[Federal Register Volume 67, Number 221 (Friday, November 15, 2002)]
[Proposed Rules]
[Pages 69172-69176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28900]


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AMERICAN BATTLE MONUMENTS COMMISSION

36 CFR Part 404


Revision of the Freedom of Information Act Regulations and 
Implementation of the Electronic Freedom of Information Act Amendments 
of 1996

AGENCY: American Battle Monuments Commission.

ACTION: Proposed rule.

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SUMMARY: The American Battle Monuments Commission proposes to revise 
its regulations for responding to public requests for access to records 
or information under the Freedom of Information Act (FOIA). These 
regulations update and amplify the Commission's current regulations.

DATES: We will accept comments from all interested parties until 
January 14, 2003.

ADDRESSES: Submit your comments to Mr. Thomas R. Sole, FOIA Officer, 
Courthouse Plaza II, Suite 500, 2300 Clarendon Boulevard, Arlington, VA 
22201-3367; fax (703) 696-6666. All comments received will be available 
for public inspection at that address.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas R. Sole, Freedom of 
Information Officer, American Battle Monuments Commission or Ms. Martha 
Sell, Freedom of Information Act Representative, Courthouse Plaza II, 
Suite 500, 2300 Clarendon Blvd., Arlington, VA 22202 or by telephone at 
703-696-6897.

SUPPLEMENTARY INFORMATION: This proposed rule replaces 36 CFR Parts 404 
and 405. It updates Commission addresses, organizational information, 
and fee schedule and explicitly incorporates electronic format 
information as within the scope of covered information consistent with 
the Electronic Freedom of Information Act of 1996 (Pub. L. 104-231).

List of Subjects in 36 CFR Parts 404 and 405

    Freedom of information.

    For the reasons stated in the preamble, the American Battle 
Monuments Commission amends 36 CFR chapter IV as follows:
    1. Revise part 404 to read as follows:

PART 404--PROCEDURES AND GUIDELINES FOR COMPLIANCE WITH THE FREEDOM 
OF INFORMATION ACT

Sec.
404.1 General.
404.2 Authority and functions.
404.3 Organization.
404.4. Access to information.
404.5 Inspection and copying.
404.6 Definitions.
404.7 Fees to be charged--general.
404.8 Fees to be charged--categories of requesters.
404.9 Miscellaneous fee provisions.
404.10 Waiver or reduction of charges.

    Authority: 5 U.S.C. 552.


Sec.  404.1  General.

    This information is furnished for the guidance of the public and in 
compliance with the requirements of section 552 of Title 5, United 
States Code, as amended.


Sec.  404.2  Authority and functions.

    The general functions of the American Battle Monuments Commission, 
as provided by statute, 36 U.S.C. 2101, et seq., are to build and 
maintain suitable memorials commemorating the service of American Armed 
Forces and to maintain permanent American military cemeteries in 
foreign countries.


Sec.  404.3  Organization.

    (a) The brief description of the central organization of the 
American Battle Monuments Commission follows:

[[Page 69173]]

    (1) The Commission is composed of not more than eleven members 
appointed by the President.
    (2) The day to day operation of the Commission is under the 
direction of a secretary appointed by the President.
    (3) Principal Officials include the Executive Director, Director of 
Finance, Director of Procurement and Contracting, Director of 
Engineering, Maintenance, and Operations and Director of Personnel and 
Administration.
    (4) The Commission also creates temporary offices when tasked with 
major additional responsibilities not of a permanent nature.
    (b) Locations. (1) The principal offices of the American Battle 
Monuments Commission are located at Courthouse Plaza II, Suite 500, 
2300 Clarendon Boulevard, Arlington, VA 22201. Persons desiring to 
visit offices or employees of the American Battle Monuments Commission 
should write or telephone ahead (703-696-6897 or 703-696-6895) to make 
an appointment.
    (2) Field offices are located in Paris, France; Rome, Italy; 
Manila, Republic of the Philippines; the Republic of Panama; and Mexico 
City, Mexico.


Sec.  404.4  Access to information.

