO 
activity (for example, press releases issued by the Office of Public 
Affairs) may be provided to the public without following this part. 
USPTO's policy is to make discretionary disclosures of records or 
information exempt from disclosure under FOIA whenever disclosure would 
not foreseeably harm an interest protected by a FOIA exemption, but 
this policy does not create any right enforceable in court.
    (b) As used in this subpart, FOIA Officer means the USPTO employee 
designated to administer FOIA for USPTO. To ensure prompt processing of 
a request, correspondence should be addressed to the FOIA Officer, 
United States Patent and Trademark Office, WASHINGTON DC 20231 or 
delivered by hand to Crystal Park Two, 2121 Crystal Drive, Suite 714, 
Arlington, Virginia.


Sec. 102.2  Public reference facilities.

    (a) USPTO maintains a public reference facility that contains the 
records FOIA requires to be made regularly available for public 
inspection and copying; furnishes information and otherwise assists the 
public concerning USPTO operations under FOIA; and receives and 
processes requests for records under FOIA. The FOIA Officer is 
responsible for determining which of USPTO's records are required to be 
made available for public inspection and copying, and for making those 
records available in USPTO's reference and records inspection facility. 
The FOIA Officer shall maintain and make available for public 
inspection and copying a current subject-matter index of USPTO's public 
inspection facility records. Each index shall be updated regularly, at 
least quarterly, with respect to newly included records. In accordance 
with 5 U.S.C. 552(a)(2), USPTO has determined that it is unnecessary 
and impracticable to publish quarterly, or more frequently, and 
distribute copies of the index and supplements thereto. The public 
reference facility is located in the Public Search Room, Crystal Plaza 
Three, 2021 South Clark Place, Room 1A01, Arlington, Virginia.
    (b) The FOIA Officer shall also make public inspection facility 
records created by USPTO on or after November 1, 1996, available 
electronically through USPTO's World Wide Web site (http://www.uspto.gov). Information available at the site shall include:
    (1) The FOIA Officer's index of the public inspection facility 
records, which indicates which records are available electronically; 
and
    (2) The general index referred to in paragraph (c)(3) of this 
section.
    (c) USPTO maintains and makes available for public inspection and 
copying:
    (1) A current index providing identifying information for the 
public as to any matter that is issued, adopted, or promulgated after 
July 4, 1967, and that is retained as a record and is required to be 
made available or published. Copies of the index are available upon 
request after payment of the direct cost of duplication;
    (2) Copies of records that have been released and that the FOIA 
Officer determines, because of their subject matter, have become or are 
likely to become the subject of subsequent requests for substantially 
the same records;
    (3) A general index of the records described in paragraph (c)(2) of 
this section;
    (4) Final opinions and orders, including concurring and dissenting 
opinions made in the adjudication of cases;
    (5) Those statements of policy and interpretations that have been 
adopted by USPTO and are not published in the Federal Register; and
    (6) Administrative staff manuals and instructions to staff that 
affect a member of the public.


Sec. 102.3  Records under FOIA.

    (a) Records under FOIA include all Government records, regardless 
of format, medium or physical characteristics, and include electronic

[[Page 52918]]

records and information, audiotapes, videotapes, and photographs.
    (b) There is no obligation to create, compile, or obtain from 
outside USPTO a record to satisfy a FOIA request. With regard to 
electronic data, the issue of whether records are created or merely 
extracted from an existing database is not always apparent. When 
responding to FOIA requests for electronic data where creation of a 
record or programming becomes an issue, USPTO shall undertake 
reasonable efforts to search for the information in electronic format.
    (c) USPTO officials may, upon request, create and provide new 
information pursuant to user fee statutes, such as the first paragraph 
of 15 U.S.C. 1525, or in accordance with authority otherwise provided 
by law. This is outside the scope of FOIA.
    (d) The FOIA Officer shall preserve all correspondence pertaining 
to the requests received under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
Title 44 of the United States Code or a National Archives and Records 
Administration's General Records Schedule. The FOIA Officer shall not 
dispose of records while they are the subject of a pending request, 
appeal, or lawsuit under FOIA.


Sec. 102.4  Requirements for making requests.

    (a) A request for USPTO records that are not customarily made 
available to the public as part of USPTO's regular informational 
services must be in writing, and shall be processed under FOIA, 
regardless of whether FOIA is mentioned in the request. Requests should 
be sent to the USPTO FOIA Officer, United States Patent and Trademark 
Office, Washington DC 20231 (records FOIA requires to be made regularly 
available for public inspection and copying are addressed in 
Sec. 102.2(c)). For the quickest handling, the request letter and 
envelope should be marked ``Freedom of Information Act Request.'' For 
requests for records about oneself, Sec. 102.24 contains additional 
requirements. For requests for records about another individual, either 
a written authorization signed by that individual permitting disclosure 
of those records to the requester or proof that that individual is 
deceased (for example, a copy of a death certificate or an obituary) 
facilitates processing the request.
    (b) The records requested must be described in enough detail to 
enable USPTO personnel to locate them with a reasonable amount of 
effort. Whenever possible, a request should include specific 
information about each record sought, such as the date, title or name, 
author, recipient, and subject matter of the record, and the name and 
location of the office where the record is located. Also, if records 
about a court case are sought, the title of the case, the court in 
which the case was filed, and the nature of the case should be 
included. If known, any file designations or descriptions for the 
requested records should be included. In general, the more specifically 
the request describes the records sought, the greater the likelihood 
that USPTO will locate those records. If the FOIA Officer determines 
that a request does not reasonably describe records, the FOIA Officer 
will inform the requester what additional information is needed or why 
the request is otherwise insufficient. The FOIA Officer also may give 
the requester an opportunity to discuss the request so that it may be 
modified to meet the requirements of this section.


Sec. 102.5  Responsibility for responding to requests.

    (a) In general. Except as stated in paragraph (b) of this section, 
the USPTO will process FOIA requests directed to USPTO. In determining 
records responsive to a request, the FOIA Officer shall include only 
those records within USPTO's possession and control as of the date the 
FOIA Officer receives the request.
    (b) Consultations and referrals. If the FOIA Officer receives a 
request for a record in USPTO's possession in which another Federal 
agency subject to FOIA has the primary interest, the FOIA Officer shall 
refer the record to that agency for direct response to the requester. 
The FOIA Officer shall consult with another Federal agency before 
responding to a requester if the FOIA Officer receives a request for a 
record in which another Federal agency subject to FOIA has a 
significant interest, but not the primary interest; or another Federal 
agency not subject to FOIA has the primary interest or a significant 
interest. Ordinarily, the agency that originated a record will be 
presumed to have the primary interest in it.
    (c) Notice of referral. Whenever a FOIA Officer refers a document 
to another Federal agency for direct response to the requester, the 
FOIA Officer will ordinarily notify the requester in writing of the 
referral and inform the requester of the name of the agency to which 
the document was referred.
    (d) Timing of responses to consultations and referrals. All 
consultations and referrals shall be handled according to the date the 
FOIA request was received by the first Federal agency.
    (e) Agreements regarding consultations and referrals. The FOIA 
Officer may make agreements with other Federal agencies to eliminate 
the need for consultations or referrals for particular types of 
records.


Sec. 102.6  Time limits and expedited processing.

    (a) In general. The FOIA Officer ordinarily shall respond to 
requests according to their order of receipt.
    (b) Initial response and appeal. Subject to paragraph (c)(1) of 
this section, an initial response shall be made within 20 working days 
(i.e., excluding Saturdays, Sundays, and legal public holidays) of the 
receipt of a request for a record under this part by the proper FOIA 
Officer identified in accordance with Sec. 102.5(a), and an appeal 
shall be decided within 20 working days of its receipt by the Office of 
the General Counsel.
    (c) Unusual circumstances. (1) In unusual circumstances as 
specified in paragraph (c)(2) of this section, the FOIA Officer may 
extend the time limits in paragraph (b) of this section by notifying 
the requester in writing as soon as practicable of the unusual 
circumstances and of the date by which processing of the request is 
expected to be completed. Extensions of time for the initial 
determination and extensions on appeal may not exceed a total of ten 
working days, unless the requester agrees to a longer extension, or the 
FOIA Officer provides the requester with an opportunity either to limit 
the scope of the request so that it may be processed within the 
applicable time limit, or to arrange an alternative time frame for 
processing the request or a modified request.
    (2) As used in this section, unusual circumstances means, but only 
to the extent reasonably necessary to properly process the particular 
request:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments separate from the office 
processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are the subject 
of a single request; or
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another Federal agency having a substantial 
interest in the determination of the request.
    (3) Unusual circumstances do not include a delay that results from 
a predictable workload of requests, unless

[[Page 52919]]

USPTO demonstrates reasonable progress in reducing its backlog of 
pending requests. Refusal to reasonably modify the scope of a request 
or arrange an alternate time frame may affect a requester's ability to 
obtain judicial review.
    (4) If the FOIA Officer 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, the FOIA Officer may aggregate them. Multiple requests 
involving unrelated matters will not be aggregated.
    (d) Multitrack processing. (1) The FOIA Officer may use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the number of pages involved, or some other measure 
of the amount of work and/or time needed to process the request, and 
whether the request qualifies for expedited processing as described in 
paragraph (e) of this section.
    (2) The FOIA Officer may provide requesters in a slower track with 
an opportunity to limit the scope of their requests in order to qualify 
for faster processing. The FOIA Officer may contact the requester by 
telephone or by letter, whichever is most efficient in each case.
    (e) Expedited processing. (1) Requests and appeals shall be taken 
out of order and given expedited treatment whenever it is determined 
they involve:
    (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;
    (ii) The loss of substantial due process rights;
    (iii) A matter of widespread and exceptional media interest in 
which there exist questions about the Government's integrity that 
affect public confidence; or
    (iv) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person primarily engaged in 
disseminating information.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, a request for expedited processing should be sent to the 
FOIA Officer.
    (3) 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. For example, a requester within the 
category described in paragraph (e)(1)(iv) of this section, if not a 
full-time member of the news media, must establish that he or she is a 
person whose main professional activity or occupation is information 
dissemination, though it need not be his or her sole occupation. A 
requester within the category described in paragraph (e)(1)(iv) of this 
section must also 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.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, the FOIA Officer will decide whether to grant it and shall 
notify the requester of the decision. If a request for expedited 
treatment is granted, the request shall be given priority and processed 
as soon as practicable. If a request for expedited processing is 
denied, any appeal of that decision shall be acted on expeditiously.


