[Federal Register Volume 78, Number 233 (Wednesday, December 4, 2013)]
[Proposed Rules]
[Pages 72843-72850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28914]
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OVERSEAS PRIVATE INVESTMENT CORPORATION
22 CFR Part 706
[No. FOIA-2013]
RIN 3420-ZA00
Freedom of Information
AGENCY: Overseas Private Investment Corporation.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: This rule proposes revisions to the Overseas Private
Investment Corporation's (``OPIC'') Freedom of Information Act (FOIA)
regulations by making substantive and administrative changes. These
revisions are intended to supersede OPIC's current FOIA regulations,
located at this Part. The proposed rule incorporates the FOIA revisions
contained in the Openness Promotes Effectiveness in our National
Government Act of 2007 (``OPEN Government Act''), makes administrative
changes to reflect OPIC's cost, and organizes the regulations to more
closely match those of other agencies for ease of reference. The
proposed rule also reflects the disclosure principles established by
President Barack Obama and Attorney General Eric Holder in their FOIA
Policy Memoranda issued on January 12, 2009 and March 19, 2009,
respectively.
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before January 3, 2014.
ADDRESSES: You may submit comments, identified by Docket Number FOIA-
2013, by one of the following methods:
Email: [email protected]. Include docket number FOIA-2013 in
the subject line of the message.
Mail: Nichole Cadiente, Administrative Counsel, Overseas
Private Investment Corporation, 1100 New York Avenue NW., Washington,
DC 20527. Include docket number FOIA-2013 on both the envelope and the
letter.
FOR FURTHER INFORMATION CONTACT: Nichole Cadiente, Administrative
Counsel, (202) 336-8400, or [email protected].
SUPPLEMENTARY INFORMATION: The revision of Part 706 incorporates
changes to the language and structure of the regulations and adds new
provisions to implement the OPEN Government Act. OPIC is already
complying with these changes and this proposed revision serves as
OPIC's formal codification of the applicable law and its practice.
The most significant change in this proposed rule revision is the
treatment of business submitters. This section will define confidential
commercial information more concisely and provide a default expiration
date for confidentiality labels. This will enable OPIC to more
efficiently process requests for commercial information, which compose
the majority of OPIC's FOIA requests. Among other substantive changes:
the search date is now the responsive record cutoff date, the
information OPIC posts online has been clarified, there is more detail
on how to request records about an individual, and illustrative
examples have been added.
In general, comments received, including attachments and other
supporting materials, are part of the
[[Page 72844]]
public record and are available to the public. Do not submit any
information in your comment or supporting materials that you consider
confidential or inappropriate for public disclosure.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
the head of OPIC has certified that this proposed rule, as promulgated,
will not have a significant economic impact on a substantial number of
small entities. The proposed rule implements the FOIA, a statute
concerning the release of federal records, and does not economically
impact Federal Government relations with the private sector. Further,
under the FOIA, agencies may recover only the direct costs of searching
for, reviewing, and duplicating the records processes for requesters.
Based on OPIC's experience, these fees are nominal.
Executive Order 12866
OPIC is exempted from the requirements of this Executive Order per
the Office of Management and Budget's October 12, 1993 memorandum.
Accordingly, OMB did not review this proposed rule. However this rule
was generally composed with the principles stated in section 1(b) of
the Executive Order in mind.
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 202-05)
This proposed rule will not result in the expenditure by State,
local, and tribal governments in the aggregate, or by the private
sector, of $100,000,000 or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
801 et seq.)
This proposed rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
regulation will not result in an annual effect on the economy of
$100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United State based
companies to compete with foreign-based companies in domestic and
export markets.
List of Subjects in 22 CFR Part 706
Administrative practice and procedure, Freedom of information,
Privacy.
For the reasons stated in the preamble the Overseas Private
Investment Corporation proposes to revise 22 CFR Part 706 as follows:
PART 706--INFORMATION DISCLOSURE UNDER THE FREEDOM OF INFORMATION
ACT
Subpart A--General
Sec. 706.1 Description.
