[Federal Register Volume 85, Number 201 (Friday, October 16, 2020)]
[Rules and Regulations]
[Pages 65694-65704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20270]


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OFFICE OF NATIONAL DRUG CONTROL POLICY

21 CFR Part 1401

RIN 3201-AA01


Freedom of Information Act

AGENCY: Office of National Drug Control Policy, Executive Office of the 
President.

ACTION: Final rule.

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SUMMARY: The Office of National Drug Control Policy (ONDCP) is updating 
its Freedom of Information Act (FOIA) implementing regulation to 
comport with the FOIA Improvement Act of 2016 and best practices. The 
final rule describes how to make a FOIA request with ONDCP and how the 
Office of General Counsel, which includes the ONDCP officials 
authorized to evaluate FOIA requests, processes requests for records. 
The final rule also states ONDCP's Privacy Act Policies and Procedures. 
The final rule describes how individuals can learn if an ONDCP system 
of records contains information about them and, if so, how to access or 
amend a record.

DATES: The final rule is effective on October 19, 2020.

FOR FURTHER INFORMATION CONTACT: Questions concerning this notice 
should be directed to Michael J. Passante, Acting General Counsel, 
Office of General Counsel, Office of National Drug Control Policy, 
Executive Office of the President, at (202) 395-6622 or 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background and Regulatory History

A. Background

    ONDCP has undertaken a review of agency practices related to the 
collection, use, protection and disclosure of ONDCP records and 
information in light of the FOIA Improvement Act of 2016 and the

[[Page 65695]]

Privacy Act. As a result of that review, ONDCP is updating its 
regulation on FOIA and the Privacy Act. The FOIA, 5 U.S.C. 552 et seq., 
provides a right of access to certain records and information Federal 
agencies maintain and control. The FOIA requires each Federal agency to 
publish regulations describing how to submit a FOIA request and how 
people responsible for FOIA will process these requests.

B. Regulatory History

    ONDCP's current FOIA regulation, codified at 21 CFR part 1401, was 
last revised in 1999. See 64 FR 69901 (Dec. 15, 1999). Due to the 
passage of time and amendments to the FOIA, we proposed updating the 
regulation by issuing a notice of proposed rulemaking (NPRM) on May 22, 
2020. See 85 FR 31087 (May 22, 2020). ONDCP's final regulation on FOIA 
and the Privacy Act incorporates the practical experience of the 
agency's staff who handle FOIA and privacy issues and guidance from the 
Office of Management and Budget and the U.S. Department of Justice, 
Office of Information Policy. The final FOIA and Privacy Act regulation 
also substantially benefitted from public comments we received in 
response to our May 22, 2020 NPRM. The final regulation strives for 
consistency with FOIA and Privacy Act regulations among other agencies, 
particularly within the Executive Office of the President.

II. Section-by-Section Analysis

Subpart A--Freedom of Information Act Policies and Procedures

    Section 1401.1--Purpose: This section describes the purpose of the 
regulation, which is to implement the FOIA.
    Section 1401.2--ONDCP: Organization and functions: This section 
describes the mission and leadership structure of the agency. It 
specifies where media inquiries may be submitted and notes that oral 
requests for information under FOIA will be rejected.
    Section 1401.3--Definitions: Final 1401.3 defines the key terms 
used in the regulation. It includes revisions and additions to the 
definitions. As suggested by commenters, the definitions of the terms 
duplicate, educational institution, noncommercial scientific 
institution, and representative of the media are revised for clarity. 
Fee waiver, FOIA public liaison, and requester category were added to 
the definitions. With respect to fees ONDCP charges for processing FOIA 
requests, a commenter stated that 116% for direct costs was not the 
correct percentage, but ONDCP does not agree. This percentage is 
accurate because the fee is 100% of the salary plus another 16% of the 
salary for benefits, which equals 116%.
    Section 1401.4--Access to information: This section describes the 
types of information that ONDCP will make available under FOIA. Section 
1401.4 also describes information about ONDCP that the public can 
access without filing a FOIA request. Pursuant to the FOIA Improvement 
Act of 2016, ONDCP will make records available that have been requested 
three or more times in an electronic format.
    Section 1401.5 (pertaining to Proactive Disclosures) from the NPRM 
is removed from the final regulation because some of its contents are 
duplicative of requirements specified in section 1401.4.
    Section 1401.5--Records requiring consultation. Final section 
1401.5, which was section 1401.6 in the NPRM, has been revised to 
include the definitions for consultation, referral, and coordination as 
suggested by a commenter. This section describes how ONDCP will process 
records that originated with another agency but are in the custody of 
ONDCP. The standard referral procedure outlined in this subsection may 
not be appropriate for requests that implicate personal privacy or 
national security interests. For example, if a non-law enforcement 
agency responding to a request for records on a living third party 
locates within its files records originating with a law enforcement 
agency, and if the existence of that law enforcement interest in the 
third party was not publicly known, then to disclose that law 
enforcement interest could cause an unwarranted invasion of the 
personal privacy of the third party. Similarly, if ONDCP locates within 
its files material originating with an Intelligence Community agency, 
and the involvement of that agency in the matter is classified and not 
publicly acknowledged, then to disclose or give attribution to the 
involvement of that Intelligence Community agency could cause national 
security harms.
    Section 1401.6--How to request records--Form and content: Final 
section 1401.6, which was section 1401.7 in the NPRM, is revised to 
include ONDCP's mailing address. The requirement to include ``FOIA 
REQUEST'' or ``REQUEST FOR RECORDS,'' is changed from must to should. 
The reference to section 1401.10 is corrected to reference section 
1401.8. This section explains what an individual must do to submit a 
valid FOIA request to ONDCP and where a request should be sent. It also 
describes the information requesters must provide so ONDCP can identify 
the records sought and process their requests.
    Section 1401.8 in the NPRM pertaining to initial determination is 
removed because its contents were duplicative of those specified in 
section 1401.11 of the NPRM, which are now sections 1409.8(c) and 
1401.10 in the final rule.
    Section 1401.7--Response--form and content: Final section 1401.7, 
which was section 1401.9 in the NPRM, is updated to reflect the correct 
reference. Subsection (b)(2) is revised to include the different types 
of denials. One commenter noted that we should include several 
provisions from the DOJ FOIA template. Those provisions that were not 
already in the regulations were added. Section 1401.7 also describes 
the period of time within which ONDCP will determine whether it is 
appropriate to grant or deny a FOIA request, i.e., ordinarily within 20 
working days after the date the request is received. If ONDCP 
determines that a request is denied or that additional time is required 
to process the request, it will provide written notification to the 
requestor with an explanation of the reasons for denial or delay. ONDCP 
will provide information about the right of appeal and the mediation 
services offered by the Office of Government Information Services of 
the National Archives and Records Administration. The response will 
include any fees associated with the FOIA request.
    Section 1401.08--Expedited Process: Final section 1401.08, which 
was section 1401.10 in the NPRM, is revised with respect to section 
(a)(1) where we added ``circumstances in which'' to the beginning for 
clearer phrasing. In addition, in subsection 1401.08(a)(2), ``primary 
profession'' in reference to a media requester has been removed. This 
section describes the circumstances under which expedited processing of 
a FOIA request may be granted.
    Section 1401.11 referencing prompt response from the NPRM has been 
removed as it was duplicative of information contained in sections 
1409.8(c) and 1401.10.
    Section 1401.09--Extension of Time: Final section 1401.09, which 
was section 1401.12 in the NPRM, describes and defines the ``unusual 
circumstances'' under which ONDCP may extend the time limit for making 
a determination on a FOIA request.
    Section 1401.10--Appeal procedures: Final section 1401.10, which 
was section 1401.13 in the NPRM, among other more minor changes, 
strikes the word ``legal'' in the requirements for an appeal; strikes 
the term ``writing'' because it is duplicative; and adds FOIA