    (a) The American Battle Monuments Commission makes available 
information pertaining to Commission matters within the scope of 5 
U.S.C. 552(a)(2) by publishing them electronically at the ABMC home 
page at www.abmc.gov.
    (b) The ABMC FOIA Officer is responsible for acting on all initial 
requests. Individuals wishing to file a request under the Freedom of 
Information Act (FOIA) should address their request in writing to the 
FOIA Officer, American Battle Monuments Commission, Courthouse Plaza 
II, Suite 500, 2300 Clarendon Boulevard, Arlington, VA 22201 (telephone 
703-696-6897 or 703-696-6895). Requests for information shall be as 
specific as possible.
    (c) Upon receipt of any request for information or records, the 
FOIA Officer will determine within 20 days (excepting Saturdays, 
Sundays and legal public holidays) after the receipt of such request 
whether it is appropriate to grant the request and will immediately 
provide written notification to the person making the request. If the 
request is denied, the written notification to the person making the 
request shall include the names of the individuals who participated in 
the determination, the reasons for the denial, and a notice that an 
appeal may be lodged within the American Battle Monuments Commission. 
(Receipt of a request as used herein means the date the request is 
received in the office of the FOIA Officer.)
    (d) Expedited processing. (1) Requests and appeals will be taken 
out of order and given expedited treatment whenever it is determined 
that 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) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity which 
effect public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time.
    (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 (d)(1)(ii) 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 (d)(1)(ii) of this section also must 
establish a particular urgency to inform the public about the 
government activity involved in the request, beyond the public's right 
to know about government activity generally. The formality of 
certification may be waived as a matter of administrative discretion.
    (4) Within ten days of its receipt of a request for expedited 
processing, ABMC will decide whether to grant it and will notify the 
requester of the decision. If a request for expedited treatment is 
granted, the request will be given priority and will be processed as 
soon as practicable. If a request for expedited processing is denied, 
any appeal of that decision will be acted on expeditiously.
    (e) Appeals shall be set forth in writing within 30 days of receipt 
of a denial and addressed to the FOIA Officer at the address specified 
in paragraph (b) of this section. The appeal shall include a statement 
explaining the basis for the appeal. Determinations of appeals will be 
set forth in writing and signed by the Executive Director, or his 
designee, within 20 days (excepting Saturdays, Sundays, and legal 
public holidays). If, on appeal, the denial is in whole or in part 
upheld, the written determination will also contain a notification of 
the provisions for judicial review and the names of the persons who 
participated in the determination.
    (f) In unusual circumstances, the time limits prescribed in 
paragraphs (c) and (e) of this section may be extended for not more 
than 10 days (excepting Saturdays, Sundays, or legal public holidays). 
Extensions may be granted by the FOIA Officer. The extension period may 
be split between the initial request and the appeal but in no instance 
may the total period exceed 10 working days. Extensions will be by 
written notice to the persons making the request and will set forth the 
reasons for the extension and the date the determination is expected.
    (g) With respect to a request for which a written notice under 
paragraph (f) of this section extends the time limits prescribed under 
paragraph (c) of this section, the agency shall notify the person 
making the request if the request cannot be processed within the time 
limit specified in paragraph (f) of this section and shall provide the 
person an opportunity to limit the scope of the request so that it may 
be processed within that time limit or an opportunity to arrange with 
the agency an alternative time frame for processing the request or a 
modified request. Refusal by the person to reasonably modify the 
request or arrange such an alternative time frame shall be considered 
as a factor in determining whether exceptional circumstances exist for 
purposes of 5 U.S.C. 552(a)(6)(C). When ABMC reasonably believes that a 
requester, or a group of requestors acting in concert, has submitted 
requests that constitute a single request, involving clearly related 
matters, ABMC may aggregate those requests for purposes of this 
paragraph. One element to be considered in determining whether a belief 
would be reasonable is the time period over which the requests have 
occurred.
    (h) As used herein, but only to the extent reasonably necessary to 
the proper processing of the particular request, the term unusual 
circumstances means:
    (1) The need to search for and collect the requested records from 
establishments that are separated from the office processing the 
request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records

[[Page 69174]]

which are demanded in a single request; or


The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency which have a substantial subject matter interest therein.


Sec.  404.5  Inspection and copying.

    When a request for information has been approved pursuant to Sec.  
404.4, the person making the request may make an appointment to inspect 
or copy the materials requested during regular business hours by 
writing or telephoning the FOIA Officer at the address or telephone 
number listed in Sec.  404.4(b). Such materials may be copied and 
reasonable facilities will be made available for that purpose. Copies 
of individual pages of such materials will be made available at the 
price per page specified in Sec.  404.7(d); however, the right is 
reserved to limit to a reasonable quantity the copies of such materials 
which may be made available in this manner when copies also are offered 
for sale by the Superintendent of Documents.


Sec.  404.6  Definitions.

