U.S. DEPARTMENT OF AGRICULTURE
[Federal Register: July 28, 2000 (Volume 65, Number 146)]
Rules and Regulations
This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.
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DEPARTMENT OF AGRICULTURE
SUMMARY: The Department of Agriculture is issuing a final rule revising it's regulations implementing the Freedom of Information Act (FOIA). This final rule implements the Electronic Freedom of Information Act Amendments of 1996.
EFFECTIVE DATE: August 28, 2000.
SUPPLEMENTARY INFORMATION: On May 4, 1998 (63 FR 24467), USDA requested public comment on proposed revisions to its regulations at 7 CFR Part 1 implementing the Freedom of Information Act. This revision is necessary to implement the Electronic Freedom of Information Act Amendments of 1996, Public Law 104-231 (E-FOIA).
The proposed rule provided for the expedited processing of certain categories of requesters; proposed ``multi-track'' processing requirements; incorporated new processing deadlines and appeal rights; implemented the E-FOIA provisions requiring agencies to generally provide records in the form or format requested, extended agency regulations to the processing of electronic records, and provides for frequently requested records as a category of reading room records.
Analysis of Public Comments and the Final Rule
USDA received three comment letters in response to the proposed revisions to USDA's FOIA regulations, one from a trade association representing news editors and reporters; one from a trade association representing private citizens; and one from a natural resource community group involved in natural resource issues. The commenters raised several issues regarding the proposed rule, generally seeking clarification of provisions implementing E-FOIA.
Regarding section 1.4(a)(4), one of the trade associations requested that USDA reconsider the provision which allows USDA agencies to decide on a case-by-case basis whether records that have already been subject to several requests should be placed in agency reading rooms. The commenter would like USDA to change this section to cover only records that have not been subject to subsequent FOIA requests instead of records that have been subject to several requests. The regulation tracks the language of the statute. Therefore, USDA believes that this section of the regulation as proposed is appropriate.
Regarding section 1.9(b)(2), the community group and the association of news editors and reporters requested that USDA broaden the circumstances for expedited processing of FOIA requests. USDA believes, as a matter of policy, that expanding the criteria as embodied in the proposed regulation as suggested by the commenters would be counter to even-handed treatment of the public. In essence, the commenters desire that self-selected requesters be placed in line ahead of most members of the requesting public. One specific suggestion to USDA was to include the Department of Justice regulatory provision allowing expedited treatment when a request involves the loss of substantial due process rights. In this connection, USDA points out that one of the primary missions of the Department of Justice is the administration of criminal justice. USDA does not share the administration of criminal justice as one of its primary missions, and believes that the addition of loss of substantial due process rights as a ground for expedited processing is not necessary.
Regarding section 1.9(2)(c) the association of news editors and reporters requested that USDA incorporate a provision similar to that adopted by the Department of Justice and the Federal Deposit Insurance Corporation in their FOIA regulations with regard to the formality of certifications needed to obtain expedited treatment. More specifically, and consistently with E-FOIA, the USDA proposed rule provided that a requester is entitled to expedited treatment only where failure to obtain the records expeditiously could pose an imminent threat to the life or physical safety of a person, or where the requester is a person primarily engaged in disseminating information and there is an urgency to inform the public concerning actual or alleged agency activity. A requester seeking expedited processing must submit a certified statement describing the basis for requesting expedited treatment. The Department of Justice and Federal Deposit Insurance Corporation regulations, however, provide that the formality of certification may be waived as a matter of administrative discretion. The association of news editors and reporters requests that USDA incorporate a similar waiver provision. The certification required by USDA is straightforward and, therefore, we do not expect that it will be burdensome for eligible requesters to submit a certification with their initial requests.
The association of news editors and reporters requested that USDA incorporate language that the denial of a request for expedited processing should be appealable. This language is already included in proposed section 1.9 of the regulations.