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exemptions to the denial notice to requester. Further, the ``names of 
individuals who participated in the determination'' is changed to ``the 
name and title of the person responsible for the denial.'' This section 
describes when and how a requester may appeal a determination on a FOIA 
request and how and within what period of time ONDCP will make a 
determination on an appeal.
    Section 1401.11--Fees to be charged--general: Final section1401.11, 
which was section 1401.14 in the NPRM, is revised to consolidate 
subsections (a) and (b) relating to manual and computerized search. One 
commenter suggested that ONDCP restructure the fees section, but ONDCP 
believes that the structure is clear and covers all the information 
required under 5 U.S.C. 522. Using the commenter's suggested template 
would result in duplicative sections. This section describes the 
general FOIA processing activities performed by ONDCP personnel and the 
rates charged by ONDCP to recoup the employee costs associated with 
responding to FOIA requests.
    Section 1401.12--Fees to be charged--miscellaneous provisions: 
Final section 1401.12, which was section 1401.15 in the NPRM, is 
revised to include the payment methods a requester can use to submit 
payment for fees. The number of requester types is changed from four to 
three to be consistent with 5 U.S.C. 522. Subsection (e) is updated to 
reference section 1401.16 aggregation of request. This section contains 
miscellaneous FOIA fee provisions such as where payment should be sent, 
when advance payment is required, and rates of interest charged on late 
payments, etc.
    Section 1401.13--Fees to be charged--Categories of Requester: Final 
section 1401.13, which was section 1401.16 in the NPRM, changes the 
terminology from ``commercial use requester'' to ``commercial use 
request'' for consistency with applicable law. This section describes 
the different categories of requesters and the types and amounts of 
fees ONDCP may assess to process and respond to a FOIA request.
    Section 1401.14--Restrictions on charging fees. Final section 
1401.14, which was section 1401.17 in the NPRM, describes the 
circumstances under which ONDCP is restricted in charging fees normally 
associated with processing FOIA request such as when ONDCP does not 
meet time limits mandated by the FOIA.
    Section 1401.15--Waiver or Reduction of Fees: Final section 
1401.15, which was section 1401.18 in the NPRM, is updated to reflect 
the correct references to sections 1401.17(1) and (2) to 1401.16(a). 
This section describes the factors that ONDCP may consider when 
deciding whether to waive or reduce the fees associated with processing 
FOIA requests.
    Section 1401.16--Aggregation of requests: Final section 1401.16, 
which was section 1401.19 in the NPRM, describes the circumstances 
under which ONDCP may aggregate a series or group of requests for 
purposes of fee assessment.
    Section 1401.17--Markings on released documents: Final section 
1401.17, which was section 1401.20 in the NPRM, changes the heading 
from ``Deletion of exempted information'' to ``Markings on released 
documents.'' This section provides that ONDCP will redact exempt 
information from its FOIA disclosures to the extent that exempt 
information can be segregated from other information subject to 
disclosure.
    Section 1401.18--Confidential commercial information: Final section 
1401.18, which was section 1401.21 in the NPRM, explains when and how a 
person or entity that submits information to ONDCP must identify 
confidential commercial information. It also describes how ONDCP staff 
will handle such information.

Subpart B--Privacy Act Policies and Procedures

    Section 1401.19--Definitions: Final section 1401.19, which was 
section 1401.22 in the NPRM, defines the key terms used in this 
Subpart.
    Section 1401.20--Purpose and scope: Final section 1401.20, which 
was section 1401.23 in the NPRM, describes the purpose of the 
regulation, which is to implement the Privacy Act, and explains general 
policies and procedures for individuals requesting access to records, 
requesting amendments or corrections to records, and requesting an 
accounting of disclosures of records.
    Section 1401.21--How do I make a Privacy Act request?: Final 
section 1401.21, which was section 1401.24 in the NPRM, explains what 
an individual must do to submit a request to ONDCP for access to 
records, to amend or correct records, or for an accounting of 
disclosures of records. It also describes the information an individual 
must provide so ONDCP can identify the records sought and determine 
whether the request can be granted.
    Section 1401.22--How will ONDCP respond to a Privacy Act request?: 
Final section 1401.22, which was section 1401.25 in the NPRM, describes 
the period of time within which ONDCP will respond to requests. It also 
explains that ONDCP will grant or deny requests in writing, provide 
reasons if a request is denied in whole or in part, and explain the 
right of appeal.
    Section 1401.23-- What can I do if I am dissatisfied with ONDCP's 
response to my Privacy Act request?: Final section 1401.23, which was 
section 1401.26 in the NPRM, describes when and how an individual may 
appeal a determination on a Privacy Act request and how and within what 
time period ONDCP will make a determination on an appeal.
    Section 1401.24-- What does it cost to get records under the 
Privacy Act?: Final section 1401.24, which was section 1401.27 in the 
NPRM, explains the fees that requesters are required to pay for the 
duplication of requested records.

III. Regulatory Flexibility Act

    ONDCP has considered the impact of the rule and determined that the 
final rule is not likely to have a significant economic impact on a 
substantial number of small business entities because it only applies 
to ONDCP's internal operations and legal obligations. See 5 U.S.C. 601 
et seq.

IV. Paperwork Reduction Act

    The rule does not contain any information collection requirement 
that requires approval from the Office of Management and Budget under 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects in CFR 21 Part 1401

    Freedom of information, Privacy.