    For the purpose of the regulations in this part:
    (a) All the terms defined in the Freedom of Information Act apply.
    (b) A statute specifically providing for setting the level of fees 
for particular types of records (5 U.S.C. 552(a)(4)(A)(vi)) means any 
statute that specifically requires a government agency, such as the 
Government Printing Office (GPO) or the National Technical Information 
Service (NTIS), to set the level of fees for particular types of 
records, in order to:
    (1) Serve both the general public and private sector organizations 
by conveniently making available government information;
    (2) Ensure that groups and individuals pay the cost of publications 
and other services that are for their special use so that these costs 
are not borne by the general taxpaying public;
    (3) Operate an information dissemination activity on a self-
sustaining basis to the maximum extent possible; or
    (4) Return revenue to the Treasury for defraying, wholly or in 
part, appropriated funds used to pay the cost of disseminating 
government information. Statutes, such as the User Fee Statute, which 
only provide a general discussion of fees without explicitly requiring 
that an agency set and collect fees for particular documents do not 
supersede the Freedom of Information Act under section (a)(4)(A)(vi) of 
that statute.
    (c) The term direct costs means those expenditures that ABMC 
actually incurs in searching for and duplicating (and in the case of 
commercial requesters, reviewing) documents to respond to a FOIA 
request. Direct costs include, for example, the salary of the employee 
performing work (the basic rate of pay for the employee plus 16 percent 
of that rate to cover benefits) and the cost of operating duplicating 
machinery. Not included in direct costs are overhead expenses such as 
costs of space, and heating or lighting the facility in which the 
records are stored.
    (d) The term 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. ABMC employees 
should ensure that searching for material is done in the most efficient 
and least expensive manner so as to minimize costs for both the agency 
and the requester. For example, employees should not engage in line-by-
line search when merely duplicating an entire document would prove the 
less expensive and quicker method of complying with a request. Search 
should be distinguished, moreover, from review of material in order to 
determine whether the material is exempt from disclosure (see paragraph 
(f) of this section).
    (e) The term duplication means the making of a copy of a document, 
or of the information contained in it, necessary to respond to a FOIA 
request. Such copies can take the form of paper, microform, audio-
visual materials, or electronic records (e.g., magnetic tape or disk), 
among others. The requester's specified preference of form or format of 
disclosure will be honored if the record is readily reproducible in 
that format.
    (f) The term review refers to the process of examining documents 
located in response to a request that is for a commercial use (see 
paragraph (g) of this section) to determine whether any portion of any 
document located is permitted to be withheld. It also includes 
processing any documents for disclosure, e.g., doing all that is 
necessary to excise them and otherwise prepare them for release. Review 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (g) The term commercial use request refers to a request 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 the 
person on whose behalf the request is made. In determining whether a 
requester properly belongs in this category, ABMC must determine the 
use to which a requester will put the documents requested. Moreover, 
where an ABMC employee has reasonable cause to doubt the use to which a 
requester will put the records sought, or where that use is not clear 
from the request itself, the employee should seek additional 
clarification before assigning the request to a specific category.
    (h) The term educational institution refers to a preschool, a 
public or private elementary or secondary school, an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, that operates a program or programs of 
scholarly research.
    (i) The term non-commercial scientific institution refers to an 
institution that is not operated on a commercial basis (as that term is 
referenced in paragraph (g) 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.
    The term representative of the news media refers to 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 in those instances when they can 
qualify as disseminators of news) who make their products available for 
purchase or subscription by the general public. These examples are not 
intended to be all-inclusive. Moreover, as traditional methods of news 
delivery evolve (e.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in this category. In the case of freelance journalists, they may be 
regarded as working for a news organization if they can demonstrate a 
solid basis for expecting publication through that organization, even 
though not actually employed by it. A publication contract would be the 
clearest proof, but ABMC may also look to the past publication

[[Page 69175]]

record of a requester in making this determination.


Sec.  404.7  Fees to be charged--general.

