Freedom of Information Act, 31087-31096 [2020-09826]

Download as PDF Federal Register / Vol. 85, No. 100 / Friday, May 22, 2020 / Proposed Rules and appropriate? Do technological changes, such as the increased use of inapp messaging, text messages, and platform messaging, warrant any changes to this section, consistent with the Act’s requirements? 9. Section 318.6 sets out the requirements for the content of notice of a breach. Are these requirements clear and appropriate? If not, how can they be improved, consistent with the Act’s requirements? 10. What are the implications (if any) for enforcement of the Rule raised by direct-to-consumer technologies and services such as mobile health apps, virtual assistants, and platforms’ health tools? IV. Instructions for Submitting Comments You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before August 20, 2020. Please write ‘‘Health Breach Notification Rule, 16 CFR part 318, Project No. P205405’’ on the comment. Because of the public health emergency in response to the COVID–19 outbreak and the agency’s heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comment online through the https:// www.regulations.gov website. To ensure the Commission considers your online comment, please follow the instructions on the web-based form provided by regulations.gov. Your comment, including your name and your state, will be placed on the public record of this proceeding, including the https:// www.regulations.gov website. If you file your comment on paper, please write ‘‘Health Breach Notification Rule, 16 CFR part 318, Project No. P205405’’ on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC–5610 (Annex B), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex B), Washington, DC 20024. Because your comment will be placed on the public record, you are solely responsible for making sure that your comment does not include any sensitive or confidential information. In particular, your comment should not include any sensitive personal information, such as your or anyone else’s Social Security number; date of birth; driver’s license number or other VerDate Sep<11>2014 16:20 May 21, 2020 Jkt 250001 state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any ‘‘trade secret or any commercial or financial information which . . . . is privileged or confidential’’—as provided by section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)— including in particular competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names. Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled ‘‘Confidential,’’ and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted publicly at www.regulations.gov, we cannot redact or remove your comment unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request. Visit the Commission website at https://www.ftc.gov to read this document and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before August 20, 2020. For information on the Commission’s privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/ privacy-policy. By direction of the Commission. April J. Tabor, Acting Secretary. [FR Doc. 2020–10263 Filed 5–21–20; 8:45 am] BILLING CODE 6750–01–P PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 31087 EXECUTIVE OFFICE OF THE PRESIDENT Office of National Drug Control Policy 21 CFR Part 1401 RIN 3201–AA01 Freedom of Information Act Office of National Drug Control Policy. ACTION: Proposed rule. AGENCY: The Office of National Drug Control Policy (ONDCP) is updating its Freedom of Information Act (FOIA) implementing regulation to comport with the FOIA Improvement Act of 2016 and best practices. The proposed rule describes how to make a FOIA request with ONDCP and how the Office of General Counsel, which includes the ONDCP officials authorized to evaluate FOIA requests, processes requests for records. The proposed rule also states ONDCP’s Privacy Act Policies and Procedures. The proposed rule describes how individuals can find out if an ONDCP system of records contains information about them and, if so, how to access or amend a record. ONDCP seeks comments on all aspects of the proposed rule and will thoroughly consider all comments that are submitted on time. DATES: Send comments on or before June 30, 2020. ADDRESSES: You may send comments, identified by RIN number 3201–AA01 and/or docket number ONDCP–2020– 002, by any of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Email: OGC@ondcp.eop.gov. Include docket number ONDCP–2020– 002 and/or RIN number 3201–AA01 in the subject line of the message. • Mail: Executive Office of the President, Office of National Drug Control Policy, 1800 G Street NW, 9th Floor, Washington, DC 20006. Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to http:// www.regulations.gov including any personal information provided. ONDCP strongly recommends using electronic means for submitting comments. Due to COVID–19, comments submitted through conventional mail delivery services may not be received in a timely manner. FOR FURTHER INFORMATION CONTACT: Questions concerning this notice should SUMMARY: E:\FR\FM\22MYP1.SGM 22MYP1 31088 Federal Register / Vol. 85, No. 100 / Friday, May 22, 2020 / Proposed Rules be directed to Michael J. Passante, Acting General Counsel, Office of General Counsel, Office of National Drug Control Policy, Executive Office of the President, at (202) 395–6622 or OGC@ondcp.eop.gov. SUPPLEMENTARY INFORMATION: I. Background ONDCP has undertaken a review of agency practices related to the collection, use, protection and disclosure of ONDCP records and information in light of the FOIA Improvement Act of 2016 and the Privacy Act. As a result of that review, ONDCP is updating its regulation on FOIA and the Privacy Act. The FOIA, 5 U.S.C. 552 et seq., provides a right of access to certain records and information Federal agencies