Regarding section 1.5, the community group requested that USDA remove the requirement that all requests for records shall be deemed to have been made pursuant to FOIA by changing the word "shall" to "should"; and change the requirement that when a requester wants documents relating to pending litigation that the requester identify the court and its location. We believe that considering all requests for records under FOIA will confer more rights on the requester, and therefore we will keep the word "shall" in the language. Also, we believe that identifying the court and its location is part of the requirement to reasonably describe the documents requested.
Regarding section 1.6, the community group requested that USDA remove this section which pertains to aggregating requests, asserting that it violates the due process clause of the constitution.
We do not concur because aggregation of requests is specifically permitted by 5 U.S.C. 552(a)(6)(B)(iv).
Regarding section 1.8, the community group requested that USDA provide a better description of multi-track processing and give examples. USDA does not have a centralized FOIA process in which requests will be processed in a central multi-tracking process. Each agency within USDA which decides to have a multi-tracking processing system will provide a description of its system and how it works in its respective agency regulations and directives.
Regarding section 1.19, the community group requested that USDA better describe the term ``promptly available'' as it relates to making records available to any person submitting a FOIA request. The group also wants us to incorporate Attorney General Reno's October 4, 1993, memo on discretionary releases into the regulation. We believe that the term ``promptly available'' clearly indicates that FOIA requests should be processed as soon as reasonably possible, considering the nature of the request, and all the facts and circumstances, including the volume and location of responsive records. We also believe that this section of the USDA regulation reflects the essence of Attorney General Reno's memo to make discretionary releases under FOIA. However, we emphasize that this does not reflect a statement of policy that USDA has specifically incorporated the Attorney General's memorandum of October 4, 1993. USDA is mindful of its obligation under the memorandum, but also is aware that the memorandum, by its terms, specifically disclaims that it extends enforceable procedural rights to requesters.
The community group requested that USDA provide a process for citizens to file a complaint about officials who intentionally violate FOIA. We believe that section 1.14 of the USDA regulations already provides a process for citizens to complain if they believe officials have intentionally violated FOIA. This section allows citizens to appeal a denial of a request for records or denial of a fee waiver to a different level of the agency. Citizens also have the right to judicial review of final appeal denials.
The community group requested that USDA provide for FOIA requests via electronic mail over the Internet. USDA believes that this decision is more appropriately left to its individual program agencies and staff offices. This is so because of decentralization of FOIA processing within USDA and the varying electronic capabilities of the numerous agencies and offices that would be affected.
Finally, upon review, USDA is modifying the language of Section 1.8(c) to accommodate situations where an agency might have several processing tracks, so that the requester will have the opportunity to modify the request to qualify for a faster track rather than the "fastest" track, as in the proposed regulation. This approach is more logical than simply providing for modification to qualify for the "fastest track," where there may be several tracks to which the request might be assigned.
Executive Order 12866
Because this rule has been determined to be not significant, the Office of Management and Budget (OMB) did not review it under Executive Order 12866. This rule will not have any economic impact. Under these circumstances, the Secretary has determined that this action will not have a significant economic impact on a substantial number of small entities.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule. However, the administrative procedures specified must be exhausted prior to any judicial challenge of the application of the provisions of this rule.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
USDA certifies that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it will not have a significant economic impact on a substantial number of small entities. This rule implements the Freedom of Information Act (5 U.S.C. 552), a statute concerning the release of Federal Government records, and does not economically impact Federal Government relations with the private sector.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
USDA certifies that this rule does not impose any reporting or record keeping requirements under the Paperwork Reduction Act of 1995.
List of Subjects in 7 CFR Part 1
Administrative practice and procedure, Freedom of Information, Privacy.
Accordingly, 7 CFR, part 1, is amended as follows:
Authority: 5 U.S.C. 301, unless otherwise noted.
2. Part 1 is amended in subpart A by revising Secs. 1.1 through 1.20 and Secs. 1.22 through 1.23 and by adding Secs. 1.21, 1.24 and 1.25 to read as follows:
PART 1--ADMINISTRATIVE REGULATIONS
Subpart A--Official Records
Subpart A--Official Records
Authority: 5 U.S.C. 301, 552; 7 U.S.C. 3125a; 31 U.S.C. 9701; and 7 CFR 2.28(b)(7)(viii).