Sec. 706.2 Policy.
Sec. 706.3 Scope.
Sec. 706.4 Preservation and transfer of records.
Sec. 706.5 Other rights and services.
Subpart B--Obtaining OPIC Records
Sec. 706.10 Publically available records.
Sec. 706.11 Requesting non-public records.
Subpart C--Fees for Requests for Non-Public Records
Sec. 706.20 Types of fees.
Sec. 706.21 Requester categories.
Sec. 706.22 Fees charged.
Sec. 706.23 Advance Payment.
Sec. 706.24 Requirements for waiver or reduction of fees.
Subpart D--Processing of Requests for Non-Public Records
Sec. 706.30 Timing of responses to requests.
Sec. 706.31 Responses to requests.
Sec. 706.32 Confidential commercial information.
Sec. 706.33 Administrative appeals.
Authority: 5 U.S.C. Sec. 552
Subpart A--General
Sec. 706.1 Description.
This part contains the rules that the Overseas Private Investment
Corporation (``OPIC'') follows in processing requests for records under
the Freedom of Information Act (``FOIA''), 5 U.S.C. 552 as amended.
These rules should be read together with the FOIA and the Uniform
Freedom of Information Fee Schedule and Guidelines published by the
Office of Management and Budget at 52 FR 10012 (Mar. 27, 1987) (``OMB
Guidelines'').
Sec. 706.2 Policy.
It is OPIC's policy to make its records available to the public to
the greatest extent possible, in keeping with the spirit of the FOIA.
This policy includes providing reasonably segregable information from
records that also contain information that may be withheld under the
FOIA. However, implementation of this policy also reflects OPIC's view
that the soundness and viability of many of its programs depend in
large measure upon full and reliable commercial, financial, technical
and business information received from applicants for OPIC assistance
and that the willingness of those applicants to provide such
information depends on OPIC's ability to hold it in confidence.
Consequently, except as provided by law and in this part, information
provided to OPIC in confidence will not be disclosed without the
submitter's consent.
Sec. 706.3 Scope.
This regulation applies to all agency records in OPIC's possession
and control. This regulation does not compel OPIC to create records or
to ask outside parties to provide documents in order to satisfy a FOIA
request. OPIC may, however, in its discretion and in consultation with
a FOIA requester, create a new record as a partial or complete response
to a FOIA request. In responding to requests for information, OPIC will
consider only those records within its possession and control as of the
date of OPIC's search.
Sec. 706.4 Preservation and transfer of records.
(a) Preservation of records. OPIC preserves all correspondence
pertaining to the requests that it receives under this part, as well as
copies of all requested records, until disposition or destruction is
authorized pursuant to title 44 of the United States Code or the
General Records Schedule 14 of the National Archives and Records
Administration. Records that are identified as responsive to a request
will not be disposed of or destroyed while they are the subject of a
pending request, appeal, or lawsuit under the FOIA.
(b) Transfer of records to the National Archives. Under the Records
Disposal Act, 44 U.S.C. Chapter 33, OPIC is required to transfer legal
custody and control of records with permanent historical value to the
National Archives. OPIC's Finance Project and Insurance Contract Case
files generally do not qualify as records with permanent historical
value. OPIC will not transfer these files except when the National
Archives determines that an
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individual project or case is especially significant or unique. If the
National Archives receives a FOIA request for records that have been
transferred it will respond to the request in accordance with its own
FOIA regulations.
Sec. 706.5 Other rights and services.
Nothing in this subpart shall be construed to entitle any person,
as of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
Subpart B--Obtaining OPIC Records
Sec. 706.10 Publically available records.
Many OPIC records are readily available to the public by electronic
access, including annual reports and financial statements, program
handbooks, press releases, application forms, claims information, and
annual FOIA reports. Records required to be proactively published under
the FOIA are also online. Persons seeking information are encouraged to
visit OPIC's Internet site at: www.opic.gov to see what information is
already available before submitting a request.
Sec. 706.11 Requesting non-public records.