Sec. 102.7  Responses to requests.

    (a) Grants of requests. If the FOIA Officer makes a determination 
to grant a request in whole or in part, the FOIA Officer will notify 
the requester in writing. The FOIA Officer will inform the requester in 
the notice of any fee charged under Sec. 102.11 and disclose records to 
the requester promptly upon payment of any applicable fee. Records 
disclosed in part shall be marked or annotated to show each applicable 
FOIA exemption and the amount of information deleted, unless doing so 
would harm an interest protected by an applicable exemption. The 
location of the information deleted shall also be indicated on the 
record, if feasible.
    (b) Adverse determinations of requests. If the FOIA Officer makes 
an adverse determination regarding a request, the FOIA Officer will 
notify the requester of that determination in writing. An adverse 
determination is a denial of a request in any respect, namely: A 
determination to withhold any requested record in whole or in part; a 
determination that a requested record does not exist or cannot be 
located; a determination that a record is not readily reproducible in 
the form or format sought by the requester; a determination that what 
has been requested is not a record subject to FOIA (except that a 
determination under Sec. 102.11(j) that records are to be made 
available under a fee statute other than FOIA is not an adverse 
determination); a determination against the requester on any disputed 
fee matter, including a denial of a request for a fee waiver; or a 
denial of a request for expedited treatment. Each denial letter shall 
be signed by the FOIA Officer and shall include:
    (1) The name and title or position of the denying official;
    (2) A brief statement of the reason(s) for the denial, including 
applicable FOIA exemption(s);
    (3) An estimate of the volume of records or information withheld, 
in number of pages or some other reasonable form of estimation. This 
estimate need not be provided if the volume is otherwise indicated 
through deletions on records disclosed in part, or if providing an 
estimate would harm an interest protected by an applicable FOIA 
exemption; and
    (4) A statement that the denial may be appealed, and a list of the 
requirements for filing an appeal under Sec. 102.10(b).


Sec. 102.9  Business Information.

    (a) In general. Business information obtained by USPTO from a 
submitter will be disclosed under FOIA only under this section.
    (b) Definitions. For the purposes of this section:
    (1) Business information means commercial or financial information, 
obtained by USPTO from a submitter, which may be protected from 
disclosure under FOIA exemption 4 (5 U.S.C. 552(b)(4)).
    (2) Submitter means any person or entity outside the Federal 
Government from whom USPTO obtains business information, directly or 
indirectly. The term includes corporations; state, local and tribal 
governments; and foreign governments.
    (c) Designation of business information. A submitter of business 
information should designate by appropriate markings, either at the 
time of submission or at a reasonable time thereafter, any portions of 
its submission that it considers to be protected from disclosure under 
FOIA exemption 4. These designations will expire ten years after the 
date of the submission unless the submitter requests, and provides 
justification for, a longer designation period.
    (d) Notice to submitters. The FOIA Officer shall provide a 
submitter with prompt written notice of a FOIA request or 
administrative appeal that seeks its business information whenever 
required under paragraph (e) of this section, except as provided in 
paragraph (h) of this section, in order to give the submitter an 
opportunity under paragraph (f) of this section to object to disclosure 
of any specified portion of

[[Page 52920]]

that information. Such written notice shall be sent via certified mail, 
return receipt requested, or similar means. The notice shall either 
describe the business information requested or include copies of the 
requested records containing the information. When notification of a 
large number of submitters is required, notification may be made by 
posting or publishing the notice in a place reasonably likely to 
accomplish notification.
    (e) When notice is required. Notice shall be given to the submitter 
whenever:
    (1) The information has been designated in good faith by the 
submitter as protected from disclosure under FOIA exemption 4; or
    (2) The FOIA Officer has reason to believe that the information may 
be protected from disclosure under FOIA exemption 4.
    (f) Opportunity to object to disclosure. The FOIA Officer shall 
allow a submitter seven working days (i.e., excluding Saturdays, 
Sundays, and legal public holidays) from the date of receipt of the 
written notice described in paragraph (d) of this section to provide 
the FOIA Officer with a detailed statement of any objection to 
disclosure. The statement must specify all grounds for withholding any 
portion of the information under any exemption of FOIA and, in the case 
of exemption 4, it must show why the information is a trade secret or 
commercial or financial information that is privileged or confidential. 
If a submitter fails to respond to the notice within the time 
specified, the submitter will be considered to have no objection to 
disclosure of the information. Information a submitter provides under 
this paragraph may itself be subject to disclosure under FOIA.
    (g) Notice of intent to disclose. The FOIA Officer shall consider a 
submitter's objections and specific grounds under FOIA for 
nondisclosure in deciding whether to disclose business information. If 
the FOIA Officer decides to disclose business information over the 
objection of a submitter, the FOIA Officer shall give the submitter 
written notice via certified mail, return receipt requested, or similar 
means, which shall include:
    (1) A statement of reason(s) why the submitter's objections to 
disclosure were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A statement that the FOIA Officer intends to disclose the 
information seven working days from the date the submitter receives the 
notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) The FOIA Officer determines that the information should not be 
disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than FOIA) or by a regulation issued in accordance with Executive Order 
12600; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous, in which case the FOIA 
Officer shall provide the submitter written notice of any final 
decision to disclose the information seven working days from the date 
the submitter receives the notice.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the FOIA 
Officer shall promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever a FOIA Officer 
provides a submitter with notice and an opportunity to object to 
disclosure under paragraph (d) of this section, the FOIA Officer shall 
also notify the requester(s). Whenever a submitter files a lawsuit 
seeking to prevent the disclosure of business information, the FOIA 
Officer shall notify the requester(s).


Sec. 102.10  Appeals from initial determinations or untimely delays.

    (a) If a request for records is initially denied in whole or in 
part, or has not been timely determined, or if a requester receives an 
adverse initial determination regarding any other matter under this 
subpart (as described in Sec. 102.7(b)), the requester may file a 
written appeal, which must be received by the Office of General Counsel 
within thirty calendar days of the date of the written denial or, if 
there has been no determination, may be submitted anytime after the due 
date, including the last extension under Sec. 102.6(c), of the 
determination.
    (b) Appeals shall be decided by a Deputy General Counsel. Appeals 
should be addressed to the General Counsel, United States Patent and 
Trademark Office, Washington DC 20231. Both the letter and the appeal 
envelope should be clearly marked ``Freedom of Information Appeal''. 
The appeal must include a copy of the original request and the initial 
denial, if any, and may include a statement of the reasons why the 
records requested should be made available and why the initial denial, 
if any, was in error. No opportunity for personal appearance, oral 
argument or hearing on appeal is provided.
    (c) If an appeal is granted, the person making the appeal shall be 
immediately notified and copies of the releasable documents shall be 
made available promptly thereafter upon receipt of appropriate fees 
determined in accordance with Sec. 102.11.
    (d) If no determination of an appeal has been sent to the requester 
within the twenty-working-day period specified in Sec. 102.6(b) or the 
last extension thereof, the requester is deemed to have exhausted his 
administrative remedies with respect to the request, giving rise to a 
right of judicial review under 5 U.S.C. 552(a)(6)(C). If the person 
making a request initiates a civil action against USPTO based on the 
provision in this paragraph, the administrative appeal process may 
continue.
    (e) A determination on appeal shall be in writing and, when it 
denies records in whole or in part, the letter to the requester shall 
include:
    (1) A brief explanation of the basis for the denial, including a 
list of applicable FOIA exemptions and a description of how the 
exemptions apply;
    (2) A statement that the decision is final;
    (3) Notification that judicial review of the denial is available in 
the United States district court for the district in which the 
requester resides or has its principal place of business, the United 
States District Court for the Eastern District of Virginia, or the 
District of Columbia; and
    (4) The name and title or position of the official responsible for 
denying the appeal.


Sec. 102.11  Fees.

