Regulations Implementing the Freedom of Information Act, 53686-53691 [E8-21335]
Download as PDF
<![CDATA[
53686
Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations
information. Therefore, a freedom of
information summary is not required.
The agency has determined under 21
CFR 25.33(a)(1) that this action is of a
type that does not individually or
cumulatively have a significant effect on
the human environment. Therefore,
neither an environmental assessment
nor an environmental impact statement
is required.
This rule does not meet the definition
of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because
it is a rule of ‘‘particular applicability.’’
Therefore, it is not subject to the
congressional review requirements in 5
U.S.C. 801–808.
List of Subjects in 21 CFR Part 520
Animal drugs.
■ Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs and redelegated to
the Center for Veterinary Medicine, 21
CFR part 520 is amended as follows:
PART 520—ORAL DOSAGE FORM
NEW ANIMAL DRUGS
1. The authority citation for 21 CFR
part 520 continues to read as follows:
■
Authority: 21 U.S.C. 360b.
2. In 520.2215, revise paragraph (c)(3)
to read as follows:
■
§ 520.2215 Sulfadiazine/pyrimethamine
suspension.
*
*
*
*
*
(c) * * *
(3) Limitations. Do not use in horses
intended for human consumption.
Federal law restricts this drug to use by
or on the order of a licensed
veterinarian.
Dated: September 5, 2008.
William T. Flynn,
Acting Director, Center for Veterinary
Medicine.
[FR Doc. E8–21625 Filed 9–16–08; 8:45 am]
BILLING CODE 4160–01–S
MILLENNIUM CHALLENGE
CORPORATION
List of Subjects in 22 Part 1304
Freedom of Information Act
Procedures.
■ For the reasons set forth in the
preamble, the Millennium Challenge
Corporation adds 22 CFR part 1304 as
follows:
[Docket No. FDA–2008–N–0310]
Medical Devices; Medical Device
Reporting; Baseline Reports;
Confirmation of Effective Date
Food and Drug Administration,
HHS.
Direct final rule; confirmation of
effective date.
ACTION:
Jkt 214001
PART 1304—FREEDOM OF
INFORMATION ACT PROCEDURES
Sec.
1304.1 General Provisions.
1304.2 Definitions.
1304.3 Records available to the public.
1304.4 Requests for records.
1304.5 Responsibility for responding to
requests.
1304.6 Records not disclosed.
1304.7 Confidential commercial
information.
1304.8 Appeals.
1304.9 Fees.
Millennium Challenge
Corporation.
ACTION: Final rule.
21 CFR Part 803
mstockstill on PROD1PC66 with RULES
Dated: September 11, 2008.
Jeffrey Shuren,
Associate Commissioner for Policy and
Planning.
[FR Doc. E8–21756 Filed 9–16–08; 8:45 am]
AGENCY:
Food and Drug Administration
16:59 Sep 16, 2008
Authority: Therefore, under the Federal
Food, Drug, and Cosmetic Act and the Public
Health Service Act, and under authority
delegated to the Commissioner of Food and
Drugs, the amendments issued thereby
become effective on October 27, 2008.
Regulations Implementing the
Freedom of Information Act
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
VerDate Aug<31>2005
In the
Federal Register of June 13, 2008 (73 FR
33692), FDA solicited comments
concerning the direct final rule for a 75day period ending August 27, 2008.
FDA stated that the effective date of the
direct final rule would be on October
27, 2008, 60 days after the end of the
comment period, unless any significant
adverse comment was submitted to FDA
during the comment period. FDA did
not receive any significant adverse
comments.
SUPPLEMENTARY INFORMATION:
Millennium Challenge Corporation
public records.
DATES: This final rule is effective on
September 17, 2008.
ADDRESSES: Send comments to John
Mantini, FOIA Officer, Office of the
General Counsel, Millennium Challenge
Corporation, 875 Fifteenth Street, NW.,
Washington, DC 20005–2221.
FOR FURTHER INFORMATION CONTACT: John
Mantini, FOIA Officer, 202–521–3863.
SUPPLEMENTARY INFORMATION: The
Millennium Challenge Act (MCA) of
2003 established a new federal agency
called the Millennium Challenge
Corporation. Congress enacted the
Freedom of Information Act (FOIA) in
1966 and last modified it with the
Electronic Freedom of Information Act
amendments of 1996. On August 28,
2007, the Millennium Challenge
Corporation published a proposed rule
in the Federal Register, 72 FR 49238,
Aug. 28, 2007 to outline its procedures
to implement the FOIA regulations and
requested public comments. The
Millennium Challenge Corporation
received no comments during the 60day comment period. The Millennium
Challenge Corporation’s final
regulations are identical to those in the
proposed rule.
This final rule addresses
electronically available documents,
procedures for making requests, agency
handling of requests, records not
disclosed, changes in fees, and public
reading rooms as well as other related
provisions.
22 CFR Part 1304
BILLING CODE 4160–01–S
AGENCY:
SUMMARY: The Food and Drug
Administration (FDA) is confirming the
effective date of October 27, 2008, for
the final rule that appeared in the
Federal Register of June 13, 2008 (73 FR
33692). The direct final rule amends the
Medical Device Reporting regulation by
removing the requirement for baseline
reports. This document confirms the
effective date of the direct final rule.
DATES: Effective date confirmed:
October 27, 2008.
FOR FURTHER INFORMATION CONTACT:
Howard A. Press, Center for Devices and
Radiological Health (HFZ–531), Food
and Drug Administration, 1350 Piccard
Dr., Rockville, MD 20850, 240–276–
3457.
SUMMARY: The Millennium Challenge
Corporation is issuing a final rule to
update its Freedom of Information Act
regulations. The purpose of this final
rule is to outline the procedures by
which the Millennium Challenge
Corporation proposes to implement the
relevant provisions of the Freedom of
Information Act as required under that
statute. This document will assist
interested parties in obtaining access to
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
Authority: 5 U.S.C. 552, as amended.
§ 1304.1
General Provisions.
This part contains the regulations the
Millennium Challenge Corporation
(MCC) follows in implementing the
E:\FR\FM\17SER1.SGM
17SER1
Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations
Freedom of Information Act (FOIA) (5
U.S.C. 552) as amended. These
regulations provide procedures by
which you may obtain access to records
compiled, created, and maintained by
MCC, along with the procedures that
MCC must follow in response to such
requests for records. These regulations
should be read together with the FOIA,
which provides additional information
about access to records maintained by
MCC.
mstockstill on PROD1PC66 with RULES
§ 1304.2
Definitions.
Agency has the meaning set forth in
5 U.S.C. 552(f)(1).
Commercial use requester means a
requester seeking information for a use
or purpose that furthers the commercial,
trade, or profit interests of himself or the
person on whose behalf the request is
made, which can include furthering
those interests through litigation. In
determining whether a request properly
belongs in this category, the FOIA
Officer shall determine the use to which
the requester will put the documents
requested. Where the FOIA Officer has
reasonable cause to doubt the use to
which the requester will put the records
sought, or where that use is not clear
from the request itself, the FOIA Officer
shall contact the requester for additional
clarification before assigning the request
to a specific category.
Confidential commercial information
means records provided to the
government by a submitter that arguably
contains material exempt from
disclosure under Exemption 4 of the
FOIA, because disclosure could
reasonably be expected to cause
substantial competitive harm.
Direct costs mean those expenditures
by MCC actually incurred in searching
for and duplicating records in response
to the FOIA request. These costs include
the salary of the employee(s) performing
the work (basic rate of pay plus a
percentage of that rate to cover benefits)
and the cost of operating duplicating
machinery. Direct costs do not include
overhead expenses, such as the cost of
space, heating, or lighting of the facility
in which the records are stored.