0
For the reasons stated in the preamble, the Office of National Drug 
Control Policy revises part 1401 of title 21 of the Code of Federal 
Regulations to read as follows:

PART 1401--PUBLIC AVAILABILITY OF INFORMATION

Subpart A -- Freedom of Information Act Policies and Procedures
Sec.
1401.1 Purpose.
1401.2 The Office of National Drug Control Policy--organization and 
functions.
1401.3 Definitions.
1401.4 Access to information.
1401.5 Records requiring consultation.
1401.6 How to request records--form and content.
1401.7 Responses-form and content.
1401.8 Expedited process.
1401.9 Extension of time.
1401.10 Appeal procedures.
1401.11 Fees to be charged--general.
1401.12 Fees to be charged--miscellaneous provisions.

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1401.13 Fees to be charged--categories of requesters.
1401.14 Restrictions on charging fees.
1401.15 Waiver or reduction of fees.
1401.16 Aggregation of requests.
1401.17 Markings on released documents.
1401.18 Confidential commercial information.
Subpart B--Privacy Act Policies and Procedures
1401.19 Definitions.
1401.20 Purpose and scope.
1401.21 How do I make a Privacy Act request?
1401.22 How will ONDCP respond to my Privacy Act request?
1401.23 What can I do if I am dissatisfied with ONDCP's response to 
my Privacy Act request?
1401.24 What does it cost to get records under the Privacy Act?

    Authority:  5 U.S.C. 552

Subpart A--Freedom of Information Act Policies and Procedures


Sec.  1401.1   Purpose.

    The purpose of this part is to prescribe rules, guidelines and 
procedures to implement the Freedom of Information Act (FOIA), as 
amended, 5 U.S.C. 552.


Sec.  1401.2   The Office of National Drug Control Policy--organization 
and functions.

    (a) The Office of National Drug Control Policy (ONDCP or Agency) 
was created by the Anti-Drug Abuse Act of 1988, 21 U.S.C. 1501 et seq., 
and reauthorized under the SUPPORT for Patients and Communities Act, 21 
U.S.C. 1701 et seq. and several appropriations acts. The mission of 
ONDCP is to coordinate the anti-drug efforts of the various agencies 
and departments of the Federal Government, to consult with States and 
localities and assist their anti-drug efforts, and to annually 
promulgate the National Drug Control Strategy. ONDCP is headed by the 
Director of National Drug Control Policy.
    (b) ONDCP's Office of External and Legislative Affairs is 
responsible for providing information to the press and to the general 
public. If members of the public have general questions about ONDCP, 
they may email the Office of External and Legislative Affairs at 
[email protected]. This email address should not be used to 
make FOIA requests. All oral requests for information under FOIA will 
be rejected.


Sec.  1401.3   Definitions.

    For the purpose of this part, all the terms defined in the Freedom 
of Information Act apply.
    Commercial use request is a request that asks for information for a 
use or a purpose that furthers a commercial, trade, or profit interest, 
which can include furthering those interests through litigation. An 
agency's decision to place a requester in the commercial use category 
will be made on a case-by-case basis based on the requester's intended 
use of the information. Agencies will notify requesters of their 
placement in this category.
    Direct costs means the expense actually expended to search, review, 
or duplicate in response to a FOIA request. For example, direct costs 
include 116% of the salary of the employee performing work (i.e., the 
basic rate of pay for the employee plus 16 percent of that rate to 
cover benefits) and the actual costs incurred while operating 
equipment.
    Duplicate means the process of making a copy of a document. Such 
copies may take the form of paper, microform, audio-visual materials, 
or machine-readable documentation.
    Educational institution is any school that operates a program of 
scholarly research. A requester in this fee category must show that the 
request is made in connection with his or her role at the educational 
institution. Agency may seek verification from the requester that the 
request furthers scholarly research, and agency will advise requesters 
of their placement in this category.
    Fee waiver means the waiver or reduction of processing fees if a 
requester can demonstrate that certain statutory standards are 
satisfied, including that the information is in the public interest and 
is not requested for a commercial interest.
    FOIA public liaison means a supervisory agency FOIA official who 
assists in reducing delays, increasing transparency and understanding 
of the status of requests, and resolving disputes between the requester 
and ONDCP.
    Noncommercial scientific institution is an institution that is not 
operated on a ``commercial'' basis 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. A requester in 
this category must show that the request is authorized by and is made 
under the auspices of a qualifying institution and that the records are 
sought to further scientific research and are not for a commercial use. 
Agency will advise requesters of their placement in this category.
    OGIS means the Office of Government Information Services of the 
National Archives and Records Administration. OGIS offers FOIA dispute 
resolution services, which is a voluntary process. If ONDCP agrees to 
participate in the dispute resolution services provided by OGIS, ONDCP 
will actively engage as a partner to the process in an attempt to 
resolve the dispute.
    Records and any other terms used in this part in reference to 
information includes any information that would be an agency record 
subject to the requirements of this part when maintained in any format, 
including electronic format.
    Representative of the news media is 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 distinct work, 
and distributes that work to an audience. The term ``news'' means 
information that is about current events or information that would be 
of interest to the public. Examples of news media entities include 
television or radio stations that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available through a variety of means to the general 
public, including news organizations that disseminate solely on the 
internet. A request for records supporting the news-dissemination 
function of the requester will not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity will be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, the Agency 
can also consider a requester's past publication record in making this 
determination. The Agency will advise requesters of their placement in 
this category.
    Request means a letter or other written communication seeking 
records or information under FOIA.
    Requester category means one of the three categories that ONDCP 
will place requesters in for the purpose of determining whether a 
requester will be charged fees for search, review, and duplication. The 
categories are: commercial use requests; non-commercial scientific or 
educational institutions or news media requesters; and all other 
requesters.
    Review means the process of examining documents that are located 
during a search to determine if any portion should lawfully be 
withheld. It is the processing of determining disclosability. Review 
time includes processing any record for disclosure, such as doing all 
that is necessary to prepare the record for disclosure, including the 
process of redacting the record and marking the appropriate

[[Page 65698]]

exemptions. Review costs are properly charged even if a record 
ultimately is not disclosed. Review time also includes time spent both 
obtaining and considering any formal objection to disclosure made by a 
confidential commercial information submitter under Sec.  1401.18, but 
it does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    Search means to review, manually or by automated means, agency 
records for the purpose of locating those records responsive to a 
request.


Sec.  1401.4   Access to information.

    The Office of National Drug Control Policy makes available 
information pertaining to matters issued, adopted, or promulgated by 
ONDCP, that are within the scope of 5 U.S.C. 552(a)(2). Such 
information is located at https://www.whitehouse.gov/ondcp. Included in 
that information are ONDCP's proactive disclosures. Proactive 
disclosures are records that have been requested three or more times, 
or that have been released to a requester and that ONDCP determines 
have become, or are likely to become, the subject of subsequent 
requests for substantially the same records.


Sec.  1401.5   Records requiring consultation.

