[Federal Register Volume 73, Number 120 (Friday, June 20, 2008)]
[Rules and Regulations]
[Pages 35063-35066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14034]


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EXECUTIVE OFFICE OF THE PRESIDENT

Office of the United States Trade Representative

15 CFR Part 2004


Freedom of Information Act

AGENCY: Office of the United States Trade Representative, Executive 
Office of the President.

ACTION: Final rule.

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SUMMARY: The Office of the United States Trade Representative (USTR) is 
issuing a final rule to update its Freedom of Information Act (FOIA) 
regulations. USTR last made changes to its FOIA regulations in 1975. 
Since that time the information relating to USTR has changed and there 
have been several changes to the FOIA, which needed to be reflected in 
the regulations.

DATES: Effective Date: July 21, 2008.

FOR FURTHER INFORMATION CONTACT: David Apol, USTR, telephone (202) 395-
9633, FAX (202) 395-3640.

SUPPLEMENTARY INFORMATION: USTR last made changes to its FOIA 
regulations in 1975. 40 FR 30934, Jul. 24, 1975.
    Since that time, pertinent information relating to USTR has changed 
and USTR has made changes in the way it implements the FOIA. In 
addition, Executive Order 13392 mandated changes in federal agency FOIA 
practices to ensure prompt and effective response to the public's 
requests for information. 70 FR 75373, Dec. 19, 2005. Finally, Public 
Law 110-175, the OPEN Government Act of 2007, amended the definition of 
``representative of the news media'' and made other changes to the 
FOIA.
    In response to Executive Order 13392, USTR created a FOIA plan 
requiring it to revise its FOIA regulations and to improve the 
efficiency of information disclosure under the FOIA. On February 14, 
2008, USTR published a proposed rule in the Federal Register, 73 FR 
8629, to amend its FOIA regulations and requested public comments. USTR 
received no comments during the 60-day comment period. USTR's final 
regulations are identical to those in the proposed rule.
    This final rule updates USTR's FOIA regulations to provide current 
information about USTR and to more accurately reflect its FOIA 
practices. The final rule also brings USTR's fee structure into 
conformity with the Office of Management and Budget's (OMB's) Uniform 
Freedom of Information Act Fee Schedule and Guidelines, 52 FR 10012, 
Mar. 27, 1987. The final rule also incorporates changes made by the 
OPEN Government Act of 2007.

Executive Order 12866

    The United States Trade Representative certifies that the final 
rule is not significant for purposes of Executive Order 12866, 58 FR 
51735, Oct. 4, 1993. Therefore, OMB has not reviewed the final rule 
under that Executive Order.

Regulatory Flexibility Act

    The United States Trade Representative certifies that this final 
rule is not subject to the Regulatory Flexibility Act, 5 U.S.C. 601, 
because it will not have a significant economic impact on a substantial 
number of small entities. For this reason, USTR has not prepared a 
Regulatory Flexibility Statement and Analysis.

Paperwork Reduction Act

    The United States Trade Representative certifies that the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., does not apply because the final 
rule does not seek to collect information. Therefore, it does not 
require OMB approval.

0
For the reasons stated in the preamble, USTR revises 15 CFR Part 2004 
to read as follows:

PART 2004--FREEDOM OF INFORMATION POLICIES AND PROCEDURES

Organization

Sec.
2004.1 In general.
2004.2 Authority and functions.
2004.3 Organization.

Procedures

2004.4 Availability of records.
2004.5 Accessing records without request.
2004.6 Requesting records.

Costs

2004.7 Definitions.
2004.8 Fees in general.
2004.9 Fees for categories of requesters.
2004.10 Other charges.
2004.11 Payment and waiver.

    Authority: 5 U.S.C. 552; Uniform Freedom of Information Act Fee 
Schedule and Guidelines, 52 FR 10012, Mar. 27, 1987.

Organization


Sec.  2004.1  In general.

    This information is furnished for the guidance of the public and in 
compliance with the requirements of the Freedom of Information Act, 5 
U.S.C. 552, as amended (FOIA). This regulation should be read in 
conjunction with the FOIA.


Sec.  2004.2  Authority and functions.