Duplication means the process of
making a copy of a record in order to
respond to a FOIA request, including
paper copies, microfilm, audio-video
materials, and computer diskettes or
other electronic copies.
Educational institution refers to a
preschool, a public or private
elementary or secondary school, an
institute of undergraduate higher
education, an institute of graduate
higher education, an institute of
professional education, or an institute of
vocational education which operates a
VerDate Aug<31>2005
16:59 Sep 16, 2008
Jkt 214001
program of scholarly research. To
qualify for this category, the requester
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 are sought to further scholarly
research.
FOIA means the Freedom of
Information Act, as amended (5 U.S.C.
552).
FOIA Officer means the MCC
employee who is authorized to make
determinations as provided in this part.
The mailing address for the FOIA
Officer is: Millennium Challenge
Corporation, Attn: FOIA Officer, 875
Fifteenth Street, NW., Washington, DC
20005.
Non-commercial scientific institution
refers to an institution that is not
operated on a ‘‘commercial’’ basis as
that term is used in paragraph (a) of this
section, and which is operated solely for
the purpose of conducting scientific
research the results of which are not
intended to promote any particular
product or industry. To qualify for this
category, the requester 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 are
sought to further scholarly research.
Record means information or
documentary material MCC maintains
in any form or format, including an
electronic form or format, which MCC:
(1) Made or received under federal
law or in connection with the
transaction of public business;
(2) Preserved or determined is
appropriate for preservation as evidence
of MCC operations or activities or
because of the value of the information
it contains; and
(3) Controls at the time it receives a
request.
Representative of the news media
means any person actively gathering
news for an entity that is organized and
operated to publish or broadcast news to
the public. The term ‘‘news’’ means
information that is about current events
or that would be of current interest to
the public. For a ‘‘freelance journalist’’
to be regarded as working for a news
organization, the requester must
demonstrate a solid basis for expecting
publication through that organization,
such as a publication contract. Absent
such showing, the requester may
provide documentation establishing the
requester’s past publication record. To
qualify for this category, the requester
must not be seeking the requested
records for a commercial use. However,
a request for records supporting a news-
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
53687
dissemination function shall not be
considered to be for a commercial use.
Requester means any person,
including an individual, corporation,
firm, organization, or other entity, who
makes a request to MCC under FOIA for
records.
Review means the process of
examining a record to determine
whether all or part of the record may be
withheld, and includes redacting or
otherwise processing the record for
disclosure to a requester. It does not
include time spent:
(1) Resolving legal or policy issues
regarding the application of exemptions
to a record; or
(2) At the administrative appeal level,
unless MCC determines that the
exemption under which it withheld
records does not apply and the records
are reviewed again to determine
whether a different exemption may
apply.
Search means the time spent locating
records responsive to a request,
manually or by electronic means,
including page-by-page or line-by-line
identification of responsive material
within a record.
Submitter means any person or entity
which provides information directly or
indirectly to MCC. The term includes,
but is not limited to, corporations, state
governments and foreign governments.
Working day means a Federal
workday that does not include
Saturdays, Sundays, or Federal
holidays.
§ 1304.3
Records available to the public.
(a) General. (1) It is the policy of MCC
to respond promptly to all FOIA
requests.
(2) MCC may disclose records that
were previously published or disclosed
or are customarily furnished to the
public in the course of the performance
of official duties without complying
with this part. These records include,
but are not limited to, the annual report
that MCC submits to Congress pursuant
to section 613(a) of the Millennium
Challenge Act of 2003 (22 U.S.C. 7701),
press releases, MCC forms, and
materials published in the Federal
Register. MCC should first determine
whether the information requested is
already available on its Web site, which
contains information readily accessible
to the public. In such an event, MCC
will contact the requesting party, either
orally or in writing, to advise the
individual of the availability of the
information on the public Web site.
MCC should document this request and
the manner in which it handled the file.
Where MCC makes the determination
that the information requested is not
E:\FR\FM\17SER1.SGM
17SER1
53688
Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations
already publicly accessible, MCC should
adhere to the procedures outlined in
this part for processing a FOIA request
and any administrative appeals
received.
(b) Public Reading room. (1) Records
that are required to be maintained by
MCC shall be available for public
inspection and copying at 875 Fifteenth
Street, NW., Washington, DC 20005.
Reading room records created on or after
November 1, 1996 shall be made
available electronically via the Web site
at https://www.mcc.gov.
(2) MCC shall assess fees for
searching, reviewing, or duplicating
reading room records in accordance
with § 1304.9.
§ 1304.4
Requests for records.
(a) Request requirements. Requests for
access to, or copies of, MCC records
shall be in writing and addressed to the
FOIA Officer. Each request shall include
the following:
(1) A description of the requested
record that provides sufficient detail to
enable MCC to locate the record with a
reasonable amount of effort;
(2) The requestor’s full name, mailing
address, and a telephone number where
the requester can be reached during
normal business hours;
(3) A statement that the request is
made pursuant to FOIA; and
(4) At the discretion of the requestor,
a dollar limit on the fees MCC may
incur to respond to the request for
records. MCC shall not exceed such
limit.
(b) Incomplete Requests. If a request
does not meet all of the requirements of
paragraph (a) of this section, the FOIA
Officer may advise the requester that
additional information is needed. If the
requester submits a corrected request,
the FOIA Officer shall treat the
corrected request as a new request.
mstockstill on PROD1PC66 with RULES
§ 1304.5 Responsibility for responding to
requests.
(a) General. In determining which
records are responsive to a request, MCC
ordinarily will include only records in
its possession as of the date it begins its
search for records. If any other date is
used, the FOIA Officer shall inform the
requester of that date.
(b) Authority to grant or deny
requests. The FOIA Officer shall make
initial determinations either to grant or
deny in whole or in part a request for
records. When the FOIA Officer denies
the request in whole or in part, the
FOIA Officer shall notify the requester
of the denial, the grounds for the denial,
and the procedures for appeal of the
denial under § 1304.8.
(c) Consultations and referrals. When
a requested record has been created by
VerDate Aug<31>2005
18:01 Sep 16, 2008
Jkt 214001
another Federal Government agency,
that record shall be referred to the
originating agency for direct response to
the requester. The requester shall be
informed of the referral. As this is not
a denial of a FOIA request, no appeal
rights are afforded to the requester.
When a requested record is identified as
containing information originating with
another Federal Government agency, the
record shall be referred to the
originating agency for review and
recommendation on disclosure.
(d) Timing and deadlines. (1) The
FOIA Officer ordinarily shall respond to
requests according to their order of
receipt.
(2) The FOIA Officer may use multitrack processing in responding to
requests. This process entails separating
simple requesters that require rather
limited review from more lengthy and
complex requests. Requests in each
track are then processed according to
paragraph (d)(1) of this section in their
respective track.
(3) The FOIA Officer may provide
requesters in the slower track an
opportunity to limit the scope of their
requests in order to decrease the
processing time required. The FOIA
Officer may provide such an
opportunity by contacting the requester
by letter or telephone.
(4) The FOIA Officer shall make an
initial determination regarding access to
the requested information and notify the
requester within twenty (20) working
days after receipt of the request. This 20
day period may be extended if unusual
circumstances arise. If an extension is
necessary, the FOIA Officer shall
promptly notify the requester of the
extension, briefly providing the reasons
for the extension, the date by which a
determination is expected, and
providing the requester with the
opportunity to modify the request so
that the FOIA Officer may process it in
accordance with the 20 day period.
Unusual circumstances warranting
extension are:
(i) The need to search for and collect
the requested records from field
facilities or other establishments that are
separate from the officeprocessing the
request;
(ii) The need to search for, collect,
and appropriately examine a lengthy
amount of records which are demanded
in a single request; or
(iii) The need for consultation with
another agency having a substantial
interest in the determination of the
request, which consultation shall be
conducted with all practicable speed.