    Requests for records that are in ONDCP's custody but in which other 
agencies have equities shall be reviewed by ONDCP and then ONDCP will 
either consult with or refer the records to the other agency or 
agencies for further processing.
    (a) Consultation. When records originated with ONDCP, but contain 
within them information of interest to another agency or other Federal 
government office, ONDCP will consult with that other entity prior to 
making a release determination.
    (b) Referral--(1) Determination. When ONDCP believes that a 
different agency or component is best able to determine whether to 
disclose the record, ONDCP will refer the responsibility for responding 
to the request regarding that record to that agency. Ordinarily, the 
agency that originated the record is presumed to be the best agency to 
make the disclosure determination. However, if the agency processing 
the request and the originating agency jointly agree that the agency 
processing the request is in the best position to respond regarding the 
record, then the record may be handled as a consultation.
    (2) Documentation. Whenever ONDCP refers any part of the 
responsibility for responding to a request to another agency, it must 
document the referral, maintain a copy of the record that it refers, 
and notify the requester of the referral, informing the requester of 
the name(s) of the agency to which the record was referred, including 
that agency's FOIA contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. In order to avoid harm to an 
interest protected by an applicable exemption, the agency that received 
the request should coordinate with the originating agency to seek its 
views on the disclosability of the record. The release determination 
for the record that is the subject of the coordination should then be 
conveyed to the requester by the agency that originally received the 
request.
    (c) Classified information. On receipt of any request involving 
classified information, ONDCP must determine whether the information is 
currently and properly classified in accordance with applicable 
classification rules. Whenever a request involves a record containing 
information that has been classified or may be appropriate for 
classification by another agency under any applicable executive order 
concerning the classification of records, the receiving agency must 
refer the responsibility for responding to the request regarding that 
information to the agency that classified the information, or that 
should consider the information for classification. Whenever an 
agency's record contains information that has been derivatively 
classified (for example, when it contains information classified by 
another agency), the agency must refer the responsibility for 
responding to that portion of the request to the agency that classified 
the underlying information.
    (d) Timing of responses to consultations and referrals. All 
consultations and referrals received by ONDCP will be handled according 
to the date that the first agency received the perfected FOIA request.
    (e) Agreements regarding consultations and referrals. ONDCP may 
establish agreements with other agencies to eliminate the need for 
consultations or referrals with respect to particular types of records.


Sec.  1401.6   How to request records--form and content.

    (a) You must describe the records you seek in sufficient detail and 
in writing to enable ONDCP personnel to locate them with a reasonable 
amount of effort. To satisfy this requirement, you should be as 
detailed as possible when describing the records you seek. To the 
extent possible, each request must reasonably describe the record(s) 
sought including the type of document, specific event or action, title 
or name, author, recipient, subject matter of the record, date or time 
period, location, and all other pertinent data. Before or after 
submitting their requests, requesters may contact ONDCP's FOIA Public 
Liaison to discuss the records they seek and for assistance in 
describing the records. A list of Agency FOIA Public Liaisons is 
available at https://www.foia.gov/#agency-search.
    (b)(1) If you are making a request for records about yourself, you 
must comply with the verification of identity provision set forth in 
Sec.  1401.21(f) of this part.
    (2) If a request for records pertains to a third party, you may 
receive greater access by submitting either a notarized authorization 
signed by that individual or an unsworn declaration under 26 U.S.C. 
1746 by that individual authorizing disclosure of the records to you. 
If the other individual is deceased, you should submit proof of death 
such as a copy of the death certificate or an obituary. As an exercise 
of administrative discretion, ONDCP may require you to provide 
additional information if necessary in order to verify that a 
particular individual has consented to disclosure.
    (c) Requesters may specify the preferred form or format (including 
electronic formats) for the records they seek. ONDCP will try to 
accommodate formatting requests if the record is readily reproducible 
in that form or format.
    (d) Whenever it is appropriate to do so, ONDCP automatically 
processes a Privacy Act request for access to records under both the 
Privacy Act and the FOIA, following the rules contained in this part. 
ONDCP processes a request under both the FOIA and Privacy Act so you 
will receive the maximum amount of information available to you by law.
    (e) Requests must be received by ONDCP through methods specified on 
the FOIA page of ONDCP's website: https://www.whitehouse.gov/ondcp/about/foia-and-legal/. Requests may be emailed at any time to 
[email protected] or mailed to SSDMD/RDS; ONDCP Office of General 
Counsel; Joint Base Anacostia-Bolling (JBAB) Bldg. 410/Door 123; 250 
Murray Lane SW, Washington, DC 20509. Email requests are strongly 
preferred.
    (f) The words ``FOIA REQUEST'' or ``REQUEST FOR RECORDS'' should be

[[Page 65699]]

clearly marked on all FOIA request communications. The time limitations 
imposed by Sec.  1401.7(a) will not begin until ONDCP identifies a 
communication as a FOIA request.
    (g) You must provide contact information, such as your phone 
number, email address and mailing address, so we will be able to 
communicate with you about your request and provide released records. 
If we cannot contact you, or you do not respond within 20 calendar days 
to our request for clarification, we will close your request.
    (h) To protect our computer systems, ONDCP reserves the right to 
not open attachments to emailed request. Please include your request 
within the body of your email.


Sec.  1401.7   Responses--form and content.

    (a) Determinations. The General Counsel, or designee, will 
determine within 20 days (excepting Saturdays, Sundays, and legal 
public holidays) after the receipt of a FOIA request whether it is 
appropriate to grant the request and will provide written notification 
to the person making the request. The notification shall also advise 
the person making the request of any fees assessed under Sec.  1401.11 
through 13. ONDCP will inform the requester of the availability of its 
FOIA Public Liaison.
    (b) Tracking number. ONDCP will assign it an individualized 
tracking number if it will take longer than 10 working days to process 
and may assign such a tracking number for less than 10 working days at 
our discretion.
    (c) Adverse determinations. If ONDCP makes an adverse determination 
denying a request in any respect, it must notify the requester of that 
determination in writing. Adverse determinations, or denials of 
requests, include decisions that: The requested record is exempt, in 
whole or in part; the request does not reasonably describe the records 
sought; the information requested is not a record subject to the FOIA; 
the requested record does not exist, cannot be located, or has been 
destroyed; or the requested record is not readily reproducible in the 
form or format sought by the requester. Adverse determinations also 
include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (d) Content of denial. The denial must be signed by the head of the 
agency or designee and must include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the agency in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed 
in part or if providing an estimate would harm an interest protected by 
an applicable exemption; and
    (4) A statement that the denial may be appealed to the Director or 
his/her designee within 90 days of the date of the response. The 
requirements for making an appeal are specified in Sec.  1401.10.
    (5) A statement notifying the requester of the assistance available 
from the agency's FOIA Public Liaison and the dispute resolution 
services offered by OGIS.


