[Federal Register Volume 66, Number 59 (Tuesday, March 27, 2001)]
[Proposed Rules]
[Pages 16625-16633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-7339]


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THE BROADCASTING BOARD OF GOVERNORS

22 CFR Part 503


Freedom of Information Act Regulations

AGENCY: The Broadcasting Board of Governors.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This regulation establishes rules for implementing the Freedom 
of Information Act (FOIA) for the newly created Broadcasting Board of 
Governors.

DATES: Comments must be submitted on or before April 16, 2001.

ADDRESSES: Send comments to the FOIA/Privacy Act Office, The 
Broadcasting Board of Governors (BBG), Office of the General Counsel, 
330 Independence Avenue, SW., Washington, DC 20237, Suite 3349; 
telephone (202) 260-4404.

FOR FURTHER INFORMATION CONTACT: Caroline S. West, Assistant General 
Counsel at (202) 260-4404.

SUPPLEMENTARY INFORMATION: Public Law 103-236, the United States 
International Broadcasting Act of 1994, created the Broadcasting Board 
of

[[Page 16626]]

Governors (BBG) within the United States Information Agency (USIA). By 
law, the bipartisan Board consisted of nine members--eight members who 
were appointed by the President, by and with the advice and consent of 
the Senate, and the USIA Director.
    On October 21, 1998, President Clinton signed Pub. L. 105-277, the 
Omnibus Consolidated and Emergency Supplemental Appropriations Act for 
Fiscal Year 1999. Contained as Division G of this legislation was the 
Foreign Affairs Reform and Restructuring Act of 1998, which reorganized 
the foreign affairs agencies of the U.S. Government. Under this 
reorganization, the Broadcasting Board of Governors became an 
independent Federal entity on October 1, 1999. Under the reorganization 
of the foreign affairs agencies, the responsibilities of the Board 
remained intact, and the membership of the Board remained the same, 
except that the USIA Director was replaced by the Secretary of State.
    The BBG has responsibility for oversight of all United States 
sponsored, non-military broadcasting to foreign countries. The BBG 
oversees the operations of the International Broadcasting Bureau (IBB), 
which includes the worldwide broadcasting services of the Voice of 
America (VOA) and WORLDNET, the Office of Cuba Broadcasting (OCB), 
Engineering and Technical Operations, and of the two grantee 
organizations, Radio Free Europe/Radio Liberty (RFE/RL) and Radio Free 
Asia (RFA). The Board members also serve as members of the Board of 
Directors for both RFE/RL and RFA.
    The Board's authorities include:
     To review and evaluate the mission and operation of, and 
assess the quality, effectiveness, and professional integrity of, all 
such activities within the broad foreign policy objectives of the 
United States;
     To make and supervise grants for broadcasting and related 
activities for RFE/RL and RFA;
     To review, evaluate, and determine, at least annually, the 
addition or deletion of language services; and
     To allocate funds appropriated for international 
broadcasting activities among the various elements of the IBB and 
grantees, subject to reprogramming notification.
    In total, the BBG broadcasting entities transmit over 2,000 hours 
of weekly programming in 61 languages to over 100 million weekly 
listeners worldwide.
    This regulation revises 22 CFR part 503, which contains the Freedom 
of Information Act regulations of the former United States Information 
Agency and establishes regulations of the BBG for implementing the 
Freedom of Information Act.
    In accordance with 5 U.S.C. 605(b), the BBG certifies that this 
rule does not have a significant adverse economic impact on a 
substantial number of small entities. This rule is not considered being 
a significant regulatory action within the meaning of section 3(f) of 
Executive Order 12866, nor does this rule have Federalism implications 
warranting the preparation of a Federalism Assessment in accordance 
with Executive Order 12612.

    Dated: March 19, 2001.
Brian T. Conniff,
Acting Director, International Broadcasting Bureau, Broadcasting Board 
of Governors.

List of Subjects in 22 CFR Part 503

    Freedom of Information.
    Accordingly, 22 CFR Part 503 is revised to read as follows:

PART 503--FREEDOM OF INFORMATION ACT REGULATION

Sec.
503.1   Introduction and definitions.
503.2   Making a request.
503.3   Availability of agency records.
503.4   Time limits.
503.5   Records available for public inspection.
503.6   Restrictions on some agency records.
503.7   Fees.
503.8   Exemptions.
503.9   Electronic records.

    Authority:  5 U.S.C. 552 Reform Act of 1986 as amended by Pub. 
L. 99-570; sec. 1801-1804; U.S.C. 2658; 5 U.S.C. 301; 13 U.S.C. 8, 
E.O. 10477, as amended; 47 FR 9320, Apr. 2, 1982, E.O. 12356. 5 
U.S.C. 552 (1988 & Supp. III 1991) as amended by Freedom of 
Information Reform Act of 1986, Pub. L. 99-570, Title I, sections 
1801-1804, 100 Stat. 3207, 3207-48-50 (1986)(codified at 5 U.S.C. 
552 (1988)); 22 U.S.C. 2658 (1988); 5 U.S.C. 301 (1988); 13 U.S.C. 8 
(2988); E.O. 10477, 3 CFR 958 (1949-1953) as amended by E.O. 10822, 
3 CFR 355 (1959-1963), E.O. 12292, 3 FR 134 (1982), E.O. 12356, 3 
CFR 166 (1983), E.O. 12958 (1995).


Sec. 503.1  Introduction and definitions.

