[Federal Register Volume 76, Number 65 (Tuesday, April 5, 2011)]
[Rules and Regulations]
[Pages 18635-18645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7976]



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  Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Rules 
and Regulations  

[[Page 18635]]



ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

1 CFR Part 304


Disclosure of Records or Information

AGENCY: Administrative Conference of the United States.

ACTION: Final rule.

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SUMMARY: The Administrative Conference of the United States (ACUS or 
the Conference) is promulgating updated rules identifying its 
procedures for disclosure of records under the Freedom of Information 
Act and its procedures for protection of privacy and access to 
individual records under the Privacy Act of 1974.

DATES: Effective April 5, 2011.

FOR FURTHER INFORMATION CONTACT: Shawne C. McGibbon, General Counsel, 
at 202-480-2088 or [email protected].

SUPPLEMENTARY INFORMATION: ACUS was established by the Administrative 
Conference Act, 5 U.S.C. 591-96. Following the loss of its funding in 
1995, ACUS ceased operations. In 1996, its prior regulations (including 
Part 304) were eliminated. 61 FR 3539 (1996). Congress has now 
reauthorized and refunded ACUS, which has now reinitiated operations. 
These regulations provide the agency's procedures for disclosure of 
records, as required by the Freedom of Information Act (FOIA), 5 U.S.C. 
552, as amended, and its procedures for protection of privacy and 
access to individual records, as required by the Privacy Act of 1974, 5 
U.S.C. 552a, as amended. These regulations also reflect the principles 
established by President Obama's Presidential Memoranda on 
``Transparency and Open Government'' and ``Freedom of Information Act'' 
issued on January 21, 2009 and Attorney General Holder's Memorandum on 
``The Freedom of Information Act (FOIA)'' issued on March 19, 2009. 
Additionally, the regulations reflect the Conference's commitment to 
providing the fullest possible disclosure of records to the public. The 
proposed rule was published in the Federal Register on January 11, 2011 
(76 FR 1542) for public comments.

Public Comment

    ACUS received a single set of comments from one person, which 
suggested numerous technical corrections or clarifications, most of 
which were accepted and incorporated into the final rule. The final 
rule provides that, in general, e-mail may be used by requesters and 
the agency for submission of requests or agency responses. The more 
significant suggestions were addressed as follows.
    The commenter suggested revising the procedure for handling appeals 
to ensure that a requester who receives an adverse determination on 
either a FOIA or Privacy Act request will always have a right to an 
administrative appeal. We have revised this provision to preserve 
appeal rights within the agency.
    We have also accepted the commenter's suggestion to modify the fees 
section, so as to permit agency discretionary waivers where 
appropriate.
    The commenter suggested that we omit multi-track processing because 
the agency is very small. We have retained the option of using more 
than one track to enable more efficient processing of simple requests.

Required Reviews

a. Paperwork Reduction Act

    ACUS has determined that the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., does not apply because these regulations do not contain 
any information collection requirements.

b. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
requires agencies to perform regulatory flexibility analyses when 
promulgating rules through notice and comment procedures. ACUS has 
determined that these regulations do not have a significant economic 
impact on a substantial number of small entities. Under the FOIA, 
agencies may recover only the direct costs of searching for, reviewing 
and duplicating the records processed for certain categories of 
requesters. The Conference's proposed fee structure is in accordance 
with Department of Justice guidelines and based upon OMB fee schedules, 
which calculate costs based on the category of requester and kind of 
employee duplicating the records. Under the Privacy Act, agencies may 
recover the cost of duplication only. The agency will provide free 
duplication and search time (up to a certain amount) in certain cases. 
Where anticipated fees exceed $50, an opportunity is given to the 
requester to refine the request in order to lower cost. Thus, fees 
assessed by ACUS are nominal. The agency certifies that these 
regulations will not have a significant economic impact on a 
substantial number of small entities within the meaning of the RFA.

c. Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
chapter 25, subchapter II), these regulations will not significantly or 
uniquely affect small governments and would not result in increased 
expenditures by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more (as adjusted for 
inflation).

d. Executive Order 12866

    In issuing these regulations, ACUS has adhered to the regulatory 
philosophy and the applicable principles of regulation as set forth in 
Section 1 of Executive Order 12866, Regulatory Planning and Review, 58 
FR 51735. These regulations have not been reviewed by the Office of 
Management and Budget under the Executive Order since they are not a 
significant regulatory action within the meaning of the Executive 
Order.

List of Subjects in 1 CFR Part 304

    Administrative practice and procedure, Freedom of information, 
Privacy.

    For the reasons stated in the preamble, under the authority at 5 
U.S.C. 552, 552a, and 591-96, the Administrative Conference of the 
United States amends 1 CFR Chapter III to add part 304 as set forth 
below:

[[Page 18636]]

PART 304--DISCLOSURE OF RECORDS OR INFORMATION

Subpart A--Procedures for Disclosure of Records Under the Freedom of 
Information Act
Sec.
304.1 General provisions.
304.2 Public reading room.
304.3 Requirements for making requests.
304.4 Responsibility for responding to requests.
304.5 Timing of responses to requests.
304.6 Responses to requests.
304.7 Business information.
304.8 Appeals.
304.9 Fees.
304.10 Preservation of records.
304.11 Other rights and services.
Subpart B--Protection of Privacy and Access to Individual Records Under 
the Privacy Act of 1974
304.20 General provisions.
304.21 Requests for access to records.
304.22 Responsibility for responding to requests for access to 
records.
304.23 Responses to requests for access to records.
304.24 Appeals from denials of requests for access to records.
304.25 Requests for amendment or correction of records.
304.26 Requests for an accounting of record disclosures.
304.27 Fees.
304.28 Notice of court-ordered and emergency disclosures.
304.29 Security of systems of records.
304.30 Contracts for the operation of record systems.
304.31 Use and collection of social security numbers and other 
information.
304.32 Employee standards of conduct.
304.33 Preservation of records.
304.34 Other rights and services.

Subpart A--Procedures for Disclosure of Records Under the Freedom 
of Information Act

    Authority:  5 U.S.C. 552, 591-96.


Sec.  304.1  General provisions.