Sec.  1401.8   Expedited process.

    (a) A request for expedited processing may be made at any time. 
ONDCP must process requests and appeals on an expedited basis whenever 
it is determined that they involve:
    (1) 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; or
    (2) An urgency to inform the public about an actual or alleged 
Federal Government activity, beyond the public's right to know about 
government activity generally, and the request is made by a person 
primarily engaged in disseminating information.
    (b) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for requesting expedited processing. For example, under paragraph 
(a)(2) of this section, a requester who is not a full-time member of 
the news media must establish that the requester is a person who is 
primarily engaged in information dissemination, though it need not be 
the requester's sole occupation. Such a 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 existence of numerous articles 
published on a given subject can be helpful in establishing the 
requirement that there be an ``urgency to inform'' the public on the 
topic. The formality of certification may be waived as a matter of 
administrative discretion.
    (c) Within 10 days of receipt of a request for expedited 
processing, ONDCP will decide whether to grant it and will notify the 
requester of the decision. If a request for expedited treatment is 
granted, the request will be given priority and will be processed as 
soon as practicable. If a request for expedited processing is denied, 
any appeal of that decision will be acted on expeditiously.


Sec.  1401.9   Extension of time.

    (a) In unusual circumstances, ONDCP may extend the time limit 
prescribed in Sec.  1401.7(a), (b) or Sec.  1401.8 by written notice to 
the FOIA requester. The notice will state the reasons for the 
extension.
    (b) The phrase ``unusual circumstances'' means:
    (1) The requested records are located in establishments that are 
separated from the office processing the request;
    (2) A voluminous amount of separate and distinct records are 
demanded in a single request; or
    (3) Another agency or two or more components in the same agency 
have substantial interest in the determination of the request.
    (c) Whenever ONDCP cannot meet the statutory time limit for 
processing a request because of ``unusual circumstances,'' as defined 
by 5 U.S.C. 552(a)(b)(B), and ONDCP extends the time limit on that 
basis, the agency must, before expiration of the 20-day period to 
respond, notify the requester in writing of the unusual circumstances 
involved and of the date by which ONDCP estimates processing of the 
request will be completed. Where the extension exceeds 10 working days, 
ONDCP must, as described by the FOIA, provide the requester with an 
opportunity to modify the request or arrange an alternative time period 
for processing the original or modified request. The Agency must make 
available its designated FOIA contact or its FOIA Public Liaison for 
this purpose. The Agency must also alert requesters to the availability 
of the Office of Government Information Services (OGIS) to provide 
dispute resolution services.
    (d) To satisfy unusual circumstances under the FOIA, ONDCP may 
aggregate requests in cases where it reasonably appears that multiple 
requests, submitted either by a requester or by a group of requesters 
acting in concert, constitute a single request that would otherwise 
involve unusual circumstances. ONDCP cannot aggregate multiple requests 
that involve unrelated matters.


Sec.  1401.10   Appeal procedures.

    (a) An appeal to the ONDCP must explain the reasoning and factual 
basis

[[Page 65700]]

for the appeal. It must be received by email at [email protected] or 
another method specified on the FOIA page of ONDCP's website within 90 
days of the date of the response. The appeal must be in writing, 
addressed to SSDMD/RDS; ONDCP Office of General Counsel; Joint Base 
Anacostia-Bolling (JBAB) Bldg. 410/Door 123; 250 Murray Lane SW, 
Washington, DC 20509. The communication should clearly be labeled as a 
``Freedom of Information Act Appeal.''
    (b) The Director or designee will decide the appeal within 20 days 
(excepting Saturdays, Sundays, and legal public holidays). If the 
Director or designee deny an appeal in whole or in part, the written 
determination will contain the reason for the denial, the name and 
title of the person responsible for the denial, any FOIA exemptions 
applied, and the provisions for judicial review of the denial and 
ruling on appeal provided in 5 U.S.C. 552(a)(4). The denial will also 
inform the requester of the dispute resolution services offered by OGIS 
as a non-exclusive alternate to litigation. If ONDCP agrees to 
participate in voluntary dispute resolution services provided by OGIS, 
it will actively engage in an attempt to resolve the dispute.


Sec.  1401.11   Fees to be charged--general.

    ONDCP will assess a fee to process FOIA requests in accordance with 
the provisions of this section and Uniform Freedom of Information Fee 
Schedule and Guidelines published by the Office of Management and 
Budget (``OMB Guidelines''). ONDCP shall ensure that searches, review 
and duplication are conducted in the most efficient and the least 
expensive manner. ONDCP will ordinarily collect all applicable fees 
before sending copies of records to a requester. ONDCP will charge the 
following fees unless a waiver or reduction of fees is granted under 
Sec.  1401.15, or the total fee to be charged is less than $25.00. 
ONDCP will notify you if we estimate that charges will exceed $25.00 
including a breakdown of the fees for search, review or duplication and 
whether applicable entitlements to duplication and search at no charge 
have been provided. ONDCP will not process your request until you 
either commit in writing to pay the actual or estimated total fee, or 
designate some amount of fees you are willing to pay.
    (a) Search for records. ONDCP will charge $77.00 per hour, which is 
a blended hourly rate for all personnel that respond to FOIA requests 
plus 16 percent of that rate to cover benefits.
    (b) Review of records. ONDCP will charge $77.00 per hour, which is 
a blended hourly rate for all personnel that responded to FOIA requests 
plus 16 percent of that rate to cover benefits. Records or portions of 
records withheld under an exemption subsequently determined not to 
apply may be reviewed to determine the applicability of exemptions not 
considered. The cost for a subsequent review is assessable.
    (c) Duplication of records. We will charge duplication fees to all 
requesters. We will honor your preference for receiving a record in a 
particular format if we can readily reproduce it in the form or format 
requested. If we provide photocopies, we will make one copy per request 
at the cost of $.10 per page. For copies of records produced on tapes, 
disks or other media, we will charge the direct costs of producing the 
copy, including operator time. Where we must scan paper documents in 
order to comply with your preference to receive the records in an 
electronic format, we will charge you the direct costs associated with 
scanning those materials. For other forms of duplication, we will 
charge the direct costs. We will provide the first 100 pages of 
duplication (or the cost equivalent for other media) without charge 
except for requesters seeking records for a commercial use.
    (d) Other charges. ONDCP will recover the costs of providing other 
services such as certifying records or sending records by special 
methods.


Sec.  1401.12   Fees to be charged--miscellaneous provisions.