Sec. 1.1 Purpose and scope.
This subpart establishes policy, procedures, requirements, and
responsibilities for administration and coordination of the Freedom of
Information Act ("FOIA"), 5 U.S.C. 552, pursuant to which any person
may obtain official records. It also provides rules pertaining to the
disclosure of records pursuant to compulsory process. This subpart also
serves as the implementing regulations (referred to in Sec. 1.3,
"Agency implementing regulations") for the Office of the Secretary
(the immediate offices of the Secretary, Deputy Secretary, Under
Secretaries and Assistant Secretaries) and for the Office of
Communications. The Office of Communications has the
Sec. 1.2 Policy.
(a) Agencies of USDA shall comply with the time limits set forth in the FOIA and in this subpart for responding to and processing requests and appeals for agency records, unless there are unusual circumstances within the meaning of 5 U.S.C. 552(a)(6)(B) and Sec. 1.16(b). An agency shall notify a requester in writing whenever it is unable to respond to or process a request or appeal within the time limits established by the FOIA.
(b) All agencies of the Department shall comply with the fee schedule provided as appendix A to this subpart, with regard to the charging of fees for providing copies of records and related services to requesters.
Sec. 1.3 Agency implementing regulations.
Each agency of the Department shall promulgate regulations setting forth the following:
(a) The location and hours of operation of the agency office or offices where members of the public may gain access to those materials required by 5 U.S.C. 552(a)(2) and Sec. 1.4 to be made available for public inspection and copying.
(b) Information regarding the publication and distribution (by sale or otherwise) of indexes and supplements to indexes that are maintained in accordance with the requirements of 5 U.S.C. 552(a)(2) and Sec. 1.4(c);
(c) The title and mailing address of the official or officials of the agency authorized to receive requests for records submitted in accordance with Sec. 1.5(a), and to make determinations regarding whether to grant or deny such requests. Authority to make such determinations includes authority to:
(1) Extend the 20 working day administrative deadline for reply pursuant to Sec. 1.16;
(2) Make discretionary releases pursuant to Sec. 1.19(b);
(3) Make determinations regarding the charging of fees pursuant to appendix A to this subpart;
(d) The title and mailing address of the agency official who is authorized to receive appeals submitted in accordance with Sec. 1.14 and to make determinations regarding whether to grant or deny such appeals. Authority to determine appeals includes authority to:
(1) Extend the 20 working day administrative deadline for reply pursuant to Sec. 1.16 (to the extent the maximum extension authorized by Sec. 1.16(c) was not used with regard to the initial request;
(2) Make discretionary releases pursuant to Sec. 1.19(b);
(3) Make determinations regarding the charging of fees pursuant to appendix A to this subpart; and
(e) Other information which would be of concern to a person wishing to request records from that agency in accordance with this subpart.
Sec. 1.4 Public access to certain materials.
(a) In accordance with 5 U.S.C. 552(a)(2), each agency within the Department shall make the following materials available for public inspection and copying (unless they are promptly published and copies offered for sale):
(1) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(2) Those statements of policy and interpretation which have been adopted by the agency and are not published in the Federal Register;
(3) Administrative staff manuals and instructions to staff that affect a member of the public;
(4) Copies of all records, regardless of form or format, which have
been released pursuant to a FOIA request under 5 U.S.C. 552(a)(3), and
which because of the nature of their subject matter, have become or are
likely to become the subject of subsequent requests for substantially
the same records. Agencies shall decide on a case by case basis whether
records fall into this category, based on the following factors:
(5) A general index of the records referred to in paragraph (a)(4) of this section.
(b) Records encompassed within paragraphs (a)(1) through (a)(5) of this section created on or after November 1, 1996, shall be made available to the public by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means.
(c) Each agency of the Department shall maintain and make available for public inspection and copying current indexes providing identifying information regarding any matter issued, adopted or promulgated after July 4, 1967, and required by paragraph (a) of this section to be make available or published. Each agency shall publish and make available for distribution copies of such indexes and supplements to such indexes at least quarterly, unless it determines by notice published in the Federal Register that publication would be unnecessary and impracticable. After issuance of such notice, each agency shall provide copies of any index upon request at a cost not to exceed the direct cost of duplication.