    ABMC shall charge fees that recoup the full allowable direct costs 
it incurs. Moreover, it shall use the most efficient and least costly 
methods to comply with requests for documents made under the FOIA. When 
documents that would be responsive to a request are maintained for 
distribution by agencies operating statutory-based fee schedule 
programs (see definition in Sec. 404.5(b)), such as the NTIS, ABMC 
should inform requesters of the steps necessary to obtain records from 
those sources.
    (a) Manual searches for records. ABMC will charge at the salary 
rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the 
search.
    (b) Computer searches for records. ABMC will charge at the actual 
direct cost of providing the service. This will include the cost of 
operating the central processing unit (CPU) for that portion of 
operating time that is directly attributable to searching for records 
responsive to a FOIA request and operator/programmer salary 
apportionable to the search.
    (c) Review of records. Only requesters who are seeking documents 
for commercial use may be charged for time spent reviewing records to 
determine whether they are exempt from mandatory disclosure. Charges 
may be assessed only for the initial review; i.e., the review 
undertaken the first time ABMC analyzes the applicability of a specific 
exemption to a particular record or portion of a record. Records or 
portions of records withheld in full under an exemption that is 
subsequently determined not to apply may be reviewed again to determine 
the applicability of other exemptions not previously considered. The 
costs for such a subsequent review is assessable.
    (d) Duplication of records. Records will be duplicated at a rate of 
$.15 per page. For copies prepared by computer, such as tapes or 
printouts, ABMC shall charge the actual cost, including operator time, 
of production of the tape or printout. For other methods of 
reproduction or duplication, ABMC will charge the actual direct costs 
of producing the document(s). If ABMC estimates that duplication 
charges are likely to exceed $25, it shall notify the requester of the 
estimated amount of fees, unless the requester has indicated in advance 
his willingness to pay fees as high as those anticipated. Such a notice 
shall offer a requester the opportunity to confer with agency personnel 
with the object of reformulating the request to meet his or her needs 
at a lower cost.
    (e) Other charges. ABMC will recover the full costs of providing 
services such as those enumerated below when it elects to provide them:
    (1) Certifying that records are true copies;
    (2) Sending records by special methods such as express mail.
    (3) Eight by ten inch black and white photographs--$3.75
    (4) Eight by ten inch color photographs--$5.00
    (5) $1.50 per publication
    (6) Video Purchase: The Price of Freedom--$13.00
    (f) Remittances shall be in the form either of a personal check or 
bank draft drawn on a bank in the United States, or a postal money 
order. Remittances shall be made payable to the order of the Treasury 
of the United States and mailed to the FOIA Officer, American Battle 
Monuments Commission, Courthouse Plaza II, Suite 500, 2300 Clarendon 
Blvd., Arlington, Virginia 22201.
    (g) A receipt for fees paid will be given upon request. Refund of 
fees paid for services actually rendered will not be made.
    (h) Restrictions on assessing fees. With the exception of 
requesters seeking documents for a commercial use, ABMC will provide 
the first 100 pages of duplication and the first two hours of search 
time without charge. Moreover, ABMC will not charge fees to any 
requester, including commercial use requesters, if the cost of 
collecting a fee would be equal to or greater than the fee itself.
    (1) The elements to be considered in determining the cost of 
collecting a fee are the administrative costs of receiving and 
recording a requester's remittance, and processing the fee for deposit 
in the Treasury Department's special account.
    (2) For purposes of these restrictions on assessment of fees, the 
word pages refers to paper copies of 8\1/2\ x 11 or 11 x 14. Thus, 
requesters are not entitled to 100 microfiche or 100 computer disks, 
for example. A microfiche containing the equivalent of 100 pages or 100 
pages of computer printout, does meet the terms of the restriction.
    (3) Similarly, the term search time in this context has as its 
basis, manual search. To apply this term to searches made by computer, 
ABMC will determine the hourly cost of operating the central processing 
unit and the operator's hourly salary plus 16 percent. When the cost of 
search (including the operator time and the cost of operating the 
computer to process a request) equals the equivalent dollar amount of 
two hours of the salary of the person performing the search, i.e., the 
operator, ABMC will begin assessing charges for computer search.


Sec.  404.8  Fees to be charged--categories of requesters.

    There are four categories of FOIA requesters: commercial use 
requesters; educational and non-commercial scientific institutions; 
representatives of the news media; and all other requesters. The 
specific levels of fees for each of these categories:
    (a) Commercial use requesters. When ABMC receives a request for 
documents for commercial use, it will assess charges that recover the 
full direct costs of searching for, reviewing for release, and 
duplicating the record sought. Requesters must reasonably describe the 
records sought. Commercial use requesters are not entitled to two hours 
of free search time nor 100 free pages of reproduction of documents. 
ABMC may recover the cost of searching for and reviewing records even 
if there is ultimately no disclosure of records (see Sec.  404.8(b)).
    (b) Educational and non-commercial scientific institution 
requesters. ABMC shall provide documents to requesters in this category 
for the cost of reproduction alone, excluding charges for the first 100 
pages. To be eligible for inclusion in this category, requesters must 
show that the request is being made as authorized by and under the 
auspices of a qualifying institution and that the records are not 
sought for a commercial use, but are sought in furtherance of scholarly 
(if the request is from an educational institution) or scientific (if 
the request is from a non-commercial scientific institution) research. 
Requesters must reasonably describe the records sought.
    (c) Requesters who are representatives of the news media. ABMC 
shall provide documents to requesters in this category when serving the 
news dissemination function for the cost of reproduction alone, 
excluding charges for the first 100 pages. To be eligible for inclusion 
in this category, a requester must meet the criteria in Sec.  404.4(j), 
and his or her request must not be made for a commercial use. In 
reference to this class of requester, a request for records supporting 
the news dissemination function of the requester shall not be 
considered to be a request that is for a commercial use. Requesters 
must reasonably describe the records sought.
    (d) All other requesters. ABMC shall charge requesters who do not 
fit into any of the categories above fees that recover the full 
reasonable direct cost of searching for and reproducing records