(iv) If the FOIA Officer has a
reasonable basis to conclude that a
requester or group of requesters has
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
divided a request into a series of
requests on a single subject or related
subject to avoid fees, the requests may
be aggregated and fees charged
accordingly. Multiple requests involving
unrelated matters will not be aggregated.
(5) If no initial determination has
been made at the end of the 20 day
period provided for in paragraph (d)(4)
of this section, including any extension,
the requester may appeal the action to
the FOIA Appeals Officer.
(e) Expedited processing of request.
The FOIA Officer must determine
whether to grant a request for expedited
processing within 10 calendar days of
its receipt. Requests will receive
expedited processing if one of the
following listed compelling reasons is
met:
(1) The requester can establish that
failure to receive the records quickly
could reasonably be expected to pose an
imminent threat to the life or physical
safety of an individual; or
(2) The requester is primarily engaged
in disseminating information and can
demonstrate that an urgency to inform
the public concerning actual or alleged
Federal Government activity exists.
(f) Providing responsive records. The
FOIA Officer shall provide one copy of
a record to a requester in any form or
format requested if the record is readily
reproducible by MCC in that form or
format by regular U.S. mail to the
address indicated in the request, unless
other arrangements are made. At the
option of the requester and upon the
requester’s agreement to pay fees in
accordance with § 1304.9, the FOIA
Officer shall provide copies by facsimile
transmission or other express delivery
methods.
§ 1304.6
Records not disclosed.
(a) Records exempt from disclosure.
Except as otherwise provided in this
part, MCC shall not disclose records that
are:
(1) Specifically authorized under
criteria established by an Executive
order to be kept secret in the interest of
national defense or foreign policy and
are in fact properly classified pursuant
to such Executive order.
(2) Related solely to the MCC’s
internal personnel rules and practices.
(3) Specifically exempted from
disclosure by a statute other than FOIA
if such statute requires the record to be
withheld from the public in such a
manner as to leave no discretion on the
issue, establishes particular criteria for
withholding, or refers to particular types
of records to be withheld.
(4) Trade secrets and commercial or
financial information obtained from a
person and privileged or confidential.
E:\FR\FM\17SER1.SGM
17SER1
mstockstill on PROD1PC66 with RULES
Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations
(5) Inter- or intra-agency
memorandums or letters that would not
be available by law to a party other than
an agency in litigation with MCC.
(6) Personnel, medical, or similar files
the disclosure of which would
constitute a clearly unwarranted
invasion of personal privacy.
(7) Compiled for law enforcement
purposes, but only to the extent that the
production of such law enforcement
records or information:
(i) Could reasonably be expected to
interfere with enforcement proceedings;
(ii) Would deprive a person of a right
to a fair trial or an impartial
adjudication;
(iii) Could reasonably be expected to
constitute an unwarranted invasion of
personal privacy;
(iv) Could reasonably be expected to
disclose the identity of a confidential
source, including a State, local, or
foreign agency or authority, any private
institution, or a Bank, which furnished
information on a confidential basis, and,
in the case of a record compiled by
criminal law enforcement authority in
the course of a criminal investigation or
by an agency conducting a lawful
national security investigation,
information furnished by a confidential
source;
(v) Would disclose techniques and
procedures for law enforcement
investigations or prosecutions, or would
disclose guidelines for law enforcement
investigations or prosecutions if such
disclosure could reasonably be expected
to risk circumvention of the law; or
(vi) Could reasonably be expected to
endanger the life or physical safety of
any individual.
(8) Contained in or related to
examination, operating, or condition
reports prepared by, on behalf of, or for
the use of an agency responsible for the
regulation or supervision of financial
institutions; or
(9) Geological and geophysical
information and data, including maps,
concerning wells.
(b) Reasonably segregable portions. (1)
MCC shall provide a requester with any
reasonably segregable portion of a
record after deleting the portions that
are exempt from disclosure under
paragraph (a) of this section.
(2) MCC shall make a reasonable effort
to estimate the volume of removed
information and provide that
information to the requester unless
providing the estimate would harm an
interest protected by the exemption
under which the removal is made.
(3) MCC shall indicate the estimated
volume of removed information on the
released portion of the record unless
providing the estimate would harm an
VerDate Aug<31>2005
16:59 Sep 16, 2008
Jkt 214001
interest protected by the exemption
under which the removal is made. If
technically feasible, MCC shall make the
indication at the place in the record
where the removal is made.
(c) Public interest. MCC may disclose
records it has authority to withhold
under paragraph (a) of this section upon
a determination that disclosure would
be in the public interest.
§ 1304.7 Confidential commercial
information.
(a) Notice to submitters. The FOIA
Officer shall, to the extent permitted by
law, provide a submitter who provides
confidential commercial information to
the FOIA Officer, with prompt notice of
a FOIA request or administrative appeal
encompassing the confidential
commercial information if the
Commission may be required to disclose
the information under the FOIA. Such
notice shall either describe the exact
nature of the information requested or
provide copies of the records or portions
thereof containing the confidential
commercial information. The FOIA
Officer shall also notify the requester
that notice and an opportunity to object
has been given to the submitter.
(b) Where notice is required. Notice
shall be given to a submitter when:
(1) The information has been
designated by the submitter as
confidential commercial information
protected from disclosure. Submitters of
confidential commercial information
shall use good faith efforts to designated
either at the time of submission or a
reasonable time thereafter, those
portions of their submissions they deem
protected from disclosure under
Exemption 4 of the FOIA because
disclosure could reasonably be expected
to cause substantial competitive harm.
Such designation shall be deemed to
have expired ten years after the date of
submission, unless the requester
provides reasonable justification for a
designation period of greater duration;
or
(2) The FOIA Officer has reason to
believe that the information may be
protected from disclosure under
Exemption 4 of the FOIA.
(c) Opportunity to object to disclosure.
The FOIA Officer shall afford a
submitter a reasonable period of time to
provide the FOIA Officer with a detailed
written statement of any objection to
disclosure. The statement shall specify
all grounds for withholding any of the
information under any exemption of the
FOIA, and if Exemption 4 applies, shall
demonstrate the reasons the submitter
believes the information to be
confidential commercial information
that is exempt from disclosure.
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
53689
Whenever possible, the submitter’s
claim of confidentiality shall be
supported by a statement or certification
by an officer or authorized
representative of the submitter. In the
event a submitter fails to respond to the
notice in the time specified, the
submitter will be considered to have no
objection to the disclosure of the
information. Information provided by
the submitter that is received after the
disclosure decision has been made will
not be considered. Information provided
by a submitter pursuant to this
paragraph may itself be subject to
disclosure under the FOIA.
(d) Notice of intent to disclose. The
FOIA Officer shall carefully consider a
submitter’s objections and specific
grounds for nondisclosure prior to
determining whether to disclose the
information requested. Whenever the
FOIA Officer determines that disclosure
is appropriate, the FOIA Officer shall,
within a reasonable number of days
prior to disclosure, provide the
submitter with written notice of the
intent to disclose which shall include a
statement of the reasons for which the
submitter’s objections were overruled, a
description of the information to be
disclosed, and a specific disclosure
date. The FOIA Officer shall also notify
the requester that the requested records
will be made available.
(e) Notice of lawsuit. If the requester
files a lawsuit seeking to compel
disclosure of confidential commercial
information, the FOIA Officer shall
promptly notify the submitter of this
action. If a submitter files a lawsuit
seeking to prevent disclosure of
confidential commercial information,
the FOIA Officer shall notify the
requester.