    (a) Introduction. The Freedom of Information Act (FOIA) and this 
part apply to all records of The Broadcasting Board of Governors (BBG). 
As a general policy BBG follows a balanced approach in administering 
the FOIA. We recognize the right of public access to information in the 
Agency's possession, but we also seek to protect the integrity of the 
Agency's internal processes. This policy calls for the fullest possible 
disclosure of records consistent with those requirements of 
administrative necessity and confidentiality which are recognized by 
the FOIA.
    (b) Definitions:
    Access Appeal Committee or Committee means the Committee delegated 
by the Agency Head for making final agency determinations regarding 
appeals from the initial denial of records under the FOIA.
    Agency or BBG means the Broadcasting Board of Governors. It 
includes all parts of the BBG in the U.S. and its worldwide operations.
    Commercial use, when referring to a request, means that the request 
is from, or on behalf of, one who seeks information for a use or 
purpose that furthers the commercial, trade, or profit interests of the 
requester or of a person on whose behalf the request is made. Whether a 
request is for a commercial use depends on the purpose of the request 
and how the records will be used. The identity of the requester 
(individual, non-profit corporation, for-profit corporation), or the 
nature of the records, while in some cases indicative of that purpose 
or use, is not necessarily determinative. When a request is made by a 
representative of the news media, the request shall be deemed to be for 
a non-commercial use.
    Department means any executive department, military department, 
government corporation, government controlled corporation, any 
independent regulatory agency, or other establishment in the executive 
branch of the Federal Government. A private organization is not a 
department even if it is performing work under contract with the 
Government or is receiving Federal financial assistance. Grantee and 
contractor records are not subject to the FOIA unless they are in the 
possession and control of the BBG.
    Duplication means the process of making a copy of a record and 
sending it to the requester, to the extent necessary to respond to the 
request. Such copies include paper copy, microform, audiovisual 
materials, and magnetic tapes, cards and discs.
    Educational institution means a preschool, elementary or secondary 
school, institution of undergraduate or graduate higher education, or 
institution of professional or vocational education.
    FOIA means the Freedom of Information Act, section 552 of title 5, 
United States Code, as amended.
    Freedom of Information Officer means the BBG official who has been 
delegated the authority to release or withhold records and assess, 
waive, or reduce fees in response to FOIA requests.
    Non-commercial scientific institution means an institution that is 
not operated substantially for the purposes of furthering its own or 
someone else's business, trade, or profit interests, and

[[Page 16627]]

that is operated for purposes of conducting scientific research whose 
results are not intended to promote any particular product or industry.
    Records (and any other term used in this section in reference to 
information) include any information that would be an agency record 
subject to the requirements of this section when maintained by the 
Agency in any format, including an electronic format. Records also 
include any handwritten, typed or printed documents (such as memoranda, 
books, brochures, studies, writings, drafts, letters, transcripts, and 
minutes) and documentary material in other forms (such as punchcards, 
magnetic tapes, cards, or discs; paper tapes; audio or video 
recordings, maps, photographs, slides, microfilm, and motion pictures). 
It does not include objects or articles such as exhibits, models, 
equipment, and duplication machines or audiovisual processing 
materials. Reports does not include books, magazines, pamphlets, or 
other reference material in formally organized and officially 
designated BBG libraries, where such materials are available under the 
rules of the particular library.
    Representative of the news media means a person actively gathering 
news for an entity organized and operated to publish or broadcast news 
to the public. ``News'' means information that is about current events 
or that would be of current interest to the public. News media entities 
include television and radio broadcasters, publishers of periodicals 
(to the extent they publish ``news'') who make their products available 
for purchase or subscription by the general public, and entities that 
may disseminate news through other media (e.g., electronic 
dissemination of text). Freelance journalists shall be considered 
representatives of a news media entity if they can show a solid basis 
for expecting publication through such an entity. A publication 
contract or a requester's past publication record may show such a 
basis.
    Request means asking in writing for records whether or not the 
request refers specifically to the FOIA.
    Review means examining the records to determine which portions, if 
any, may be released, and any other processing that is necessary to 
prepare the records for release. It includes only the first examination 
and processing of the requested documents for purposes of determining 
whether a specific exemption applies to a particular record or portion 
of a record.
    Search means looking for records or portions of records responsive 
to a request. It includes reading and interpreting a request, and also 
page-by-page and line-by-line examination to identify responsive 
portions of a document. However, it does not include line-by-line 
examination where merely duplicating the entire page would be a less 
expensive and quicker way to comply with the request.


Sec. 503.2  Making a request.

    (a) How to request records. All requests for documents shall be 
made in writing. Requests should be addressed to The Broadcasting Board 
of Governors (BBG), FOIA/Privacy Act Officer, Office of the General 
Counsel, 330 Independence Avenue, SW., Suite 3349, Washington, DC 
20237; telephone (202) 260-4404. Write the words ``Freedom of 
Information Act Request'' on the envelope and letter.
    (b) Details in your letter. Your request for documents should 
provide as many details as possible that will help us find the records 
you are requesting. If there is insufficient information, we will ask 
you to provide greater details. Include your telephone number(s) to 
help us reach you if we have questions. If you are not sure how to 
write your request or what details to include, you may call the FOIA 
Office to request a copy of the Agency's booklet ``Guide and Index of 
Records,'' or access the same information via the Internet on BBG's 
World Wide Web site (http://www.ibb.gov). The more specific the request 
for documents, the sooner the Agency will be able to respond to your 
request(s).
    (c) Requests not handled under FOIA. We will not provide documents 
requested under the FOIA and this part if the records are currently 
available in the National Archives, subject to release through the 
Archives, or commonly sold to the public by it or another agency in 
accordance with statutory authority (for example, records currently 
available from the Government Printing Office or the National Technical 
Information Service). Agency records that are normally freely available 
to the general public, such as BBG press releases, are not covered by 
the FOIA. Requests for documents from Federal departments, Chairmen of 
Congressional committees or subcommittees and court orders are not FOIA 
requests.
    (d) Referral of requests outside the agency. If you request records 
that were created by or provided to us by another Federal department, 
we may refer your request to or consult with that department. We may 
also refer requests for classified records to the department that 
classified them. In cases of referral, the other department is 
responsible for processing and responding to your request under that 
department's regulation. When possible, we will notify you when we 
refer your request to another department.
    (e) Responding to your request.--(1) Retrieving records. The Agency 
is required to furnish copies of records only when they are in our 
possession and control. If we have stored the records you want in a 
record retention center, we will retrieve and review them for possible 
disclosure. However, the Federal Government destroys many old records, 
so sometimes it is impossible to fill requests. The Agency's record 
retention policies are set forth in the General Records Schedules of 
the National Archives and Records Administration and in BBG's Records 
Disposition Schedule, which establish time periods for keeping records 
before they may be destroyed.
    (2) Furnishing records. (i) The Agency is only required to furnish 
copies of records that we have or can retrieve. We are not compelled to 
create new records. The Agency will aid requesters by providing records 
and information in the form requested, including electronic format, if 
we can readily reproduce them in that form or format.
    (ii) We may decide to conserve government resources and at the same 
time supply the records you need by consolidating information from 
various records, in paper form or electronically, rather than copying 
them all. If the effort to produce records in electronic format would 
significantly interfere with the operations of the Agency, we will 
consider the effort to be an unreasonable search.
    (iii) The Agency is required to furnish only one copy of a record. 
If we are unable to make a legible copy of a record to be released, we 
will not attempt to reconstruct it. Rather we will furnish the best 
copy possible and note its poor quality in our reply or on the copy.
    (iv) If we cannot accommodate your request for form or format, we 
will provide responsive, nonexempt information in a reasonably 
accessible form.