    (a) In general. USPTO shall charge for processing requests under 
FOIA in accordance with paragraph (c) of this section, except when fees 
are limited under paragraph (d) of this section or when a waiver or 
reduction of fees is granted under paragraph (k) of this section. USPTO 
shall collect all applicable fees before sending copies of requested 
records to a requester. Requesters must pay fees by check or money 
order made payable to the Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include 
furthering those interests through litigation. The FOIA

[[Page 52921]]

Officer shall determine, whenever reasonably possible, the use to which 
a requester will put the requested records. When it appears that the 
requester will put the records to a commercial use, either because of 
the nature of the request itself or because the FOIA Officer has 
reasonable cause to doubt a requester's stated use, the FOIA Officer 
shall provide the requester a reasonable opportunity to submit further 
clarification.
    (2) Direct costs means those expenses USPTO incurs in searching for 
and duplicating (and, in the case of commercial use requests, 
reviewing) records to respond to a FOIA request. Direct costs include, 
for example, the labor costs of the employee performing the work (the 
basic rate of pay for the employee, plus 16 percent of that rate to 
cover benefits). Not included in direct costs are overhead expenses 
such as the costs of space and heating or lighting of the facility in 
which the records are kept.
    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies may take the form of paper, microform, audiovisual materials, or 
electronic records (for example, magnetic tape or disk), among others. 
The FOIA Officer shall honor a requester's specified preference of form 
or format of disclosure if the record is readily reproducible with 
reasonable efforts in the requested form or format.
    (4) Educational institution means a 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 of scholarly research. To be in this category, 
a requester must show that the request is authorized by and is made 
under the auspices of a qualifying institution, and that the records 
are sought to further scholarly research rather than for a commercial 
use.
    (5) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as that term is defined in 
paragraph (b)(1) of this section, and that is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry. To be in this 
category, a requester must show that the request is authorized by and 
is made under the auspices of a qualifying institution and that the 
records are sought to further scientific research rather than for a 
commercial use.
    (6) Representative of the news media, or news media requester means 
any person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public. The term ``news'' 
means information that is about current events or that would be of 
current interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only if they can qualify as 
disseminators of ``news'') that make their products available for 
purchase or subscription by the general public. For ``freelance'' 
journalists to be regarded as working for a news organization, they 
must demonstrate a solid basis for expecting publication through that 
organization. A publication contract would be the clearest proof, but 
the FOIA Officer shall also look to the past publication record of a 
requester in making this determination. To be in this category, a 
requester must not be seeking the requested records for a commercial 
use. However, a request for records supporting the news-dissemination 
function of the requester shall not be considered to be for a 
commercial use.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt 
from disclosure. It also includes processing any record for 
disclosure--for example, doing all that is necessary to redact it and 
prepare it for disclosure. Review costs are recoverable even if a 
record ultimately is not disclosed. Review time does not include time 
spent resolving general legal or policy issues regarding the 
application of exemptions.
    (8) Search means 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. The FOIA Officer shall 
ensure that searches are done in the most efficient and least expensive 
manner reasonably possible.
    (c) Fees. In responding to FOIA requests, the FOIA Officer shall 
charge the fees summarized in chart form in paragraphs (c)(1) and 
(c)(2) of this section and explained in paragraphs (c)(3) through 
(c)(5) of this section, unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section.
    (1) The four categories and chargeable fees are:

------------------------------------------------------------------------
                Category                         Chargeable fees
------------------------------------------------------------------------
(i) Commercial Use Requesters..........  Search, Review, and
                                          Duplication.
(ii) Educational and Non-commercial       Duplication (excluding the
 Scientific Institution Requesters.       cost of the first 100 pages).
(iii) Representatives of the News Media   Duplication (excluding the
                                          cost of the first 100 pages).
(iv) All Other Requesters..............   Search and Duplication
                                          (excluding the cost of the
                                          first 2 hours of search and
                                          100 pages).
------------------------------------------------------------------------

    (2) Uniform fee schedule.

------------------------------------------------------------------------
                Service                                Rate
------------------------------------------------------------------------
(i) Manual search......................  Actual salary rate of employee
                                          involved, plus 16 percent of
                                          salary rate.
(ii) Computerized search...............  Actual direct cost, including
                                          operator time.
 (iii) Duplication of records:
 (A) Paper copy reproduction...........   $.15 per page
 (B) Other reproduction (e.g., computer   Actual direct cost, including
 disk or printout, microfilm,             operator time.
 microfiche, or microform).
 (iv) Review of records (includes         Actual salary rate of employee
 preparation for release, i.e.            conducting review, plus 16
 excising).                               percent of salary rate.
------------------------------------------------------------------------


[[Page 52922]]

    (3) Search. (i) Search fees shall be charged for all requests--
other than requests made by educational institutions, noncommercial 
scientific institutions, or representatives of the news media--subject 
to the limitations of paragraph (d) of this section. The FOIA Officer 
will charge for time spent searching even if no responsive records are 
located or if located records are entirely exempt from disclosure. 
Search fees shall be the direct costs of conducting the search by the 
involved employees.
    (ii) For computer searches of records, requesters will be charged 
the direct costs of conducting the search, although certain requesters 
(as provided in paragraph (d)(1) of this section) will be charged no 
search fee and certain other requesters (as provided in paragraph 
(d)(3) of this section) are entitled to the cost equivalent of two 
hours of manual search time without charge. These direct costs include 
the costs, attributable to the search, of operating a central 
processing unit and operator/programmer salary.
    (4) Duplication. Duplication fees will be charged to all 
requesters, subject to the limitations of paragraph (d) of this 
section. For a paper photocopy of a record (no more than one copy of 
which need be supplied), the fee shall be $.15 cents per page. For 
copies produced by computer, such as tapes or printouts, the FOIA 
Officer shall charge the direct costs, including operator time, of 
producing the copy. For other forms of duplication, the FOIA Officer 
will charge the direct costs of that duplication.
    (5) Review. Review fees shall be charged to requesters who make a 
commercial use request. Review fees shall be charged only for the 
initial record review--the review done when the FOIA Officer determines 
whether an exemption applies to a particular record at the initial 
request level. No charge will be made for review at the administrative 
appeal level for an exemption already applied. However, records 
withheld under an exemption that is subsequently determined not to 
apply may be reviewed again to determine whether any other exemption 
not previously considered applies, and the costs of that review are 
chargeable. Review fees shall be the direct costs of conducting the 
review by the involved employees.
    (d) Limitations on charging fees.
    (1) No search fee will be charged for requests by educational 
institutions, noncommercial scientific institutions, or representatives 
of the news media.
    (2) No search fee or review fee will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, the 
FOIA Officer will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent); 
and
    (ii) The first two hours of search (or the cost equivalent).
    (4) Whenever a total fee calculated under paragraph (c) of this 
section is $20.00 or less for any request, no fee will be charged.
    (5) The provisions of paragraphs (d) (3) and (4) of this section 
work together. This means that for requesters other than those seeking 
records for a commercial use, no fee will be charged unless the cost of 
the search in excess of two hours plus the cost of duplication in 
excess of 100 pages totals more than $20.00.
    (e) Notice of anticipated fees over $20.00. When the FOIA Officer 
determines or estimates that the fees to be charged under this section 
will be more than $20.00, the FOIA Officer shall notify the requester 
of the actual or estimated fees, unless the requester has indicated a 
willingness to pay fees as high as those anticipated. If only a portion 
of the fee can be estimated readily, the FOIA Officer shall advise the 
requester that the estimated fee may be only a portion of the total 
fee. If the FOIA Officer has notified a requester that actual or 
estimated fees are more than $20.00, the FOIA Officer shall not 
consider the request received or process it further until the requester 
agrees to pay the anticipated total fee. Any such agreement should be 
in writing. A notice under this paragraph shall offer the requester an 
opportunity to discuss the matter with USPTO personnel in order to 
reformulate the request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Apart from the other provisions of 
this section, the FOIA Officer shall ordinarily charge the direct cost 
of special services. Such special services could include certifying 
that records are true copies or sending records by other than ordinary 
mail.
    (g) Charging interest. The FOIA Officer shall charge interest on 
any unpaid bill starting on the 31st calendar day following the date of 
billing the requester. Interest charges shall be assessed at the rate 
provided in 31 U.S.C. 3717 and accrue from the date of the billing 
until payment is received by the FOIA Officer. The FOIA Officer shall 
follow the provisions of the Debt Collection Improvement Act of 1996 
(Pub. L. 104-134), as amended, and its administrative procedures, 
including the use of consumer reporting agencies, collection agencies, 
and offset.
    (h) Aggregating requests. If a FOIA Officer reasonably believes 
that a requester or a group of requesters acting together is attempting 
to divide a request into a series of requests for the purpose of 
avoiding fees, the FOIA Officer may aggregate those requests and charge 
accordingly. The FOIA Officer may presume that multiple requests of 
this type made within a 30-calendar-day period have been made in order 
to avoid fees. If requests are separated by a longer period, the FOIA 
Officer shall aggregate them only if a solid basis exists for 
determining that aggregation is warranted under all the circumstances 
involved. Multiple requests involving unrelated matters shall not be 
aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i)(2) and (3) of this section, the FOIA Officer shall 
not require the requester to make an advance payment: a payment made 
before work is begun or continued on a request. Payment owed for work 
already completed (i.e., a payment before copies are sent to a 
requester) is not an advance payment.
    (2) If the FOIA Officer determines or estimates that a total fee to 
be charged under this section will be more than $250.00, the requester 
must pay the entire anticipated fee before beginning to process the 
request, unless the FOIA Officer receives a satisfactory assurance of 
full payment from a requester who has a history of prompt payment.
    (3) If a requester has previously failed to pay a properly charged 
FOIA fee to USPTO or another responsible Federal agency within 30 
calendar days of the date of billing, the FOIA Officer shall require 
the requester to pay the full amount due, plus any applicable interest, 
and to make an advance payment of the full amount of any anticipated 
fee, before the FOIA Officer begins to process a new request or 
continues to process a pending request from that requester.
    (4) In cases in which the FOIA Officer requires payment under 
paragraphs (i)(2) or (3) of this section, the request shall not be 
considered received and further work will not be done on it until the 
required payment is received.
    (5) Upon the completion of processing of a request, when a specific 
fee is determined to be payable and appropriate notice has been given 
to the requester, the FOIA Officer shall make records available to the 
requester only upon receipt of full payment of the fee.
    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute (except for FOIA) that specifically requires USPTO