(f) Exceptions to the notice
requirements under this section. The
notice requirements under paragraphs
(a) and (b) of this section shall not apply
if:
(1) The FOIA Officer determines that
the information should not be disclosed
pursuant to Exemption 4 and/or any
other exemption of the FOIA;
(2) The information lawfully has been
published or officially made available to
the public;
(3) Disclosure of the information is
required by law (other than the FOIA);
(4) The information requested is not
designated by the submitter as exempt
from disclosure in accordance with this
part, when the submitter had the
opportunity to do so at the time of
submission of the information or within
a reasonable time thereafter, unless the
agency has substantial reason to believe
that disclosure of the information would
result in competitive harm; or
E:\FR\FM\17SER1.SGM
17SER1
53690
Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations
where the charging of fees is limited
under paragraph (d) of this section or
where a waiver or reduction of fees is
granted under paragraph (c) of this
section. Payment of fees should be in
U.S. Dollars in the form of either a
check or bank draft drawn on a bank in
the United States or a money order.
Payment should be made payable to the
Treasury of the United States and
mailed to the Millennium Challenge
Corporation, 875 Fifteenth Street, NW.,
§ 1304.8 Appeals.
Washington, DC 20005.
(a) Right of appeal. The requester has
(b) Charges for responding to FOIA
the right to appeal to the FOIA Appeals
requests. The following fees shall be
Officer any adverse determination.
assessed in responding to requests for
(b) Notice of appeal—(1) Timing for
records submitted under this part,
appeal. An appeal must be received no
unless a waiver or reduction of fees has
later than thirty (30) working days after
been granted pursuant to paragraph (c)
notification of denial of access to
of this section:
records or after the time limit for
(1) Duplications. The FOIA Officer
response by the FOIA Officer has
shall charge $0.20 per page for copies of
expired. Prior to submitting an appeal
documents up to 81⁄2 x 14. For copies
prepared by computer, the FOIA Officer
any outstanding fees related to FOIA
will charge actual costs of production of
requests must be paid in full.
(2) Method of appeal. An appeal shall the computer printouts, including
be initiated by filing a written notice of
operator time. For other methods of
appeal. The notice shall be
reproduction, the FOIA Officer shall
accompanied by copies of the original
charge the actual costs of producing the
request and initial denial of access to
documents.
(2) Searches—(i) Manual searches.
records. To expedite the appellate
Search fees will be assessed at the rate
process and give the requester an
of $25.30 per hour. Charges for search
opportunity to present his or her
time less than a full hour will be in
arguments, the notice should contain a
increments of quarter hours.
brief statement of the reasons why the
(ii) Computer searches. The FOIA
requester believes the initial denial of
Officer will charge the actual direct
access to records was in error. The
costs of conducting computer searches.
appeal shall be addressed to the
These direct costs shall include the cost
Millennium Challenge Corporation,
of operating the central processing unit
Attn: FOIA Appeals Officer, 875
for that portion of operating time that is
Fifteenth Street, NW., Washington, DC
directly attributable to searching for
20005.
requested records, as well as the costs
(c) Final agency determinations. The
FOIA Appeals Officer shall issue a final of operator/programmer salary
apportionable to the search. MCC is not
written determination, stating the basis
required to alter or develop
for his or her decision, within twenty
programming to conduct searches.
(20) working days after receipt of a
(3) Review fees. Review fees shall be
notice of appeal. If the determination is
assessed only with respect to those
to provide access to the requested
requesters who seek records for a
records, the FOIA Officer shall make
commercial use under paragraph (d)(1)
those records immediately available to
of this section. Review fees shall be
the requester. If the determination
assessed at the rate of $43.63 per hour.
upholds the denial of access to the
Review fees shall be assessed only for
requested records, the FOIA Appeals
the initial record review, for example,
Officer shall notify the requester of the
review undertaken when the FOIA
determination.
Officer analyzes the applicability of a
§ 1304.9 Fees.
particular exemption to a particular
(a) General. Fees pursuant to the FOIA record or portion thereof at the initial
shall be assessed according to the
request level. No charge shall be
schedule contained in paragraph (b) of
assessed at the administrative appeal
this section for services rendered by
level of an exemption already applied.
(c) Statutory waiver. Documents shall
MCC in response to requests for records
be furnished without charge or at a
under this part. MCC’s fee practices are
governed by the FOIA and by the Office charge below that listed in paragraph (b)
of this section where it is determined,
of Management and Budget’s Uniform
based upon information provided by a
Freedom of Information Act Fee
requester or otherwise made known to
Schedule and Guidelines. All fees shall
the FOIA Officer, that disclosure of the
be charged to the requester, except
mstockstill on PROD1PC66 with RULES
(5) The designation made by the
submitter in accordance with this part
appears obviously frivolous. When the
FOIA Officer determines that a
submitter was frivolous in designating
information as confidential, the FOIA
Officer must provide the submitter with
written notice of any final
administrative disclosure date, but no
opportunity to object to disclosure will
be offered.
VerDate Aug<31>2005
16:59 Sep 16, 2008
Jkt 214001
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
requested information is in the public
interest. Disclosure is in the public
interest if it is likely to contribute
significantly to public understanding of
government operations and is not
primarily for commercial purposes.
Requests for a waiver or reduction of
fees shall be considered on a case-bycase basis. In order to determine
whether the fee waiver requirement is
met, the FOIA Officer shall consider the
following six factors:
(1) The subject of the request.
Whether the subject of the requested
records concerns the operations or
activities of the government;
(2) The informative value of the
information to be disclosed. Whether
disclosure is likely to contribute to an
understanding of government operations
or activities;
(3) The contribution to an
understanding of the subject by the
general public likely to result from
disclosure. Whether disclosure of the
requested information will contribute to
public understanding;
(4) The significance of the
contribution to public understanding.
Whether the disclosure is likely to
contribute significantly to public
understanding of government operations
or activities;
(5) The existence and magnitude of
commercial interest. Whether the
requester has a commercial interest that
would be furthered by the requested
disclosure; and, if so
(6) The primary interest in disclosure.
Whether the magnitude of the identified
commercial interest of the requester is
sufficiently large, in comparison with
the public interest in disclosure, that
disclosure is primarily in the
commercial interest of the requester.
(d) Types of requesters. There are four
categories of FOIA requesters:
Commercial use requesters; educational
and non-commercial scientific
institutional requesters; representatives
of the news media; and all other
requesters. These terms are defined in
§ 1304.2. The following specific levels
of fees are prescribed for each of these
categories:
(1) Commercial use requesters. The
FOIA Officer shall charge commercial
use requesters the full direct costs of
searching for, reviewing, and
duplicating requested records.
(2) Educational and non-commercial
scientific institution requesters. The
FOIA Officer shall charge educational
and non-commercial scientific
institution requesters for document
duplication only, except that the first
100 pages of paper copies shall be
provided without charge.
E:\FR\FM\17SER1.SGM
17SER1
mstockstill on PROD1PC66 with RULES
Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations
(3) News media requesters. The FOIA
Officer shall charge news media
requesters for document duplication
costs only, except that the first 100
pages of paper copies shall be provided
without charge.
(4) All other requesters. The FOIA
Officer shall charge requesters who do
not fall into any of the categories in
paragraphs (d)(1) through (3) of this
section fees which recover the full
reasonable direct costs incurred for
searching for and reproducing records if
that total cost exceeds $14.99, except
that the first 100 pages of duplication
and the first two hours of manual search
time shall not be charged.
(e) Charges for unsuccessful searches.
If the requester has been notified of the
estimated cost of the search time and
has been advised specifically that the
requested records may not exist or may
be withheld as exempt, fees may be
charged.
(f) Nonpayment of fees. The FOIA
Officer may assess interest charges on
an unpaid bill, accrued under previous
FOIA request(s), starting the thirty-first
(31st) day following the day on which
the bill was sent to the requester.