    (a) This subpart contains the rules that the Administrative 
Conference of the United States (``ACUS'' or ``the agency'') follows in 
processing requests for disclosure of records under the Freedom of 
Information Act (``FOIA'' or ``the Act''), 5 U.S.C. 552, as amended, 
and in meeting its responsibilities under the Act. Note that electronic 
records are treated as records for the purposes of the FOIA. These 
rules should be read together with the text of the FOIA itself, which 
provides additional information about access to records maintained by 
the agency. They also may be read in conjunction with the agency's 
``Freedom of Information Act Reference Guide,'' which provides basic 
information about use of the Act in relation to the agency's records. 
Requests made by individuals for access to records about themselves 
under the Privacy Act of 1974, 5 U.S.C. 552a (2006 & Supp. II 2008), 
which are processed under subpart B of this part, are also processed 
under this subpart. The agency will automatically process the request 
under both provisions in order to provide the maximum possible records 
to the requester. Information routinely provided to the public as part 
of a regular agency activity (for example, press releases or 
recommendations adopted by the agency pursuant to the Administrative 
Conference Act, 5 U.S.C. 591 et seq.) may be provided to the public 
without following this subpart.
    (b) As a matter of policy, ACUS makes discretionary disclosures of 
records or information exempt from disclosure under the FOIA whenever 
it is determined that disclosure would not foreseeably harm an interest 
protected by a FOIA exemption, but this policy does not create any 
right enforceable in court.
    (c) The agency has designated its General Counsel as its Chief FOIA 
Officer, who has agency-wide responsibility for efficient and 
appropriate compliance with the FOIA and these implementing 
regulations. The General Counsel has designated the agency's Deputy 
General Counsel as its FOIA Public Liaison.


Sec.  304.2  Public reading room.

    (a) ACUS maintains a public reading room that affords access to the 
records that the FOIA requires it to make regularly available for 
public inspection and copying even in the absence of a FOIA request, 
including a current subject-matter index of its reading room records 
that will be updated quarterly with respect to newly included records.
    (b) ACUS also makes all reading room records that have been created 
by the agency regularly available to the public electronically on its 
Web site (http://www.acus.gov).


Sec.  304.3  Requirements for making requests.

    (a) How made and addressed. You may make a request for records by 
sending an e-mail message addressed to [email protected], or by using the 
FOIA Request form on the ACUS Web site at http://www.acus.gov/foia. You 
may also send a written request letter to the agency either by mail 
addressed to FOIA Public Liaison, Administrative Conference of the 
United States, 1120 20th Street, NW., South Lobby, Suite 706, 
Washington, DC 20036, or by fax delivery to (202) 386-7190. For the 
quickest possible handling of a mail request, you should mark both your 
request letter and the envelope ``Freedom of Information Act Request.'' 
(You may find the agency's ``Freedom of Information Act Reference 
Guide''--which is available on its Web site and in paper form--helpful 
in making your request.) If you are making a request for records about 
yourself, see Sec.  304.21(d) for additional requirements. If you are 
making a request for records about another individual, then either a 
written authorization signed by that individual permitting disclosure 
of those records to you or proof that that individual is deceased (for 
example, a copy of a death certificate or an obituary notice) will help 
the processing of your request. Your request will be considered 
received as of the date upon which it is logged in as received by the 
agency's FOIA Public Liaison.
    (b) Description of records sought. You must describe the records 
that you seek in enough detail to enable agency personnel to locate 
them with a reasonable amount of effort. Whenever possible, your 
request should include specific information about each record sought, 
such as the date, title or name, author, recipient, and subject matter 
of the record. If known, you should include any file designations or 
similar descriptions for the records that you want. As a general rule, 
the more specific you are about the records or type of records that you 
want, the more likely that the agency will be able to locate those 
records in response to your request. If the agency determines that your 
request does not reasonably describe records, then it will tell you 
either what additional information is needed or why your request is 
otherwise insufficient. It also will give you an opportunity to discuss 
your request by telephone so that you may modify it to meet the 
requirements of this section. Additionally, if your request does not 
reasonably describe the records you seek, the agency's response to it 
may be delayed as an initial matter.
    (c) Agreement to pay fees. When you make a FOIA request, it will be 
considered to be an agreement by you to pay all applicable fees charged 
under Sec.  304.9, up to $50.00, unless you specifically request a 
waiver of fees. The agency ordinarily will confirm this agreement in an 
acknowledgment letter. When making a request, you may specify a 
willingness to pay a greater or lesser amount. Your agreement will not 
prejudice your ability to seek a waiver or reduction of any applicable 
fee at a later time.


Sec.  304.4  Responsibility for responding to requests.

    (a) In general. The agency will be responsible for responding to a 
request

[[Page 18637]]

in all respects, except in the case of a referral to another agency as 
is described in paragraphs (b), (c), and (d) of this section. In 
determining which records are responsive to a request, the agency 
ordinarily will include only records in its possession and control as 
of the date upon which it begins its search for them. If any other date 
is used, the agency will inform the requester of that date.
    (b) Consultations and referrals. When the agency receives a request 
for a record in its possession and control, it will determine whether 
another agency of the Federal Government is better able to determine 
whether the record is exempt from disclosure under the FOIA and, if so, 
whether it should be disclosed as a matter of administrative 
discretion. If the agency determines that it is best able to process 
the record in response to the request, then it will do so. If the 
agency determines that it is not best able to process the record, then 
it will either:
    (1) Respond to the request regarding that record, after consulting 
with the agency that is best able to determine whether to disclose it 
and with any other agency that has a substantial interest in it; or
    (2) Refer the responsibility for responding to the request 
regarding that record to another agency that originated the record (but 
only if that agency is subject to the FOIA). Ordinarily, the agency 
that originated a record will be presumed to be best able to determine 
whether to disclose it.
    (c) Notice of referral. When the agency refers all or any part of 
the responsibility for responding to a request to another agency, it 
ordinarily will notify the requester of the referral and inform the 
requester of the name of the agency to which the request has been 
referred and of the part of the request that has been referred.
    (d) Timing of responses to consultations and referrals. All 
consultations and referrals will be handled according to the date upon 
which the FOIA request initially was received by the first agency, and 
not any later date.
    (e) Agreements regarding consultations and referrals. The agency 
may make agreements with other agencies designed to eliminate the need 
for consultations or referrals regarding particular types of records.


Sec.  304.5  Timing of responses to requests.