[[Page 52923]]

or another responsible Federal agency to set and collect fees for 
particular types of records. If records responsive to requests are 
maintained for distribution by agencies operating such statutorily 
based fee schedule programs, the FOIA Officer shall inform requesters 
of how to obtain records from those sources.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request will be furnished without charge or at a charge 
reduced below that established under paragraph (c) of this section if 
the FOIA Officer determines, based on all available information, that 
the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government; and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
the FOIA Officer shall consider the following factors:
    (i) The subject of the request: whether the subject of the 
requested records concerns the operations or activities of the 
Government. The subject of the requested records must concern 
identifiable operations or activities of the Federal Government, with a 
connection that is direct and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
whether the disclosure is ``likely to contribute'' to an understanding 
of Government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about Government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be 
likely to contribute to such understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: whether disclosure of the 
requested information will contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area and ability and intention to effectively 
convey information to the public shall be considered. It shall be 
presumed that a representative of the news media satisfies this 
consideration. It shall be presumed that a requester who merely 
provides information to media sources does not satisfy this 
consideration.
    (iv) The significance of the contribution to public understanding: 
whether the disclosure is likely to contribute ``significantly'' to 
public understanding of Government operations or activities. The 
public's understanding of the subject in question prior to the 
disclosure must be significantly enhanced by the disclosure.
    (3) To determine whether the second fee waiver requirement is met, 
the FOIA Officer shall consider the following factors:
    (i) The existence and magnitude of a commercial interest: whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. The FOIA Officer shall consider any commercial 
interest of the requester (with reference to the definition of 
``commercial use request'' in paragraph (b)(1) of this section), or of 
any person on whose behalf the requester may be acting, that would be 
furthered by the requested disclosure. Requesters shall be given an 
opportunity to provide explanatory information regarding this 
consideration.
    (ii) The primary interest in disclosure: whether any identified 
commercial interest of the requester is sufficiently large, in 
comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified if the public interest standard (paragraph 
(k)(1)(i) of this section) is satisfied and the public interest is 
greater than any identified commercial interest in disclosure. The FOIA 
Officer ordinarily shall presume that if a news media requester has 
satisfied the public interest standard, the public interest is the 
primary interest served by disclosure to that requester. Disclosure to 
data brokers or others who merely compile and market Government 
information for direct economic return shall not be presumed to 
primarily serve the public interest.
    (4) If only some of the records to be released satisfy the 
requirements for a fee waiver, a waiver shall be granted for those 
records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (k)(2) and (3) of this section, insofar as 
they apply to each request.

Subpart B--Privacy Act


Sec. 102.21  Purpose and scope.

    (a) The purpose of this subpart is to establish policies and 
procedures for implementing the Privacy Act of 1974, as amended (5 
U.S.C. 552a) (the Act). The main objectives are to facilitate full 
exercise of rights conferred on individuals under the Act and to ensure 
the protection of privacy as to individuals on whom USPTO maintains 
records in systems of records under the Act. USPTO accepts the 
responsibility to act promptly and in accordance with the Act upon 
receipt of any inquiry, request or appeal from a citizen of the United 
States or an alien lawfully admitted for permanent residence into the 
United States, regardless of the age of the individual. Further, USPTO 
accepts the obligations to maintain only such information on 
individuals as is relevant and necessary to the performance of its 
lawful functions, to maintain that information with such accuracy, 
relevancy, timeliness, and completeness as is reasonably necessary to 
assure fairness in determinations made by USPTO about the individual, 
to obtain information from the individual to the extent practicable, 
and to take every reasonable step to protect that information from 
unwarranted disclosure. USPTO will maintain no record describing how an 
individual exercises rights guaranteed by the First Amendment unless 
expressly authorized by statute or by the individual about whom the 
record is maintained or unless pertinent to and within the scope of an 
authorized law enforcement activity. An individual's name and address 
will not be sold or rented by USPTO unless such action is specifically 
authorized by law; however, this provision shall not be construed to 
require the withholding of names and addresses otherwise permitted to 
be made public.
    (b) This subpart is administered by the Privacy Officer of USPTO.
    (c) Matters outside the scope of this subpart include the 
following:
    (1) Requests for records which do not pertain to the individual 
making the request, or to the individual about whom the request is made 
if the requester is the parent or guardian of the individual;
    (2) Requests involving information pertaining to an individual 
which is in a record or file but not within the scope of a system of 
records notice published in the Federal Register;
    (3) Requests to correct a record where a grievance procedure is 
available to the individual either by regulation or by provision in a 
collective bargaining

[[Page 52924]]

agreement with USPTO, and the individual has initiated, or has 
expressed in writing the intention of initiating, such grievance 
procedure. An individual selecting the grievance procedure waives the 
use of the procedures in this subpart to correct or amend a record; 
and,
    (4) Requests for employee-employer services and counseling which 
were routinely granted prior to enactment of the Act, including, but 
not limited to, test calculations of retirement benefits, explanations 
of health and life insurance programs, and explanations of tax 
withholding options.
    (d) Any request for records which pertains to the individual making 
the request, or to the individual about whom the request is made if the 
requester is the parent or guardian of the individual, shall be 
processed under the Act and this subpart and under the Freedom of 
Information Act and USPTO's implementing regulations at Subpart A of 
this part, regardless whether the Act or the Freedom of Information Act 
is mentioned in the request.


Sec. 102.22  Definitions.

    (a) All terms used in this subpart which are defined in 5 U.S.C. 
552a shall have the same meaning herein.
    (b) As used in this subpart:
    (1) Act means the ``Privacy Act of 1974, as amended (5 U.S.C. 
552a)''.
    (2) Appeal means a request by an individual to review and reverse 
an initial denial of a request by that individual for correction or 
amendment.
    (3) USPTO means the United States Patent and Trademark Office.
    (4) Inquiry means either a request for general information 
regarding the Act and this subpart or a request by an individual (or 
that individual's parent or guardian) that USPTO determine whether it 
has any record in a system of records which pertains to that 
individual.
    (5) Person means any human being and also shall include but not be 
limited to, corporations, associations, partnerships, trustees, 
receivers, personal representatives, and public or private 
organizations.
    (6) Privacy Officer means a USPTO employee designated to administer 
this subpart.
    (7) Request for access means a request by an individual or an 
individual's parent or guardian to see a record which is in a 
particular system of records and which pertains to that individual.
    (8) Request for correction or amendment means the request by an 
individual or an individual's parent or guardian that USPTO change 
(either by correction, amendment, addition or deletion) a particular 
record in a system of records which pertains to that individual.


Sec. 102.23  Procedures for making inquiries.

    (a) Any individual, regardless of age, who is a citizen of the 
United States or an alien lawfully admitted for permanent residence 
into the United States may submit an inquiry to USPTO. The inquiry 
should be made either in person at Crystal Park Two, 2121 Crystal Park 
Drive, Suite 714, Arlington, Virginia, or by mail addressed to the 
Privacy Officer, United States Patent and Trademark Office, WASHINGTON 
DC 20231 or to the official identified in the notification procedures 
paragraph of the systems of records notice published in the Federal 
Register. If an individual believes USPTO maintains a record pertaining 
to that individual but does not know which system of records might 
contain such a record, the USPTO Privacy Officer will provide 
assistance in person or by mail.
    (b) Inquiries submitted by mail should include the words ``PRIVACY 
ACT INQUIRY'' in capital letters at the top of the letter and on the 
face of the envelope. If the inquiry is for general information 
regarding the Act and this subpart, no particular information is 
required. USPTO reserves the right to require compliance with the 
identification procedures appearing at Sec. 102.24(d) where 
circumstances warrant. If the inquiry is a request that USPTO determine 
whether it has, in a given system of records, a record which pertains 
to the individual, the following information should be submitted:
    (1) Name of individual whose record is sought;
    (2) Individual whose record is sought is either a U.S. citizen or 
an alien lawfully admitted for permanent residence;
    (3) Identifying data that will help locate the record (for example, 
maiden name, occupational license number, period or place of 
employment, etc.);
    (4) Record sought, by description and by record system name, if 
known;
    (5) Action requested (that is, sending information on how to 
exercise rights under the Act; determining whether requested record 
exists; gaining access to requested record; or obtaining copy of 
requested record);
    (6) Copy of court guardianship order or minor's birth certificate, 
as provided in Sec. 102.24(f)(3), but only if requester is guardian or 
parent of individual whose record is sought;
    (7) Requester's name (printed), signature, address, and telephone 
number (optional);
    (8) Date; and,
    (9) Certification of request by notary or other official, but only 
if
    (i) Request is for notification that requested record exists, for 
access to requested record or for copy of requested record;
    (ii) Record is not available to any person under 5 U.S.C. 552; and
    (iii) Requester does not appear before an employee of USPTO for 
verification of identity.
    (c) Any inquiry which is not addressed as specified in paragraph 
(a) of this section or which is not marked as specified in paragraph 
(b) of this section will be so addressed and marked by USPTO personnel 
and forwarded immediately to the Privacy Officer. An inquiry which is 
not properly addressed by the individual will not be deemed to have 
been ``received'' for purposes of measuring the time period for 
response until actual receipt by the Privacy Officer. In each instance 
when an inquiry so forwarded is received, the Privacy Officer shall 
notify the individual that his or her inquiry was improperly addressed 
and the date the inquiry was received at the proper address.
    (d)(1) Each inquiry received shall be acted upon promptly by the 
Privacy Officer. Every effort will be made to respond within ten 
working days (i.e., excluding Saturdays, Sundays and legal public 
holidays) of the date of receipt. If a response cannot be made within 
ten working days, the Privacy Officer shall send an acknowledgment 
during that period providing information on the status of the inquiry 
and asking for such further information as may be necessary to process 
the inquiry. The first correspondence sent by the Privacy Officer to 
the requester shall contain USPTO's control number assigned to the 
request, as well as a note that the requester should use that number in 
all future contacts in order to facilitate processing. USPTO shall use 
that control number in all subsequent correspondence.
    (2) If the Privacy Officer fails to send an acknowledgment within 
ten working days, as provided above, the requester may ask the General 
Counsel to take corrective action. No failure of the Privacy Officer to 
send an acknowledgment shall confer administrative finality for 
purposes of judicial review.
    (e) An individual shall not be required to state a reason or 
otherwise justify his or her inquiry.
    (f) Special note should be taken of the fact that certain agencies 
are responsible for publishing notices of systems of records having 
Government-wide

