[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Rules and Regulations]
[Pages 38171-38173]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15665]



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Rules and Regulations
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Federal Register / Vol. 77, No. 124 / Wednesday, June 27, 2012 / 
Rules and Regulations

[[Page 38171]]



SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION

5 CFR Part 9301

RIN 3460-AA00


Freedom of Information Act and Privacy Act Procedures

AGENCY: Special Inspector General for Afghanistan Reconstruction.

ACTION: Correcting amendments.

-----------------------------------------------------------------------

SUMMARY: On June 11, 2012 (77 FR 34179) the Special Inspector General 
for Afghanistan Reconstruction published a final rule, revising its 
regulations establishing procedures for the public to obtain 
information from the Special Inspector General for Afghanistan 
Reconstruction under the Freedom of Information Act (FOIA) and the 
Privacy Act of 1974. These procedures will facilitate public 
interaction with SIGAR. The June 11, 2012 final rule inadvertently 
omitted several amendments in response to the public comments SIGAR 
received. The purpose of this document is to make the necessary 
corrections.

DATES: This final rule is effective June 27, 2012.

FOR FURTHER INFORMATION CONTACT: Kate Gastner, Public Information 
Manager, at (703) 545-5993, email: mary.k.gastner.civ@mail.mil.

SUPPLEMENTARY INFORMATION:

I. Background

    On January 28, 2008, the President signed into law the National 
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), which 
created the Special Inspector General for Afghanistan Reconstruction 
(SIGAR). In order to establish procedures to facilitate public 
interaction with SIGAR, the agency is issuing final regulations under 
the FOIA and the Privacy Act.
    On June 11, 2012 (77 FR 34179) SIGAR published a final rule 
revising its regulations, 5 CFR Chapter LXXXIII part 9301, establishing 
procedures for the public to obtain information from the Special 
Inspector General for Afghanistan Reconstruction under the Freedom of 
Information Act (FOIA) and the Privacy Act of 1974.
    Unfortunately, SIGAR inadvertently omitted several amendments which 
specifically addressed several public comments the agency received 
during the interim rule phase.

List of Subjects in 5 CFR Part 9301

    Administrative practice and procedure, Freedom of information, 
Privacy.

    Accordingly, 5 CFR part 9301 is corrected by making the following 
correcting amendments:

PART 9301--[AMENDED]

0
1. The authority citation for part 9301 continues to read as follows:

    Authority: 5 U.S.C. 552; Pub. L. 110-175, 121 Stat. 2524 (2007); 
5 U.S.C. 301 and 552; Exec. Order 12600, 52 FR 23781, 3 CFR, 1987 
Comp., p. 235; Exec. Order No. 13392, 70 FR 75373-75377, 3 CFR, 2006 
Comp., pp. 216-200.


0
2. Section 9301.1 is revised to read as follows:


Sec.  9301.1  In general.

    This information is furnished for the guidance of the public and in 
compliance with the requirements of the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, as amended. This subpart should be read in 
conjunction with the FOIA. The Freedom of Information Act applies to 
third-party requests for documents concerning the general activities of 
the government and of SIGAR in particular. When a U.S. citizen or an 
individual lawfully admitted for permanent residence requests access to 
his or her own records, it is considered a Privacy Act request. Such 
records are maintained by SIGAR under the individual's name or personal 
identifier. Although requests are considered either FOIA requests for 
Privacy Act requests, agencies process requests in accordance with both 
laws, which provides the greatest degree of lawful access while 
safeguarding an individual's privacy.

0
3. Section 9301.4 is revised to read as follows:


Sec.  9301.4  Availability of records.

    SIGAR provides records to individual requesters in response to FOIA 
requests. Records that are required by the FOIA to be made available 
for public inspection and copying are accessible on SIGAR's Web site, 
http://www.sigar.mil. SIGAR will also identify records of interest to 
the public that are appropriate for public disclosure, and then post 
these records.

0
4. Section 9301.6 is amended by revising paragraphs (c)(1) and (d) to 
read as follows:


Sec.  9301.6  Requesting records.

* * * * *
    (c) Response to requests--(1) Processing. SIGAR will provide an 
individualized tracking number, and estimated date of completion, and a 
brief description of the subjects of the request in an acknowledgement 
letter to the requester. The FOIA Officer shall 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 once 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, either in-full or in-part, the FOIA Officer shall promptly 
provide the requester written notice of the decision. The FOIA Officer 
shall include with the notice both the requested records and a copy of 
the decision. The notice shall also describe the procedure for filing 
an appeal.
    (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. SIGAR will indicate, if technically feasible, the amount of 
information deleted and the exemption under which the deletion is made 
at the place in the record where the deletion was made. SIGAR will also 
indicate the exemption under which a deletion is made on the released 
portion of the record, unless including that indication would harm an 
interest protected by the exemptions. The notice