Sec. 503.3  Availability of agency records.

    (a) Release of records. If we have released a record or part of a 
record to others in the past, we will ordinarily release it to you 
also. This principle does not apply if the previous release was an 
unauthorized disclosure. However, we will not release it to you if a 
statute forbids this disclosure and we will not necessarily release it 
to you if an exemption applies in your situation and did not apply or 
applied differently in the previous situation.

[[Page 16628]]

    (b) Denial of requests. All denials are in writing and describe in 
general terms the material withheld and state the reasons for the 
denial, including a reference to the specific exemption of the FOIA 
authorizing the withholding or deletion. The denial also explains your 
right to appeal the decision and it will identify the official to whom 
you should send the appeal. Denial letters are signed by the person who 
made the decision to deny all or part of the request, unless otherwise 
noted.
    (c) Unproductive searches. We make a diligent search for records to 
satisfy your request. Nevertheless, we may not be able always to find 
the records you want using the information you provided, or they may 
not exist. If we advise you that we have been unable to find the 
records despite a diligent search, you will nevertheless be provided 
the opportunity to appeal the adequacy of the Agency's search. However, 
if your request is for records that are obviously not connected with 
this Agency or your request has been provided to us in error, a ``no 
records'' response will not be considered an adverse action and you 
will not be provided an opportunity to appeal.
    (d) Appeal of denials. You have the right to appeal a partial or 
full denial of your FOIA request. To do so, you must put your appeal in 
writing and address it to the official identified in the denial letter. 
Your appeal letter must be dated and postmarked within 30 calendar days 
from the date of the Agency's denial letter. Because we have some 
discretionary authority in deciding whether to release or withhold 
records, you may strengthen your appeal by explaining your reasons for 
wanting the records. However, you are not required to give any 
explanation. Your appeal will be reviewed by the Agency's Access Appeal 
Committee that consists of senior Agency officials. When the Committee 
responds to your appeal, that constitutes the Agency's final action on 
the request. If the Access Appeal Committee grants your appeal in part 
or in full, we will send the records to you promptly or set up an 
appointment for you to inspect them. If the decision is to deny your 
appeal in part or in full, the final letter will state the reasons for 
the decision, name the officials responsible for the decision, and 
inform you of the FOIA provisions for judicial review.


Sec. 503.4  Time limits.

    (a) General. The FOIA sets certain time limits for us to decide 
whether to disclose the records you requested, and to decide appeals. 
If we fail to meet the deadlines, you may proceed as if we had denied 
your request or your appeal. Since requests may be misaddressed or 
misrouted, you should call or write to confirm that we have the request 
and to learn its status if you have not heard from us in a reasonable 
time.
    (b) Time Allowed. (1) We will decide whether to release records 
within 20 working days after your request reaches the appropriate area 
office that maintains the records you are requesting. When we decide to 
release records, we will actually provide the records at that time, or 
as soon as possible after that decision, or let you inspect them as 
soon as possible thereafter.
    (2) We will decide an appeal within 20 working days after the 
appeal reaches the appropriate reviewing official.
    (3) (i) The FOIA Officer or appeal official may extend the time 
limits in unusual circumstances for initial requests or appeals, up to 
10 working days. We will notify you in writing of any extensions. 
``Unusual circumstances'' include situations where we: Search for and 
collect records from field facilities, records centers or locations 
other than the office processing the records; search for, collect, or 
examine a great many records in response to a single request; consult 
with another office or department that has substantial interest in the 
determination of the request; and/or conduct negotiations with 
submitters and requesters of information to determine the nature and 
extent of non-disclosable proprietary materials.
    (ii) If an extra ten days still does not provide sufficient time 
for the Agency to deal with your request, we will inform you that the 
request cannot be processed within the statutory time limit and provide 
you with the opportunity to limit the scope of your request and/or 
arrange with us a negotiated deadline for processing your request.
    (iii) If you refuse to reasonably limit the scope of your request 
or refuse to agree upon a time frame, the Agency will process your 
case, as it would have, had no modification been sought. We will make a 
diligent, good faith effort to complete our review within the statutory 
time frame.


Sec. 503.5  Records available for public inspection.