[[Page 52925]]

application to other agencies, including USPTO. The agencies known to 
be publishing these general notices and the types of records covered 
therein appear in an appendix to this part. The provisions of this 
section, and particularly paragraph (a) of this section, should be 
followed in making inquiries with respect to such records. Such records 
in USPTO are subject to the provisions of this part to the extent 
indicated in the appendix to this part. The exemptions, if any, 
determined by an agency publishing a general notice shall be invoked 
and applied by USPTO after consultation, as necessary, with that other 
agency.


Sec. 102.24  Procedures for making requests for records.

    (a) Any individual, regardless of age, who is a citizen of the 
United States or an alien lawfully admitted for permanent residence 
into the United States may submit a request for access to records to 
USPTO. The request should be made either in person at Crystal Park Two, 
2121 Crystal Drive, Suite 714, Arlington, Virginia, or by mail 
addressed to the Privacy Officer, United States Patent and Trademark 
Office, Washington, DC 20231.
    (b) Requests submitted by mail should include the words ``PRIVACY 
ACT REQUEST'' in capital letters at the top of the letter and on the 
face of the envelope. Any request which is not addressed as specified 
in paragraph (a) of this section or which is not marked as specified in 
this paragraph will be so addressed and marked by USPTO personnel and 
forwarded immediately to the Privacy Officer. A request which is not 
properly addressed by the individual will not be deemed to have been 
``received'' for purposes of measuring time periods for response until 
actual receipt by the Privacy Officer. In each instance when a request 
so forwarded is received, the Privacy Officer shall notify the 
individual that his or her request was improperly addressed and the 
date when the request was received at the proper address.
    (c) If the request follows an inquiry under Sec. 102.23 in 
connection with which the individual's identity was established by 
USPTO, the individual need only indicate the record to which access is 
sought, provide the USPTO control number assigned to the request, and 
sign and date the request. If the request is not preceded by an inquiry 
under Sec. 102.23, the procedures of this section should be followed.
    (d) The requirements for identification of individuals seeking 
access to records are as follows:
    (1) In person. Each individual making a request in person shall be 
required to present satisfactory proof of identity. The means of proof, 
in the order of preference and priority, are:
    (i) A document bearing the individual's photograph (for example, 
driver's license, passport or military or civilian identification 
card);
    (ii) A document, preferably issued for participation in a federally 
sponsored program, bearing the individual's signature (for example, 
unemployment insurance book, employer's identification card, national 
credit card, and professional, craft or union membership card); and
    (iii) A document bearing neither the photograph nor the signature 
of the individual, preferably issued for participation in a federally 
sponsored program (for example, Medicaid card). In the event the 
individual can provide no suitable documentation of identity, USPTO 
will require a signed statement asserting the individual's identity and 
stipulating that the individual understands the penalty provision of 5 
U.S.C. 552a(i)(3) recited in Sec. 102.32(a). In order to avoid any 
unwarranted disclosure of an individual's records, USPTO reserves the 
right to determine the adequacy of proof of identity offered by any 
individual, particularly when the request involves a sensitive record.
    (2) Not in person. If the individual making a request does not 
appear in person before the Privacy Officer or other employee 
authorized to determine identity, a certification of a notary public or 
equivalent officer empowered to administer oaths must accompany the 
request under the circumstances prescribed in Sec. 102.23(b)(9). The 
certification in or attached to the letter must be substantially in 
accordance with the following text:

City of ________
County of ________ :ss
(Name of individual), who affixed (his) (her) signature below in my 
presence, came before me, a (title), in and for the aforesaid County 
and State, this ______ day of ______, 20__, and established (his) 
(her) identity to my satisfaction.
My commission expires ________.
(Signature)

    (3) Parents of minors and legal guardians. An individual acting as 
the parent of a minor or the legal guardian of the individual to whom a 
record pertains shall establish his or her personal identity in the 
same manner prescribed in either paragraph (d)(1) or (d)(2) of this 
section. In addition, such other individual shall establish his or her 
identity in the representative capacity of parent or legal guardian. In 
the case of the parent of a minor, the proof of identity shall be a 
certified or authenticated copy of the minor's birth certificate. In 
the case of a legal guardian of an individual who has been declared 
incompetent due to physical or mental incapacity or age by a court of 
competent jurisdiction, the proof of identity shall be a certified or 
authenticated copy of the court's order. For purposes of the Act, a 
parent or legal guardian may represent only a living individual, not a 
decedent. A parent or legal guardian may be accompanied during personal 
access to a record by another individual, provided the provisions of 
Sec. 102.25(f) are satisfied.
    (e) When the provisions of this subpart are alleged to impede an 
individual in exercising his or her right to access, USPTO will 
consider, from an individual making a request, alternative suggestions 
regarding proof of identity and access to records.
    (f) An individual shall not be required to state a reason or 
otherwise justify his or her request for access to a record.


Sec. 102.25  Disclosure of requested records to individuals.

    (a)(1) The Privacy Officer shall act promptly upon each request. 
Every effort will be made to respond within ten working days (i.e., 
excluding Saturdays, Sundays, and legal public holidays) of the date of 
receipt. If a response cannot be made within ten working days due to 
unusual circumstances, the Privacy Officer shall send an acknowledgment 
during that period providing information on the status of the request 
and asking for any further information that may be necessary to process 
the request. ``Unusual circumstances'' shall include circumstances in 
which
    (i) A search for and collection of requested records from inactive 
storage, field facilities or other establishments is required;
    (ii) A voluminous amount of data is involved;
    (iii) Information on other individuals must be separated or 
expunged from the particular record; or
    (iv) Consultations with other agencies having a substantial 
interest in the determination of the request are necessary.
    (2) If the Privacy Officer fails to send an acknowledgment within 
ten working days, as provided above in paragraph (a) of this section, 
the requester may ask the General Counsel to take corrective action. No 
failure of the Privacy Officer to send an acknowledgment shall confer 
administrative finality for purposes of judicial review.

[[Page 52926]]