(a) General information. (1) How to submit. To make a request for
records a requester must submit a written request to OPIC's FOIA Office
either by mail to Overseas Private Investment Corporation, 1100 New
York Avenue NW., Washington, DC 20527 or electronic mail to
[email protected]. The envelope or subject line should read ``Freedom of
Information Request'' to ensure proper routing. The request is
considered received by OPIC upon actual receipt by OPIC's FOIA Office.
(2) Records about oneself. A requester who is making a request for
records about himself or herself must verify his or her identity by
providing a notarized statement or a statement under 28 U.S.C. 1746, a
law that permits statements to be made under penalty of perjury as a
substitute for notarization, stating that the requester is the person
he or she claims to be.
(3) Records about a third party. Where a request for records
pertains to a third party, a requester may receive greater access by
submitting a notarized authorization signed by that individual, a
declaration by that individual made in compliance with the requirements
set forth in 28 U.S.C. 1746 authorizing disclosure of the records to
the requester, proof of guardianship, or proof that the individual is
deceased (e.g., a copy of a death certificate or an obituary). OPIC may
require a requester to supply additional information if necessary in
order to verify that a particular individual has consented to
disclosure.
(b) Description of records sought. Requesters must describe the
records sought in sufficient detail to enable OPIC personnel to locate
them with a reasonable amount of effort. To the extent possible,
requesters should include specific information that may assist OPIC in
identifying the requested records, such as the project name, contract
number, date or date range, country, title, name, author, recipient,
subject matter of the record, or reference number. In general,
requesters should include as much detail as possible about the specific
records or the types of records sought. If a requester fails to
reasonably describe the records sought, OPIC will inform the requester
what additional information is needed or why the request is deficient.
Any time you spend clarifying your request in response to OPIC's
inquiry is excluded from the 20 working-day period (or any extension of
this period) that OPIC has to respond to your request. Requesters who
are attempting to reformulate or modify such a request may discuss
their request with a FOIA Officer or a FOIA Public Liaison. When a
requester fails to provide sufficient detail after having been asked to
clarify a request OPIC shall notify the requester that the request has
not been properly made and that no further action will be taken.
(c) Format. You may state the format (paper copies, electronic
scans, etc.) in which you would like OPIC to provide the requested
records. If you do not state a preference, you will receive any
released records in the format most convenient to OPIC.
(d) Requester information. You must include your name, mailing
address, and telephone number. You may also provide your electronic
mail address, which will allow OPIC to contact you quickly to discuss
your request and respond to your request electronically.
(e) Fees. You must state you willingness to pay fees under these
regulations or, alternately, your willingness to pay up to a specified
limit. If you believe that you qualify for a partial or total fee
waiver under Sec. 706.10(c) you should request a waiver and provide
justification as required by Sec. 706.10(c). If your request does not
contain a statement of your willingness to pay fees or a request for a
fee waiver, OPIC will consider your request an agreement to pay up to
$25.00 in fees.
Subpart C--Fees for Requests of Non-Public Records.
Sec. 706.20 Types of fees.
(a) Direct costs are those expenses that an agency expends in
searching for and duplicating (and, in the case of commercial-use
requests, reviewing) records in order to respond to a FOIA request. For
example, direct costs include the salary of the employee performing the
work (i.e., the basic rate of pay for the employee, plus 16 percent of
that rate to cover benefits) and the cost of operating computers and
other electronic equipment. OPIC shall ensure that searches, review,
and duplication are conducted in the most efficient and the least
expensive manner. Direct costs do not include overhead expenses such as
the costs of space, and of heating or lighting a facility.
(b) Duplication is reproducing a copy of a record or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, audiovisual materials, or electronic
records, among others.
(c) Review is the examination of a record located in response to a
request in order to determine whether any portion of it is exempt from
disclosure. 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 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 Section
706.32(c) of this subpart, but it does not include time spent resolving
general legal or policy issues regarding the application of exemptions.