Interest will be at the rate prescribed in
31 U.S.C. 3717. MCC will require the
requester to pay the full amount owed
plus any applicable interest as provided
above, and to make an advance payment
of the full amount of the remaining
estimated fee before MCC will begin to
process a new request or continue
processing a then-pending request from
the requester. The administrative
response time limits prescribed in
subsection (a)(6) of the FOIA will begin
only after MCC has received fee
payments described in this section.
(g) Aggregating requests. The
requester or a group of requesters may
not submit multiple requests at the same
time, each seeking portions of a
document or documents solely in order
to avoid payment of fees. When the
FOIA Officer reasonably believes that a
requester is attempting to divide a
request into a series of requests to evade
an assessment of fees, the FOIA Officer
may aggregate such request and charge
accordingly.
(h) Advance payment of fees. Fees
may be paid upon provision of the
requested records, except that payment
will be required prior to that time if the
requester has previously failed to pay
fees or if the FOIA Officer determines
the total fee will exceed $250.00. When
payment is required in advance of the
processing of a request, the time limits
prescribed in § 1304.5 shall not be
deemed to begin until the FOIA Officer
has received payment of the assessed
fee. Where it is anticipated that the cost
VerDate Aug<31>2005
16:59 Sep 16, 2008
Jkt 214001
of providing the requested record will
exceed $25.00 but fall below $250.00
after the free duplication and search
time has been calculated, MCC may, in
its discretion may require either:
(1) An advance deposit of the entire
estimated charges; or
(2) Written confirmation of the
requester’s willingness to pay such
charges.
Dated: September 5, 2008.
John C. Mantini,
Chief FOIA Officer, Millennium Challenge
Corporation.
[FR Doc. E8–21335 Filed 9–16–08; 8:45 am]
BILLING CODE 9211–03–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 138
[Docket No. USCG–2005–21780]
RIN 1625–AA98
Financial Responsibility for Water
Pollution (Vessels) and OPA 90 Limits
of Liability (Vessels and Deepwater
Ports)
Coast Guard, DHS.
Final rule.
AGENCY:
ACTION:
SUMMARY: The Coast Guard is amending
the regulatory requirements, under the
Oil Pollution Act of 1990 and the
Comprehensive Environmental
Response, Compensation and Liability
Act, for vessel operators (as defined in
the rule) to establish and maintain
evidence of financial responsibility. The
amendments ensure that the amounts of
financial responsibility that must be
demonstrated by vessel operators are
consistent with recent statutory
increases, and future mandated
increases, to the limits of liability under
the Oil Pollution Act of 1990. The
amendments also implement changes in
the Coast Guard’s administration of the
certificate of financial responsibility
program, and clarify the current rule.
DATES: This final rule is effective
October 17, 2008.
ADDRESSES: Comments and material
received from the public, as well as
documents mentioned in this preamble
as being available in the docket, are part
of docket USCG–2005–21780 and are
available for inspection or copying at
the Docket Management Facility (M–30),
U.S. Department of Transportation,
West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m.
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
53691
and 5 p.m., Monday through Friday,
except Federal holidays. You may also
find this docket on the Internet at
https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call
Benjamin White, National Pollution
Funds Center, Coast Guard, telephone
202–493–6863. If you have questions on
viewing the docket, call Renee V.
Wright, Program Manager, Docket
Operations, telephone 202–366–9826.
SUPPLEMENTARY INFORMATION:
I. Acronyms
CERCLA Title I of the Comprehensive
Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C.
9601–9675).
CFR Code of Federal Regulations.
COFR Certificate of Financial
Responsibility.
DPA Deepwater Port Act of 1974, as
amended (33 U.S.C. 1501 et seq.).
DRPA Delaware River Protection Act of
2006, Title VI of the Coast Guard and
Maritime Transportation Act of 2006, Public
Law 109–241, July 11, 2006, 120 Stat. 516.
FRFA Final Regulatory Flexibility
Analysis.
FR Federal Register.
Fund Oil Spill Liability Trust Fund.
IRFA Initial Regulatory Flexibility
Analysis.
LOOP Louisiana Offshore Oil Port.
MODU Mobile Offshore Drilling Unit.
NEPA National Environmental Policy Act
of 1969 (42 U.S.C. 4321–4370f).
NPRM Notice of Proposed Rulemaking.
OPA 90 The Oil Pollution Act of 1990, as
amended (33 U.S.C. 2701, et seq.).
U.S.C. United States Code.
U.S.C.C.A.N. United States Code
Congressional and Administrative News.
II. Regulatory History
On August 18, 2006, before initiating
this rulemaking, we published a notice
of policy in the Federal Register (71 FR
47737) entitled ‘‘New Oil Pollution
Limits of Liability for Vessels—
Delaware River Protection Act of 2006
Amendment to the Oil Pollution Act of
1990’’ (hereafter the ‘‘Notice of Policy’’).
On February, 5, 2008, we published a
notice of proposed rulemaking (NPRM)
in the Federal Register (73 FR 6642),
entitled ‘‘Financial Responsibility for
Water Pollution (Vessels) and OPA 90
Limits of Liability (Vessels and
Deepwater Ports)’’.
On February 13, 2008, we published
corrections to the NPRM in the Federal
Register (73 FR 8250), to clarify the
proposed effective date of the rule and
the distinction between the financial
responsibility applicable amounts of
§ 138.80(f) and the OPA 90 limits of
liability in proposed Subpart B.
We received seven letters during the
public comment period raising 13
E:\FR\FM\17SER1.SGM
17SER1
]]>Agencies
[Federal Register Volume 73, Number 181 (Wednesday, September 17, 2008)]
[Rules and Regulations]
[Pages 53686-53691]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-21335]
=======================================================================
-----------------------------------------------------------------------
MILLENNIUM CHALLENGE CORPORATION
22 CFR Part 1304
Regulations Implementing the Freedom of Information Act
AGENCY: Millennium Challenge Corporation.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Millennium Challenge Corporation is issuing a final rule
to update its Freedom of Information Act regulations. The purpose of
this final rule is to outline the procedures by which the Millennium
Challenge Corporation proposes to implement the relevant provisions of
the Freedom of Information Act as required under that statute. This
document will assist interested parties in obtaining access to
Millennium Challenge Corporation public records.
DATES: This final rule is effective on September 17, 2008.
ADDRESSES: Send comments to John Mantini, FOIA Officer, Office of the
General Counsel, Millennium Challenge Corporation, 875 Fifteenth
Street, NW., Washington, DC 20005-2221.
FOR FURTHER INFORMATION CONTACT: John Mantini, FOIA Officer, 202-521-
3863.
SUPPLEMENTARY INFORMATION: The Millennium Challenge Act (MCA) of 2003
established a new federal agency called the Millennium Challenge
Corporation. Congress enacted the Freedom of Information Act (FOIA) in
1966 and last modified it with the Electronic Freedom of Information
Act amendments of 1996. On August 28, 2007, the Millennium Challenge
Corporation published a proposed rule in the Federal Register, 72 FR
49238, Aug. 28, 2007 to outline its procedures to implement the FOIA
regulations and requested public comments. The Millennium Challenge
Corporation received no comments during the 60-day comment period. The
Millennium Challenge Corporation's final regulations are identical to
those in the proposed rule.
This final rule addresses electronically available documents,
procedures for making requests, agency handling of requests, records
not disclosed, changes in fees, and public reading rooms as well as
other related provisions.
List of Subjects in 22 Part 1304
Freedom of Information Act Procedures.
0
For the reasons set forth in the preamble, the Millennium Challenge
Corporation adds 22 CFR part 1304 as follows:
PART 1304--FREEDOM OF INFORMATION ACT PROCEDURES
Sec.
1304.1 General Provisions.
1304.2 Definitions.
1304.3 Records available to the public.
1304.4 Requests for records.
1304.5 Responsibility for responding to requests.
1304.6 Records not disclosed.
1304.7 Confidential commercial information.
1304.8 Appeals.
1304.9 Fees.
Authority: 5 U.S.C. 552, as amended.