    The Office of the United States Trade Representative (USTR) 
negotiates directly with foreign governments to conclude trade 
agreements, and resolve trade disputes, and participates in global 
trade policy organizations. USTR consults with governments, business 
groups, legislators, and public interest groups to obtain their views 
on trade issues and explain the President's trade policy positions. The 
general functions of USTR, as provided by statute, are to develop and 
coordinate international trade and direct investment policy, advise and 
assist the President, represent the United States in international 
trade negotiations, and provide policy guidance to federal agencies on 
international trade matters. The United States Trade Representative, a 
cabinet officer, serves as a vice chairman of the Overseas Private 
Investment Corporation, a Board member of the Millennium Challenge 
Corporation, a non-voting member of the Export-Import Bank, and a 
member of the National Advisory Council on International Monetary and 
Financial Policies.


Sec.  2004.3  Organization.

    USTR's main office is located in Washington, DC. It also maintains 
a mission in Geneva, Switzerland.

[[Page 35064]]

Procedures


Sec.  2004.4  Availability of records.

    USTR's publicly accessible records are available through USTR's 
public reading room or its Web site. USTR also provides records to 
individual requesters in response to FOIA requests. USTR generally 
withholds predecisional, deliberative documents and classified trade 
negotiating and policy documents under 5 U.S.C. 552(b).


Sec.  2004.5  Accessing records without request.

    (a) Public reading room. USTR maintains and makes available for 
public inspection and copying USTR records pertaining to matters within 
the scope of 5 U.S.C. 552(a)(2), as amended. Most records in USTR's 
public reading room comprise responses to Federal Register notices that 
USTR has issued. USTR's public reading room is located at 1724 F 
Street, NW., Washington, DC. Access to the reading room is by 
appointment only. Contact USTR's FOIA Officer at (202) 395-6186 to set 
up an appointment.
    (b) Electronic resources. Certain USTR records, including press 
releases and other public issuances, are available electronically from 
USTR's homepage at http://www.ustr.gov. USTR encourages requesters to 
visit its Web site before making a request for records under Sec.  
2004.6.


Sec.  2004.6  Requesting records.

    (a) Written requests required. For records not available as 
described under Sec.  2004.5, requesters wishing to obtain information 
from USTR must submit a written request to USTR's FOIA Officer. 
Requests should be addressed to FOIA Officer, Office of the United 
States Trade Representative, 600 17th Street, NW., Washington, DC 
20508. As there may be delays in mail delivery, it is advisable to send 
request via facsimile to (202) 395-9458.
    (b) Contents of requests. Requests shall be as specific as possible 
and shall reasonably describe the records sought so that the records 
can be located with a reasonable amount of effort. The request should 
identify the desired record or reasonably describe it and should 
include information such as the date, title or name, author, recipient, 
and subject matter of the record.
    (c) Response to requests--(1) Processing. The FOIA Officer shall 
ordinarily determine within 20 days (except Saturdays, Sundays, and 
federal holidays) after receiving a request for records, whether it is 
appropriate to grant or deny the request. The 20-day period may be 
tolled one time if the FOIA Officer requests information from the 
requestor or if additional time is necessary to clarify issues with the 
requestor regarding a fee assessment.
    (i) Request granted. If the FOIA Officer decides to grant the 
request, the FOIA Officer shall promptly provide the requester written 
notice of the decision. The FOIA Officer shall normally include with 
the notice both the requested records and a copy of the decision.
    (ii) Request denied. If the FOIA Officer denies the request, in 
full or part, the FOIA Officer shall provide the requester written 
notice of the denial together with the approximate number of pages of 
information withheld and the exemption under which the information was 
withheld. The notice shall also describe the procedure for filing an 
appeal.
    (2)(i) Expedited processing. At the time a requester submits an 
initial request for records the requester may ask the FOIA Officer in 
writing to expedite processing of the request. The request for 
expedited processing must be accompanied by a written statement, true 
and correct to the best of the requester's knowledge and belief, 
explaining why expedited processing is warranted. The FOIA Officer 
shall generally grant requests for expedited processing of requests for 
records, and appeals of denials under paragraph (d)(2) of this section, 
whenever the FOIA Officer determines that:
    (A) Failure to obtain the requested records on an expedited basis 
could reasonably pose an imminent threat to a person's life or physical 
safety; or
    (B) With respect to a request made by a person primarily engaged in 
disseminating information, there is an urgency to inform the public 
about government activity that is the specific subject of the FOIA 
request.
    (ii) The FOIA Officer shall ordinarily decide within ten days after 
receiving a request for expedited processing whether to grant it and 
shall notify the requester of the decision. If the FOIA Officer grants 
a request for expedited processing, the FOIA Officer shall process the 
request as soon as practicable. If the FOIA Officer denies a request 
for expedited processing, USTR shall act expeditiously on any appeal of 
the denial.
    (3) Extension for unusual circumstances--(i) In general. If the 
FOIA Officer determines that unusual circumstances exist, the FOIA 
Officer may extend for no more than ten days (except Saturdays, 
Sundays, and Federal holidays) the time limits described in paragraph 
(c)(1) of this section by providing written notice of the extension to 
the requester. The FOIA Officer shall include with the notice a brief 
statement of the reason for the extension and the date the FOIA Officer 
expects to make the determination.
    (ii) Additional procedures. The FOIA Officer shall provide written 
notice to the requester if the FOIA Officer decides that the 
determination cannot be made within the time limit described in 
paragraph (c)(3)(i) of this section. The notice shall afford the 
requester an opportunity to limit the scope of the request to the 
extent necessary for the FOIA Officer to process it within that time 
limit or an opportunity to arrange a longer period for processing the 
request.
    (d) Appeals--(1) Initiating appeals. Requesters not satisfied with 
the FOIA Officer's written decision may request USTR's FOIA Appeals 
Committee to review the decision. Appeals must be delivered in writing 
within 60 days of the date of the decision and shall be addressed to 
the FOIA Appeals Committee, Office of the United States Trade 
Representative, 600 17th Street, NW., Washington, DC 20508. As there 
may be delays in mail delivery, it is advisable to FAX appeals to (202) 
395-9458. An appeal shall include a statement specifying the records 
that are the subject of the appeal and explaining why the Committee 
should sustain the appeal.
    (2) Appeal decisions. The Committee shall ordinarily decide the 
appeal within 20 working days from the date it receives the appeal. If 
the Committee denies the appeal in full or part, the Committee shall 
promptly notify the requester in writing of the Committee's decision 
and the provisions for judicial review. If the Committee sustains the 
appeal, the FOIA Officer shall notify the requester in writing and 
shall make available to the requester copies of the releasable records 
once the requester pays any fees that USTR assesses under Sec. Sec.  
2004.8 through 2004.10.

