[Federal Register Volume 73, Number 31 (Thursday, February 14, 2008)]
[Proposed Rules]
[Pages 8629-8632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2254]
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EXECUTIVE OFFICE OF THE PRESIDENT
Office of the United States Trade Representative
15 CFR Part 2004
Freedom of Information Act
AGENCY: Office of the United States Trade Representative, Executive
Office of the President.
ACTION: Proposed rule.
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SUMMARY: The Office of the United States Trade Representative (USTR) is
issuing a proposed rule to update its Freedom of Information Act
regulations. USTR's last made changes to its FOIA regulations in 1975.
Since that time the information relating to USTR has changed and there
have been several changes to the Freedom of Information Act, which
needed to be reflected in the regulations.
DATES: Public comments on this proposed rule are invited and must be
received on or before Wednesday, April 14, 2008.
ADDRESSES: Comments should be submitted electronically to Gloria Blue
at [email protected] and should contain in the subject-line ``Attn:
Freedom of Information Act Rules''.
FOR FURTHER INFORMATION CONTACT: David Apol, USTR, telephone (202) 395-
9633, Fax (202) 395-3640.
SUPPLEMENTARY INFORMATION: USTR last made changes to its FOIA
regulations in 1975. 40 FR 30934, July 24, 1975. The current
regulations are published at 15 CFR part 2004 and are available on
USTR's Web site at http://www.ustr.gov.
Since that time, pertinent information relating to USTR has changed
and USTR has made changes in the way it implements the FOIA. In
addition, Executive Order 13392 mandated changes in federal agency FOIA
practices to ensure prompt and effective response to the public's
requests for information. 70 FR 75373, Dec. 19, 2005. Finally, Public
Law 110-175, the OPEN Government Act of 2007, amended the definition of
``representative of the news media'' and made other changes to the
Freedom of Information Act.
In response to Executive Order 13392, USTR created a FOIA plan
requiring it to revise its FOIA regulations and to improve the
efficiency of information disclosure under the FOIA. The proposed rule
will update USTR's FOIA regulations to provide current information
about USTR and will more accurately reflect its FOIA practices.
Further, the proposed rule will also bring USTR's fee structure into
conformity with the Office of Management and Budget's (OMB's) Uniform
Freedom of Information Act Fee Schedule and Guidelines, 52 FR 10012,
Mar. 27, 1987. The proposed rule also incorporates changes made by the
OPEN Government Act of 2007.
Executive Order 12866
The United States Trade Representative certifies that the proposed
rule is not significant for purposes of Executive Order 12866, 58 FR
51735, Oct. 4, 1993. Therefore, OMB has not reviewed the proposed rule
under that Executive Order.
Regulatory Flexibility Act
The United States Trade Representative certifies that this proposed
rule is not subject to the
[[Page 8630]]
Regulatory Flexibility Act, 5 U.S.C. 601, because it will not have a
significant economic impact on a substantial number of small entities.
For this reason, USTR has not prepared a Regulatory Flexibility
Statement and Analysis.
Paperwork Reduction Act
The United States Trade Representative certifies that the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq., does not apply because the
proposed rule does not seek to collect information. Therefore, it does
not require OMB approval.
For the reasons stated in the preamble, USTR proposes to revise 15
CFR Part 2004 as follows:
PART 2004--FREEDOM OF INFORMATION POLICIES AND PROCEDURES
Organization
Sec.
2004.1 In general.
2004.2 Authority and functions.
2004.3 Organization.
Procedures
2004.4 Availability of records.
2004.5 Accessing records without request.
2004.6 Requesting records.
Costs
2004.7 Definitions.
2004.8 Fees in general.
2004.9 Fees for categories of requesters.
2004.10 Other charges.
2004.11 Payment and waiver.
Authority: 5 U.S.C. 552; Uniform Freedom of Information Act Fee
Schedule and Guidelines, 52 FR 10012, Mar. 27, 1987.
Organization
Sec. 2004.1 In general.
This information is furnished for the guidance of the public and in
compliance with the requirements of the Freedom of Information Act, 5
U.S.C. 552, as amended (FOIA). This regulation should be read in
conjunction with the FOIA.
Sec. 2004.2 Authority and functions.