    (a) In general. The agency ordinarily will respond to requests 
according to their order of receipt.
    (b) Multi-track processing. The agency may use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work and/or time needed to process the 
request, including according to the number of pages involved. If it 
does so, then it will advise requesters in its slower track(s) of the 
limits of its faster track(s) and may provide requesters in its slower 
track(s) with an opportunity to limit the scope of their requests in 
order to qualify for faster processing within the specified limits of 
its faster track(s). The agency will contact the requester by 
telephone, e-mail or letter, whichever is most efficient, in each case.
    (c) Unusual circumstances. (1) Where the statutory time limits for 
processing a request cannot be met because of ``unusual 
circumstances,'' as defined in the FOIA, and the agency determines to 
extend the time limits on that basis, it will as soon as practicable 
notify the requester in writing of the unusual circumstances and of the 
date by which processing of the request can be expected to be 
completed. Where the extension is for more than ten business days, it 
will provide the requester with an opportunity either to modify the 
request so that it may be processed within the time limits or to 
arrange an alternative time period processing the request or a modified 
request.
    (2) Where the agency reasonably believes that multiple requests 
submitted by a requester, or by a group of requesters acting in 
concert, constitute a single request that would otherwise involve 
unusual circumstances, and the requests involve clearly related 
matters, they may be aggregated. Multiple requests involving unrelated 
matters will not be aggregated.
    (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 concerning actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information; or
    (iii) Other circumstances as determined by the agency.
    (2) A request for expedited processing may be made at the time of 
the initial request for records (i.e., as part of the initial request) 
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 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. That 
requester 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 by the agency as a matter of 
administrative discretion.
    (4) Within ten calendar days of its receipt of a request for 
expedited processing, the agency will decide whether to grant it and 
will notify the requester of the decision. If a request for expedited 
treatment is granted, then the request will be given priority and will 
be processed as soon as practicable. If a request for expedited 
processing is denied, then any appeal of that decision will be acted on 
expeditiously.


Sec.  304.6  Responses to requests.

    (a) Acknowledgments of requests. On receipt of a request, if the 
agency cannot provide the requested information within two business 
days, then an acknowledgment letter or e-mail message will be sent to 
the requester that will confirm the requester's agreement to pay fees 
under Sec.  304.3(c) and will provide a request tracking number for 
further reference. Requesters may use this tracking number to determine 
the status of their request--including the date of its receipt and the 
estimated date on which action on it will be completed--by calling the 
agency's FOIA Public Liaison at (202) 480-2080. In some cases, the 
agency may seek further information or clarification from the 
requester.
    (b) Grants of requests. Ordinarily, the agency will have twenty 
business days from when a request is received to determine whether to 
grant or deny the request. Once the agency makes such a determination, 
it will immediately notify the requester in writing. The agency will 
inform the requester in the notice of any fee charged under Sec.  304.9 
and will disclose records to the requester promptly upon payment of any 
applicable fee. Records disclosed in part will be marked or annotated 
to show the amount of information deleted, unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted also will be

[[Page 18638]]

indicated on the record, if technically feasible.
    (c) Adverse determinations of requests. Whenever the agency makes 
an adverse determination denying a request in any respect, it will 
notify the requester of that determination in writing. Adverse 
determinations, or denials of requests, consist of: A determination to 
withhold any requested record in whole or in part; a determination that 
a requested record does not exist or cannot be located; a determination 
that a record is not readily reproducible in the form or format sought 
by the requester; a determination that what has been requested is not a 
record subject to the FOIA; a determination on any disputed fee matter, 
including a denial of a request for a fee waiver; and a denial of a 
request for expedited treatment. The denial letter will include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reason(s) for the denial, including 
any FOIA exemption(s) applied by the agency in denying the request;
    (3) An estimate of the volume of records or information withheld, 
in number of pages or in some other reasonable form of estimation. This 
estimate does not need to be provided if the volume is otherwise 
indicated through deletions on records disclosed in part, or if 
providing an estimate would harm an interest protected by an applicable 
exemption; and
    (4) An indication on the released portion of a record of each 
exemption applied, at the place at which it was applied, if technically 
feasible.
    (5) A statement that the denial may be appealed under Sec.  
304.8(a) and a description of the requirements of Sec.  304.8(a).


Sec.  304.7  Business information.

    (a) In general. Business information obtained by the agency will be 
disclosed under the FOIA only under this section and in accordance with 
Executive Order 12,600, 3 CFR part 235 (1988).
    (b) Definitions. For purposes of this section:
    (1) ``Business information'' means privileged or confidential 
commercial or financial information obtained by the agency from a 
submitter that may be protected from disclosure under Exemption 4 of 
the FOIA.
    (2) ``Submitter'' means any person or entity from whom the agency 
obtains business information, either directly or indirectly. The term 
includes corporations; state, local, and tribal governments; and 
foreign governments.
    (c) Designation of business information. A submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any and all portion(s) of its submission that it considers 
to be protected from disclosure under Exemption 4. These designations 
will expire ten years after the date of the submission unless the 
submitter requests, and provides justification for, a longer 
designation period.
    (d) Notice to submitters. The agency will provide a submitter with 
prompt written notice of a FOIA request or administrative appeal that 
seeks its business information wherever required under paragraph (e) of 
this section, except as provided in paragraph (h) of this section, in 
order to give the submitter an opportunity to object to disclosure of 
any specified portion of that information under paragraph (f) of this 
section. The notice will either describe the business information 
requested or include copies of the requested records or record portions 
containing the information. When notification of a voluminous number of 
submitters is required, notification may be made by posting or 
publishing the notice in a place reasonably likely to accomplish it.
    (e) Where notice is required. Notice will be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) The agency has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. The agency will allow a 
submitter a reasonable time to respond to the notice described in 
paragraph (d) of this section and will specify that time period within 
the notice. If a submitter has any objection to disclosure, it is 
required to submit a detailed written statement. The statement must 
specify all grounds for withholding any portion of the information 
under any exemption of the FOIA and, in the case of Exemption 4, it 
must show why the information is a trade secret or commercial or 
financial information that is privileged or confidential. In the event 
that a submitter fails to respond to the notice within the time 
specified in it, the submitter will be considered to have no objection 
to disclosure of the information. Information provided by the submitter 
that is not received by the agency until after its disclosure decision 
has been made will not be considered by the agency. Information 
provided by a submitter under this paragraph may itself be subject to 
disclosure under the FOIA.
    (g) Notice of intent to disclose. The agency will consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever the agency 
decides to disclose business information over the objection of a 
submitter, it will give the submitter written notice, which will 
include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which will be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section will not apply if:
    (1) The agency determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than the FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12,600; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous--except that, in such a case, 
the agency will, within a reasonable time prior to a specified 
disclosure date, give the submitter written notice of any final 
decision to disclose the information.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the agency 
will promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever the agency 
provides a submitter with notice and an opportunity to object to 
disclosure under paragraph (d) of this section, it will also notify the 
requester(s). Whenever the agency notifies a submitter of its intent to 
disclose requested information under paragraph (g) of this section, it 
will also notify the requester(s). Whenever a submitter files a lawsuit 
seeking to prevent the disclosure of business information, the agency 
will notify the requester(s).


Sec.  304.8  Appeals.