    (a) To the extent that they exist, we will make the following 
records of general interest available for you in paper form or 
electronically for inspection or copying:
    (1) Orders and final opinions, including concurring and dissenting 
opinions in adjudications. (See Sec. 503.8(e) of this part for 
availability of internal memoranda, including attorney opinions and 
advice.)
    (2) Statements of policy and interpretations that we have adopted 
but which have not been published in the Federal Register.
    (3) Administrative staff manuals and instructions to staff that 
affect the public. (We will not make available, however, manuals or 
instructions that reveal investigative or audit procedures as described 
in Sec. 503.8(b) and (g) of this part.)
    (4) In addition to such records as those described in this 
paragraph (a), we will make available to any person a copy of all other 
Agency records, in the format requested, if available, unless we 
determine that such records should be withheld from disclosure under 
subsection (b) of the Act and Secs. 503.8 and 503.9 of this part.
    (b) Before releasing these records, however, we may delete the 
names of people, or information that would identify them, if release 
would invade their personal privacy to a clearly unwarranted degree 
(See Sec. 503.8(f).)
    (c) The Agency's FOIA Guide and Index is available electronically 
via the Internet, or you may request a copy of it by mail.


Sec. 503.6  Restrictions on some Agency records.

    Under the U.S. Information and Educational Exchange Act of 1948 (22 
U.S.C. 1461, as amended), the BBG is prohibited from disseminating 
within the United States information about the U.S., its people, and 
its policies when such materials have been prepared by the Agency for 
audiences abroad. This includes films, radio scripts and tapes, 
videotapes, books, and similar materials produced by the Agency. 
However, this law does provide that upon request, such information 
shall be made available at BBG, for examination only, by 
representatives of the press, magazines, radio systems and stations, 
research students or scholars and available, for examination only, to 
Members of Congress.


Sec. 503.7  Fees.

    (a) Fees to be charged--categories of requests. Paragraphs (a)(1) 
though (3) and (b) through (e) of this section explain each category of 
request and the type of fees that we will generally charge. However, 
for each of these categories, the fees may be limited, waived, or 
reduced for the reasons given in paragraph (e) of this section. Request 
means asking for records, whether or not you refer specifically to the 
Freedom of Information Act (FOIA). Requests from Federal agencies and 
court orders

[[Page 16629]]

for documents are not included within this definition. Review means, 
when used in connection with processing records for a commercial use 
request, examining the records to determine what portions, if any, may 
be withheld, and any other processing that is necessary to prepare the 
records for release. It includes only the examining and processing that 
are done the first time we analyze whether a specific exemption applies 
to a particular record or portion of a record. It does not include the 
process of researching or resolving general legal, or policy issues 
regarding exemptions. Search means looking for records or portions of 
records responsive to a request. It includes reading and interpreting a 
request, and also page-by-page and line-by-line examination to identify 
responsive portions of a document.
    (1) Commercial use request. If your request is for a commercial 
use, BBG will charge you the costs of search, review and duplication. 
``Commercial use'' means that the request is from or on behalf of one 
whom seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or of a person 
on whose behalf the request is made. Whether a request is for a 
commercial use depends on the purpose of the request and how the 
records will be used; the identity of the requester (individual, non-
profit corporation, for-profit corporation), or the nature of the 
records, while in some cases may indicate the purpose or use is not 
necessarily determinative. When a request is made by a representative 
of the news media, a purpose of use which supports the requester's news 
dissemination function is deemed to be a non-commercial use.
    (2) Educational and scientific institutions and news media. If you 
are an educational institution or a non-commercial scientific 
institution, operated primarily for scholarly or scientific research, 
or a representative of the news media, and your request is not for a 
commercial use, BBG will charge you only for the duplication of 
documents. Also BBG will not charge you the copying costs for the first 
100 pages of duplication. ``Educational institution'' means a 
preschool, elementary or secondary school, institution of undergraduate 
or graduate higher education, or institution of professional or 
vocational education. ``Non-commercial scientific institution'' means 
an institution that is not operated substantially for purposes of 
furthering its own or someone else's business, trade, or profit 
interests, and that is operated for purposes of conducting scientific 
research whose results are not intended to promote any particular 
product or industry. ``Representative of the news media'' means a 
person actively gathering news for an entity organized and operated to 
publish or broadcast news to the public. ``News' means information that 
is about current events or that would be of current interest to the 
public. News media entities include television and radio broadcasters, 
publishers of periodicals (to the extent they publish ``news'') who 
make their products available for purchase or subscription by the 
general public, and entities that may disseminate news through other 
media (e.g., electronic dissemination of text). We will treat freelance 
journalists as representatives of a news media entity if they can show 
a solid basis for expecting publication through such an entity. A 
publication contract is such a basis and the requester's past 
publication record may show such a basis.
    (3) Other requesters. If your request is not the kind described by 
paragraph (a)(1) or (a)(2) of this section, then the BBG will charge 
you only for search and duplication. Also, we will not charge you for 
the first two hours of search time or for the copying costs of the 
first 100 pages of duplication.
    (b) Fees to be charged--general provisions. (1) We may charge 
search fees even if the records we find are exempt from disclosure, or 
even if we do not find any records at all.
    (2) We will not charge you any fee at all if the costs of routine 
collection and processing of the fee are likely to equal or exceed the 
amount of the fee. We have estimated that cost to be $5.00.
    (3) If we determine that you are acting alone or with others to 
break down a single request into a series of requests in order to avoid 
or reduce the fees charged, we may aggregate all these requests for 
purposes of calculating the fees charged.
    (4) We will charge interest on unpaid bills beginning on the 31st 
day following the day the bill was sent. The accrual of interest will 
stop upon receipt of the fee, rather than upon its processing by BBG. 
Interest will be at the rate prescribed in section 3717 of Title 32 
U.S.C.
    (c) Fee Schedule--BBG will charge the following fees: (1) Manual 
searching for or reviewing of records:
    (i) When performed by employees at salary grade GS-1 through GS-8 
or FS-9 through FS-5--an hourly rate of $10.00 will be charged;
    (ii) When performed by employees at salary grade GS-9 through GS-13 
or FS-5 through FS-2--an hourly rate of $20.00 will be charged;
    (iii) When performed by employees at salary grade GS-14 or above or 
FS-2 or above--an hourly rate of $36.00 will be charged.
    (iv) When a search involves employees at more than one of these 
levels, we will charge the appropriate rate for each.
    (2) Computer searching and printing. Except in unusual cases, the 
cost of computer time will not be a factor in calculating the two free 
hours of search time. In those unusual cases, where the cost of 
conducting a computerized search significantly detracts from the 
Agency's ordinary operations, no more than the dollar cost of two hours 
of manual search time shall be allowed. For searches conducted beyond 
the first two hours, the Agency shall only charge the direct costs of 
conducting such searches.
    (3) Photocopying standard size pages--$0.15 per page.
    (4) Photocopying odd-size documents (such as punchcards or 
blueprints) or reproducing other records (such as tapes)--the actual 
cost of operating the machine, plus the actual cost of the materials 
used, plus charges for the time spent by the operator, at the rates 
given in paragraph (c)(1) of this section.
    (5) Certifying that records are true copies--this service is not 
required by the FOIA. If we agree to provide it, we will charge $10.00 
per certification.
    (6) Sending records by express mail, certified mail, or other 
special methods. This service is not required by the FOIA. If we agree 
to provide it, we will charge our actual cost.
    (7) Performing any other special service that you request and to 
which we agree--actual cost of operating any machinery, plus actual 
cost of any materials used, plus charges for the time of our employees, 
at the rates given in paragraph (c)(1) of this section.
    (d) Procedures for assessing and collecting fees.--(1) Agreement to 
pay. We generally assume that when you request records you are willing 
to pay the fees we charge for services associated with your request. 
You may specify a limit on the amount you are willing to spend. We will 
notify you if it appears that the fees will exceed the limit and ask 
whether you nevertheless want us to proceed with the search.
    (2) Advance payment. If you have failed to pay previous bills in a 
timely manner, or if our initial review of your request indicates that 
we will charge you fees exceeding $250.00, we will require you to pay 
your past due fees and/or the estimated fees, or a deposit, before we 
start searching for the records