[[Page 69176]]

that are responsive to the request, except that the first 100 pages of 
reproduction and the first two hours of search time shall be furnished 
without charge. Moreover, requests for records about the requesters 
filed in ABMC's systems of records will continue to be treated under 
the fee provisions of the Privacy Act of 1974 which permit fees only 
for reproduction. Requesters must reasonably describe the records 
sought.


Sec.  404.9  Miscellaneous fee provisions.

    (a) Charging interest--notice and rate. ABMC may begin assessing 
interest charges on an unpaid bill starting on the 31st day following 
the day on which the billing was sent. The fact that the fee has been 
received by ABMC within the thirty day grace period, even if not 
processed, will suffice to stay the accrual of interest. Interest will 
be at the rate prescribed in section 3717 of Title 31 of the United 
States Code and will accrue from the date of the billing.
    (b) Charges for unsuccessful search. ABMC may assess charges for 
time spent searching, even if it fails to locate the records or if 
records located are determined to be exempt from disclosure. If ABMC 
estimates that search charges are likely to exceed $25, it shall notify 
the requester of the estimated amount of fees, unless the requester has 
indicated in advance his willingness to pay fees as high as those 
anticipated. Such a notice shall offer the requester the opportunity to 
confer with agency personnel with the object of reformulating the 
request to meet his or her needs at a lower cost.
    (c) Aggregating requests. A requester may not file multiple 
requests at the same time, each seeking portions of a document or 
documents, solely in order to avoid payment of fees. When ABMC 
reasonably believes that a requester, or a group of requestors acting 
in concert, has submitted requests that constitute a single request, 
involving clearly related matters, ABMC may aggregate those requests 
and charge accordingly. One element to be considered in determining 
whether a belief would be reasonable is the time period over which the 
requests have occurred.
    (d) Advance payments. ABMC may not require a requester to make an 
advance payment, i.e., payment before work is commenced or continued on 
a request, unless:
    (1) ABMC estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250. Then, ABMC 
will notify the requester of the likely cost and obtain satisfactory 
assurance of full payment where the requester has a history of prompt 
payment of FOIA fees, or require an advance payment of an amount up to 
the full estimated charges in the case of requesters with no history of 
payment; or
    (2) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing). Then, 
ABMC may require the requester to pay the full amount owed plus any 
applicable interest as provided above or demonstrate that he or she 
has, in fact, paid the fee, and to make an advance payment of the full 
amount of the estimated fee before the agency begins to process a new 
request or a pending request from that requester.
    (3) When ABMC acts under paragraph (d)(1) or (2) of this section, 
the administrative time limits prescribed in the FOIA, 5 U.S.C. 
552(a)(6) (i.e., 20 working days from receipt of initial requests and 
20 working days from receipt of appeals from initial denial, plus 
permissible extensions of these time limits), will begin only after 
ABMC has received fee payments described in paragraphs (d)(1) and (2) 
of this section.
    (e) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). 
ABMC should comply with provisions of the Debt Collection Act, 
including disclosure to consumer reporting agencies and use of 
collection agencies, where appropriate, to encourage repayment.


Sec.  404.10  Waiver or reduction of charges.

    Fees otherwise chargeable in connection with a request for 
disclosure of a record shall be waived or reduced where it is 
determined that disclosure is in the public interest because it is 
likely to contribute significantly to public understanding of the 
operations or activities of the Government and is not primarily in the 
commercial interest of the requester.

PART 405--[REMOVED]

    2. Remove part 405.

    Dated: November 5, 2002.
Theodore Gloukhoff,
Director, Personnel and Administration.
[FR Doc. 02-28900 Filed 11-14-02; 8:45 am]
BILLING CODE 6120-01-P