[[Page 38172]]

shall also describe the procedure for filing an appeal.
    (iii) Consultations and referrals: When SIGAR receives a request 
for a record in its possession, it will determine whether another 
agency of the Federal Government, is better able to determine whether 
the record is exempt from disclosure under the FOIA and, if so, whether 
it should be disclosed as a matter of administrative discretion. If 
SIGAR determines that it is best able to process the record in response 
to the request, then it will do so. If SIGAR determines that it is not 
best able to process the record, then it will either:
    (A) Respond to the request regarding that record, after consulting 
with the agency best able to determine whether to disclose it and with 
any other agency that has a substantial interest in it; or
    (B) Refer the responsibility for responding to the request 
regarding that record to the agency that originated the record (but 
only if that agency is subject to the FOIA). Ordinarily, the agency 
that originated a record will be presumed to be best able to determine 
whether to disclose it.
* * * * *
    (d) Appeals--(1) Initiating appeals. Requesters not satisfied with 
the FOIA Officer's written decision may request SIGAR's FOIA Appellate 
Authority to review the decision. Appeals must be delivered in writing 
within 60 days of the date of the decision and should be addressed to 
the FOIA Appellate Authority, Office of Privacy, Records & Disclosure, 
Special Inspector General for Afghanistan Reconstruction, 2530 Crystal 
Drive, Arlington, VA 22202. As there may be delays in mail delivery, it 
is advisable to Fax appeals to (703) 601-3804 or email to 
sigar.pentagon.gen-coun.mbx.foia@mail.mil. An appeal shall include a 
statement specifying the records that are the subject of the appeal and 
explaining why the Appellate Authority should grant the appeal.
    (2) Appeal decisions. The Appellate Authority shall decide the 
appeal within 20 days (except Saturdays, Sundays and federal holidays) 
from the date it receives the appeal. If the Appellate Authority denies 
the appeal in full or part, the Appellate Authority shall promptly 
notify the requester in writing of the Appellate Authority's decision 
and the provisions for judicial review. If the Appellate Authority 
grants 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 SIGAR assesses 
under Sec. Sec.  9301.8 through 9301.10.
    (3) Mediation. A response to an appeal will advise the requester 
that the 2007 FOIA amendments created the Office of Government 
Information Services (OGIS) to offer mediation services to resolve 
disputes between FOIA requesters and Federal agencies as a non-
exclusive alternative to litigation. A requester may contact OGIS in 
any of the following ways: Office of Government Information Services, 
National Archives and Records Administration, 8601 Adelphi Road, 
College Park, MD 20740; Email: ogis@nara.gov; Telephone: 202-741-5770; 
Facsimile: 202-741-5769; Toll-free: 1-877-684-6448.

0
5. Section 9301.7 is revised as follows:


Sec.  9301.7  Definitions.

    For purposes of this subpart:
    (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) Fee category means one of the three categories that agencies 
place requesters in for the purpose of determining whether a requester 
will be charged fees for search, review and duplication.
    (f) Fee waiver means the waiver or reduction of processing fees if 
a requester can demonstrate that certain statutory standards are 
satisfied.
    (g) 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.
    (h) 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.
    (i) 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.
    (j) 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.

0
6. Section 9301.8 is amended by revising the introductory text and 
paragraph (d) to read as follows:


Sec.  9301.8  Fees in general.

    SIGAR shall charge reasonable fees that recoup the full allowable 
direct costs it incurs in responding to FOIA requests. SIGAR will 
provide an estimated amount of fees, including a breakdown of the fees 
for search, review, and/or duplication. SIGAR may assess charges for 
time spent searching for records even if SIGAR is unable to locate the 
records or if the records are located and determined to be exempt from 
disclosure. In general, SIGAR shall apply the following fee schedule, 
subject to Sec. Sec.  9301.9 through 9301.11:
* * * * *
    (d) Duplication. Fees for copying paper records or for printing 
electronic records shall be assessed at a rate of $.10 per page. For 
other types of copies such as disks or audio visual tapes, SIGAR 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.
* * * * *

0
7. Section 9301.10 is amended by revising paragraph (c) as follows:


Sec.  9301.10  Other charges.

* * * * *
    (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 within a 30-
day period for the purpose of avoiding fees, the FOIA Officer shall 
aggregate those requests and charge accordingly.

0
8. Section 9301.11 is amended by revising paragraph (b) to read as 
follows:

[[Page 38173]]

Sec.  9301.11  Payment and waiver.

* * * * *
    (b) Waiver. SIGAR may waive all or part of any fee provided for in 
Sec. Sec.  9301.8 through 9301.9 when the FOIA Officer deems that as a 
matter of administrative discretion or 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. Requesters may request a waiver in their initial FOIA 
request letter. Requests for a fee waiver should explain how the 
information requested contributes to the public's understanding of the 
operations or activities of the government. 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: June 21, 2012.
Steven J. Trent,
Acting Inspector General, Special Inspector General for Afghanistan 
Reconstruction.
[FR Doc. 2012-15665 Filed 6-26-12; 8:45 am]
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