[[Page 16630]]

you want, or before we send them to you. In such cases, the 
administrative time limits as described in Sec. 503.4(b), will begin 
only after we come to an agreement with you over payment of fees, or 
decide that a fee waiver or reduction is appropriate.
    (e) Waiver or reduction of fees. We will waive or reduce the fees 
we would otherwise charge if disclosure of the information meets both 
of the following tests (paragraphs (e)(1) and (e)(2) of this section):
    (1) It is in the public interest because it is likely to contribute 
significantly to public understanding of government operations or 
activities, regardless of any other public interest it may further. In 
making this determination, we may consider:
    (i) Whether the requester is in a position to contribute to public 
understanding;
    (ii) Whether the requester has such knowledge or expertise as may 
be necessary to understand the information; and
    (iii) Whether the requester's intended use of the information would 
be likely to disseminate the information among the public; and,
    (2) It is not primarily in the commercial interest of the 
requester. Commercial interests include interests relating to business, 
trade, and profit. Not only profit-making corporations have commercial 
interests; so do nonprofit corporations, individuals, unions, and other 
associations.
    (3) You must make your request for a waiver or reduction at the 
same time you make your request for records. Only the FOIA Officer may 
make the decision whether to waive or reduce the fees. If we do not 
completely grant your request for a waiver or reduction, the denial 
letter will designate the appeal official.


Sec. 503.8  Exemptions.

    Section 552(b) of the Freedom of Information Act contains nine 
exemptions to the mandatory disclosure of records. These exemptions and 
their application by the Agency are described below. In some cases, 
more than one exemption may apply to the same document. This section 
does not itself authorize the giving of any pledge of confidentiality 
by any officer or employee of the Agency.
    (a) Exemption one--National defense and foreign policy. We are not 
required to release records that are specifically authorized under 
criteria established by an Executive Order to be kept secret in the 
interest of national defense or foreign policy and are in fact properly 
classified according to such Executive Order. Executive Order No. 12958 
(1995) provides for such classification. When the release of certain 
records may adversely affect U.S. relations with foreign countries, we 
usually consult with officials with knowledge of those countries and/or 
with officials of the Department of State. We may also have in our 
possession records classified by another agency. If we do, we may 
consult with that agency or may refer your request to that agency for 
their direct response to you. If possible, we will notify you that we 
have made such a referral.
    (b) Exemption two--Internal personnel rules and practices. We are 
not required to release records that are related solely to the internal 
personnel rules and practices of an agency. We may withhold routine 
internal agency procedures such as guard schedules and luncheon 
periods. We may also withhold internal records the release of which 
would help some persons circumvent the law or Agency regulations.
    (c) Exemption three--Records exempted by other statutes. We are not 
required to release records if another statute specifically allows us 
to withhold them. Another statute may be used only if it absolutely 
prohibits disclosure or if it sets forth criteria identifying 
particular types of material to be withheld (for example, the statute 
discussed in Sec. 503.6).
    (d) Exemption four--Trade secrets and confidential commercial or 
financial information. We will withhold trade secrets and commercial or 
financial information that is obtained from a person and is privileged 
or confidential.
    (1) Trade secrets: A trade secret is a secret, commercially 
valuable plan, formula, process, or device that is used for the making, 
preparing, compounding, or processing of trade commodities and that can 
be said to be the end product of either innovation or substantial 
effort. A direct relationship is necessary between the trade secret and 
the productive process.
    (2) Commercial or financial information, obtained from a person, 
and is privileged or confidential.
    (i) Information is ``commercial or financial'' if it relates to 
businesses, commerce, trade, employment, profits, or finances 
(including personal finances).
    (ii) Information is obtained from someone outside the Federal 
Government or from someone within the Government who has a commercial 
or financial interest in the information. ``Person'' includes an 
individual, partnership, corporation, association, state or foreign 
government, or other organization. Information is not ``obtained from a 
person'' if it is generated by BBG or another Federal agency.
    (iii) Information is ``privileged'' if it would ordinarily be 
protected from disclosure in civil discovery by a recognized 
evidentiary privilege, such as the attorney-client privilege, or the 
work-product privilege. Information may be privileged for this purpose 
under a privilege belonging to a person outside the Government, unless 
the providing of the information to the Government rendered the 
information no longer protectible in civil discovery.
    (iv) Information is ``confidential'' if it meets one of the 
following tests:
    (A) Disclosure may impair the Government's ability to obtain 
necessary information in the future;
    (B) Disclosure would substantially harm the competitive position of 
the person who submitted the information;
    (C) Disclosure would impair other Government interests, such as 
program effectiveness and compliance; or
    (D) Disclosure would impair other private interests, such as an 
interest in controlling availability of intrinsically valuable records, 
which are sold in the market by their owner.
    (3) Designation of certain confidential information. A person who 
submits records to the Government may designate part or all of the 
information in such records as exempt from disclosure under Exemption 
four. The person may make this designation either at the time the 
records are submitted to the Government or within a reasonable time 
thereafter. The designation must be in writing. The legend prescribed 
by a request for proposal or request for quotations according to any 
agency regulation establishing a substitute for the language is 
sufficient but not necessary for this purpose. Any such designation 
will expire ten years after the records were submitted to the 
Government.
    (4) Predisclosure notification. The procedures in this paragraph 
apply to records that were submitted to the Government and where we 
have substantial reason to believe that information in the records 
could reasonably be considered exempt under Exemption four. Certain 
exceptions to these procedures are stated in paragraph (d)(5) of this 
section.
    (i) When we receive a request for such records and we determine 
that we may be required to disclose them, we will make reasonable 
efforts to notify the submitter about these facts. The notice will 
inform the submitter about the procedures and time limits for 
submission and consideration of