    (b) Grant of access--(1) Notification. An individual shall be 
granted access to a record pertaining to him or her, except where the 
provisions of paragraph (g)(1) of this section apply. The Privacy 
Officer will notify the individual of a determination to grant access, 
and provide the following information:
    (i) The methods of access, as set forth in paragraph (b)(2) of this 
section;
    (ii) The place at which the record may be inspected;
    (iii) The earliest date on which the record may be inspected and 
the period of time that the records will remain available for 
inspection. In no event shall the earliest date be later than thirty 
calendar days from the date of notification;
    (iv) The estimated date by which a copy of the record could be 
mailed and the estimate of fees pursuant to Sec. 102.31. In no event 
shall the estimated date be later than thirty calendar days from the 
date of notification;
    (v) The fact that the individual, if he or she wishes, may be 
accompanied by another individual during personal access, subject to 
the procedures set forth in paragraph (f) of this section; and,
    (vi) Any additional requirements needed to grant access to a 
specific record.
    (2) Methods of access. The following methods of access to records 
by an individual may be available depending on the circumstances of a 
given situation:
    (i) Inspection in person may be had in a location specified by the 
Privacy Officer during business hours;
    (ii) Transfer of records to a Federal facility more convenient to 
the individual may be arranged, but only if the Privacy Officer 
determines that a suitable facility is available, that the individual's 
access can be properly supervised at that facility, and that 
transmittal of the records to that facility will not unduly interfere 
with operations of USPTO or involve unreasonable costs, in terms of 
both money and manpower; and
    (iii) Copies may be mailed at the request of the individual, 
subject to payment of the fees prescribed in Sec. 102.31. USPTO, on its 
own initiative, may elect to provide a copy by mail, in which case no 
fee will be charged the individual.
    (c) Access to medical records is governed by the provisions of 
Sec. 102.26.
    (d) USPTO will supply such other information and assistance at the 
time of access as to make the record intelligible to the individual.
    (e) USPTO reserves the right to limit access to copies and 
abstracts of original records, rather than the original records. This 
election would be appropriate, for example, when the record is in an 
automated data media such as tape or diskette, when the record contains 
information on other individuals, and when deletion of information is 
permissible under exemptions (for example, 5 U.S.C. 552a(k)(2)). In no 
event shall original records of USPTO be made available to the 
individual except under the immediate supervision of the Privacy 
Officer or the Privacy Officer's designee.
    (f) Any individual who requests access to a record pertaining to 
that individual may be accompanied by another individual of his or her 
choice. ``Accompanied'' includes discussion of the record in the 
presence of the other individual. The individual to whom the record 
pertains shall authorize the presence of the other individual in 
writing. The authorization shall include the name of the other 
individual, a specific description of the record to which access is 
sought, the USPTO control number assigned to the request, the date, and 
the signature of the individual to whom the record pertains. The other 
individual shall sign the authorization in the presence of the Privacy 
Officer. An individual shall not be required to state a reason or 
otherwise justify his or her decision to be accompanied by another 
individual during personal access to a record.
    (g) Initial denial of access--(1) Grounds. Access by an individual 
to a record which pertains to that individual will be denied only upon 
a determination by the Privacy Officer that:
    (i) The record is exempt under Sec. 102.33 or Sec. 102.34, or 
exempt by determination of another agency publishing notice of the 
system of records, as described in Sec. 102.23(f);
    (ii) The record is information compiled in reasonable anticipation 
of a civil action or proceeding;
    (iii) The provisions of Sec. 102.26 pertaining to medical records 
temporarily have been invoked; or
    (iv) The individual has unreasonably failed to comply with the 
procedural requirements of this part.
    (2) Notification. The Privacy Officer shall give notice of denial 
of access to records to the individual in writing and shall include the 
following information:
    (i) The Privacy Officer's name and title or position;
    (ii) The date of the denial;
    (iii) The reasons for the denial, including citation to the 
appropriate section of the Act and this part;
    (iv) The individual's opportunities, if any, for further 
administrative consideration, including the identity and address of the 
responsible official. If no further administrative consideration within 
USPTO is available, the notice shall state that the denial is 
administratively final; and
    (v) If stated to be administratively final within USPTO, the 
individual's right to judicial review provided under 5 U.S.C. 
552a(g)(1), as limited by 5 U.S.C. 552a(g)(5).
    (3) Administrative review. When an initial denial of a request is 
issued by the Privacy Officer, the individual's opportunities for 
further consideration shall be as follows:
    (i) As to denial under paragraph (g)(1)(i) of this section, two 
opportunities for further consideration are available in the 
alternative:
    (A) If the individual contests the application of the exemption to 
the records, review procedures in Sec. 102.25(g)(3)(ii) shall apply; or
    (B) If the individual challenges the exemption itself, the 
procedure is a petition for the issuance, amendment, or repeal of a 
rule under 5 U.S.C. 553(e). If the exemption was determined by USPTO, 
such petition shall be filed with the General Counsel. If the exemption 
was determined by another agency (as described in Sec. 102.23(f)), 
USPTO will provide the individual with the name and address of the 
other agency and any relief sought by the individual shall be that 
provided by the regulations of the other agency. Within USPTO, no such 
denial is administratively final until such a petition has been filed 
by the individual and disposed of on the merits by the General Counsel.
    (ii) As to denial under paragraphs (g)(1)(ii) of this section, 
(g)(1)(iv) of this section or (to the limited extent provided in 
paragraph (g)(3)(i)(A) of this section) paragraph (g)(1)(i) of this 
section, the individual may file for review with the General Counsel, 
as indicated in the Privacy Officer's initial denial notification. The 
procedures appearing in Sec. 102.28 shall be followed by both the 
individual and USPTO to the maximum extent practicable.
    (iii) As to denial under paragraph (g)(1)(iii) of this section, no 
further administrative consideration within USPTO is available because 
the denial is not administratively final until expiration of the time 
period indicated in Sec. 102.26(a).
    (h) If a request is partially granted and partially denied, the 
Privacy Officer shall follow the appropriate procedures of this section 
as to the records within the grant and the records within the denial.

[[Page 52927]]

Sec. 102.26  Special procedures: Medical records.

    (a) No response to any request for access to medical records by an 
individual will be issued by the Privacy Officer for a period of seven 
working days (i.e., excluding Saturdays, Sundays, and legal public 
holidays) from the date of receipt.
    (b) USPTO has published as a routine use, for all systems of 
records containing medical records, consultations with an individual's 
physician or psychologist if, in the sole judgment of USPTO, disclosure 
could have an adverse effect upon the individual. The mandatory waiting 
period set forth in paragraph (a) of this section will permit exercise 
of this routine use in appropriate cases. USPTO will pay no cost of any 
such consultation.
    (c) In every case of a request by an individual for access to 
medical records, the Privacy Officer shall:
    (1) Inform the individual of the waiting period prescribed in 
paragraph (a) of this section;
    (2) Obtain the name and address of the individual's physician and/
or psychologist, if the individual consents to give them;
    (3) Obtain specific, written consent for USPTO to consult the 
individual's physician and/or psychologist in the event that USPTO 
believes such consultation is advisable, if the individual consents to 
give such authorization;
    (4) Obtain specific, written consent for USPTO to provide the 
medical records to the individual's physician or psychologist in the 
event that USPTO believes access to the record by the individual is 
best effected under the guidance of the individual's physician or 
psychologist, if the individual consents to give such authorization; 
and
    (5) Forward the individual's medical record to USPTO's medical 
expert for review and a determination on whether consultation with or 
transmittal of the medical records to the individual's physician or 
psychologist is warranted. If the consultation with or transmittal of 
such records to the individual's physician or psychologist is 
determined to be warranted, USPTO's medical expert shall so consult or 
transmit. Whether or not such a consultation or transmittal occurs, 
USPTO's medical officer shall provide instruction to the Privacy 
Officer regarding the conditions of access by the individual to his or 
her medical records.
    (d) If an individual refuses in writing to give the names and 
consents set forth in paragraphs (c)(2) through (c)(4) of this section 
and USPTO has determined that disclosure could have an adverse effect 
upon the individual, USPTO shall give the individual access to said 
records by means of a copy, provided without cost to the requester, 
sent registered mail return receipt requested.


Sec. 102.27  Procedures for making requests for correction or 
amendment.

    (a) Any individual, regardless of age, who is a citizen of the 
United States or an alien lawfully admitted for permanent residence 
into the United States may submit a request for correction or amendment 
to USPTO. The request should be made either in person or by mail 
addressed to the Privacy Officer who processed the individual's request 
for access to the record, and to whom is delegated authority to make 
initial determinations on requests for correction or amendment. The 
office of the Privacy Officer is open to the public between the hours 
of 9 a.m. and 4 p.m., Monday through Friday (excluding legal public 
holidays).
    (b) Requests submitted by mail should include the words ``PRIVACY 
ACT REQUEST'' in capital letters at the top of the letter and on the 
face of the envelope. Any request which is not addressed as specified 
in paragraph (a) of this section or which is not marked as specified in 
this paragraph will be so addressed and marked by USPTO personnel and 
forwarded immediately to the Privacy Officer. A request which is not 
properly addressed by the individual will not be deemed to have been 
``received'' for purposes of measuring the time period for response 
until actual receipt by the Privacy Officer. In each instance when a 
request so forwarded is received, the Privacy Officer shall notify the 
individual that his or her request was improperly addressed and the 
date the request was received at the proper address.
    (c) Since the request, in all cases, will follow a request for 
access under Sec. 102.25, the individual's identity will be established 
by his or her signature on the request and use of the USPTO control 
number assigned to the request.
    (d) A request for correction or amendment should include the 
following:
    (1) Specific identification of the record sought to be corrected or 
amended (for example, description, title, date, paragraph, sentence, 
line and words);
    (2) The specific wording to be deleted, if any;
    (3) The specific wording to be inserted or added, if any, and the 
exact place at which to be inserted or added; and
    (4) A statement of the basis for the requested correction or 
amendment, with all available supporting documents and materials which 
substantiate the statement. The statement should identify the criterion 
of the Act being invoked, that is, whether the information in the 
record is unnecessary, inaccurate, irrelevant, untimely or incomplete.


Sec. 102.28  Review of requests for correction or amendment.

    (a)(1)(i) Not later than ten working days (i.e., excluding 
Saturdays, Sundays and legal public holidays) after receipt of a 
request to correct or amend a record, the Privacy Officer shall send an 
acknowledgment providing an estimate of time within which action will 
be taken on the request and asking for such further information as may 
be necessary to process the request. The estimate of time may take into 
account unusual circumstances as described in Sec. 102.25(a). No 
acknowledgment will be sent if the request can be reviewed, processed, 
and the individual notified of the results of review (either compliance 
or denial) within the ten working days. Requests filed in person will 
be acknowledged in writing at the time submitted.
    (ii) If the Privacy Officer fails to send the acknowledgment within 
ten working days, as provided in paragraph (a)(1)(i) of this section, 
the requester may ask the General Counsel to take corrective action. No 
failure of the Privacy Officer to send an acknowledgment shall confer 
administrative finality for purposes of judicial review.
    (2) Promptly after acknowledging receipt of a request, or after 
receiving such further information as might have been requested, or 
after arriving at a decision within the ten working days, the Privacy 
Officer shall either:
    (i) Make the requested correction or amendment and advise the 
individual in writing of such action, providing either a copy of the 
corrected or amended record or a statement as to the means whereby the 
correction or amendment was effected in cases where a copy cannot be 
provided (for example, erasure of information from a record maintained 
only in magnetically recorded computer files); or
    (ii) Inform the individual in writing that his or her request is 
denied and provide the following information:
    (A) The Privacy Officer's name and title or position;
    (B) The date of the denial;
    (C) The reasons for the denial, including citation to the 
appropriate sections of the Act and this subpart; and

[[Page 52928]]