(d) Each agency is responsible for preparing reference material or a guide for requesting records or information from that agency. This guide shall also include an index of all major information systems, and a description of major information and record locator systems.
(e) Each agency shall also prepare a handbook for obtaining information from that agency. The handbook should be a short, simple explanation to the public of what the FOIA is designed to do, and how a member of the public can use it to access government records. The handbook should be available on paper and through electronic means, and it should identify how a requester can access agency Freedom of Information Act annual reports. Similarly, the annual reports should refer to the handbook and how to obtain it.
(f) It is appropriate to make frequently requested records available in accordance with paragraph (a)(4) of this section in situations where public access in a timely manner is important, and it is not intended to apply where there may be a limited number of requests over a short period of time from a few requesters. Agencies may remove a record from this access medium when the appropriate official determines that it is unlikely there will be substantial further requests for that document.
Sec. 1.5 Requests for records.
(a) Any person who wishes to inspect or obtain copies of any record
of any agency of the Department shall submit a request in writing and
address the request to the official designated in regulations
promulgated by that agency. The requester may ask for a fee waiver. All
such requests for records shall be deemed to have been made pursuant to
the Freedom of Information Act, regardless of whether the request
specifically mentions the Freedom of Information Act. To facilitate
processing of a request, the requester should place the phrase ``FOIA
REQUEST'' in capital letters on the front of the envelope or on
(b) A request must reasonably describe the records to enable agency personnel to locate them with reasonable effort. Where possible, a requester should supply specific information regarding dates, titles, names of individuals, names of offices, and names of agencies or other organizations that may help identify the records. If the request relates to a matter in pending litigation, the requester should identify the court and its location.
(c) If an agency determines that a request does not reasonably describe the records, the agency shall inform the requester of this fact and extend the requester an opportunity to clarify the request or to confer promptly with knowledgeable agency personnel to attempt to identify the records the requester is seeking. The ``date of receipt'' in such instances, for purposes of Sec. 1.13, shall be the date of receipt of the amended or clarified request.
(d) If a request for records or a fee waiver made under this subpart is denied, the requester shall have the right to appeal the denial. Requesters also may appeal agency determinations of a requester's status for purposes of fee levels under sec. 5 of appendix A to this subpart. All appeals must be in writing and addressed to the official designated in regulations promulgated by the agency which denied the request. To facilitate processing of an appeal, the requester should place the phrase ``FOIA APPEAL'' in capital letters on the front of the envelope or on the cover sheet of the fax transmittal.
(e) Requests that are not addressed to a specific agency in USDA, or which pertain to more than one USDA agency, or which are sent to the wrong agency of USDA, should be forwarded to the Department's FOIA Officer in the Office of Communications, U.S. Department of Agriculture, Washington, DC 20250.
(f) The Department FOIA Officer will determine which agency or agencies should process the request, and, where necessary, refer the request to the appropriate agency or agencies. The Department FOIA Officer will also notify the requester of the referral and of the name of each agency to which the request has been referred.
(g) A request will be properly received when it is in the possession of the component agency that has responsibility for maintaining the requested records.
(h) Each agency shall develop and maintain a record of all written requests and appeals received in that agency. The record shall include the names of the requester; a brief summary of the information requested; whether the request or appeal was granted, denied, or partially denied; the exemption from mandatory disclosure under 5 U.S.C. 552(b) upon which any denial was based; and the amount of any fees associated with the request or appeal.
Sec. 1.6 Aggregating requests.
When an agency reasonably believes that a requester, or a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the agency may aggregate any such requests and charge accordingly. One element that may be considered in determining whether such a belief would be reasonable is the brevity of the time period during which the requests have been made.
Sec. 1.7 Agency response to requests for records.