[[Page 16631]]

objections to disclosure. If we must notify a large number of 
submitters, we may do this by posting or publishing a notice in a place 
where the submitters are reasonably likely to become aware of it.
    (ii) The submitter has ten (10) working days from receipt of the 
notice to object to disclosure of any part of the records and to state 
all bases for its objections.
    (iii) We will give consideration to all bases that have been timely 
stated by the submitter. If we decide to disclose the records and the 
submitter still does not agree, we will send a written notice to the 
submitter stating briefly why we did not sustain its objections and we 
will provide a copy of the records as we intend to release them. The 
notice will state that we will disclose the records five (5) working 
days after the submitter receives the notice unless we are ordered by a 
United States District Court not to release them.
    (iv) When a requester files suit under the FOIA to obtain records 
covered by this paragraph, we will promptly notify the submitter.
    (v) Whenever we send a notice to a submitter under paragraph 
(d)(4)(i) of this section, we will notify you that we are giving the 
submitter a notice and an opportunity to object.
    (5) Exceptions to predisclosure notification. The notice 
requirements in paragraph (d)(4) of this section do not apply in the 
following situations:
    (i) We decide not to disclose the records;
    (ii) The information has previously been published or made 
generally available;
    (iii) We have already notified the submitter of previous requests 
for the same records and have come to an understanding with that 
submitter about the records;
    (iv) Disclosure is required by a statute other than the FOIA;
    (v) Disclosure is required by a regulation, issued after notice and 
opportunity for public comment that specifies narrow categories of 
records that are to be disclosed under the FOIA. In this case a 
submitter may still designate records as described in paragraph (d)(3) 
of this section and in exceptional cases, at our discretion, may follow 
the notice procedures in paragraph (d)(4) of this section;
    (vi) The designation appears to be obviously frivolous, but in this 
case we will still give the submitter the written notice required by 
paragraph (d)(4)(iii) of this section (although this notice need not 
explain our decision or include a copy of the records); and
    (vii) We withhold the information because another statute requires 
its withholding.
    (e) Exemption five--Internal memoranda. This exemption covers 
internal Government communications and notes that fall within a 
generally recognized evidentiary privilege. Internal Government 
communications include an agency's communications with an outside 
consultant or other outside person, with a court, or with Congress, 
when those communications are for a purpose similar to the purpose of 
privileged intra-agency communications. Some of the most common 
applicable privileges are:
    (1) The deliberative process privilege. This privilege protects 
predecisional deliberative communications. A communication is protected 
under this privilege if it was made before a final decision was reached 
on some question of policy and if it expressed recommendations or 
opinions on that question. The purpose of this privilege is to prevent 
injury to the quality of the agency decision making process by 
encouraging open and frank internal policy discussions, by avoiding 
premature disclosure of policies not yet adopted, and by avoiding the 
public confusion that might result from disclosing reasons that were 
not in fact the ultimate grounds for an agency's decision. This 
privilege continues to protect pre-decisional documents even after a 
decision is made. We will release purely factual material in a 
deliberative document unless that material is otherwise exempt. 
However, purely factual material in a deliberative document is within 
this privilege if:
    (i) It is inextricably intertwined with the deliberative portions 
so that it cannot reasonably be segregated; or
    (ii) It would reveal the nature of the deliberative portions, or
    (iii) Its disclosure would in some other way make possible an 
intrusion into the decision making process.
    (2) Attorney-client privilege. This privilege protects confidential 
communications between a lawyer and an employee or agent of the 
Government where an attorney-client relationship exists (for example, 
where the lawyer is acting as attorney for the agency and the employee 
is communicating on behalf of the agency) and where the employee has 
communicated information to the attorney in confidence in order to 
obtain legal advice or assistance, and/or when the attorney has given 
advice to the client.
    (3) Attorney work product privilege. This privilege protects 
documents prepared by or for an agency, or by or for its representative 
(usually BBG attorneys) in anticipation of litigation or for trial. It 
includes documents prepared for purposes of administrative 
adjudications as well as court litigation. It includes factual material 
in such documents as well as material revealing opinions and tactics. 
The privilege continues to protect the documents even after the 
litigation is closed.
    (f) Exemption six--Clearly unwarranted invasion of personal 
privacy. We may withhold personnel, medical, and similar files, and 
personal information about individuals if disclosure would constitute a 
clearly unwarranted invasion of personal privacy.
    (1) Balancing test. In deciding whether to release records that 
contain personal or private information about someone else to a 
requester, we weigh the foreseeable harm of invading that individual's 
privacy against the public benefit that would result from the release 
of the information. In our evaluation of requests for records, we 
attempt to guard against the release of information that might involve 
a violation of personal privacy by a requester being able to ``piece 
together items'' or ``read between the lines'' information that would 
normally be exempt from mandatory disclosure.
    (2) Information frequently withheld. We frequently withhold such 
information as home addresses, home telephone numbers, ages, minority 
group status, social security numbers, individual's benefits, earning 
records, leave records, etc.
    (g) Exemption seven--Law enforcement. We are not required to 
release information or records that the Government has compiled for law 
enforcement purposes. The records may apply to actual or potential 
violations of either criminal or civil laws or regulations. We can 
withhold these records only to the extent that releasing them would 
cause harm in at least one of the following situations:
    (1) Enforcement proceedings. We may withhold information when 
release could reasonably be expected to interfere with prospective or 
ongoing law enforcement proceedings, investigations of fraud and 
mismanagement, employee misconduct, and civil rights violations may 
fall into this category. In certain cases, we may refuse to confirm or 
deny the existence of records that relate to violations in order not to 
disclose that an investigation is in progress or may be conducted.
    (2) Fair trial or impartial adjudication. We may withhold records 
when release would deprive a person of