    (D) The procedures for appeal of the denial as set forth in 
Sec. 102.29, including the address of the General Counsel.
    (3) The term promptly in this section means within thirty working 
days (i.e., excluding Saturdays, Sundays, and legal public holidays). 
If the Privacy Officer cannot make the determination within thirty 
working days, the individual will be advised in writing of the reason 
therefor and of the estimated date by which the determination will be 
made.
    (b) Whenever an individual's record is corrected or amended 
pursuant to a request by that individual, the Privacy Officer shall be 
responsible for notifying all persons and agencies to which the 
corrected or amended portion of the record had been disclosed prior to 
its correction or amendment, if an accounting of such disclosure 
required by the Act was made. The notification shall require a 
recipient agency maintaining the record to acknowledge receipt of the 
notification, to correct or amend the record, and to apprise any agency 
or person to which it had disclosed the record of the substance of the 
correction or amendment.
    (c) The following criteria will be considered by the Privacy 
Officer in reviewing a request for correction or amendment:
    (1) The sufficiency of the evidence submitted by the individual;
    (2) The factual accuracy of the information;
    (3) The relevance and necessity of the information in terms of 
purpose for which it was collected;
    (4) The timeliness and currency of the information in light of the 
purpose for which it was collected;
    (5) The completeness of the information in terms of the purpose for 
which it was collected;
    (6) The degree of risk that denial of the request could unfairly 
result in determinations adverse to the individual;
    (7) The character of the record sought to be corrected or amended; 
and
    (8) The propriety and feasibility of complying with the specific 
means of correction or amendment requested by the individual.
    (d) USPTO will not undertake to gather evidence for the individual, 
but does reserve the right to verify the evidence which the individual 
submits.
    (e) Correction or amendment of a record requested by an individual 
will be denied only upon a determination by the Privacy Officer that:
    (1) The individual has failed to establish, by a preponderance of 
the evidence, the propriety of the correction or amendment in light of 
the criteria set forth in paragraph (c) of this section;
    (2) The record sought to be corrected or amended is part of the 
official record in a terminated judicial, quasi-judicial, or quasi-
legislative proceeding to which the individual was a party or 
participant;
    (3) The information in the record sought to be corrected or 
amended, or the record sought to be corrected or amended, is the 
subject of a pending judicial, quasi-judicial, or quasi-legislative 
proceeding to which the individual is a party or participant;
    (4) The correction or amendment would violate a duly enacted 
statute or promulgated regulation; or
    (5) The individual has unreasonably failed to comply with the 
procedural requirements of this part.
    (f) If a request is partially granted and partially denied, the 
Privacy Officer shall follow the appropriate procedures of this section 
as to the records within the grant and the records within the denial.


Sec. 102.29  Appeal of initial adverse determination on correction or 
amendment.

    (a) When a request for correction or amendment has been denied 
initially under Sec. 102.28, the individual may submit a written appeal 
within thirty working days (i.e., excluding Saturdays, Sundays and 
legal public holidays) after the date of the initial denial. When an 
appeal is submitted by mail, the postmark is conclusive as to 
timeliness.
    (b) An appeal should be addressed to the General Counsel, United 
States Patent and Trademark Office, Washington, DC 20231. An appeal 
should include the words ``PRIVACY APPEAL'' in capital letters at the 
top of the letter and on the face of the envelope. An appeal not 
addressed and marked as provided herein will be so marked by USPTO 
personnel when it is so identified and will be forwarded immediately to 
the General Counsel. An appeal which is not properly addressed by the 
individual will not be deemed to have been ``received'' for purposes of 
measuring the time periods in this section until actual receipt by the 
General Counsel. In each instance when an appeal so forwarded is 
received, the General Counsel shall notify the individual that his or 
her appeal was improperly addressed and the date when the appeal was 
received at the proper address.
    (c) The individual's appeal shall include a statement of the 
reasons why the initial denial is believed to be in error and USPTO's 
control number assigned to the request. The appeal shall be signed by 
the individual. The record which the individual requests be corrected 
or amended and all correspondence between the Privacy Officer and the 
requester will be furnished by the Privacy Officer who issued the 
initial denial. Although the foregoing normally will comprise the 
entire record on appeal, the General Counsel may seek additional 
information necessary to assure that the final determination is fair 
and equitable and, in such instances, disclose the additional 
information to the individual to the greatest extent possible, and 
provide an opportunity for comment thereon.
    (d) No personal appearance or hearing on appeal will be allowed.
    (e) The General Counsel shall act upon the appeal and issue a final 
determination in writing not later than thirty working days (i.e., 
excluding Saturdays, Sundays and legal public holidays) from the date 
on which the appeal is received, except that the General Counsel may 
extend the thirty days upon deciding that a fair and equitable review 
cannot be made within that period, but only if the individual is 
advised in writing of the reason for the extension and the estimated 
date by which a final determination will issue. The estimated date 
should not be later than the sixtieth working day after receipt of the 
appeal unless unusual circumstances, as described in Sec. 102.25(a), 
are met.
    (f) If the appeal is determined in favor of the individual, the 
final determination shall include the specific corrections or 
amendments to be made and a copy thereof shall be transmitted promptly 
both to the individual and to the Privacy Officer who issued the 
initial denial. Upon receipt of such final determination, the Privacy 
Officer promptly shall take the actions set forth in 
Sec. 102.28(a)(2)(i) and (b).
    (g) If the appeal is denied, the final determination shall be 
transmitted promptly to the individual and state the reasons for the 
denial. The notice of final determination also shall inform the 
individual of the following:
    (1) The right of the individual under the Act to file a concise 
statement of reasons for disagreeing with the final determination. The 
statement ordinarily should not exceed one page and USPTO reserves the 
right to reject a statement of excessive length. Such a statement shall 
be filed with the General Counsel. It should provide the USPTO control 
number assigned to the request, indicate the date of the final 
determination and be signed by the individual. The General Counsel 
shall acknowledge receipt of such statement and inform the individual 
of the date on which it was received.

[[Page 52929]]

    (2) The facts that any such disagreement statement filed by the 
individual will be noted in the disputed record, that the purposes and 
uses to which the statement will be put are those applicable to the 
record in which it is noted, and that a copy of the statement will be 
provided to persons and agencies to which the record is disclosed 
subsequent to the date of receipt of such statement;
    (3) The fact that USPTO will append to any such disagreement 
statement filed by the individual, a copy of the final determination or 
summary thereof which also will be provided to persons and agencies to 
which the disagreement statement is disclosed; and,
    (4) The right of the individual to judicial review of the final 
determination under 5 U.S.C. 552a(g)(1)(A), as limited by 5 U.S.C. 
552a(g)(5).
    (h) In making the final determination, the General Counsel shall 
employ the criteria set forth in Sec. 102.28(c) and shall deny an 
appeal only on the grounds set forth in Sec. 102.28(e).
    (i) If an appeal is partially granted and partially denied, the 
General Counsel shall follow the appropriate procedures of this section 
as to the records within the grant and the records within the denial.
    (j) Although a copy of the final determination or a summary thereof 
will be treated as part of the individual's record for purposes of 
disclosure in instances where the individual has filed a disagreement 
statement, it will not be subject to correction or amendment by the 
individual.
    (k) The provisions of paragraphs (g)(1) through (g)(3) of this 
section satisfy the requirements of 5 U.S.C. 552a(e)(3).


Sec. 102.30  Disclosure of record to person other than the individual 
to whom it pertains.

    (a) USPTO may disclose a record pertaining to an individual to a 
person other than the individual to whom it pertains only in the 
following instances:
    (1) Upon written request by the individual, including authorization 
under Sec. 102.25(f);
    (2) With the prior written consent of the individual;
    (3) To a parent or legal guardian under 5 U.S.C. 552a(h);
    (4) When required by the Act and not covered explicitly by the 
provisions of 5 U.S.C. 552a(b); and
    (5) When permitted under 5 U.S.C. 552a(b)(1) through (12), which 
read as follows:\1\
---------------------------------------------------------------------------

    \1\ 5 U.S.C. 552a(b)(4) has no application within USPTO.
---------------------------------------------------------------------------

    (i) To those officers and employees of the agency which maintains 
the record who have a need for the record in the performance of their 
duties;
    (ii) Required under 5 U.S.C. 552 ;
    (iii) For a routine use as defined in 5 U.S.C. 552a(a)(7) and 
described under 5 U.S.C. 552a(e)(4)(D);
    (iv) To the Bureau of the Census for purposes of planning or 
carrying out a census or survey or related activity pursuant to the 
provisions of Title 13;
    (v) To a recipient who has provided the agency with advance 
adequate written assurance that the record will be used solely as a 
statistical research or reporting record, and the record is to be 
transferred in a form that is not individually identifiable;
    (vi) To the National Archives and Records Administration as a 
record which has sufficient historical or other value to warrant its 
continued preservation by the United States Government, or for 
evaluation by the Archivist of the United States or the designee of the 
Archivist to determine whether the record has such value;
    (vii) To another agency or to an instrumentality of any 
governmental jurisdiction within or under the control of the United 
States for a civil or criminal law enforcement activity if the activity 
is authorized by law, and if the head of the agency or instrumentality 
has made a written request to the agency which maintains the record 
specifying the particular portion desired and the law enforcement 
activity for which the record is sought;
    (viii) To a person pursuant to a showing of compelling 
circumstances affecting the health or safety of an individual if upon 
such disclosure notification is transmitted to the last known address 
of such individual;
    (ix) To either House of Congress, or, to the extent of matter 
within its jurisdiction, any committee or subcommittee thereof, any 
joint committee of Congress or subcommittee of any such joint 
committee;
    (x) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office;
    (xi) Pursuant to the order of a court of competent jurisdiction; or
    (xii) To a consumer reporting agency in accordance with section 
3711(e) of Title 31.
    (b) The situations referred to in paragraph (a)(4) of this section 
include the following:
    (1) 5 U.S.C. 552a(c)(4) requires dissemination of a corrected or 
amended record or notation of a disagreement statement by USPTO in 
certain circumstances;
    (2) 5 U.S.C. 552a(d) requires disclosure of records to the 
individual to whom they pertain, upon request; and
    (3) 5 U.S.C. 552a(g) authorizes civil action by an individual and 
requires disclosure by USPTO to the court.
    (c) The Privacy Officer shall make an accounting of each disclosure 
by him of any record contained in a system of records in accordance 
with 5 U.S.C. 552a(c) (1) and (2). Except for a disclosure made under 5 
U.S.C. 552a(b)(7), the Privacy Officer shall make such accounting 
available to any individual, insofar as it pertains to that individual, 
on request submitted in accordance with Sec. 102.24. The Privacy 
Officer shall make reasonable efforts to notify any individual when any 
record in a system of records is disclosed to any person under 
compulsory legal process, promptly upon being informed that such 
process has become a matter of public record.