    (a) Payment for FOIA services may be made by check or money order 
made payable to the Treasury of the United States.
    (b) ONDCP may require advance payment where the estimated fee 
exceeds $250, or a requester previously failed to pay within 30 days of 
the billing date.
    (c) ONDCP may assess interest charges beginning the 31st day of 
billing. Interest will be at the rate prescribed in section 3717 of 
title 31 of the United States Code and will accrue from the date of the 
billing.
    (d) ONDCP may assess search charges where records are not located 
or where records are exempt from disclosure.
    (e) ONDCP may aggregate individual requests for fee purposes in 
accordance with 1401.16.


Sec.  1401.13   Fees to be charged--categories of requesters.

    (a) There are three categories of FOIA requesters: Commercial use 
requests; educational, non-commercial scientific institutions or 
representatives of the news media; and all other requesters.
    (b) The specific levels of fees for each of these categories are:
    (1) Commercial use request. ONDCP will recover the full direct cost 
of providing search, review and duplication services. Commercial use 
requests will not receive free search-time or free reproduction of 
documents.
    (2) Educational and non-commercial scientific institution request. 
ONDCP will charge the cost of reproduction, excluding charges for the 
first 100 pages. Requesters must demonstrate the request is authorized 
by and under the auspices of a qualifying institution and that the 
records are sought for scholarly or scientific research not a 
commercial use.
    (3) Request from representative of the news media. ONDCP will 
charge the cost of reproduction, excluding charges for the first 100 
pages. Requesters must meet the criteria in Sec.  1401.3, and the 
request must not be made for a commercial use. A request that supports 
the news dissemination function of the requester shall not be 
considered a commercial use.
    (4) All other requesters. ONDCP will recover the full direct cost 
of the search and the reproduction of records, excluding the first 100 
pages of reproduction and the first two hours of search time.


Sec.  1401.14   Restrictions on charging fees.

    (a) No search fees will be charged for requests by educational 
institutions (unless the records are sought for a commercial use), 
noncommercial scientific institutions, or representatives of the news 
media.
    (b) If ONDCP fails to comply with the FOIA's time limits in which 
to respond to a request, it may not charge search fees, or, in the 
instances of requests from requesters described in Sec.  1401.13(b)(2), 
may not charge duplication fees, except as described in paragraphs (c), 
(d), and (e) of this section.
    (c) If ONDCP determines that unusual circumstances as defined by 
the FOIA apply and the agency provided timely written notice to the 
requester in accordance with the FOIA, a failure to comply with the 
time limit shall be excused for an additional 10 days.
    (d) If ONDCP determines that unusual circumstances as defined by 
the FOIA apply, and more than 5,000 pages are necessary to respond to 
the request, the agency may charge search fees, or, in the case of 
requesters described in Sec.  1401.13(b)(2) of this section, may charge 
duplication fees if the following steps are taken. ONDCP must have

[[Page 65701]]

provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA and the agency must have 
discussed with the requester via written mail, email, or telephone (or 
made not less than three good-faith attempts to do so) how the 
requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is 
satisfied, ONDCP may charge all applicable fees incurred in the 
processing of the request.
    (e) If a court has determined that exceptional circumstances exist 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order.
    (f) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (g) When, after first deducting the 100 free pages (or its cost 
equivalent) and the first two hours of search, a total fee calculated 
under paragraph (c) of this section is $25.00 or less for any request, 
no fee will be charged.


Sec.  1401.15   Waiver or reduction of fees.

    Requirements for waiver or reduction of fees:
    (a) Requesters may seek a waiver of fees by submitting a written 
application demonstrating how 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 is not primarily in the commercial interest of 
the requester.
    (b) ONDCP must furnish records responsive to a request without 
charge or at a reduced rate when it determines, based on all available 
information, that 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 is not primarily in the commercial interest of the requester. In 
deciding whether this standard is satisfied the agency must consider 
the factors described in paragraphs (b)(1) through (3) of this section:
    (1) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (2) Disclosure of the requested information would be likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (i) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (ii) 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 as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. ONDCP will presume that a representative of the news media 
will satisfy this consideration.
    (3) The disclosure must not be primarily in the commercial interest 
of the requester. To determine whether disclosure of the requested 
information is primarily in the commercial interest of the requester, 
ONDCP will consider the following criteria:
    (i) ONDCP must identify whether the requester has any commercial 
interest that would be furthered by the requested disclosure. A 
commercial interest includes any commercial, trade, or profit interest. 
Requesters must be given an opportunity to provide explanatory 
information regarding this consideration.
    (ii) If there is an identified commercial interest, the component 
must determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of Sec.  1401.15(a) are satisfied and any commercial 
interest is not the primary interest furthered by the request. ONDCP 
ordinarily will presume that when a news media requester has satisfied 
the requirements of Sec.  1401.15(a), the request is not primarily in 
the commercial interest of the requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return will not be presumed to primarily serve the public 
interest.
    (c) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (d) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to ONDCP and should address the criteria 
referenced above. A requester may submit a fee waiver request at a 
later time so long as the underlying record request is pending or on 
administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester shall be required to pay any costs incurred up to the 
date the fee waiver request was received.


Sec.  1401.16   Aggregation of requests.

    When ONDCP reasonably believes that a requester or a group of 
requesters acting in concert is attempting to divide a single request 
into a series of requests for the purpose of avoiding fees, the Agency 
may aggregate those requests and charge accordingly. The Agency may 
presume that multiple requests of this type made within a 30-day period 
have been made in order to avoid fees. For requests separated by a 
longer period, ONDCP will aggregate them only where there is a 
reasonable basis for determining that aggregation is warranted in view 
of all the circumstances involved. Multiple requests involving 
unrelated matters cannot be aggregated.


Sec.  1401.17   Markings on released documents.

    When requested records contain matters that are exempted under 5 
U.S.C. 552(b), but such exempted matters can be reasonably segregated 
from the remainder of the records, the records shall be disclosed by 
ONDCP with the necessary redactions. If records are disclosed in part, 
ONDCP will mark them to show the amount and location of information 
redacted and the exemption(s) under which the redactions were made 
unless doing so would harm an interest protected by an applicable 
exemption.


Sec.  1401.18   Confidential commercial information.