maintain and control. The FOIA requires each Federal agency to publish regulations describing how to submit a FOIA request and how people responsible for FOIA will process these requests. ONDCP’s current FOIA regulation, codified at 21 CFR part 1401, was last revised in 1999. See 64 FR 69901 (Dec. 15, 1999). Due to the passage of time and amendments to the FOIA, we are updating the regulation. ONDCP’s proposed regulation on FOIA and the Privacy Act incorporates the practical experience of the agency’s staff who handle FOIA and privacy issues and guidance from the Office of Management and Budget and the U.S. Department of Justice, Office of Information Policy. It also strives for consistency with FOIA and Privacy Act regulations among other agencies of the Executive Office of the President. II. Section-by-Section Analysis Subpart A—Freedom of Information Act Policies and Procedures Section 1401.1—Purpose: This section describes the purpose of the regulation, which is to implement the FOIA. Section 1401.2—ONDCP: Organization and functions: This section describes the mission and leadership structure of the agency. It specifies where media inquiries may be submitted and notes that oral requests for information under FOIA will be rejected. Section 1401.3—Definitions: This section defines the key terms used in the regulation. Section 1401.4—Access to information: This section describes the types of information that ONDCP will make available under FOIA. Section 1401.5—Proactive disclosures: This section describes information about ONDCP the public VerDate Sep<11>2014 16:20 May 21, 2020 Jkt 250001 can access without filing a FOIA request. Pursuant to the FOIA Improvement Act of 2016, ONDCP will make records available that have been requested three or more times in an electronic format. Section 1401.6—Records requiring consultation. This section describes how ONDCP will process records that originated with another agency but are in the custody of ONDCP. Section 1401.7—How to request records—Form and content: This section explains what an individual must do to submit a valid FOIA request to ONDCP and where a request should be sent. It also describes the information requesters must provide so ONDCP can identify the records sought and process their requests. Section 1401.8—Initial determination: This section provides that the ONDCP General Counsel has the authority to approve or deny FOIA requests and describes how to appeal FOIA decisions made by the General Counsel. Section 1401.9—Response—form and content: This section explains that ONDCP will respond to your request in writing either with the requested records or an explanation of the reasons why all or portions of the requested records were not disclosed. We also will provide information about the right of appeal and the mediation services offered by the Office of Government Information Services of the National Archives and Records Administration. The response will include any fees associated with the FOIA request. Section 1401.10—Expedited Process: This section describes the circumstances under which expedited processing of a FOIA request may be granted. Section 1401.11—Prompt response: This section describes the period of time within which ONDCP will determine whether it is appropriate to grant or deny a FOIA request, i.e., ordinarily within twenty working days after the date the request is received. If ONDCP determines that a request is denied or that additional time is required to process the request, it will provide written notification to the requestor with an explanation of the reasons for denial or delay. Section 1401.12—Extension of Time: This section describes and defines the ‘‘unusual circumstances’’ under which ONDCP may extend the time limit for making a determination on a FOIA request. Section 1401.13—Appeal procedures: This section describes when and how a requester may appeal a determination on a FOIA request and how and within PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 what period of time ONDCP will make a determination on an appeal. Section 1401.14—Fees to be charged—general: This section describes the general FOIA processing activities performed by ONDCP personnel and the rates charged by ONDCP to recoup the employee costs associated with responding to FOIA requests. Section 1401.15—Fees to be charged—Miscellaneous provisions: This section contains miscellaneous FOIA fee provisions such as where payment should be sent, when advance payment is required, and rates of interest charged on late payments, etc. Section 1401.16—Fees to be charged—Categories of Requester: This section describes the different categories of requesters and the types and amounts of fees ONDCP may assess to process and respond to a FOIA request. Section 1401.17—Restrictions on charging fees. This provision describes the circumstances under which ONDCP is restricted in charging fees normally associated with processing FOIA request such as when ONDCP does not meet time limits mandated by the FOIA. Section 1401.18—Waiver or Reduction of Fees: This section describes the factors that ONDCP may consider when deciding whether to waive or reduce the fees associated with processing FOIA requests. Section 1401.19—Aggregation of requests: This section describes the circumstances under which ONDCP may aggregate a series or group of requests for purposes of fee assessment. Section 1401.20—Deletion of exempted information: This section provides that ONDCP will redact exempt information from its FOIA disclosures to the extent that exempt information can be segregated from other information subject to disclosure. Section 1401.21—Confidential commercial information: This section explains when and how a person or entity that submits information to ONDCP must identify confidential commercial information. It also describes