The Office of the United States Trade Representative (USTR)
negotiates directly with foreign governments to conclude trade
agreements, resolve trade disputes, and participate in global trade
policy organizations. USTR consults with governments, business groups,
legislators, and public interest groups to obtain their views on trade
issues and explain the President's trade policy positions. The general
functions of USTR, as provided by statute, are to develop and
coordinate international trade and direct investment policy, advise and
assist the President, represent the United States in international
trade negotiations, and provide policy guidance to federal agencies on
international trade matters. The United States Trade Representative, a
cabinet officer, serves as a Vice Chairman of the Overseas Private
Investment Corporation, a Board member of the Millennium Challenge
Corporation, a non-voting member of the Export-Import Bank, and a
member of the National Advisory Council on International Monetary and
Financial Policies.
Sec. 2004.3 Organization.
USTR's main office is located in Washington, DC. It also maintains
a mission in Geneva, Switzerland.
Procedures
Sec. 2004.4 Availability of records.
USTR's publicly accessible records are available through USTR's
public reading room or its Web site. USTR also provides records to
individual requesters in response to FOIA requests. USTR generally
withholds predecisional, deliberative documents and classified trade
negotiating and policy documents under 5 U.S.C. 552(b).
Sec. 2004.5 Accessing records without request.
(a) Public reading room. USTR maintains and makes available for
public inspection and copying USTR records pertaining to matters within
the scope of 5 U.S.C. 552(a)(2), as amended. Most records in USTR's
public reading room comprise responses to Federal Register notices that
USTR has issued. USTR's public reading room is located at 1724 F
Street, NW., Washington, DC. Access to the reading room is by
appointment only. Contact USTR's FOIA Officer at (202) 395-6186 to set
up an appointment.
(b) Electronic resources. Certain USTR records, including press
releases and other public issuances, are available electronically from
USTR's homepage at http://www.ustr.gov. USTR encourages requesters to
visit its Web site before making a request for records under Sec.
2004.6.
Sec. 2004.6 Requesting records.
(a) Written requests required. For records not available as
described under Sec. 2004.5, requesters wishing to obtain information
from USTR must submit a written request to USTR's FOIA Officer.
Requests should be addressed to FOIA Officer, Office of the United
States Trade Representative, 600 17th Street NW., Washington, DC 20508.
As there may be delays in mail delivery, it is advisable to send
request via facsimile to (202) 395-9458.
(b) Contents of requests. Requests shall be as specific as possible
and shall reasonably describe the records sought so that the records
can be located with a reasonable amount of effort. The request should
identify the desired record or reasonably describe it and should
include information such as the date, title or name, author, recipient,
and subject matter of the record.
(c) Response to requests--(1) Processing. The FOIA Officer shall
ordinarily determine within 20 days (except Saturdays, Sundays, and
federal holidays) after receiving a request for records, whether it is
appropriate to grant or deny the request. The 20-day period may be
tolled one time if the FOIA Officer requests information from the
requestor or if additional time is necessary to clarify issues with the
requestor regarding a fee assessment.
(i) Request granted. If the FOIA Officer decides to grant the
request, the FOIA Officer shall promptly provide the requester written
notice of the decision. The FOIA Officer shall normally include with
the notice both the requested records and a copy of the decision.
(ii) Request denied. If the FOIA Officer denies the request, in
full or part, the FOIA Officer shall provide the requester written
notice of the denial together with the approximate number of pages of
information withheld and the exemption under which the information was
withheld. The notice shall also describe the procedure for filing an
appeal.
(2)(i) Expedited processing. At the time a requester submits an
initial request for records the requester may ask the FOIA Officer in
writing to expedite processing of the request. The request for
expedited processing must be accompanied by a written statement, true
and correct to the best of the requester's knowledge and belief,
explaining why expedited processing is warranted. The FOIA Officer
shall generally grant requests for expedited processing of requests for
records, and appeals of denials under paragraph (d)(2) of this section,
whenever the FOIA Officer determines that:
(A) Failure to obtain the requested records on an expedited basis
could reasonably pose an imminent threat to a person's life or physical
safety; or
(B) With respect to a request made by a person primarily engaged in
disseminating information, there is an urgency to inform the public
about government activity that is the specific subject of the FOIA
request.
[[Page 8631]]
(ii) The FOIA Officer shall ordinarily decide within ten days after
receiving a request for expedited processing whether to grant it and
shall notify the requester of the decision. If the FOIA Officer grants
a request for expedited processing, the FOIA Officer shall process the
request as soon as practicable. If the FOIA Officer denies a request
for expedited processing, USTR shall act expeditiously on any appeal of
the denial.