(d) Search is the process of looking for and retrieving records or
information responsive to a request. Search time includes page-by-page
or line-by-line identification of information within records; and the
reasonable efforts expended to locate and retrieve information from
electronic records. Search costs are properly charged even if no
records are located.
Sec. 706.21 Request categories.
(a) A 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.
(b) An Educational Use request is one made on behalf of an
educational institution, defined as any school that
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operates a program of scholarly research. 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 not
sought for a commercial use, but rather are sought to further scholarly
research. Records requested for the intention of fulfilling credit
requirements are not considered to be sought for an educational
institution's use.
(c) A Noncommercial Scientific Institution Use request is a request
made on behalf of a noncommercial scientific institution, defined as an
institution that is not operated on a ``commercial'' basis, as defined
in paragraph (a) of this section, and that is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry. 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 not for a commercial use.
(d) A News Media Request is a request made by a representative of
the news media in that capacity. A representative of the news media is
defined as any person or entity that actively 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. The term ``news'' means information that is
about current events or that would be of current interest to the
public. Examples of news media entities 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. A request for records
that supports the news-dissemination function of the requester shall
not be considered to be for a commercial use. ``Freelance'' journalists
who demonstrate a solid basis for expecting publication through a news
media entity shall be considered as working for that entity. A
publishing contract would provide the clearest evidence that
publication is expected; however, OPIC shall also consider a
requester's past publication record in making this determination.
OPIC's decision to grant a requester media status will be made on a
case-by-case basis based upon the requester's intended use.
Sec. 706.22 Fees charged.
(a) In responding to FOIA requests, OPIC will charge the following
fees unless a waiver or reduction of fees has been granted under
section 706.24 of this section.
(1) Search. (i) Search fees shall be charged for all requests
subject to the restrictions of paragraph (b) of this section.
(ii) For each hour spent by personnel searching for requested
records, including electronic searches that do not require new
programming, the fees will be as follows: Professional--$41.50; and
administrative--$33.50.
(iii) Requesters will be charged the direct costs associated with
conducting any search that requires the creation of a new program to
locate the requested records.
(iv) For requests that require the retrieval of records stored at a
Federal records center operated by the National Archives and Records
Administration (NARA), additional costs shall be charged in accordance
with the Transactional Billing Rate Schedule established by NARA.
(2) Duplication. Duplication fees will be charged to all
requesters, subject to the restrictions of paragraph (b) of this
section. OPIC will honor a requester's preference for receiving a
record in a particular form or format where it is readily reproducible
in the form or format requested. Where photocopies are supplied, OPIC
will provide one copy per request at a cost of $0.15 per page. For
copies of records produced on tapes, disks, or other electronic media,
OPIC will charge the direct costs of producing the copy, including
operator time. Where paper documents must be scanned in order to comply
with a requester's preference to receive the records in an electronic
format, the requester shall pay the direct costs associated with
scanning those materials. For other forms of duplication OPIC will
charge the direct costs.
(3) Review. Review fees will be charged to requesters who make
commercial-use requests. Review fees will be assessed in connection
with the initial review of the record, i.e., the review conducted by
OPIC to determine whether an exemption applies to a particular record
or portion of a record. No charge will be made for review at the
administrative appeal stage of exemptions applied at the initial review
stage. However, if the appellate authority determines that a particular
exemption no longer applies, any costs associated with the re-review of
the records in order to consider the use of other exemptions may be
assessed as review fees. Review fees will be charged at the same rates
as those charged for a search under paragraph (a)(1)(ii) of this
section.
(b) Restrictions on charging fees. (1) No search fees will be
charged for educational use requests, noncommercial scientific use
requests, or news media requests as defined in Sec. 706.21. When OPIC
fails to comply with the time limits in which to respond to a request,
and if no unusual or exceptional circumstances apply to the processing
of the request, OPIC may not charge search fees, or, in the instances
of requests from requesters defined in Sec. 706.21(b)-(d), may not
charge duplication fees.
(2) Except for requesters seeking records for a commercial use,
OPIC will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for
other media); and
(ii) The first two hours of search.