Costs


Sec.  2004.7  Definitions.

    For purposes of these regulations:
    (a) ``Commercial use request'' means a request from or on behalf of 
a person who seeks information for a use or purpose that furthers the 
requester's or other person's commercial, trade, or profit interests.
    (b) ``Direct costs'' means those costs incurred in searching for 
and duplicating (and, in the case of commercial use requests, 
reviewing) documents to respond to a FOIA request. Direct costs 
include, for example, salaries of employees who

[[Page 35065]]

perform the work and costs of conducting large-scale computer searches.
    (c) ``Duplicate'' means to copy records to respond to a FOIA 
request. Copies can take the form of paper, audio-visual materials, or 
electronic records, among others.
    (d) ``Educational institution'' means 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, and an institution of vocational 
education, that operates a program or programs of scholarly research.
    (e) ``Non-commercial scientific institution'' means an institution 
that is not operated on a commercial basis and that operates solely for 
the purpose of conducting scientific research the results of which are 
not intended to promote any particular product or industry.
    (f) ``Representative of the news media'' means any person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience.
    (g) ``Review'' means to examine a record to determine whether any 
portion of the record may be withheld and to process a record for 
disclosure, including by redacting it.
    (h) ``Search for'' means look for and retrieve records covered by a 
FOIA request, including by looking page-by-page or line-by-line to 
identify responsive material within individual records.


Sec.  2004.8  Fees in general.