(a) 5 U.S.C. 552(a)(6)(A)(i) provides that each agency of the Department to which a request for records is submitted in accordance with Sec. 1.5(a) shall inform the requester of its determination concerning that request within 20 working days of its date of receipt (excepting Saturdays, Sundays, and legal public holidays), plus any extension authorized under Sec. 1.16. If the agency determines to grant the request, it shall inform the requester of any conditions surrounding the granting of the request (e.g., payment of fees) and the approximate date upon which the agency will provide the requested records. If the agency grants only a portion of the request, it shall treat the portion not granted as a denial, and make a reasonable effort to estimate the volume of the records denied and provide this estimate to the requester, unless providing such an estimate would harm an interest protected by an exemption of the FOIA. If the agency determines to deny the request in part or in whole, it shall immediately inform the requester of that decision and provide the following:
(1) The reasons for the denial;
Sec. 1.8 Multi-track processing.
(a) When an agency has a significant number of requests, the nature
of which precludes a determination within 20 working days, the requests
may be processed in a multi-track processing system, based on the date
of receipt, the amount of work and time involved in processing the
request, and whether the request qualifies for expedited processing.
Sec. 1.9 Expedited processing.
(a) A requester may apply for expedited processing at the time of the initial request for records. Within ten calendar days of its receipt of a request for expedited processing, an agency shall decide whether to grant it, and shall notify the requester of the decision. Once the determination has been made to grant expedited processing, an agency shall process the request as soon as practicable. If a request for expedited processing is denied, the agency shall act expeditiously on any appeal of that decision.
(b) A request or appeal will be taken out of order and given
expedited treatment whenever the agency determines that the requester
has established either of the following criteria:
Sec. 1.10 Search services.
Search services are services of agency personnel--clerical or professional--used in trying to find the records, that are responsive to a request. Search services includes both manual and electronic searches and time spent examining records for the purpose of finding information that is within the scope of the request. Search services also include services to transport personnel to places of record storage, or records to the location of personnel for the purpose of the search, if such services are reasonably necessary.
Sec. 1.11 Review services.
(a) Review services are services of agency personnel--clerical or
professional--in examining records, both paper and electronic, located
in response to a request that is for a commercial use (as specified in
sec. 6 of appendix A to this subpart) to determine whether any portion
of any record located is exempt from mandatory disclosure.
Sec. 1.12 Handling information from a private business.
Each USDA agency is responsible for making the final determination with regard to the disclosure or nondisclosure of information in agency records that has been submitted by a business. When, in the course of responding to an FOIA request, an agency cannot readily determine whether the information obtained from a person is privileged or confidential business information, the policy of USDA is to obtain and consider the views of the submitter of the information and to provide the submitter an opportunity to object to any decision to disclose the information. If a request (including a subpoena duces tecum as described in Sec. 1.215) is received in USDA for information that has been submitted by a business, the agency shall:
(a) Provide the business information submitter with prompt
notification of a request for that information (unless it is readily
determined by the agency that the information requested should not be
disclosed or, on the other hand, that the information is not exempt by
law from disclosure). Afford business information submitter reasonable
time in which to object to the disclosure of any specified portion of
the information. The submitter must explain fully all grounds upon
which disclosure is opposed. For example, if the submitter maintains
that disclosure is likely to cause substantial harm to it competitive
position, the submitter must explain item-by-item why disclosure would
cause such harm. Information provided by a business submitter pursuant
to this paragraph may itself be subject to disclosure under FOIA;
Sec. 1.13 Date of receipt of requests or appeals.
The date of receipt of a request or appeal shall be the date it is received in the agency and office responsible for the administrative processing of FOIA requests or appeals.
Sec. 1.14 Appeals.
(a) Requesters seeking administrative appeal of a denial of a
request for records or denial of a fee waiver must ensure that the
appeal is received by the agency within 45 days of the date of the
(1) The reasons for denial;
Sec. 1.15 General provisions respecting release of records.
(a) When releasing documents, agencies shall provide the record in
any form or format the requester specifies, if the record is readily
reproducible in that form of format. Agencies shall make reasonable
efforts to maintain their records in forms or formats that are
reproducible. In responding to requests for records, agencies shall
make reasonable efforts to search for records in electronic form or
format, except when such efforts would significantly interfere with the
operation of an agency's automated information system. Such
determinations shall be made on a case-by-case basis.