Sec. 1304.1 General Provisions.
This part contains the regulations the Millennium Challenge
Corporation (MCC) follows in implementing the
[[Page 53687]]
Freedom of Information Act (FOIA) (5 U.S.C. 552) as amended. These
regulations provide procedures by which you may obtain access to
records compiled, created, and maintained by MCC, along with the
procedures that MCC must follow in response to such requests for
records. These regulations should be read together with the FOIA, which
provides additional information about access to records maintained by
MCC.
Sec. 1304.2 Definitions.
Agency has the meaning set forth in 5 U.S.C. 552(f)(1).
Commercial use requester means a requester seeking information for
a use or purpose that furthers the commercial, trade, or profit
interests of himself or the person on whose behalf the request is made,
which can include furthering those interests through litigation. In
determining whether a request properly belongs in this category, the
FOIA Officer shall determine the use to which the requester will put
the documents requested. Where the FOIA Officer has reasonable cause to
doubt the use to which the requester will put the records sought, or
where that use is not clear from the request itself, the FOIA Officer
shall contact the requester for additional clarification before
assigning the request to a specific category.
Confidential commercial information means records provided to the
government by a submitter that arguably contains material exempt from
disclosure under Exemption 4 of the FOIA, because disclosure could
reasonably be expected to cause substantial competitive harm.
Direct costs mean those expenditures by MCC actually incurred in
searching for and duplicating records in response to the FOIA request.
These costs include the salary of the employee(s) performing the work
(basic rate of pay plus a percentage of that rate to cover benefits)
and the cost of operating duplicating machinery. Direct costs do not
include overhead expenses, such as the cost of space, heating, or
lighting of the facility in which the records are stored.
Duplication means the process of making a copy of a record in order
to respond to a FOIA request, including paper copies, microfilm, audio-
video materials, and computer diskettes or other electronic copies.
Educational institution refers to a preschool, a public or private
elementary or secondary school, an institute of undergraduate higher
education, an institute of graduate higher education, an institute of
professional education, or an institute of vocational education which
operates a program of scholarly research. To qualify for this category,
the requester 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 are sought to further scholarly
research.
FOIA means the Freedom of Information Act, as amended (5 U.S.C.
552).
FOIA Officer means the MCC employee who is authorized to make
determinations as provided in this part. The mailing address for the
FOIA Officer is: Millennium Challenge Corporation, Attn: FOIA Officer,
875 Fifteenth Street, NW., Washington, DC 20005.
Non-commercial scientific institution refers to an institution that
is not operated on a ``commercial'' basis as that term is used in
paragraph (a) of this section, and which is operated solely for the
purpose of conducting scientific research the results of which are not
intended to promote any particular product or industry. To qualify for
this category, the requester 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 are sought to
further scholarly research.
Record means information or documentary material MCC maintains in
any form or format, including an electronic form or format, which MCC:
(1) Made or received under federal law or in connection with the
transaction of public business;
(2) Preserved or determined is appropriate for preservation as
evidence of MCC operations or activities or because of the value of the
information it contains; and
(3) Controls at the time it receives a request.
Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that would be of current interest to
the public. For a ``freelance journalist'' to be regarded as working
for a news organization, the requester must demonstrate a solid basis
for expecting publication through that organization, such as a
publication contract. Absent such showing, the requester may provide
documentation establishing the requester's past publication record. To
qualify for this category, the requester must not be seeking the
requested records for a commercial use. However, a request for records
supporting a news-dissemination function shall not be considered to be
for a commercial use.
Requester means any person, including an individual, corporation,
firm, organization, or other entity, who makes a request to MCC under
FOIA for records.
Review means the process of examining a record to determine whether
all or part of the record may be withheld, and includes redacting or
otherwise processing the record for disclosure to a requester. It does
not include time spent:
(1) Resolving legal or policy issues regarding the application of
exemptions to a record; or
(2) At the administrative appeal level, unless MCC determines that
the exemption under which it withheld records does not apply and the
records are reviewed again to determine whether a different exemption
may apply.
Search means the time spent locating records responsive to a
request, manually or by electronic means, including page-by-page or
line-by-line identification of responsive material within a record.
Submitter means any person or entity which provides information
directly or indirectly to MCC. The term includes, but is not limited
to, corporations, state governments and foreign governments.
Working day means a Federal workday that does not include
Saturdays, Sundays, or Federal holidays.
Sec. 1304.3 Records available to the public.
(a) General. (1) It is the policy of MCC to respond promptly to all
FOIA requests.
(2) MCC may disclose records that were previously published or
disclosed or are customarily furnished to the public in the course of
the performance of official duties without complying with this part.
These records include, but are not limited to, the annual report that
MCC submits to Congress pursuant to section 613(a) of the Millennium
Challenge Act of 2003 (22 U.S.C. 7701), press releases, MCC forms, and
materials published in the Federal Register. MCC should first determine
whether the information requested is already available on its Web site,
which contains information readily accessible to the public. In such an
event, MCC will contact the requesting party, either orally or in
writing, to advise the individual of the availability of the
information on the public Web site. MCC should document this request
and the manner in which it handled the file. Where MCC makes the
determination that the information requested is not
[[Page 53688]]
already publicly accessible, MCC should adhere to the procedures
outlined in this part for processing a FOIA request and any
administrative appeals received.
(b) Public Reading room. (1) Records that are required to be
maintained by MCC shall be available for public inspection and copying
at 875 Fifteenth Street, NW., Washington, DC 20005. Reading room
records created on or after November 1, 1996 shall be made available
electronically via the Web site at https://www.mcc.gov.
(2) MCC shall assess fees for searching, reviewing, or duplicating
reading room records in accordance with Sec. 1304.9.
Sec. 1304.4 Requests for records.
(a) Request requirements. Requests for access to, or copies of, MCC
records shall be in writing and addressed to the FOIA Officer. Each
request shall include the following:
(1) A description of the requested record that provides sufficient
detail to enable MCC to locate the record with a reasonable amount of
effort;
(2) The requestor's full name, mailing address, and a telephone
number where the requester can be reached during normal business hours;
(3) A statement that the request is made pursuant to FOIA; and
(4) At the discretion of the requestor, a dollar limit on the fees
MCC may incur to respond to the request for records. MCC shall not
exceed such limit.
(b) Incomplete Requests. If a request does not meet all of the
requirements of paragraph (a) of this section, the FOIA Officer may
advise the requester that additional information is needed. If the
requester submits a corrected request, the FOIA Officer shall treat the
corrected request as a new request.
Sec. 1304.5 Responsibility for responding to requests.
(a) General. In determining which records are responsive to a
request, MCC ordinarily will include only records in its possession as
of the date it begins its search for records. If any other date is
used, the FOIA Officer shall inform the requester of that date.
(b) Authority to grant or deny requests. The FOIA Officer shall
make initial determinations either to grant or deny in whole or in part
a request for records. When the FOIA Officer denies the request in
whole or in part, the FOIA Officer shall notify the requester of the
denial, the grounds for the denial, and the procedures for appeal of
the denial under Sec. 1304.8.
(c) Consultations and referrals. When a requested record has been
created by another Federal Government agency, that record shall be
referred to the originating agency for direct response to the
requester. The requester shall be informed of the referral. As this is
not a denial of a FOIA request, no appeal rights are afforded to the
requester. When a requested record is identified as containing
information originating with another Federal Government agency, the
record shall be referred to the originating agency for review and
recommendation on disclosure.
(d) Timing and deadlines. (1) The FOIA Officer ordinarily shall
respond to requests according to their order of receipt.
(2) The FOIA Officer may use multi-track processing in responding
to requests. This process entails separating simple requesters that
require rather limited review from more lengthy and complex requests.