(3) Extension for unusual circumstances--(i) In general. If the
FOIA Officer determines that unusual circumstances exist, the FOIA
Officer may extend for no more than ten days (except Saturdays,
Sundays, and federal holidays) the time limits described in paragraph
(1) of this section by providing written notice of the extension to the
requester. The FOIA Officer shall include with the notice a brief
statement of the reason for the extension and the date the FOIA Officer
expects to make the determination.
(ii) Additional procedures. The FOIA Officer shall provide written
notice to the requester if the FOIA Officer decides that the
determination cannot be made within the time limit described in
subparagraph (i). The notice shall afford the requester an opportunity
to limit the scope of the request to the extent necessary for the FOIA
Officer to process it within that time limit or an opportunity to
arrange a longer period for processing the request.
(d) Appeals--(1) Initiating appeals. Requesters not satisfied with
the FOIA Officer's written decision may request USTR's FOIA Appeals
Committee to review the decision. Appeals must be delivered in writing
within 60 days of the date of the decision and shall be addressed to
the FOIA Appeals Committee, Office of the United States Trade
Representative, 600 17th Street, NW., Washington, DC 20508. As there
may be delays in mail delivery, it is advisable to FAX appeals to (202)
395-9458. An appeal shall include a statement specifying the records
that are the subject of the appeal and explaining why the Committee
should sustain the appeal.
(2) Appeal decisions. The Committee shall ordinarily decide the
appeal within 20 working days from the date it receives the appeal. If
the Committee denies the appeal in full or part, the Committee shall
promptly notify the requester in writing of the Committee's decision
and the provisions for judicial review. If the Committee sustains the
appeal, the FOIA Officer shall notify the requester in writing and
shall make available to the requester copies of the releasable records
once the requester pays any fees that USTR assesses under Sec. Sec.
2004.8 through 2004.10.
Costs
Sec. 2004.7 Definitions.
For purposes of these regulations:
(a) ``Commercial use request'' means a request from or on behalf of
a person who seeks information for a use or purpose that furthers the
requester's or other person's commercial, trade, or profit interests.
(b) ``Direct costs'' means those costs incurred in searching for
and duplicating (and, in the case of commercial use requests,
reviewing) documents to respond to a FOIA request. Direct costs
include, for example, salaries of employees who perform the work and
costs of conducting large-scale computer searches.
(c) ``Duplicate'' means to copy records to respond to a FOIA
request. Copies can take the form of paper, audio-visual materials, or
electronic records, among others.
(d) ``Educational institution'' means a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, that operates a program or programs of scholarly research.
(e) ``Non-commercial scientific institution'' means an institution
that is not operated on a commercial basis and that operates solely for
the purpose of conducting scientific research the results of which are
not intended to promote any particular product or industry.
(f) ``Representative of the news media'' means any person or entity
that gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience.
(g) ``Review'' means to examine a record to determine whether any
portion of the record may be withheld and to process a record for
disclosure, including by redacting it.
(h) ``Search for'' means look for and retrieve records covered by a
FOIA request, including by looking page-by-page or line-by-line to
identify responsive material within individual records.
Sec. 2004.8 Fees in general.
USTR shall charge fees that recoup the full allowable direct costs
it incurs in responding to FOIA requests. USTR may assess charges for
time spent searching for records even if USTR fails to locate the
records or if the records are located and determined to be exempt from
disclosure. In general, USTR shall apply the following fee schedule,
subject to Sec. Sec. 2004.9 through 2004.11:
(a) Manual searches. Time devoted to manual searches shall be
charged on the basis of the salary of the employee(s) conducting the
search (basic hourly rate(s) of pay for the employee(s), plus 16
percent).
(b) Electronic searches. Fees shall reflect the direct cost of
conducting the search. This will include the cost of operating the
central processing unit for that portion of operating time that is
directly attributable to searching for and printing records responsive
to the FOIA request and operator/programmer salary attributable to the
search.
(c) Record reviews. Time devoted to reviewing records shall be
charged on the same basis as under paragraph (a) of this section, but
shall only be applicable to the initial review of records located in
response to commercial use requests.