(3) When the total fee calculated under this section is $25.00 or
less for any request, no fee will be charged.
(c) Notice of anticipated fees in excess of authorization. When
OPIC determines or estimates that the fees to be assessed in accordance
with this section will exceed the amount authorized, OPIC will notify
the requester of the actual or estimated amount of the fees, including
a breakdown of fees for search, review, and duplication. Processing
will be halted until the requester commits in writing to pay the actual
or estimated total fee. This time will not count against OPIC's twenty
day processing time or any extension of that time. Such a commitment
must be made by the requester in writing, must indicate a given dollar
amount, and must be received by OPIC within thirty calendar days from
the date of notification of the fee estimate. If a commitment is not
received within this period, the request shall be closed. A FOIA
Officer or FOIA Public Liaison is available to assist any requester in
reformulating a request in an effort to reduce fees.
(d) Charges for other services. Although not required to provide
special services, if OPIC chooses to do so as a matter of
administrative discretion, the direct costs of providing the service
will be charged. Examples of such services include certifying that
records are true copies, providing multiple copies of the same
document, or sending records by means other than first class mail.
(e) Charging interest. OPIC may charge interest on any unpaid bill
starting on the thirty-first day following the billing date. Interest
charges will be assessed at the rate provided in 31 U.S.C. 3717 and
will accrue from the billing date until payment is received by OPIC.
OPIC will follow the provisions of the Debt Collection Act of 1982
(Public
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Law 97-365, 96 Stat. 1749), as amended, and its administrative
procedures, including the use of consumer reporting agencies,
collection agencies, and offset.
(f) Aggregating requests. If OPIC 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, OPIC may aggregate those requests and charge
accordingly.
(g) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires an agency to set and collect fees
for particular types of records. In instances where records responsive
to a request are subject to a statutorily-based fee schedule program,
OPIC will inform the requester of the contact information for that
source.
(h) Remittances. All payments under this Part must be in the form
of a check or a bank draft denominated in U.S. currency. Checks should
be made payable to the order of United States Treasury and mailed to
the OPIC FOIA Office.
Sec. 706.23 Advance payments.
(a) For requests other than those described in paragraphs (i)(2)
and (i)(3) of Sec. 706.22, OPIC will not require the requester to make
an advance payment before work is commenced or continued on a request.
Payment owed for work already completed (i.e., payment before copies
are sent to a requester) is not an advance payment.
(b) When OPIC determines or estimates that a total fee to be
charged under this section will exceed $250.00, it may require that the
requester make an advance payment up to the amount of the entire
anticipated fee before beginning to process the request. OPIC may elect
to process the request prior to collecting fees when it receives a
satisfactory assurance of full payment from a requester with a history
of prompt payment.
(c) Where a requester has previously failed to pay a properly
charged FOIA fee to any agency within thirty calendar days of the
billing date, OPIC may require that the requester pay the full amount
due, plus any applicable interest on that prior request. OPIC may also
require that the requester make an advance payment of the full amount
of any anticipated fee before OPIC begins to process a new request or
continues to process a pending request or any pending appeal. Where
OPIC has a reasonable basis to believe that a requester has
misrepresented his or her identity in order to avoid paying outstanding
fees, it may require that the requester provide proof of identity.
(d) In cases in which OPIC requires advance payment, 'OPIC's
response time will be tolled and further work will not be completed
until the required payment is received. If the requester does not pay
the advance payment within thirty calendar days after the date of
OPIC's fee letter, OPIC may administratively close the request.
Sec. 706.24 Requirements for waiver or reduction of fees.
(a) Records responsive to a request shall be furnished without
charge or at a reduced rate below that established under Sec. 706.22,
where OPIC determines, based on all available information, that the
requester has demonstrated that:
(1) 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
(2) Disclosure of the information is not primarily in the
commercial interest of the requester.