Requests in each track are then processed according to paragraph (d)(1)
of this section in their respective track.
(3) The FOIA Officer may provide requesters in the slower track an
opportunity to limit the scope of their requests in order to decrease
the processing time required. The FOIA Officer may provide such an
opportunity by contacting the requester by letter or telephone.
(4) The FOIA Officer shall make an initial determination regarding
access to the requested information and notify the requester within
twenty (20) working days after receipt of the request. This 20 day
period may be extended if unusual circumstances arise. If an extension
is necessary, the FOIA Officer shall promptly notify the requester of
the extension, briefly providing the reasons for the extension, the
date by which a determination is expected, and providing the requester
with the opportunity to modify the request so that the FOIA Officer may
process it in accordance with the 20 day period. Unusual circumstances
warranting extension are:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
officeprocessing the request;
(ii) The need to search for, collect, and appropriately examine a
lengthy amount of records which are demanded in a single request; or
(iii) The need for consultation with another agency having a
substantial interest in the determination of the request, which
consultation shall be conducted with all practicable speed.
(iv) If the FOIA Officer has a reasonable basis to conclude that a
requester or group of requesters has divided a request into a series of
requests on a single subject or related subject to avoid fees, the
requests may be aggregated and fees charged accordingly. Multiple
requests involving unrelated matters will not be aggregated.
(5) If no initial determination has been made at the end of the 20
day period provided for in paragraph (d)(4) of this section, including
any extension, the requester may appeal the action to the FOIA Appeals
Officer.
(e) Expedited processing of request. The FOIA Officer must
determine whether to grant a request for expedited processing within 10
calendar days of its receipt. Requests will receive expedited
processing if one of the following listed compelling reasons is met:
(1) The requester can establish that failure to receive the records
quickly could reasonably be expected to pose an imminent threat to the
life or physical safety of an individual; or
(2) The requester is primarily engaged in disseminating information
and can demonstrate that an urgency to inform the public concerning
actual or alleged Federal Government activity exists.
(f) Providing responsive records. The FOIA Officer shall provide
one copy of a record to a requester in any form or format requested if
the record is readily reproducible by MCC in that form or format by
regular U.S. mail to the address indicated in the request, unless other
arrangements are made. At the option of the requester and upon the
requester's agreement to pay fees in accordance with Sec. 1304.9, the
FOIA Officer shall provide copies by facsimile transmission or other
express delivery methods.
Sec. 1304.6 Records not disclosed.
(a) Records exempt from disclosure. Except as otherwise provided in
this part, MCC shall not disclose records that are:
(1) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense
or foreign policy and are in fact properly classified pursuant to such
Executive order.
(2) Related solely to the MCC's internal personnel rules and
practices.
(3) Specifically exempted from disclosure by a statute other than
FOIA if such statute requires the record to be withheld from the public
in such a manner as to leave no discretion on the issue, establishes
particular criteria for withholding, or refers to particular types of
records to be withheld.
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential.
[[Page 53689]]
(5) Inter- or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation with
MCC.
(6) Personnel, medical, or similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy.
(7) Compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority, any private institution, or a Bank, which furnished
information on a confidential basis, and, in the case of a record
compiled by criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national
security investigation, information furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(b) Reasonably segregable portions. (1) MCC shall provide a
requester with any reasonably segregable portion of a record after
deleting the portions that are exempt from disclosure under paragraph
(a) of this section.
(2) MCC shall make a reasonable effort to estimate the volume of
removed information and provide that information to the requester
unless providing the estimate would harm an interest protected by the
exemption under which the removal is made.
(3) MCC shall indicate the estimated volume of removed information
on the released portion of the record unless providing the estimate
would harm an interest protected by the exemption under which the
removal is made. If technically feasible, MCC shall make the indication
at the place in the record where the removal is made.
(c) Public interest. MCC may disclose records it has authority to
withhold under paragraph (a) of this section upon a determination that
disclosure would be in the public interest.
Sec. 1304.7 Confidential commercial information.
(a) Notice to submitters. The FOIA Officer shall, to the extent
permitted by law, provide a submitter who provides confidential
commercial information to the FOIA Officer, with prompt notice of a
FOIA request or administrative appeal encompassing the confidential
commercial information if the Commission may be required to disclose
the information under the FOIA. Such notice shall either describe the
exact nature of the information requested or provide copies of the
records or portions thereof containing the confidential commercial
information. The FOIA Officer shall also notify the requester that
notice and an opportunity to object has been given to the submitter.
(b) Where notice is required. Notice shall be given to a submitter
when:
(1) The information has been designated by the submitter as
confidential commercial information protected from disclosure.
Submitters of confidential commercial information shall use good faith
efforts to designated either at the time of submission or a reasonable
time thereafter, those portions of their submissions they deem
protected from disclosure under Exemption 4 of the FOIA because
disclosure could reasonably be expected to cause substantial
competitive harm. Such designation shall be deemed to have expired ten
years after the date of submission, unless the requester provides
reasonable justification for a designation period of greater duration;
or
(2) The FOIA Officer has reason to believe that the information may
be protected from disclosure under Exemption 4 of the FOIA.
(c) Opportunity to object to disclosure. The FOIA Officer shall
afford a submitter a reasonable period of time to provide the FOIA
Officer with a detailed written statement of any objection to
disclosure. The statement shall specify all grounds for withholding any
of the information under any exemption of the FOIA, and if Exemption 4
applies, shall demonstrate the reasons the submitter believes the
information to be confidential commercial information that is exempt
from disclosure. Whenever possible, the submitter's claim of
confidentiality shall be supported by a statement or certification by
an officer or authorized representative of the submitter. In the event
a submitter fails to respond to the notice in the time specified, the
submitter will be considered to have no objection to the disclosure of
the information. Information provided by the submitter that is received
after the disclosure decision has been made will not be considered.
Information provided by a submitter pursuant to this paragraph may
itself be subject to disclosure under the FOIA.
(d) Notice of intent to disclose. The FOIA Officer shall carefully
consider a submitter's objections and specific grounds for
nondisclosure prior to determining whether to disclose the information
requested. Whenever the FOIA Officer determines that disclosure is
appropriate, the FOIA Officer shall, within a reasonable number of days
prior to disclosure, provide the submitter with written notice of the
intent to disclose which shall include a statement of the reasons for
which the submitter's objections were overruled, a description of the
information to be disclosed, and a specific disclosure date. The FOIA
Officer shall also notify the requester that the requested records will
be made available.
(e) Notice of lawsuit. If the requester files a lawsuit seeking to
compel disclosure of confidential commercial information, the FOIA
Officer shall promptly notify the submitter of this action. If a
submitter files a lawsuit seeking to prevent disclosure of confidential
commercial information, the FOIA Officer shall notify the requester.
(f) Exceptions to the notice requirements under this section. The
notice requirements under paragraphs (a) and (b) of this section shall
not apply if:
(1) The FOIA Officer determines that the information should not be
disclosed pursuant to Exemption 4 and/or any other exemption of the
FOIA;
(2) The information lawfully has been published or officially made
available to the public;
(3) Disclosure of the information is required by law (other than
the FOIA);
(4) The information requested is not designated by the submitter as
exempt from disclosure in accordance with this part, when the submitter
had the opportunity to do so at the time of submission of the
information or within a reasonable time thereafter, unless the agency
has substantial reason to believe that disclosure of the information
would result in competitive harm; or
[[Page 53690]]
(5) The designation made by the submitter in accordance with this
part appears obviously frivolous. When the FOIA Officer determines that
a submitter was frivolous in designating information as confidential,
the FOIA Officer must provide the submitter with written notice of any
final administrative disclosure date, but no opportunity to object to
disclosure will be offered.
Sec. 1304.8 Appeals.