    (a) Appeals of adverse determinations. If you are dissatisfied with 
the response to your request, you may appeal an adverse determination

[[Page 18639]]

denying your request, in any respect, to the Chairman of the agency. 
You must make your appeal in writing, by e-mail or letter, and it must 
be received by the agency within 60 days of the date of the agency's 
response denying your request. Your appeal should provide reasons and 
supporting information as to why the initial determination was 
incorrect. The appeal should clearly identify the particular 
determination (including the assigned request number, if known) that 
you are appealing. For the quickest possible handling of a mail 
request, you should mark your appeal ``Freedom of Information Act 
Appeal.'' The Chairman or his or her designee will act on the appeal, 
except that an appeal ordinarily will not be acted on if the request 
becomes a matter of FOIA litigation.
    (b) Responses to appeals. The decision on your appeal will be made 
by e-mail or letter, ordinarily within 20 business days of receipt of 
your appeal. A decision affirming an adverse determination in whole or 
in part will contain a statement of the reason(s) for the affirmance, 
including any FOIA exemption(s) applied, and will inform you of the 
FOIA provisions for court review of the decision. (You also may be 
aware of the mediation services that are offered by the Office of 
Government Information Services (``OGIS'') of the National Archives and 
Records Administration--see http://www.archives.gov/ogis/--as a non-
exclusive alternative to FOIA litigation.) If the adverse determination 
is reversed or modified on appeal, in whole or in part, then you will 
be notified in a written decision and your request will be reprocessed 
in accordance with that appeal decision.
    (c) When appeal is required. As a general rule, if you wish to seek 
review by a court of any adverse determination, you must first appeal 
it in a timely fashion under this section.


Sec.  304.9  Fees.

    (a) In general. The agency will charge for processing requests 
under the FOIA in accordance with paragraph (c) of this section, except 
where fees are limited under paragraph (d) of this section, where a 
waiver or reduction of fees is granted under paragraph (k) of this 
section, or where the agency's FOIA staff waives fees in whole or in 
part because they are deemed to be inappropriate or unreasonable--and 
in some cases the agency may seek further information or clarification 
from the requester for this purpose. The agency ordinarily will collect 
all applicable fees before sending copies of requested records to a 
requester. Requesters must pay fees by check or money order made 
payable to the Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) ``Commercial use request'' means a request from or on behalf of 
a person who seeks information for a use or purpose that furthers his 
or her commercial, trade, or profit interests, including furthering 
those interests through litigation. The agency will determine, whenever 
reasonably possible, the use to which a requester will put the 
requested records. When it appears that the requester will put the 
records to a commercial use, either because of the nature of the 
request itself or because the agency has reasonable cause to doubt a 
requester's stated use, the agency will provide the requester a 
reasonable opportunity to submit further clarification.
    (2) ``Direct costs'' means those expenses that an agency actually 
incurs in searching for and duplicating (and, in the case of commercial 
use requests, reviewing) records to respond to a FOIA request. Direct 
costs include, for example, the salary of the employee performing the 
work (the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating duplication 
machinery. Not included in direct costs are overhead expenses such as 
the costs of space and heating or lighting of the facility in which the 
records are kept.
    (3) ``Duplication'' means the making of a copy of a record, or of 
the information contained in it, necessary to respond to a FOIA 
request. Copies can take the form of paper, audiovisual materials, or 
electronic records, among others. The agency will honor a requester's 
specified preference of form or format of disclosure if the record is 
readily reproducible with reasonable efforts in the requested form or 
format.
    (4) ``Educational institution'' means a preschool, a public or 
private elementary or secondary school, an institution of undergraduate 
higher education, an institution of graduate higher education, an 
institution of professional education, or an institution of vocational 
education, that operates a program of scholarly research. To qualify 
under this category, a requester must show that the request is 
authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for a commercial use 
but are sought to further scholarly research.
    (5) ``Noncommercial scientific institution'' means an institution 
that is not operated on a ``commercial'' basis, as that term is defined 
in paragraph (b)(1) of this section, and that is operated solely for 
the purpose of conducting scientific research the results of which are 
not intended to promote any particular product or industry. To qualify 
under this category, a requester must show that the request is 
authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for a commercial use 
but are sought to further scientific research.
    (6) ``Representative of the news media,'' or ``news-media 
requester,'' 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. For this purpose, 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 are television 
or radio stations broadcasting to the public at large and publishers of 
periodicals (but only if such entities qualify as disseminators of 
``news'') who make their products available for purchase by or 
subscription by or free distribution to the general public. These 
examples are not all-inclusive. Moreover, as methods of news delivery 
evolve (for example, the adoption of the electronic dissemination of 
newspapers through telecommunications services), such alternative media 
shall be considered to be news-media entities. A freelance journalist 
shall be regarded as working for a news-media entity if the journalist 
can demonstrate a solid basis for expecting publication through that 
entity, whether or not the journalist is actually employed by the 
entity. A publication contract would present a solid basis for such an 
expectation; the agency may also consider the past publication record 
of the requester in making such a determination. To qualify under this 
category, a requester must not be seeking the requested records for a 
commercial use. A request for records supporting the news-dissemination 
function of the requester will not be considered to be for a commercial 
use.
    (7) ``Review'' means the examination of a record located in 
response to a request in order to determine whether any portion of it 
is exempt from disclosure. It also includes processing any record for 
disclosure--for example, doing all that is necessary to redact it and 
prepare it for disclosure. Review costs are recoverable even if a 
record ultimately is not disclosed. Review time includes time spent 
considering any formal objection to disclosure made by a business 
submitter under Sec.  304.7 but does not include time spent resolving

[[Page 18640]]