    (a) Definitions. As used in this section:
    Confidential commercial information means commercial or financial 
information obtained by ONDCP from a submitter that may be protected 
from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
    Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, at the time of submission, any 
portion of its submission that it considers to be

[[Page 65702]]

protected from disclosure under Exemption 4. These designations expire 
10 years after the date of the submission unless the submitter requests 
and provides justification for a longer designation period.
    (c) When notice to submitters is required. (1) ONDCP must promptly 
provide written notice to the submitter of confidential commercial 
information whenever records containing such information are requested 
under the FOIA if ONDCP determines that it may be required to disclose 
the records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) ONDCP has a reason to believe that the requested information 
may be protected from disclosure under Exemption 4, but has not yet 
determined whether the information is protected from disclosure.
    (2) The notice must either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, ONDCP may post or publish a notice in a place or 
manner reasonably likely to inform the submitters of the proposed 
disclosure, instead of sending individual notifications.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section do not apply if:
    (1) ONDCP determines that the information is exempt under the FOIA, 
and therefore will not be disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, ONDCP must give 
the submitter written notice of any final decision to disclose the 
information within a reasonable number of days prior to a specified 
disclosure date.
    (e) Opportunity to object to disclosure. (1) ONDCP must specify a 
reasonable time period within which the submitter must respond to the 
notice referenced above.
    (2) If a submitter has any objections to disclosure, it should 
provide ONDCP a detailed written statement that specifies all grounds 
for withholding the particular information under any exemption of the 
FOIA. In order to rely on Exemption 4 as the basis for nondisclosure, 
the submitter must explain why the information constitutes a trade 
secret or commercial or financial information that is confidential.
    (3) A submitter who fails to respond within the time period 
specified in the notice will be considered to have no objection to 
disclosure of the information. ONDCP is not required to consider any 
information received after the date of any disclosure decision. Any 
information provided by a submitter under this subpart may itself be 
subject to disclosure under the FOIA.
    (f) Analysis of objections. ONDCP must consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose the requested information.
    (g) Notice of intent to disclose. Whenever ONDCP decides to 
disclose information over the objection of a submitter, ONDCP must 
provide the submitter written notice, which must include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed or copies of 
the records as ONDCP intends to release them; and
    (3) A specified disclosure date, which must be a reasonable time 
after the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, ONDCP must promptly notify the submitter.
    (i) Requester notification. ONDCP must notify the requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure; whenever it notifies the submitter of its intent 
to disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.
    (j) No right or benefit. The requirements of this section such as 
notification do not create any right or benefit, substantive or 
procedural, enforceable at law or in equity by a party against the 
United States, its agencies, its officers, or any person.

Subpart B--Privacy Act Policies and Procedures


Sec.  1401.19   Definitions.

    For purposes of this subpart:
    Access means making a record available to a subject individual.
    Amendment means any correction, addition to or deletion of 
information in a record.
    Individual means a natural person who either is a citizen of the 
United States or an alien lawfully admitted to the United States for 
permanent residence.
    Maintain includes the term ``maintain'', collect, use, or 
disseminate.
    Privacy Act Office means the ONDCP officials who are authorized to 
respond to requests and to process requests for amendment of records 
ONDCP maintains under the Privacy Act.
    Record means any item, collection or grouping of information about 
an individual that ONDCP maintains within a system of records and 
contains the individual's name or the identifying number, symbol or 
other identifying particular assigned to the individual, such as a 
finger or voice print or photograph.
    System of records means a group of records ONDCP maintains or 
controls from which information is retrieved by the name of an 
individual or by some identifying number, symbol or other identifying 
particular assigned to the individual.


Sec.  1401.20   Purpose and scope.

    This subpart implements the Privacy Act, 5 U.S.C. 552a, a Federal 
law that requires Federal agencies to protect private information about 
individuals that the agencies collect or maintain. It establishes 
ONDCP's rules for access to records in systems of records we maintain 
that are retrieved by an individual's name or another personal 
identifier. It describes the procedures by which individuals may 
request access to records, request amendment or correction of those 
records, and request an accounting of disclosures of those records by 
ONDCP. Whenever it is appropriate to do so, ONDCP automatically 
processes a Privacy Act request for access to records under both the 
Privacy Act and the FOIA, following the rules contained in this part. 
ONDCP processes a request under both the Privacy Act and the FOIA so 
you will receive the maximum amount of information available to you by 
law.


Sec.  1401.21   How do I make a Privacy Act request?

    (a) In general. You can make a Privacy Act request for records 
about yourself. You also can make a request on behalf of another 
individual as the parent or legal guardian of a minor, or as the legal 
guardian of someone determined by a court to be incompetent.
    (b) How do I make a request? (1) Where do I send my written 
request? To make a request for access to a record, you should write 
directly to our Office of General Counsel. Heightened security

[[Page 65703]]

delays mail delivery. To avoid mail delivery delays, we strongly 
suggest that you email your request to [email protected]. Our mailing 
address is: SSDMD/RDS; ONDCP Office of General Counsel; Joint Base 
Anacostia-Bolling (JBAB); Bldg. 410/Door 123; 250 Murray Lane SW, 
Washington, DC 20509. To make sure that the Office of General Counsel 
receives your request without delay, you should include the notation 
``Privacy Act Request'' in the subject line of your email or on the 
front of your envelope and also at the beginning of your request.
    (2) Security concerns. To protect our computer systems, we reserve 
the right not to open attachments to emailed requests. We request that 
you include your request within the body of the email.
    (c) What should my request include? You must describe the record 
that you seek in enough detail to enable ONDCP to locate the system of 
records containing the record with a reasonable amount of effort. 
Include specific information about each record sought, such as the time 
period in which you believe it was compiled, the name or identifying 
number of each system of records in which you believe it is kept, and 
the date, title or name, author, recipient, or subject matter of the 
record. As a general rule, the more specific you are about the record 
that you seek, the more likely we will be able to locate it in response 
to your request.
    (d) How do I request amendment of a record? If you are requesting 
an amendment of an ONDCP record, you must identify each particular 
record in question and the system of records in which the record is 
located, describe the amendment that you seek, 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, 
including an annotated copy of the record.
    (e) How do I request an accounting of record disclosures? If you 
are requesting an accounting of disclosures made by ONDCP to another 
person, organization or Federal agency, you must identify each system 
of records in question. An accounting generally includes the date, 
nature and purpose of each disclosure, as well as the name and address 
of the person, organization, or Federal agency to which the disclosure 
was made.
    (f) Verification of identity. When making a Privacy Act request, 
you must verify your identity in accordance with these procedures to 
protect your privacy or the privacy of the individual on whose behalf 
you are acting. If you make a Privacy Act request and you do not follow 
these identity verification procedures, ONDCP cannot process your 
request.
    (1) How do I verify my own identity? You must include in your 
request your full name, citizenship status, current address, and date 
and place of birth. We may request additional information to verify 
your identity. To verify your own identity, you must provide an unsworn 
declaration under 28 U.S.C. 1746, a law that permits statements to be 
made under penalty of perjury. To fulfill this requirement, you must 
include the following statement just before the signature on your 
request:

    I declare under penalty of perjury that the foregoing is true 
and correct. Executed on [date].