(a) Right of appeal. The requester has the right to appeal to the
FOIA Appeals Officer any adverse determination.
(b) Notice of appeal--(1) Timing for appeal. An appeal must be
received no later than thirty (30) working days after notification of
denial of access to records or after the time limit for response by the
FOIA Officer has expired. Prior to submitting an appeal any outstanding
fees related to FOIA requests must be paid in full.
(2) Method of appeal. An appeal shall be initiated by filing a
written notice of appeal. The notice shall be accompanied by copies of
the original request and initial denial of access to records. To
expedite the appellate process and give the requester an opportunity to
present his or her arguments, the notice should contain a brief
statement of the reasons why the requester believes the initial denial
of access to records was in error. The appeal shall be addressed to the
Millennium Challenge Corporation, Attn: FOIA Appeals Officer, 875
Fifteenth Street, NW., Washington, DC 20005.
(c) Final agency determinations. The FOIA Appeals Officer shall
issue a final written determination, stating the basis for his or her
decision, within twenty (20) working days after receipt of a notice of
appeal. If the determination is to provide access to the requested
records, the FOIA Officer shall make those records immediately
available to the requester. If the determination upholds the denial of
access to the requested records, the FOIA Appeals Officer shall notify
the requester of the determination.
Sec. 1304.9 Fees.
(a) General. Fees pursuant to the FOIA shall be assessed according
to the schedule contained in paragraph (b) of this section for services
rendered by MCC in response to requests for records under this part.
MCC's fee practices are governed by the FOIA and by the Office of
Management and Budget's Uniform Freedom of Information Act Fee Schedule
and Guidelines. All fees shall be charged to the requester, except
where the charging of fees is limited under paragraph (d) of this
section or where a waiver or reduction of fees is granted under
paragraph (c) of this section. Payment of fees should be in U.S.
Dollars in the form of either a check or bank draft drawn on a bank in
the United States or a money order. Payment should be made payable to
the Treasury of the United States and mailed to the Millennium
Challenge Corporation, 875 Fifteenth Street, NW., Washington, DC 20005.
(b) Charges for responding to FOIA requests. The following fees
shall be assessed in responding to requests for records submitted under
this part, unless a waiver or reduction of fees has been granted
pursuant to paragraph (c) of this section:
(1) Duplications. The FOIA Officer shall charge $0.20 per page for
copies of documents up to 8\1/2\ x 14. For copies prepared by computer,
the FOIA Officer will charge actual costs of production of the computer
printouts, including operator time. For other methods of reproduction,
the FOIA Officer shall charge the actual costs of producing the
documents.
(2) Searches--(i) Manual searches. Search fees will be assessed at
the rate of $25.30 per hour. Charges for search time less than a full
hour will be in increments of quarter hours.
(ii) Computer searches. The FOIA Officer will charge the actual
direct costs of conducting computer searches. These direct costs shall
include the cost of operating the central processing unit for that
portion of operating time that is directly attributable to searching
for requested records, as well as the costs of operator/programmer
salary apportionable to the search. MCC is not required to alter or
develop programming to conduct searches.
(3) Review fees. Review fees shall be assessed only with respect to
those requesters who seek records for a commercial use under paragraph
(d)(1) of this section. Review fees shall be assessed at the rate of
$43.63 per hour. Review fees shall be assessed only for the initial
record review, for example, review undertaken when the FOIA Officer
analyzes the applicability of a particular exemption to a particular
record or portion thereof at the initial request level. No charge shall
be assessed at the administrative appeal level of an exemption already
applied.
(c) Statutory waiver. Documents shall be furnished without charge
or at a charge below that listed in paragraph (b) of this section where
it is determined, based upon information provided by a requester or
otherwise made known to the FOIA Officer, that disclosure of the
requested information is in the public interest. Disclosure is in the
public interest if it is likely to contribute significantly to public
understanding of government operations and is not primarily for
commercial purposes. Requests for a waiver or reduction of fees shall
be considered on a case-by-case basis. In order to determine whether
the fee waiver requirement is met, the FOIA Officer shall consider the
following six factors:
(1) The subject of the request. Whether the subject of the
requested records concerns the operations or activities of the
government;
(2) The informative value of the information to be disclosed.
Whether disclosure is likely to contribute to an understanding of
government operations or activities;
(3) The contribution to an understanding of the subject by the
general public likely to result from disclosure. Whether disclosure of
the requested information will contribute to public understanding;
(4) The significance of the contribution to public understanding.
Whether the disclosure is likely to contribute significantly to public
understanding of government operations or activities;
(5) The existence and magnitude of commercial interest. Whether the
requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(6) The primary interest in disclosure. Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is primarily in the commercial interest of the requester.
(d) Types of requesters. There are four categories of FOIA
requesters: Commercial use requesters; educational and non-commercial
scientific institutional requesters; representatives of the news media;
and all other requesters. These terms are defined in Sec. 1304.2. The
following specific levels of fees are prescribed for each of these
categories:
(1) Commercial use requesters. The FOIA Officer shall charge
commercial use requesters the full direct costs of searching for,
reviewing, and duplicating requested records.
(2) Educational and non-commercial scientific institution
requesters. The FOIA Officer shall charge educational and non-
commercial scientific institution requesters for document duplication
only, except that the first 100 pages of paper copies shall be provided
without charge.
[[Page 53691]]
(3) News media requesters. The FOIA Officer shall charge news media
requesters for document duplication costs only, except that the first
100 pages of paper copies shall be provided without charge.
(4) All other requesters. The FOIA Officer shall charge requesters
who do not fall into any of the categories in paragraphs (d)(1) through
(3) of this section fees which recover the full reasonable direct costs
incurred for searching for and reproducing records if that total cost
exceeds $14.99, except that the first 100 pages of duplication and the
first two hours of manual search time shall not be charged.
(e) Charges for unsuccessful searches. If the requester has been
notified of the estimated cost of the search time and has been advised
specifically that the requested records may not exist or may be
withheld as exempt, fees may be charged.
(f) Nonpayment of fees. The FOIA Officer may assess interest
charges on an unpaid bill, accrued under previous FOIA request(s),
starting the thirty-first (31st) day following the day on which the
bill was sent to the requester. Interest will be at the rate prescribed
in 31 U.S.C. 3717. MCC will require the requester to pay the full
amount owed plus any applicable interest as provided above, and to make
an advance payment of the full amount of the remaining estimated fee
before MCC will begin to process a new request or continue processing a
then-pending request from the requester. The administrative response
time limits prescribed in subsection (a)(6) of the FOIA will begin only
after MCC has received fee payments described in this section.
(g) Aggregating requests. The requester or a group of requesters
may not submit multiple requests at the same time, each seeking
portions of a document or documents solely in order to avoid payment of
fees. When the FOIA Officer reasonably believes that a requester is
attempting to divide a request into a series of requests to evade an
assessment of fees, the FOIA Officer may aggregate such request and
charge accordingly.
(h) Advance payment of fees. Fees may be paid upon provision of the
requested records, except that payment will be required prior to that
time if the requester has previously failed to pay fees or if the FOIA
Officer determines the total fee will exceed $250.00. When payment is
required in advance of the processing of a request, the time limits
prescribed in Sec. 1304.5 shall not be deemed to begin until the FOIA
Officer has received payment of the assessed fee. Where it is
anticipated that the cost of providing the requested record will exceed
$25.00 but fall below $250.00 after the free duplication and search
time has been calculated, MCC may, in its discretion may require
either:
(1) An advance deposit of the entire estimated charges; or
(2) Written confirmation of the requester's willingness to pay such
charges.
Dated: September 5, 2008.
John C. Mantini,
Chief FOIA Officer, Millennium Challenge Corporation.
[FR Doc. E8-21335 Filed 9-16-08; 8:45 am]
BILLING CODE 9211-03-P