general legal or policy issues regarding the application of exemptions.
    (8) ``Search'' means the process of looking for and retrieving 
records or information responsive to a request. It includes page-by-
page or line-by-line identification of information within records and 
also includes reasonable efforts to locate and retrieve information 
from records maintained in electronic form or format. The agency will 
conduct searches in the most efficient and least expensive manner 
reasonably possible. For example, it will not search on a line-by-line 
basis where duplicating an entire document would be quicker and less 
expensive.
    (c) Fees charged. In responding to FOIA requests, the agency will 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section:
    (1) Search. (i) Search fees will be charged for all requests (other 
than requests made by educational institutions, noncommercial 
scientific institutions, or representatives of the news media) subject 
to the limitations of paragraph (d) of this section. The agency may 
charge for time spent searching even if it does not locate any 
responsive record or if it withholds the record(s) located as entirely 
exempt from disclosure.
    (ii) For each quarter hour spent by clerical personnel in searching 
for and retrieving a requested record, the fee will be $5.00. Where a 
search and retrieval cannot be performed entirely by clerical personnel 
(for example, where the identification of records within the scope of a 
request requires the use of professional personnel) the fee will be 
$10.00 for each quarter hour of search time spent by professional 
personnel. Where the time of managerial personnel is required, the fee 
will be $15.00 for each quarter hour of time spent by those personnel.
    (iii) For computer searches of records, requesters will be charged 
the direct costs of conducting the search, although certain requesters 
(as provided in paragraph (d)(1) of this section) will be charged no 
search fee and certain other requesters (as provided in paragraph 
(d)(3) of this section) will be entitled to the cost equivalent of two 
hours of manual search time without charge. These direct costs will 
include the costs of operator/programmer salary apportionable to the 
search.
    (2) Duplication. Duplication fees will be charged to all 
requesters, subject to the limitations of paragraph (d) of this 
section. For a paper photocopy of a record (no more than one copy of 
which need be supplied), the fee will be ten cents per page. For copies 
produced by computer, such as tapes, disks, or printouts, the agency 
will charge the direct costs, including operator time, of producing the 
copy. For other forms of duplication, the agency will charge the direct 
costs of that duplication.
    (3) Review. Review fees will be charged to requesters who make a 
commercial use request. Review fees will be charged only for the 
initial record review, when the agency determines whether an exemption 
applies to a particular record or record portion at the initial request 
level. No charge will be made for review at the administrative appeal 
level regarding an exemption already applied. However, records or 
record portions withheld under an exemption that is subsequently 
determined not to apply may be reviewed again to determine whether any 
other exemption not previously considered applies; the costs of that 
review are chargeable where it is made necessary by such a change of 
circumstances. Review fees will be charged at the same rates as those 
used for a search under paragraph (c)(1)(ii) of this section.
    (d) Limitations on charging fees. (1) No search fee will be charged 
for requests by educational institutions, noncommercial scientific 
institutions, or representatives of the news media.
    (2) No search fee or review fee will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, the 
agency will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent); 
and
    (ii) The first two hours of search (or the cost equivalent).
    (4) Whenever a total fee calculated under paragraph (c) of this 
section is $20.00 or less for any request, no fee will be charged.
    (5) The provisions of paragraphs (d)(3) and (4) of this section 
work together. This means that for requesters other than those seeking 
records for a commercial use, no fee will be charged unless the cost of 
search in excess of two hours plus the cost of duplication in excess of 
100 pages totals more than $20.00.
    (6) In the case of any request on which the agency does not comply 
with any of the time limits of the FOIA and for which no ``unusual or 
exceptional circumstances'' exist, as those terms are defined by the 
FOIA, the agency will not charge any search fee or, for such requests 
made by educational institutions, noncommercial scientific 
institutions, or representatives of the news media, will not charge any 
duplication fee.
    (e) Notice of anticipated fees in excess of $50.00. When the agency 
determines or estimates that the fees to be charged under this section 
will amount to more than $50.00, it will notify the requester of the 
actual or estimated amount of the fees, unless the requester has 
indicated a willingness to pay fees as high as those anticipated. If 
only a portion of the fee can be estimated readily, the agency will 
advise the requester that the estimated fee might be only a portion of 
the total fee. In cases in which a requester has been notified that 
actual or estimated fees amount to more than $50.00, the request will 
not be considered received and further work will not be done on it 
until the requester agrees to pay the total anticipated fee. Any such 
agreement should be memorialized in writing. A notice under this 
paragraph will offer the requester an opportunity to discuss the matter 
with agency personnel in order to reformulate the request to meet the 
requester's needs at a lower cost.
    (f) Charges for other services. Apart from the other provisions of 
this section, when the agency chooses as a matter of administrative 
discretion to provide a special service--such as certifying that 
records are true copies or sending them by other than ordinary mail--
the direct costs of providing the service ordinarily will be charged.
    (g) Charging interest. The agency may charge interest on any unpaid 
bill starting on the 31st day following the date of the billing of the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the date of the billing until payment 
is received by the agency. The agency will follow the provisions of the 
Debt Collection Act of 1982, Public Law 97-365, 96 Stat. 1749, as 
amended, and regulations pursuant thereto.
    (h) Aggregating requests. Wherever the agency reasonably believes 
that a requester or a group of requesters acting together is attempting 
to divide a request into a series of requests for the purpose of 
avoiding fees, it may aggregate those requests and charge accordingly. 
In so doing, it will presume that multiple requests of this type made 
within a 30-day period have been made in order to avoid fees. Where 
requests are separated by a longer period, the agency will aggregate 
them only where there exists a solid basis for determining that 
aggregation is warranted under all the circumstances involved. Multiple 
requests involving unrelated matters will not be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in

[[Page 18641]]

paragraphs (i)(2) and (i)(3) of this section, the agency will not 
require the requester to make an advance payment--in other words, a 
payment made before work is begun or continued on a request. Payment 
owed for work already completed (i.e., a prepayment before copies are 
sent to a requester) is not an advance payment.
    (2) Where the agency determines or estimates that a total fee to be 
charged under this section will be more than $250.00, it may require 
the requester to make an advance payment of an amount up to the amount 
of the entire anticipated fee before beginning to process the request, 
except where it receives a satisfactory assurance of full payment from 
a requester that has a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any agency within 30 days of the date of billing, 
the agency may require the requester to pay the full amount due, plus 
any applicable interest, and to make an advance payment of the full 
amount of any anticipated fee, before it begins to process a new 
request or continues to process a pending request from that requester.
    (4) In cases in which the agency requires advance payment or 
payment due under paragraph (i)(2) or (i)(3) of this section, the 
request will not be considered received and further work will not be 
done on it until the required payment is received.
    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In cases in which records responsive 
to requests are maintained for distribution by another agency under 
such a statutorily based fee schedule program, ACUS will inform the 
requesters of the steps for obtaining records from those sources so 
that they may do so most economically.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request will be furnished without charge or at a charge 
reduced below that established under paragraph (c) of this section 
where the agency determines, based on all available information, that 
the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government, and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
the agency will consider the following factors:
    (i) The subject of the request: Whether the subject of the 
requested records concerns ``the operations or activities of the 
government.'' The subject of the requested records must concern 
identifiable operations or activities of the federal government, with a 
connection that is direct and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute''' to an 
increased public understanding of those operations or activities.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject, as opposed to the 
individual understanding of the requester. A requester's expertise in 
the subject area and ability and intention to convey information 
effectively to the public will be considered. It will be presumed that 
a representative of the news media satisfies this consideration.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject in question, as compared to the 
level of public understanding existing prior to the disclosure, must be 
enhanced by the disclosure to a significant extent. The agency will not 
make value judgments about whether information that would contribute 
significantly to public understanding of the operations or activities 
of the government is ``important'' enough to be made public.
    (3) To determine whether the second fee waiver requirement is met, 
the agency will consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. The agency will consider any commercial interest 
of the requester (with reference to the definition of ``commercial 
use'' in paragraph (b)(1) of this section), or of any person on whose 
behalf the requester may be acting, that would be furthered by the 
requested disclosure. Requesters will be given an opportunity in the 
administrative process to provide explanatory information regarding 
this consideration.
    (ii) The primary interest in disclosure: Whether any identified 
commercial interest of the requester is sufficiently large, in 
comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified where the public interest standard is 
satisfied and that public interest is greater in magnitude than that of 
any identified commercial interest in disclosure. The agency ordinarily 
will presume that where a news-media requester has satisfied the public 
interest standard, the public interest will be the interest primarily 
served by disclosure to that requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return will not be presumed primarily to serve the public 
interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver will be granted for those 
records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (k)(2) and (k)(3) of this section insofar 
as they apply to each request. The agency will exercise its discretion 
to consider the cost-effectiveness of its investment of administrative 
resources in this decisionmaking process in deciding to grant waivers 
or reductions of fees.