(b) In deciding whether disclosure of the requested information is
in the public interest because it is likely to contribute significantly
to public understanding of operations or activities of the government,
OPIC will consider the following factors:
(1) 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) The disclosable portions of the requested records must be
meaningfully informative about government operations or activities in
order to be ``likely to contribute'' to an increased public
understanding of those operations or activities. The disclosure of
information that already is in the public domain, in either the same or
a substantially identical form, would not contribute to such
understanding where nothing new would be added to the public's
understanding.
(3) 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 his or her ability and
intention to effectively convey information to the public shall be
considered. It shall ordinarily be presumed that a representative of
the news media satisfies this consideration.
(4) The public's understanding of the subject in question must be
enhanced by the disclosure to a significant extent. However, OPIC shall
not make value judgments about whether the information at issue is
``important'' enough to be made public.
(c) To determine whether disclosure of the requested information is
primarily in the commercial interest of the requester, OPIC will
consider the following factors:
(1) OPIC shall identify any commercial interest of the requester,
as defined in paragraph (b)(1) of this section, that would be furthered
by the requested disclosure. Requesters shall be given an opportunity
to provide explanatory information regarding this consideration.
(2) A waiver or reduction of fees is justified where the public
interest is greater than any identified commercial interest in
disclosure.
(d) 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.
(e) Requests for a waiver or reduction of fees should be made when
the request is first submitted to OPIC 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 will be required to pay any costs incurred up to the date
the fee waiver request was received.
(f) The burden of presenting sufficient evidence or information to
justify the requested fee waiver or reduction falls on the requester.
Subpart D--Processing of Requests for Non-Public Records.
Sec. 706.30 Timing of responses to requests.
(a) In general. OPIC ordinarily will respond to requests within
twenty business days unless the request involves unusual circumstances
as described in subparagraph (d) of this section. The response time
will commence on the date that the request is received by the FOIA
Office, but in any event not later than ten working days after the
request is first received by OPIC. Any time tolled under paragraph (c)
of this section does not count against OPIC's response time.
(b) Multitrack processing. OPIC has a track for requests that are
granted expedited processing, in accordance with the standards set
forth in paragraph (e) of this section. All non-expedited requests are
processed on the regular track in the order they are received.
[[Page 72848]]
(c) Tolling of response time. OPIC may toll its response time once
to seek clarification of a request in accordance with Section 706.11(b)
or as needed to resolve fee issues in accordance with Sec. Sec.
706.22(c) and 706.23(d). The response time will resume upon OPIC's
receipt of the requester's clarification or upon resolution of the fee
issue.
(d) Unusual circumstances. Whenever the statutory time limits for
processing cannot be met because of ``unusual circumstances'' as
defined in the FOIA, and OPIC extends the time limits on that basis,
OPIC will notify the requester in writing of the unusual circumstances
involved and of the date by which processing of the request can be
expected to be completed. This notice will be sent before the
expiration of the twenty day period to respond. Where the extension
exceeds ten working days, the requester will be provided an opportunity
to modify the request or agree to an alternative time period for
processing. OPIC will make its designated FOIA contact and its FOIA
Public Liaison available for this purpose.
(e) Aggregating requests. For the purposes of satisfying unusual
circumstances under the FOIA, OPIC 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. OPIC
will not aggregate multiple requests that involve unrelated matters.
(f) Expedited processing.
(1) Requests and appeals will be processed on an expedited basis
whenever it is determined that they involve:
(i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
Federal government activity, if made by a person who is primarily
engaged in disseminating information;
(2) A request for expedited processing may be made at any time.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. For example,
under paragraph (e)(1)(ii) of this section, a requester who is not a
full-time member of the news media must establish that he or she is a
person whose primary professional activity or occupation is information
dissemination. Such a requester also must establish a particular
urgency to inform the public about the government activity involved in
the request--one that extends beyond the public's right to know about
government activity generally. A requester cannot satisfy the ``urgency
to inform'' requirement solely by demonstrating that numerous articles
have been published on a given subject. OPIC may waive the formal
certification requirement at its discretion.