    USTR shall charge fees that recoup the full allowable direct costs 
it incurs in responding to FOIA requests. USTR may assess charges for 
time spent searching for records even if USTR fails to locate the 
records or if the records are located and determined to be exempt from 
disclosure. In general, USTR shall apply the following fee schedule, 
subject to Sec. Sec.  2004.9 through 2004.11:
    (a) Manual searches. Time devoted to manual searches shall be 
charged on the basis of the salary of the employee(s) conducting the 
search (basic hourly rate(s) of pay for the employee(s), plus 16 
percent).
    (b) Electronic searches. Fees shall reflect the direct cost of 
conducting the search. This will include the cost of operating the 
central processing unit for that portion of operating time that is 
directly attributable to searching for and printing records responsive 
to the FOIA request and operator/programmer salary attributable to the 
search.
    (c) Record reviews. Time devoted to reviewing records shall be 
charged on the same basis as under paragraph (a) of this section, but 
shall only be applicable to the initial review of records located in 
response to commercial use requests.
    (d) Duplication. Fees for copying paper records or for printing 
electronic records shall be assessed at a rate of $.15 per page. For 
other types of copies such as disks or audio visual tapes, USTR shall 
charge the direct cost of producing the document(s). If duplication 
charges are expected to exceed $25, the FOIA Officer shall notify the 
requester, unless the requester has indicated in advance a willingness 
to pay fees as high as those anticipated. If a requester wishes to 
limit costs, the FOIA Officer shall provide the requester an 
opportunity to reformulate the request in order to reduce costs. If the 
requester reformulates a request, it shall be considered a new request 
and the 20-day period described in Sec.  2004.6(c)(1) shall be deemed 
to begin when the FOIA Officer receives the request.
    (e) Advance payments required. The FOIA Officer may require a 
requester to make an advance deposit of up to the amount of the entire 
anticipated fee before the FOIA Officer begins to process the request 
if:
    (1) The FOIA Officer estimates that the fee will exceed $250; or
    (2) The requester has previously failed to pay a fee in a timely 
fashion.

When the FOIA Officer requires a requester to make an advance payment, 
the 20-day period described in Sec.  2004.6(c)(1) shall begin when the 
FOIA Officer receives the payment.
    (f) No assessment of fee. USTR shall not charge a fee to any 
requester if:
    (1) The cost of collecting the fee would be equal to or greater 
than the fee itself; or
    (2) After December 31, 2008, USTR fails to comply with any time 
limit under the Freedom of Information Act for responding to a request 
for records where no unusual or exceptional circumstances apply.


Sec.  2004.9  Fees for categories of requesters.

    USTR shall assess fees for certain categories of requesters as 
follows:
    (a) Commercial use requesters. In responding to commercial use 
requests, USTR shall assess fees that recover the full direct costs of 
searching for, reviewing, and duplicating records.
    (b) Educational institutions. USTR shall provide records to 
requesters in this category for the cost of duplication alone, 
excluding charges for the first 100 pages. To qualify for inclusion in 
this fee 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, not an individual 
goal.
    (c) Representatives of the news media. USTR shall provide records 
to requesters in this category for the cost of duplication alone, 
excluding charges for the first 100 pages.
    (d) All other requesters. USTR shall charge requesters who do not 
fall within paragraphs (a) through (c) of this section fees that 
recover the full direct cost of searching for and duplicating records, 
excluding charges for the first 100 pages of reproduction and the first 
two hours of search time.


Sec.  2004.10  Other charges.

    USTR may apply other charges, including the following:
    (a) Special charges. USTR shall recover the full cost of providing 
special services, such as sending records by express mail, to the 
extent that USTR elects to provide them.
    (b) Interest charges. USTR may begin assessing interest charges on 
an unpaid bill starting on the 31st day following the day on which the 
FOIA Officer sent the billing. Interest shall be charged at the rate 
prescribed in 31 U.S.C. 3717 and will accrue from the date of billing.
    (c) Aggregating requests. When the FOIA Officer reasonably believes 
that a requester or a group of requesters acting in concert is 
attempting to divide a request into a series of requests for the 
purpose of avoiding fees, the FOIA Officer shall aggregate those 
requests and charge accordingly.


Sec.  2004.11  Payment and waiver.

    (a) Remittances. Payment shall be made in the form of check or 
money order made payable to the Treasury of the United States. At the 
time the FOIA Officer notifies a requestor of the applicable fees, the 
Officer shall inform the requestor of where to send the payment.
    (b) Waiver. USTR may waive all or part of any fee provided for in 
Sec. Sec.  2004.8 through 2004.9 when the FOIA Officer deems that 
disclosure of the information is in the general public's 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. In 
determining whether a fee should be waived, the FOIA Officer may 
consider whether:
    (1) The subject matter specifically concerns identifiable 
operations or activities of the government;

[[Page 35066]]

    (2) The information is already in the public domain;
    (3) Disclosure of the information would contribute to the 
understanding of the public-at-large as opposed to a narrow segment of 
the population;
    (4) Disclosure of the information would significantly enhance the 
public's understanding of the subject matter;
    (5) Disclosure of the information would further a commercial 
interest of the requester; and
    (6) The public's interest is greater than any commercial interest 
of the requester.

Susan C. Schwab,
United States Trade Representative.
[FR Doc. E8-14034 Filed 6-19-08; 8:45 am]
BILLING CODE 3190-W8-P