Sec.  304.10  Preservation of records.

    (a) The agency will preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the FOIA.
    (b) In the event that the agency contracts with another agency, 
entity, or person to maintain records for the agency for the purposes 
of records management, it will promptly identify such records in its 
``Freedom of Information Reference Guide'' and specify the particular 
means by which request for such records can be made.

[[Page 18642]]

Sec.  304.11  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, 
as of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.

Subpart B--Protection of Privacy and Access to Individual Records 
Under the Privacy Act of 1974

    Authority:  5 U.S.C. 552a, 591-96.


Sec.  304.20  General provisions.

    (a) Purpose and scope. This subpart contains the rules that the 
Administrative Conference of the United States (``ACUS'' or ``the 
agency'') follows under the Privacy Act of 1974 (``the Privacy Act''), 
5 U.S.C. 552a, as amended, regarding the protection of, and individual 
access to, certain records about individuals. These rules should be 
read together with and are governed by the Privacy Act itself, which 
provides additional information about records maintained on 
individuals. The rules in this subpart apply to all records in Privacy 
Act systems of records maintained by the agency, which are retrieved by 
an individual's name or personal identifier. They describe the 
procedures by which individuals may request access to records about 
themselves, request amendment or correction of those records, and 
request an accounting of disclosures of those records by the agency. In 
addition, the agency processes all Privacy Act requests for access to 
records under the Freedom of Information Act (``FOIA''), 5 U.S.C. 552, 
as amended, following the rules contained in subpart A of this part. 
Thus, all Privacy Act requests will be subject to exemptions for access 
to records only applicable under both FOIA and the Privacy Act.
    (b) Definitions. As used in this subpart:
    (1) ``Request for access to a record'' means a request made under 
Privacy Act, 5 U.S.C. 552a(d)(1).
    (2) ``Request for amendment or correction of a record'' means a 
request made under Privacy Act, 5 U.S.C. 552a(d)(2).
    (3) ``Request for an accounting'' means a request made under 
Privacy Act, 5 U.S.C. 552a(c)(3).
    (4) ``Requester'' means an individual who makes a request for 
access, a request for amendment or correction, or a request for an 
accounting under the Privacy Act.


Sec.  304.21  Requests for access to records.

    (a) How made and addressed. You may make a request for access to a 
record about yourself by appearing in person or by sending an e-mail 
message addressed to [email protected]. You may also send a written request 
letter to the agency either by mail addressed to 1120 20th Street, NW., 
South Lobby, Suite 706, Washington, DC 20036, or by fax delivery to 
(202) 386-7190. For the quickest possible handling of a mail request, 
you should mark both your request letter and the envelope ``Privacy Act 
Request.''
    (b) Description of records sought. You must describe the records 
that you want in enough detail to enable agency personnel to locate the 
system of records containing them with a reasonable amount of effort. 
Whenever possible, your request should describe the records sought, the 
time periods in which you believe they were compiled, and the name or 
identifying number of each system of records in which you believe they 
are kept. The agency publishes a notice in the Federal Register that 
describes its systems of records.
    (c) Agreement to pay fees. If you make a Privacy Act request for 
access to records, it will be considered an agreement by you to pay all 
applicable fees charged under Sec.  304.27, up to $50.00. Duplication 
fees in excess of $50.00 are subject to the requirements of Sec.  
304.27 of this subpart and the notification requirements in Sec.  304.9 
of subpart A. The agency ordinarily will confirm this agreement in an 
acknowledgment letter. When making a request, you may specify a 
willingness to pay a greater or lesser amount.
    (d) Verification of identity. When you make a request for access to 
records about yourself, you must verify your identity. You must state 
your full name, current address, and date and place of birth. You must 
sign your request and your signature must either be notarized or 
submitted by you under 28 U.S.C. 1746, a law that permits statements to 
be made under penalty of perjury as a substitute for notarization. In 
order to help the identification and location of requested records, you 
may also, entirely at your option, include the last four digits of your 
social security number.


Sec.  304.22  Responsibility for responding to requests for access to 
records.

    (a) In general. The agency will be responsible for responding to a 
request in all respects, except in the case of a referral to another 
agency as is described in paragraphs (b), (c), and (d) of this section. 
In determining which records are responsive to a request, the agency 
ordinarily will include only records in its possession and control as 
of the date upon which it begins its search for them. If any other date 
is used, the agency will inform the requester of that date.
    (b) Consultations and referrals. When the agency receives a request 
for access to a record in its possession and control, it will determine 
whether another agency of the Federal Government, is better able to 
determine whether the record is exempt from access under the Privacy 
Act. If the agency determines that it is the agency best able to 
process the record in response to the request, then it will do so. If 
it determines that it is not best able to process the record, then it 
will either:
    (1) Respond to the request regarding that record, after consulting 
with the agency that is best able to determine whether the record is 
exempt from access and with any other agency that has a substantial 
interest in it; or
    (2) Refer the responsibility for responding to the request 
regarding that record to the agency that is best able to determine 
whether it is exempt from access, or to another agency that originated 
the record (but only if that agency is subject to the Privacy Act). 
Ordinarily, the agency that originated a record will be presumed to be 
best able to determine whether it is exempt from access.
    (c) Notice of referral. When the agency refers all or any part of 
the responsibility for responding to a request to another agency, it 
ordinarily will notify the requester of the referral and inform the 
requester of the name of the agency to which the request has been 
referred and of the part of the request that has been referred.
    (d) Timing of responses to consultations and referrals. All 
consultations and referrals will be handled according to the date upon 
which the Privacy Act access request was initially received by the 
first agency, not any later date.
    (e) Agreements regarding consultations and referrals. The agency 
may make agreements with other agencies designed to eliminate the need 
for consultations or referrals for particular types of records.