    (2) How do I verify parentage or guardianship? If you make a 
request as the parent or legal guardian of a minor, or as the legal 
guardian of someone determined by a court to be incompetent, for access 
to records or information about that individual, you must establish:
    (i) The identity of the individual who is the subject of the 
record, by stating the individual's name, citizenship status, current 
address, and date and place of birth;
    (ii) Your own identity, as required in paragraph (f)(1) of this 
section;
    (iii) That you are the parent or legal guardian of the individual, 
which you may prove by providing a copy of the individual's birth 
certificate showing your parentage or a court order establishing your 
guardianship; and
    (iv) That you are acting on behalf of the individual in making the 
request.


Sec.  1401.22   How will ONDCP respond to my Privacy Act request?

    (a) When will we respond to your request? We will search to 
determine if the requested records exist in a system of records ONDCP 
owns or controls. The Office of General Counsel will respond to you in 
writing within 20 days after we receive your request and/or within ten 
working days after we receive your request for an amendment, if it 
meets the requirements of this subpart. We may extend the response time 
in unusual circumstances, such as the need to consult with another 
agency about a record or to retrieve a record that is in storage.
    (b) What will our response include? (1) Our written response will 
include our determination whether to grant or deny your request in 
whole or in part, a brief explanation of the reasons for the 
determination, and the amount of the fee charged, if any, under Sec.  
1401.24. If you requested access to records, we will make the records, 
if any, available to you. If you requested amendment of a record, the 
response will describe any amendments made and advise you of your right 
to obtain a copy of the amended record.
    (2) We will also notify the individual who is subject to the record 
in writing, if, based on your request, any system of records contains a 
record pertaining to him or her.
    (3) If ONDCP makes an adverse determination with respect to your 
request, our written response will identify the name and address of the 
person responsible for the adverse determination, that the adverse 
determination is not a final agency action, and describe the procedures 
by which you may appeal the adverse determination under Sec.  1401.23.
    (4) An adverse determination is a response to a Privacy Act request 
that:
    (i) Withholds any requested record in whole or in part;
    (ii) Denies a request to amend a record in whole or in part;
    (iii) Declines to provide an accounting of disclosures;
    (iv) Advises that a requested record does not exist or cannot be 
located;
    (v) Finds that what you requested is not a record subject to the 
Privacy Act; or
    (vi) Advises on any disputed fee matter.


Sec.  1401.23   What can I do if I am dissatisfied with ONDCP's 
response to my Privacy Act request?

    (a) What can I appeal? You can appeal any adverse determination in 
writing to our Director or designee within 90 calendar days after the 
date of our response. We provide a list of adverse determinations in 
Sec.  1401.22(b)(3).
    (b) How do I make an appeal? (1) What should I include? You may 
appeal by submitting a written statement giving the reasons why you 
believe the Director or designee should overturn the adverse 
determination. Your written appeal may include as much or as little 
related information as you wish to provide, as long as it clearly 
identifies the determination (including the request number, if known) 
that you are appealing.
    (2) Where do I send my appeal? You should mark both your letter and 
the envelope, or the subject of your email, ``Privacy Act Appeal.'' To 
avoid mail delivery delays caused by heightened security, we strongly 
suggest that you email any appeal to [email protected]. Our mailing 
address is: SSDMD/RDS; ONDCP Office of General Counsel; Joint Base 
Anacostia-Bolling

[[Page 65704]]

(JBAB); Bldg. 410/Door 123; 250 Murray Lane SW, Washington, DC 20509.
    (c) Who will decide your appeal? (1) The Director or designee will 
act on all appeals under this section.
    (2) We ordinarily will not adjudicate an appeal if the request 
becomes a matter of litigation.
    (3) On receipt of any appeal involving classified information, the 
Director or designee must take appropriate action to ensure compliance 
with applicable classification rules.
    (d) When will we respond to your appeal? The Director or designee 
will notify you of its appeal decision in writing within 30 days from 
the date it receives an appeal that meets the requirements of paragraph 
(b) of this section. We may extend the response time in unusual 
circumstances, such as the need to consult with another agency about a 
record or to retrieve a record shipped offsite for storage.
    (e) What will our response include? The written response will 
include the Director or designee's determination whether to grant or 
deny your appeal in whole or in part, a brief explanation of the 
reasons for the determination, and information about the Privacy Act 
provisions for court review of the determination.
    (1) Appeals concerning access to records. If your appeal concerns a 
request for access to records and the appeal is granted in whole or in 
part, we will make the records, if any, available to you.
    (2) Appeals concerning amendments. If your appeal concerns 
amendment of a record, the response will describe any amendment made 
and advise you of your right to obtain a copy of the amended record. We 
will notify all persons, organizations or Federal agencies to which we 
previously disclosed the record, if an accounting of that disclosure 
was made, that the record has been amended. Whenever the record is 
subsequently disclosed, the record will be disclosed as amended. If our 
response denies your request for an amendment to a record, we will 
advise you of your right to file a statement of disagreement under 
paragraph (f) of this section.
    (f) Statements of disagreement--(1) What is a statement of 
disagreement? A statement of disagreement is a concise written 
statement in which you clearly identify each part of any record that 
you dispute and explain your reason(s) for disagreeing with our denial 
in whole or in part of your appeal requesting amendment.
    (2) How do I file a statement of disagreement? You should mark both 
your letter and the envelope, or the subject of your email, ``Privacy 
Act Statement of Disagreement.'' To avoid mail delivery delays caused 
by heightened security, we strongly suggest that you email a statement 
of disagreement to [email protected]. Our mailing address is: SSDMD/
RDS; ONDCP Office of General Counsel; Joint Base Anacostia-Bolling 
(JBAB); Bldg. 410/Door 123; 250 Murray Lane SW, Washington, DC 20509.
    (3) What will we do with your statement of disagreement? We shall 
clearly note any portion of the record that is disputed and provide 
copies of the statement and, if we deem appropriate, copies of our 
statement that denied your request for an appeal for amendment, to 
persons or other agencies to whom the disputed record has been 
disclosed.
    (g) When appeal is required. Under this section, you generally 
first must submit a timely administrative appeal, before seeking review 
of an adverse determination or denial request by a court.


Sec.  1401.24   What does it cost to get records under the Privacy Act?

    (a) Agreement to pay fees. Your request is an agreement to pay 
fees. We consider your Privacy Act request as your agreement to pay all 
applicable fees unless you specify a limit on the amount of fees you 
agree to pay. We will not exceed the specified limit without your 
written agreement.
    (b) How do we calculate fees? We will charge a fee for duplication 
of a record under the Privacy Act in the same way we charge for 
duplication of records under the FOIA in Sec.  1401.11(c). There are no 
fees to search for or review records requested under the Privacy Act.

Michael J. Passante,
Acting General Counsel.
[FR Doc. 2020-20270 Filed 10-15-20; 8:45 am]
BILLING CODE 3280-F5-P