[[Page 16632]]

a fair trial or an impartial adjudication because of prejudicial 
publicity.
    (3) Personal privacy. We are careful not to disclose information 
that could reasonably be expected to constitute an unwarranted invasion 
of personal privacy. When a name surfaces in an investigation, that 
person is likely to be vulnerable to innuendo, rumor, harassment, or 
retaliation.
    (4) Confidential sources and information. We may withhold records 
whose release could reasonably be expected to disclose the identity of 
a confidential source of information. A confidential source may be an 
individual; a state, local or foreign Government agency; or any private 
organization. The exemption applies whether the source provides 
information under an express promise of confidentiality or under 
circumstances from which such an assurance could be reasonably 
inferred. Also, where the record or information in it has been compiled 
by a criminal law enforcement authority conducting a criminal 
investigation or by an agency conducting a lawful national security 
investigation, the exemption also protects all information supplied by 
a confidential source. Also protected from mandatory disclosure is any 
information which, if disclosed, could reasonably be expected to 
jeopardize the system of confidentiality that assures a flow of 
information from sources to investigatory agencies.
    (5) Techniques and procedures. We may withhold records reflecting 
special techniques or procedures of investigation or prosecution not 
otherwise generally known to the public. In some cases, it is not 
possible to describe even in general terms those techniques without 
disclosing the very material to be withheld. We may also withhold 
records whose release would disclose guidelines for law enforcement 
investigations or prosecutions if this disclosure could reasonably be 
expected to create a risk that someone could circumvent requirements of 
law or of regulation.
    (6) Life and physical safety. We may withhold records whose 
disclosure could reasonably be expected to endanger the life or 
physical safety of any individual. This protection extends to threats 
and harassment as well as to physical violence.
    (h) Exemptions eight and nine--records on financial institutions 
and records on wells. (1) Exemption eight permits us to withhold 
records about regulation or supervision of financial institutions.
    (2) Exemption nine permits the withholding of geological and 
geophysical information and data, including maps concerning wells.


Sec. 503.9  Electronic records.

    (a) Introduction. This section applies to all records of the BBG, 
including all of its worldwide operations. Congress enacted the FOIA to 
require Federal agencies to make records available to the public 
through public inspections and at the request of any person for any 
public or private use. The increase in the Government's use of 
computers enhances the public's access to Government information. This 
section addresses and explains how records will be reviewed and 
released when the records are maintained in electronic format. 
Documentation not previously subject to the FOIA when maintained in a 
non-electronic format is not made subject to FOIA by this law.
    (b) Definitions.--(1) Compelling need. Obtaining records on an 
expedited basis because of an imminent threat to the life or physical 
safety of an individual, or urgently needed by an individual primarily 
engaged in disseminating information to the public concerning actual or 
alleged Federal Government activities.
    (2) Discretionary disclosure. Records or information normally 
exempt from disclosure will be released whenever it is possible to do 
so without reasonably foreseeable harm to any interest protected by an 
FOIA exemption.
    (3) Electronic reading room. The room provided which makes 
electronic records available.
    (c) Electronic format of records. (1) Materials such as agency 
opinions and policy statements (available for public inspection and 
copying) will be available electronically by accessing the BBG's Home 
Page via the Internet at http://www.ibb.gov. To set up an appointment 
to view such records in hard copy or to access the Internet via the BBG 
s computer, please contact the FOIA/Primary Act Officer at (202) 260-
4404.
    (2) We will make available for public inspection and copying, both 
electronically via the Internet and in hard copy, those records that 
have been previously released in response to FOIA requests, when we 
determine the records have been or are likely to be the subject of 
future requests.
    (3) We will provide both electronically through our Internet 
address and in hard copy a ``Guide'' on how to make an FOIA request, 
and an Index of all Agency information systems and records that may be 
requested under the FOIA.
    (4) We may delete identifying details when we publish or make 
available the index and copies of previously-released records to 
prevent a clearly unwarranted invasion of personal privacy.
    (i) We will indicate the extent of any deletions made from the 
place the deletion was made, if possible.
    (ii) We will not reveal information about deletions if such 
disclosure would harm an interest protected by an exemption.
    (d) Honoring form or format requests. We will aid requesters by 
providing records and information in the form requested, including 
electronic format, if we can readily reproduce them in that form or 
format. However, if we cannot accommodate you, we will provide 
responsive, nonexempt information in a reasonably accessible form.
    (1) We will make a reasonable effort to search for records kept in 
an electronic format. However, if the effort would significantly 
interfere with the operations of the agency or the agency's use of its 
computers, we will consider the effort to be unreasonable.
    (2) We need not create documents that do not exist, but computer 
records found in a database rather than in a file cabinet may require 
the application of codes or some form of programming to retrieve the 
information. This application of codes or programming of records will 
not amount to the creation of records.
    (3) Except in unusual cases, the cost of computer time will not be 
a factor in calculating the two free hours of search time available 
under ``503.7. In those unusual cases, where the cost of conducting a 
computerized search significantly detracts from the agency's ordinary 
operations, no more than the dollar cost of two hours of manual search 
time shall be allowed. For searches conducted beyond the first two 
hours, the agency shall only charge the direct costs of conducting such 
searches.
    (e) Technical feasibility of redacting non-releasable material. We 
will make every effort to indicate the place on the record where a 
redaction of non-releasable material is made, and an FOIA citation 
noting the applicable exemption for the deletion will also be placed at 
the site. If unable to do so, we will notify you of that fact.
    (f) Ensuring timely response to request. We will make every attempt 
to respond to FOIA requests within the prescribed 20 working-day time 
limit. However, processing some requests may require additional time in 
order to properly screen material against the inadvertent disclosure of 
material covered by the exemptions.
    (1) Multitrack first-in first-out processing. (i) Because the 
agency