Sec.  304.23  Responses to requests for access to records.

    (a) Acknowledgments of requests. On receipt of a request, the 
agency ordinarily will send an acknowledgment letter to the requester 
that will confirm the requester's agreement to pay fees under Sec.  
304.21(c) and provide an assigned request number for further reference. 
In some cases, the agency may seek further information or clarification 
from the requester.

[[Page 18643]]

    (b) Grants of requests for access. Once the agency makes a 
determination to grant a request for access in whole or in part, it 
will notify the requester in writing. The agency will inform the 
requester in the notice of any fee charged under Sec.  304.27 and will 
disclose records to the requester promptly on payment of any applicable 
fee. If a request is made in person, the agency may disclose records to 
the requester directly, in a manner not unreasonably disruptive of its 
operations, on payment of any applicable fee and with a written record 
made of the grant of the request. If a requester is accompanied by 
another person, the requester will be required to authorize in writing 
any discussion of the records in the presence of the other person.
    (c) Adverse determinations of requests for access. Upon making an 
adverse determination denying a request for access in any respect, the 
agency will notify the requester of that determination in writing. 
Adverse determinations, or denials of requests consist of: a 
determination to withhold any requested record in whole or in part; a 
determination that a requested record does not exist or cannot be 
located; a determination that what has been requested is not a record 
subject to the Privacy Act; a determination on any disputed fee matter; 
and a denial of a request for expedited treatment. The notification 
letter will include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reason(s) for the denial, including 
any Privacy Act exemption(s) applied in denying the request; and
    (3) A statement that the denial may be appealed under Sec.  
304.24(a) and a description of the requirements of Sec.  304.24(a).


Sec.  304.24  Appeals from denials of requests for access to records.

    (a) Appeals. If you are dissatisfied with the response to your 
request, you may appeal an adverse determination denying your request, 
in any respect, to the Chairman of the agency. You must make your 
appeal in writing, by e-mail or letter, and it must be received by the 
agency within 60 days of the date of the denial of your request. Your 
appeal letter should provide reasons and supporting information as to 
why the initial determination was incorrect. The appeal should clearly 
identify the particular determination (including the assigned request 
number, if known) that you are appealing. For the quickest possible 
handling of a mail request, you should mark your appeal letter and the 
envelope ``Privacy Act Appeal.'' The Chairman of the agency or his or 
her designee will act on the appeal, except that an appeal ordinarily 
will not be acted on if the request becomes a matter of FOIA or Privacy 
Act litigation.
    (b) Responses to appeals. The decision on your appeal will be made 
in writing. A decision affirming an adverse determination in whole or 
in part will include a brief statement of the reason(s) for the 
affirmance, including any exemption applied, and will inform you of the 
Privacy Act provisions for court review of the decision. If the adverse 
determination is reversed or modified on appeal in whole or in part, 
then you will be notified in a written decision and your request will 
be reprocessed in accordance with that appeal decision.
    (c) When appeal is required. As a general rule, if you wish to seek 
review by a court of any adverse determination or denial of a request, 
you must first appeal it under this section.


Sec.  304.25  Requests for amendment or correction of records.

    (a) How made and addressed. Unless the record is not subject to 
amendment or correction as stated in paragraph (f) of this section, you 
may make a request for amendment or correction of an ACUS record about 
yourself by following same procedures as in Sec.  304.21. Your request 
should identify each particular record in question, state the amendment 
or correction that you want, and state why you believe that the record 
is not accurate, relevant, timely, or complete. You may submit any 
documentation that you think would be helpful. If you believe that the 
same record is maintained in more than one system of records, you 
should state that.
    (b) Agency responses. Within ten business days of receiving your 
request for amendment or correction of records, the agency will send 
you a written acknowledgment of its receipt of your request. The agency 
will promptly notify you whether your request is granted or denied. If 
the agency grants your request in whole or in part, it will describe 
the amendment or correction made and will advise you of your right to 
obtain a copy of the corrected or amended record, in disclosable form. 
If the agency denies your request in whole or in part, it will send you 
a letter that will state:
    (1) The reason(s) for the denial; and
    (2) The procedure for appeal of the denial under paragraph (c) of 
this section, including the name and business address of the official 
who will act on your appeal.
    (c) Appeals. You may appeal a denial of a request for amendment or 
correction in the same manner as a denial of a request for access to 
records (see Sec.  304.24(a)) and the same procedures will be followed. 
The agency will ordinarily act on the appeal within 30 business days of 
receipt of the appeal, except that the Chairman of the agency may 
extend the time for response for good cause shown. If your appeal is 
denied, you will be advised of your right to file a Statement of 
Disagreement as described in paragraph (d) of this section and of your 
right under the Privacy Act for court review of the decision.
    (d) Statements of Disagreement. If your appeal under this section 
is denied in whole or in part, you have the right to file a Statement 
of Disagreement that states your reason(s) for disagreeing with the 
agency's denial of your request for amendment or correction. Statements 
of Disagreement must be concise, must clearly identify each part of any 
record that is disputed, and should be no longer than one typed page 
for each fact disputed. The agency will place your Statement of 
Disagreement in the system of records in which the disputed record is 
maintained and will mark the disputed record to indicate that a 
Statement of Disagreement has been filed and exactly where in the 
system of records it may be found.
    (e) Notification of amendment/correction or disagreement. Within 30 
business days of the amendment or correction of a record, the agency 
will notify all persons, organizations, or agencies to which it 
previously disclosed the record, if an accounting of that disclosure 
was made, that the record has been amended or corrected. If an 
individual has filed a Statement of Disagreement, the agency will 
append a copy of it to the disputed record whenever the record is 
disclosed and may also append a concise statement of its reason(s) for 
denying the request to amend or correct the record.
    (f) Records not subject to amendment or correction. The following 
records are not subject to amendment or correction:
    (1) Transcripts of testimony given under oath or written statements 
made under oath;
    (2) Transcripts of grand jury proceedings, judicial proceedings, or 
quasi-judicial proceedings, which are the official record of those 
proceedings; and
    (3) Any other record that originated with the courts.


Sec.  304.26  Requests for an accounting of record disclosures.