(d) Duplication. Fees for copying paper records or for printing
electronic records shall be assessed at a rate of $.15 per page. For
other types of copies such as disks or audio visual tapes, USTR shall
charge the direct cost of producing the document(s). If duplication
charges are expected to exceed $25, the FOIA Officer shall notify the
requester, unless the requester has indicated in advance a willingness
to pay fees as high as those anticipated. If a requester wishes to
limit costs, the FOIA Officer shall provide the requester an
opportunity to reformulate the request in order to reduce costs. If the
requester reformulates a request, it shall be considered a new request
and the 20-day period described in Sec. 2004.6(c)(1) shall be deemed
to begin when the FOIA Officer receives the request.
(e) Advance payments required. The FOIA Officer may require a
requester to make an advance deposit of up to the amount of the entire
anticipated fee before the FOIA Officer begins to process the request
if:
(1) The FOIA Officer estimates that the fee will exceed $250; or
(2) The requester has previously failed to pay a fee in a timely
fashion.
When the FOIA Officer requires a requester to make an advance
payment, the 20-day period described in Sec. 2004.6(c)(1) shall begin
when the FOIA Officer receives the payment.
(f) No assessment of fee. USTR shall not charge a fee to any
requester if:
(1) The cost of collecting the fee would be equal to or greater
than the fee itself; or
[[Page 8632]]
(2) After December 31, 2008, USTR fails to comply with any time
limit under the Freedom of Information Act for responding to a request
for records where no unusual or exceptional circumstances apply.
Sec. 2004.9 Fees for categories of requesters.
USTR shall assess fees for certain categories of requesters as
follows:
(a) Commercial use requesters. In responding to commercial use
requests, USTR shall assess fees that recover the full direct costs of
searching for, reviewing, and duplicating records.
(b) Educational institutions. USTR shall provide records to
requesters in this category for the cost of duplication alone,
excluding charges for the first 100 pages. To qualify for inclusion in
this fee category, a requester must show that the request is authorized
by and is made under the auspices of a qualifying institution and that
the records are sought to further scholarly research, not an individual
goal.
(c) Representatives of the news media. USTR shall provide records
to requesters in this category for the cost of duplication alone,
excluding charges for the first 100 pages.
(d) All other requesters. USTR shall charge requesters who do not
fall within paragraphs (a) through (c) of this section fees that
recover the full direct cost of searching for and duplicating records,
excluding charges for the first 100 pages of reproduction and the first
two hours of search time.
Sec. 2004.10 Other charges.
USTR may apply other charges, including the following:
(a) Special charges. USTR shall recover the full cost of providing
special services, such as sending records by express mail, to the
extent that USTR elects to provide them.
(b) Interest charges. USTR may begin assessing interest charges on
an unpaid bill starting on the 31st day following the day on which the
FOIA Officer sent the billing. Interest shall be charged at the rate
prescribed in 31 U.S.C. 3717 and will accrue from the date of billing.
(c) Aggregating requests. When the FOIA Officer reasonably believes
that a requester or a group of requesters acting in concert is
attempting to divide a request into a series of requests for the
purpose of avoiding fees, the FOIA Officer shall aggregate those
requests and charge accordingly.
Sec. 2004.11 Payment and waiver.
(a) Remittances. Payment shall be made in the form of check or
money order made payable to the Treasury of the United States. At the
time the FOIA Officer notifies a requester of the applicable fees, the
Officer shall inform the requester of where to send the payment.
(b) Waiver. USTR may waive all or part of any fee provided for in
Sec. Sec. 2004.8 through 2004.9 when the FOIA Officer deems that
disclosure of the information is in the general public's interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is
not primarily in the commercial interest of the requester. In
determining whether a fee should be waived, the FOIA Officer may
consider whether:
(1) The subject matter specifically concerns identifiable
operations or activities of the government;
(2) The information is already in the public domain;
(3) Disclosure of the information would contribute to the
understanding of the public-at-large as opposed to a narrow segment of
the population;
(4) Disclosure of the information would significantly enhance the
public's understanding of the subject matter;
(5) Disclosure of the information would further a commercial
interest of the requester; and
(6) The public's interest is greater than any commercial interest
of the requester.
Dated: January 31, 2008.
Ambassador Susan C. Schwab,
United States Trade Representative.
[FR Doc. E8-2254 Filed 2-13-08; 8:45 am]
BILLING CODE 3190-W8-P