[[Page 16633]]

expects to be able to process its requests without a backlog of cases, 
BBG will not institute a multitract system. Those cases that may be 
handled easily, because they require only a few documents or a simple 
answer, will be handled immediately by an FOIA specialist.
    (ii) If you wish to qualify for faster processing, you may limit 
the scope of your request so that we may respond more quickly.
    (2) Unusual circumstances. (i) The agency may extend for a maximum 
of ten working days the statutory time limit for responding to an FOIA 
request by giving notice in writing as to the reason for such an 
extension. The reasons for such an extension may include: the need to 
search for and collect requested records from multiple offices; the 
volume of records requested; and, the need for consultation with other 
components within the agency.
    (ii) If an extra ten days still does not provide sufficient time 
for the Agency to deal with your request, we will inform you that the 
request cannot be processed within the statutory time limit and provide 
you with the opportunity to limit the scope of your request and/or 
arrange with us a negotiated deadline for processing your request.
    (iii) If you refuse to reasonably limit the scope of your request 
or refuse to agree upon a time frame, the agency will process your 
case, as it would have, had no modification been sought. We will make a 
diligent, good-faith effort to complete our review within the statutory 
time frame.
    (3) Grouping of requests. We will group together requests that 
clearly involve related material that should be considered as a single 
request.
    (i) If you make multiple or related requests for similar material 
for the purpose of avoiding costs, we will notify you that we are 
grouping together your requests, and the reasons why.
    (ii) Multiple or related requests may also be grouped, such as 
those involving requests and schedules but you will be notified in 
advance if we intend to do so.
    (g) Time periods for agency consideration of requests.--(1) 
Expedited access. We will authorize expedited access to requesters who 
show a compelling need for access, but the burden is on the requester 
to prove that expedition is appropriate. We will determine within ten 
days whether or not to grant a request for expedited access and we will 
notify the requester of our decision.
    (2) Compelling need for expedited access. Failure to obtain the 
records within an expedited deadline must pose an imminent threat to an 
individual's life or physical safety; or the request must be made by 
someone primarily engaged in disseminating information, and who has an 
urgency to inform the public about actual or alleged Federal Government 
activity.
    (3) How to request expedited access. We will be required to make 
factual and subjective judgments about the circumstances cited by 
requesters to qualify them for expedited processing. To request 
expedited access, your request must be in writing and it must explain 
in detail your basis for seeking expedited access. The categories for 
compelling need are intended to be narrowly applied:
    (i) A threat to an individual's life or physical safety. A threat 
to an individual's life or physical safety should be imminent to 
qualify for expedited access to the records. You must include the 
reason why a delay in obtaining the information could reasonably be 
foreseen to cause significant adverse consequences to a recognized 
interest.
    (ii) Urgency to inform. The information requested should pertain to 
a matter of a current exigency to the American public, where delay in 
response would compromise a significant recognized interest. The person 
requesting expedited access under an ``urgency to inform,'' must be 
primarily engaged in the dissemination of information. This does not 
include individuals who are engaged only incidentally in the 
dissemination of information. ``Primarily engaged'' requires that 
information dissemination be the main activity of the requester. A 
requester only incidentally engaged in information dissemination, 
besides other activities, would not satisfy this requirement. The 
public's right to know, although a significant and important value, 
would not by itself be sufficient to satisfy this standard.
    (4) Estimation of matter denied. The agency will try to estimate 
the volume of any denied material and provide the estimate to the 
requester, unless doing so would harm an interest protected by an 
exemption.
    (h) Computer redaction. The agency will identify the location of 
deletions in the released portion of the records, and where 
technologically possible, will show the deletion at the place on the 
record where the deletion was made, unless including that indication 
would harm an interest protected by an exemption.
    (i) Annual report on FOIA activities. Reports on FOIA activities 
are submitted each fiscal year to the Department of Justice, and are 
due by February 1 of every year. The BBG's report will be available 
both in hard copy and through the Internet. The Department of Justice 
will also report all Federal agency FOIA activity through electronic 
means.
    (j) Reference materials and guides. The agency has available in 
hard copy, and electronically through the Internet, a guide for 
requesting records under the FOIA, and an index and description of all 
major information systems of the agency. The guide is a simple 
explanation of what the FOIA is intended to do, and how you can use it 
to access BBG records. The Index explains the types of records that may 
be requested from the Agency through FOIA requests and why some records 
cannot, by law, be made available by the BBG.

[FR Doc. 01-7339 Filed 3-26-01; 8:45 am]
BILLING CODE 8610-01-P