    (a) How made and addressed. Except where accountings of disclosures 
are not required to be kept (as stated in

[[Page 18644]]

paragraph (b) of this section), you may make a request for an 
accounting of any disclosure that has been made by the agency to 
another person, organization, or agency of any record about you. This 
accounting contains the date, nature, and purpose of each disclosure, 
as well as the name and address of the person, organization, or agency 
to which the disclosure was made. Your request for an accounting should 
identify each particular record in question and should be made in 
writing to the agency, following the procedures in Sec.  304.21.
    (b) Where accountings are not required. The agency is not required 
to provide accountings to you where they relate to:
    (1) Disclosures for which accountings are not required to be kept 
(i.e., disclosures that are made to officers and employees of the 
agency and disclosures required under the FOIA); or
    (2) Disclosures made to law enforcement agencies for authorized law 
enforcement activities in response to written requests from a duly 
authorized representative of any such law enforcement agency specifying 
portion of the record desired and the law enforcement activity for 
which the record is sought.
    (c) Appeals. You may appeal a denial of a request for an accounting 
in the same manner as a denial of a request for access to records (see 
Sec.  304.24(a)) and the same procedures will be followed.


Sec.  304.27  Fees.

    The agency will charge fees for duplication of records under the 
Privacy Act in the same way in which it charges duplication fees under 
Sec.  304.9 of subpart A. No search or review fee may be charged for 
any record under the Privacy Act.


Sec.  304.28  Notice of court-ordered and emergency disclosures.

    (a) Court-ordered disclosures. When a record pertaining to an 
individual is required to be disclosed by a court order, the agency 
will make reasonable efforts to provide notice of such order to the 
individual. Notice will be given within a reasonable time after the 
agency's receipt of the order, except that in a case in which the order 
is not a matter of public record, the notice will be given only after 
the order becomes public. This notice will be mailed to the 
individual's last known address and will contain a copy of the order 
and a description of the information disclosed.
    (b) Emergency disclosures. Upon disclosing a record pertaining to 
an individual made under compelling circumstances affecting health or 
safety, the agency will notify that individual of the disclosure. This 
notice will be mailed to the individual's last known address and will 
state the nature of the information disclosed; the person, 
organization, or agency to which it was disclosed; the date of 
disclosure; and the compelling circumstances justifying the disclosure.


Sec.  304.29  Security of systems of records.

    (a) Administrative and physical controls. The agency will have 
administrative and physical controls to prevent unauthorized access to 
its systems of records, to prevent unauthorized disclosure of records, 
and to prevent physical damage to or destruction of records. The 
stringency of these controls corresponds to the sensitivity of the 
records that the controls protect. At a minimum, these controls are 
designed to ensure that:
    (1) Records are protected from public view;
    (2) The area in which records are kept is supervised during 
business hours in order to prevent unauthorized persons from having 
access to them;
    (3) Records are inaccessible to unauthorized persons outside of 
business hours; and
    (4) Records are not disclosed to unauthorized persons or under 
unauthorized circumstances in oral, written or any other form.
    (b) Restrictive procedures. The agency will implement practices and 
procedures that restrict access to records to only those individuals 
within the agency who must have access to those records in order to 
perform their duties and that prevent inadvertent disclosure of 
records.


Sec.  304.30  Contracts for the operation of record systems.

    Any approved contract for the operation of a record system will 
contain appropriate requirements issued by the General Services 
Administration in order to ensure compliance with the requirements of 
the Privacy Act for that record system. The contracting officer of the 
agency will be responsible for ensuring that the contractor complies 
with these contract requirements.


Sec.  304.31  Use and collection of social security numbers and other 
information.

    The agency will ensure that employees authorized to collect 
information are aware:
    (a) That individuals may not be denied any right, benefit, or 
privilege as a result of refusing to provide their social security 
numbers, unless the collection is authorized either by a statute or by 
a regulation issued prior to 1975;
    (b) That individuals requested to provide their social security 
numbers, or any other information collected from them, must be 
informed, before providing such information, of:
    (1) Whether providing social security numbers (or such other 
information) is mandatory or voluntary;
    (2) Any statutory or regulatory authority that authorizes the 
collection of social security numbers (or such other information);
    (3) The principal purpose(s) for which the information is intended 
to be used;
    (4) The routine uses that may be made of the information; and
    (5) The effects, in any, on the individual of not providing all or 
any part of the requested information; and
    (c) That, where the information referred to above is requested on a 
form, the requirements for informing such individuals are set forth on 
the form used to collect the information, or on a separate form that 
can be retained by such individuals.


Sec.  304.32  Employee standards of conduct.

    The agency will inform its employees of the provisions of the 
Privacy Act, including the scope of its restriction against disclosure 
of records maintained in a system of records without the prior written 
consent of the individual involved, and the Act's civil liability and 
criminal penalty provisions. Unless otherwise permitted by law, an 
employee of the agency will:
    (a) Collect from individuals and maintain only the information that 
is relevant and necessary to discharge the agency's responsibilities;
    (b) Collect information about an individual directly from that 
individual to the greatest extent practicable when the information may 
result in an adverse determination about an individual's rights, 
benefits, or privileges under Federal programs;
    (c) Inform each individual from whom information is collected of 
the information set forth in Sec.  304.31(b);
    (d) Ensure that the agency maintains no system of records without 
public notice and also notify appropriate agency officials of the 
existence or development of any system of records that is not the 
subject of a current or planned public notice;
    (e) Maintain all records that are used by it in making any 
determination about an individual with such accuracy, relevance, 
timeliness, and completeness as is reasonably necessary to ensure 
fairness to the individual in the determination;
    (f) Except as to disclosures made to an agency or made under the 
FOIA, make reasonable efforts, prior to

[[Page 18645]]

disseminating any record about an individual, to ensure that the record 
is accurate, relevant, timely, and complete;
    (g) Maintain no record describing how an individual exercises his 
or her First Amendment rights unless such maintenance is expressly 
authorized by statute or by the individual about whom the record is 
maintained or is pertinent to and within the scope of an authorized law 
enforcement activity;
    (h) When required by the Privacy Act, maintain an accounting in the 
specified form of all disclosures of records by the agency to persons, 
organizations, or agencies;
    (i) Maintain and use records with care in order to prevent the 
unauthorized or inadvertent disclosure of a record to anyone; and
    (j) Notify the appropriate agency official of any record that 
contains information that the Privacy Act does not permit the agency to 
maintain.


Sec.  304.33  Preservation of records.

    The agency will preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the Act.


Sec.  304.34  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, 
as of right, to any service or to the disclosure of any record to which 
such person is not entitled under the Privacy Act.

    Dated: March 30, 2011.
Shawne C. McGibbon,
General Counsel.
[FR Doc. 2011-7976 Filed 4-4-11; 8:45 am]
BILLING CODE 6110-01-P