(4) OPIC shall notify the requester within ten calendar days of the
receipt of a request for expedited processing of its decision whether
to grant or deny expedited processing. If expedited processing is
granted, the request shall be given priority, placed in the processing
track for expedited requests, and shall be processed as soon as
practicable. If OPIC denies expedited processing, any appeal of that
decision which complies with the procedures set forth in Section 706.33
of this subpart shall be acted on expeditiously.
Sec. 706.31 Responses to requests.
(a) Acknowledgments of requests. If a request will take longer than
ten days to process, OPIC will send the requester an acknowledgment
letter that assigns the request an individualized tracking number.
(b) Grants of requests. OPIC will notify the requester in writing
if it makes a determination to grant a request in full or in part. The
notice will inform the requester of any fees charged under Section
706.22 of this part. OPIC will disclose the requested records to the
requester promptly upon payment of any applicable fees.
(c) Adverse determinations of requests. OPIC will notify the
requester in writing if it makes an adverse determination denying a
request in any respect. 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 letter. The denial letter will be signed by
the person responsible for the denial, and will 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 exemptions applied;
(3) An estimate of the volume of any records or information
withheld, for example, by providing the number of pages or some other
reasonable form of estimation. This estimation 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;
(4) A brief description of the types of information withheld and
the reasons for doing so. A description and explanation are not
required if providing it would harm an interest protected by an
applicable exemption;
(5) A statement that the denial may be appealed under Section
706.33(a) of this subpart, and a description of the requirements set
forth therein; and
(6) Notice of any fees charged under Sec. 706.22 of this part.
(e) Markings on released documents. Where technically feasible,
OPIC will mark withholdings made on released documents at the place
where the withholding has been made and will include the exemption
applied. Markings on released documents must be clearly visible to the
requester.
(f) Referrals to other government agencies. If you request a record
in OPIC's possession that was created or classified by another Federal
agency, OPIC will promptly refer your request to that agency for direct
response to you unless OPIC can determine by examining the record or by
informal consultation with the originating agency that the record may
be released in whole or part. OPIC will notify you of any such
referral.
Sec. 706.32 Confidential commercial information.
(a) Definitions.
(1) Confidential commercial information means commercial or
financial information obtained from a submitter that may be protected
from disclosure under Exemption 4 of the FOIA. Exemption 4 protects:
(i) Trade secrets; or
(ii) Commercial or financial information that is privileged or
confidential where either: Disclosure of the information would cause
substantial competitive harm to the submitter, or the information is
voluntarily submitted and would not customarily be publicly released by
the submitter.
(2) Submitter means any person or entity who provides confidential
commercial information to OPIC, directly or indirectly.
[[Page 72849]]
(b) Designation of confidential commercial information. All
submitters may designate, by appropriate markings, any portions of
their submissions that they consider to be protected from disclosure
under the FOIA. The markings may be made at the time of submission or
at a later time. These markings will be considered by OPIC in
responding to a FOIA request but such markings (or the absence of such
markings) will not be dispositive as to whether the marked information
is ultimately released. Unless otherwise requested and approved these
markings will be considered no longer applicable ten years after
submission or five years after the close of the associated project,
whichever is later.
(c) When notice to submitters is required.
(1) Except as provided in paragraph (d) of this section, OPIC's
FOIA Office will use reasonable efforts to notify a submitter in
writing whenever:
(i) The requested information has been designated in good faith by
the submitter as confidential commercial information; or
(ii) OPIC has reason to believe that the requested information may
be protected from disclosure under Exemption 4.
(2) This notification will describe the nature and scope of the
request, advise the submitter of its right to submit written objections
in response to the request, and provide a reasonable time for response.
The notice will either describe the commercial information requested or
include copies of the requested records. In cases involving a
voluminous number of submitters, notice may be made by posting or
publishing the notice in a place or manner reasonably likely to
accomplish it.
(d) Exceptions to submitter notice requirements. The notice
requirements of this section shall not apply if:
(1) OPIC determines that the information is exempt under the FOIA;
(2) The information lawfully has been published or has been
officially made available to the public; or
(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.
(e) Opportunity to object to disclosure.