Sec. 102.31  Fees.

    The only fees to be charged to or collected from an individual 
under the provisions of this part are for duplication of records at the 
request of the individual. The Privacy Officer shall charge fees for 
duplication of records under the Act in the same way in which they 
charge duplication fees under Sec. 102.11, except as provided in this 
section.
    (a) No fees shall be charged or collected for the following: Search 
for and retrieval of the records; review of the records; copying at the 
initiative of USPTO without a request from the individual; 
transportation of records and personnel; and first-class postage.
    (b) It is the policy of USPTO to provide an individual with one 
copy of each record corrected or amended pursuant to his or her request 
without charge as evidence of the correction or amendment.
    (c) As required by the United States Office of Personnel Management 
in its published regulations implementing the Act, USPTO will charge no 
fee for a single copy of a personnel record covered by that agency's 
Government-wide published notice of systems of records.


Sec. 102.32  Penalties.

    (a) The Act provides, in pertinent part:

    Any person who knowingly and willfully requests or obtains any 
record concerning an individual from an agency under false pretenses 
shall be guilty of a misdemeanor and fined not more than $5,000. (5 
U.S.C. 552a(i)(3)).


[[Page 52930]]


    (b) A person who falsely or fraudulently attempts to obtain records 
under the Act also may be subject to prosecution under such other 
criminal statutes as 18 U.S.C. 494, 495 and 1001.


Sec. 102.33  General exemptions.

    (a) Individuals may not have access to records maintained by USPTO 
but which were provided by another agency which has determined by 
regulation that such information is subject to general exemption under 
5 U.S.C. 552a(j). If such exempt records are within a request for 
access, USPTO will advise the individual of their existence and of the 
name and address of the source agency. For any further information 
concerning the record and the exemption, the individual must contact 
that source agency.
    (b) The general exemption determined to be necessary and proper 
with respect to systems of records maintained by USPTO, including the 
parts of each system to be exempted, the provisions of the Act from 
which they are exempted, and the justification for the exemption, is as 
follows: Investigative Records--Contract and Grant Frauds and Employee 
Criminal Misconduct--COMMERCE/DEPT.--12. Pursuant to 5 U.S.C. 
552a(j)(2), these records are hereby determined to be exempt from all 
provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and (2), 
(e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i). 
These exemptions are necessary to ensure the proper functions of the 
law enforcement activity, to protect confidential sources of 
information, to fulfill promises of confidentiality, to prevent 
interference with law enforcement proceedings, to avoid the disclosure 
of investigative techniques, to avoid the endangering of law 
enforcement personnel, to avoid premature disclosure of the knowledge 
of criminal activity and the evidentiary bases of possible enforcement 
actions, and to maintain the integrity of the law enforcement process.


Sec. 102.34  Specific exemptions.

    (a)(1) Some systems of records under the Act which are maintained 
by USPTO contain, from time-to-time, material subject to the exemption 
appearing at 5 U.S.C. 552a(k)(1), relating to national defense and 
foreign policy materials. The systems of records published in the 
Federal Register by USPTO which are within this exemption are: 
COMMERCE/PAT-TM-6, COMMERCE/PAT-TM-7, COMMERCE/PAT-TM-8, COMMERCE/PAT-
TM-9.
    (2) USPTO hereby asserts a claim to exemption of such materials 
wherever they might appear in such systems of records, or any systems 
of records, at present or in the future. The materials would be exempt 
from 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and 
(f) to protect materials required by Executive order to be kept secret 
in the interest of the national defense and foreign policy.
    (b) The specific exemptions determined to be necessary and proper 
with respect to systems of records maintained by USPTO, including the 
parts of each system to be exempted, the provisions of the Act from 
which they are exempted, and the justification for the exemption, are 
as follows:
    (1)(i) Exempt under 5 U.S.C. 552a(k)(2). The systems of records 
exempt (some only conditionally), the sections of the Act from which 
exempted, and the reasons therefor are as follows:
    (A) Investigative Records--Contract and Grant Frauds and Employee 
Criminal Misconduct--COMMERCE/DEPT-12, but only on condition that the 
general exemption claimed in Sec. 102.33(b)(3) is held to be invalid;
    (B) Investigative Records--Persons Within the Investigative 
Jurisdiction of USPTO--COMMERCE/DEPT-13;
    (C) Litigation, Claims and Administrative Proceeding Records-- 
COMMERCE/DEPT-14;
    (D) Attorneys and Agents Registered to Practice Before the Office-- 
COMMERCE/PAT-TM-1;
    (E) Complaints, Investigations and Disciplinary Proceedings 
Relating to Registered Patent Attorneys and Agents--COMMERCE/PAT-TM-2; 
and
    (F) Non-Registered Persons Rendering Assistance to Patent 
Applicants-- COMMERCE/PAT-TM-5.
    (ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d), 
(e)(1), (e)(4)(G), (H), and (I), and (f). The reasons for asserting the 
exemption are to prevent subjects of investigation from frustrating the 
investigatory process, to insure the proper functioning and integrity 
of law enforcement activities, to prevent disclosure of investigative 
techniques, to maintain the ability to obtain necessary information, to 
fulfill commitments made to sources to protect their identities and the 
confidentiality of information and to avoid endangering these sources 
and law enforcement personnel. Special note is taken of the fact that 
the proviso clause in this exemption imports due process and procedural 
protections for the individual. The existence and general character of 
the information exempted will be made known to the individual to whom 
it pertains.
    (2)(i) Exempt under 5 U.S.C. 552a(k)(5). The systems of records 
exempt (some only conditionally), the sections of the act from which 
exempted, and the reasons therefor are as follows:
    (A) Investigative Records--Contract and Grant Frauds and Employee 
Criminal Misconduct--COMMERCE/DEPT-12, but only on condition that the 
general exemption claimed in Sec. 102.33(b)(3) is held to be invalid;
    (B) Investigative Records--Persons Within the Investigative 
Jurisdiction of USPTO--COMMERCE/DEPT-13; and
    (C) Litigation, Claims, and Administrative Proceeding Records-- 
COMMERCE/DEPT-14.
    (ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d), 
(e)(1), (e)(4) (G), (H), and (I), and (f). The reasons for asserting 
the exemption are to maintain the ability to obtain candid and 
necessary information, to fulfill commitments made to sources to 
protect the confidentiality of information, to avoid endangering these 
sources and, ultimately, to facilitate proper selection or continuance 
of the best applicants or persons for a given position or contract. 
Special note is made of the limitation on the extent to which this 
exemption may be asserted. The existence and general character of the 
information exempted will be made known to the individual to whom it 
pertains.
    (c) At the present time, USPTO claims no exemption under 5 U.S.C. 
552a(k) (3), (4), (6) and (7).

Appendix to Part 102--Systems of Records Noticed by other Federal 
Agencies 1 and Applicable to USPTO Records and Applicability 
of this Part thereto

------------------------------------------------------------------------
          Category of records                  Other federal agency
------------------------------------------------------------------------
Federal Personnel Records..............  Office of Personnel
                                          Management.2
Federal Employee Compensation Act        Department of Labor.3
 Program.
Equal Employment Opportunity Appeal      Equal Employment Opportunity
 Complaints.                              Commission.4

[[Page 52931]]

 
Formal Complaints/Appeals of Adverse     Merit Systems Protection
 Personnel Actions.                       Board.5
------------------------------------------------------------------------
\1\ Other than systems of records noticed by the Department of Commerce.
  Where the system of records applies only to USPTO, these regulations
  apply. Where the system of records applies generally to components of
  the Department of Commerce, the regulations of that department attach
  at the point of any denial for access or for correction or amendment.
\2\ The provisions of this part do not apply to these records covered by
  notices of systems of records published by the Office of Personnel
  Management for all agencies. The regulations of OPM alone apply.
\3\ The provisions of this part apply only initially to these records
  covered by notices of systems of records published by the U.S.
  Department of Labor for all agencies. The regulations of that
  department attach at the point of any denial for access or for
  correction or amendment.
\4\ The provisions of this part do not apply to these records covered by
  notices of systems of records published by the Equal Employment
  Opportunity Commission for all agencies. The regulations of the
  Commission alone apply.
\5\ The provisions of this part do not apply to these records covered by
  notices of systems of records published by the Merit Systems
  Protection Board for all agencies. The regulations of the Board alone
  apply.


    Dated: August 25, 2000.
Q. Todd Dickinson,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.

[FR Doc. 00-22356 Filed 8-30-00; 8:45 am]
BILLING CODE 3510-16-P