Sec. 1.16 Extension of administrative deadlines.
(a) In unusual circumstances as specified in this section, when
additional time is needed to respond to the initial request or to an
appeal, agencies shall acknowledge the request or the appeal in writing
within the 20 working day time period, describe the unusual
circumstances requiring the delay, and indicate the anticipated date
for a substantive response that may not exceed 10 additional working
days, except as provided in the following:
Note to paragraph (b): Consultation regarding policy or legal issues between an agency and the Office of the General Counsel, Office of Communications, or the Department of Justice is not a basis for extension under this section.
(c) The 10-day extension authorized by this section may be divided
between the initial and appellate reviews, but in no event shall the
total extension exceed 10 working days.
Sec. 1.17 Failure to meet administrative deadlines.
In the event an agency fails to meet the administrative deadlines set forth in Secs. 1.7 or 1.14, plus any extension authorized by Sec. 1.16, it shall notify the requester, state the reasons for the delay, and the date by which it expects to dispatch a determination. Although the requester may be deemed to have exhausted his or her administrative remedies under 5 U.S.C. 552(a)(6)(C), the agency shall continue processing the request as expeditiously as possible and dispatch the determination when it is reached in the same manner and form as if it had been reached within the applicable deadline.
Sec. 1.18 Fee schedule.
Pursuant to Sec. 2.28 of this title, the Chief Financial Officer is delegated authority to promulgate regulations providing for a uniform fee schedule applicable to all agencies of the Department regarding requests for records under this subpart. The regulations providing for a uniform fee schedule are found in appendix A to this subpart.
Sec. 1.19 Exemptions and discretionary release.
(a) All agency records, except those specifically exempted from
mandatory disclosure by one or more provisions of 5 U.S.C. 552(b),
shall be made promptly available to any person submitting a request
under this subpart.
Sec. 1.20 Annual report.
(a) Each agency of the Department shall compile the following
Freedom of Information Act statistics on a fiscal year basis beginning
October 1, 1997, and report the following information to the Office of
Communications no later than November 30 following the fiscal year's
Sec. 1.21 Compilation of new records.
Nothing in 5 U.S.C. 552 or this subpart requires that any agency create a new record in order to fulfill a request for records. However, an agency is required to provide a record in a form or format specified by a requester, if the record is readily reproducible by the agency in the form or format requested. Creation of records may be undertaken voluntarily if the agency determines this action to be in the public interest or the interest of USDA.
Sec. 1.22 Authentication.
When a request is received for an authenticated copy of a document which the agency determines to make available to the requesting party, the agency shall cause a correct copy to be prepared and sent to the Office of the General Counsel which shall certify the same and cause the seal of the Department to be affixed, except that the Hearing Clerk in the Office of Administrative Law Judges may authenticate copies of documents in the records of the Hearing Clerk and that the Director of the National Appeals Division may authenticate copies of documents in the records of the National Appeals Division.
Sec. 1.23 Records in formal adjudication proceedings.
Records in formal adjudication proceedings are on file in the Hearing Clerk's office, Office of Administrative Law Judges, U.S. Department of Agriculture, Washington, DC 20250, and shall be made available to the public.
Sec. 1.24 Preservation of records.
Agencies shall preserve all correspondence relating to the requests it receives under this subpart, and all records processed pursuant to such requests, until such time as the destruction of such correspondence and records is authorized pursuant to Title 44 of the United States Code, and appropriate records disposition authority granted by NARA. Under no circumstances shall records be sent to a Federal Records Center, transferred to the permanent custody of NARA, or destroyed while they are the subject of a pending request, appeal, or civil action under the FOIA.
Sec. 1.25 Implementing regulations for the Office of the Secretary and the Office of Communications.
(a) For the Office of the Secretary and for the Office of
Communications, the regulations required by Sec. 1.3 are as follows:
Appendix A to Subpart A--Fee Schedule
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[FR Doc. 00-18767 Filed 7-27-00; 8:45 am]