(1) The submitter may, at any time prior to the disclosure date
described in paragraph (c)(2) of this section, submit to OPIC's FOIA
Office detailed written objections to the disclosure of the requested
information, specifying the grounds upon which it contends that the
information should not be disclosed. In setting forth such grounds, the
submitter should explain the basis of its belief that the nondisclosure
of any item of information requested is mandated or permitted by law.
In the case of information that the submitter believes to be exempt
from disclosure under subsection (b)(4) of the FOIA, the submitter
shall explain why the information is considered a trade secret or
commercial or financial information that is privileged or confidential
and either: How disclosure of the information would cause substantial
competitive harm to the submitter, or why the information should be
considered voluntarily submitted and why it is information that would
not customarily be publicly released by the submitter. Information
provided by a submitter pursuant to this paragraph may itself be
subject to disclosure under the FOIA.
(2) A submitter who fails to respond within the time period
specified in the notice shall be considered to have no objection to
disclosure of the information. Information received after the date of
any disclosure decision will not be considered. Any information
provided by a submitter under this subpart may itself be subject to
disclosure under the FOIA.
(3) The period for providing OPIC with objections to disclosure of
information may be extended by OPIC upon receipt of a written request
for an extension from the submitter. Such written request shall set
forth the date upon which any objections are expected to be completed
and shall provide reasonable justification for the extension. In its
discretion, OPIC may permit more than one extension.
(f) Analysis of objections. OPIC will consider a submitter's
objections and specific grounds for nondisclosure in deciding whether
to disclose the requested information.
(g) Notice of intent to disclose. If OPIC rejects the submitter's
objections, in whole or in part, OPIC will promptly notify the
submitter of its determination at least five working days prior to
release of the information. The notification will 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 a copy
thereof; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a FOIA
lawsuit seeking to compel the disclosure of confidential commercial
information, OPIC will promptly notify the submitter.
(i) Requester notification. OPIC will notify a requester whenever
it provides the submitter with notice and an opportunity to object to
disclosure and whenever a submitter files a lawsuit to prevent the
disclosure of the information.
Sec. 706.33 Administrative appeals.
(a) Requirements for making an appeal. A requester may appeal any
adverse determinations denying his or her request to OPIC's Vice
President and General Counsel at [email protected] or 1100 New York Avenue
NW., Washington, DC 20527. Examples of adverse determinations are
provided in Section 706.06(c) of this subpart. The requester must make
the appeal in writing and it must be postmarked, or in the case of
electronic submissions, transmitted, within twenty working days
following the date on which the requester receives OPIC's denial.
Appeals that have not been postmarked or transmitted within the twenty
days will be considered untimely and will be administratively closed
with notice to the requester. The appeal letter should include the
assigned request number. The requester should mark both the appeal
letter and envelope, or subject line of the electronic transmission,
``Freedom of Information Act Appeal.''
(b) Adjudication of appeals. OPIC's Vice President and General
Counsel or his/her designee will render a written decision within
twenty working days after the date of OPIC's receipt of the appeal,
unless an extension of up to ten working days is deemed necessary due
to unusual circumstances. The requester will be notified in writing of
any extension.
(c) Decisions on appeals. A decision that upholds the initial
determination will contain a written statement that identifies the
reasons for the affirmance, including any FOIA exemptions applied, and
will provide the requester with notification of the statutory right to
file a lawsuit or the ability to request mediation from the Office of
Government Information Services. If an initial determination is
remanded or modified on appeal the requester will be notified in
writing. OPIC's FOIA Office will then process the request in accordance
with that appeal determination and respond directly to the requester.
If an appeal is granted in whole or in part, the information will be
made available promptly, provided the requirements of Sec. 706.22
regarding payment of fees are satisfied.
(d) When appeal is required. Before seeking court review, a
requester generally must first submit a timely administrative appeal.
[[Page 72850]]
Dated: November 22, 2013.
Nichole Cadiente,
Administrative Counsel, Department of Legal Affairs.
[FR Doc. 2013-28914 Filed 12-3-13; 8:45 am]
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