how ONDCP staff will handle such information. Subpart B—Privacy Act Policies and Procedures Section 1401.22—Definitions: This section defines the key terms used in this Subpart. Section 1401.23—Purpose and scope: This section describes the purpose of the regulation, which is to implement the Privacy Act, and explains general policies and procedures for individuals requesting access to records, requesting amendments or corrections to records, E:\FR\FM\22MYP1.SGM 22MYP1 Federal Register / Vol. 85, No. 100 / Friday, May 22, 2020 / Proposed Rules and requesting an accounting of disclosures of records. Section 1401.24—How do I make a Privacy Act request?: This section explains what an individual must do to submit a request to ONDCP for access to records, to amend or correct records, or for an accounting of disclosures of records. It also describes the information an individual must provide so ONDCP can identify the records sought and determine whether the request can be granted. Section 1401.25—How will ONDCP respond to a Privacy Act request?: This section describes the period of time within which ONDCP will respond to requests. It also explains that ONDCP will grant or deny requests in writing, provide reasons if a request is denied in whole or in part, and explain the right of appeal. Section 1401.26—What can I do if I am dissatisfied with ONDCP’s response to my Privacy Act request?: This section describes when and how an individual may appeal a determination on a Privacy Act request and how and within time period ONDCP will make a determination on an appeal. Section 1401.27—What does it cost to get records under the Privacy Act?: This section explains that requesters are required to pay fees for the duplication of requested records. III. Regulatory Flexibility Act ONDCP has considered the impact of the proposed rule and determined that if adopted as a final rule it is not likely to have a significant economic impact on a substantial number of small business entities because it only applies to ONDCP’s internal operations and legal obligations. See 5 U.S.C. 601 et seq. IV. Paperwork Reduction Act The proposed rule does not contain any information collection requirement that requires approval from the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. List of Subjects in CFR 21 Part 1401 Freedom of information, Privacy. ■ For the reasons stated in the preamble, the Office of National Drug Control Policy is proposing to revise part 1401 of title 21 of the Code of Federal Regulations to read as follows: PART 1401—PUBLIC AVAILABILITY OF INFORMATION Subpart A—Freedom of Information Act Policies and Procedures Sec. VerDate Sep<11>2014 16:20 May 21, 2020 Jkt 250001 1401.1 Purpose. 1401.2 The Office of National Drug Control Policy—organization and functions. 1401.3 Definitions. 1401.4 Access to information. 1401.5 Proactive disclosures. 1401.6 Records requiring consultation. 1401.7 How to request records—form and content. 1401.8 Initial determination. 1401.9 Responses-form and content. 1401.10 Expedited process. 1401.11 Prompt response. 1401.12 Extension of time. 1401.13 Appeal procedures. 1401.14 Fees to be charged—general. 1401.15 Fees to be charged—miscellaneous provisions. 1401.16 Fees to be charged—categories of requesters. 1401.17 Restrictions on charging fees. 1401.18 Waiver or reduction of fees 1401.19 Aggregation of requests. 1401.20 Deletion of exempted information. 1401.21 Confidential commercial information. Subpart B—Privacy Act Policies and Procedures 1401.22 Definitions. 1401.23 Purpose and scope. 1401.24 How do I make a Privacy Act request? 1401.25 How will ONDCP respond to my Privacy Act request? 1401.26 What can I do if I am dissatisfied with ONDCP’s response to my Privacy Act request? 1401.27 What does it cost to get records under the Privacy Act? Authority: 5 U.S.C. 552. Subpart A—Freedom of Information Act Policies and Procedures § 1401.1 Purpose. The purpose of this part is to prescribe rules, guidelines and procedures to implement the Freedom of Information Act (FOIA), as amended, 5 U.S.C. 552. § 1401.2 The Office of National Drug Control Policy—organization and functions. (a) The Office of National Drug Control Policy (ONDCP) was created by the Anti-Drug Abuse Act of 1988, 21 U.S.C. 1501 et seq., and reauthorized under 21 U.S.C. 1701 et seq. and several appropriations acts. The mission of ONDCP is to coordinate the anti-drug efforts of the various agencies and departments of the Federal Government, to consult with States and localities and assist their anti-drug efforts, and to annually promulgate the National Drug Control Strategy. ONDCP is headed by the Director of National Drug Control Policy. (b) ONDCP’s Office of External and Legislative Affairs is responsible for providing information to the press and to the general public. If members of the PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 31089 public have general questions about ONDCP, they may email the Office of External and Legislative Affairs at mediainquiries@ondcp.eop.gov. This email address should not be used to make FOIA requests. All oral requests for information under FOIA will be rejected. § 1401.3 Definitions. For the purpose of this part, all the terms defined in the Freedom of Information Act apply. Commercial-use request means a request from or on behalf of one who seeks information for a cause or purpose that furthers the commercial, trade or profit interests of the requester or the person or institution on whose behalf the request is made. In determining whether a requester properly belongs in this category, ONDCP will consider the intended use of the information. Direct costs means the expense actually expended to search, review, or duplicate in response to a FOIA request. For example, direct costs include 116% of the salary of the employee performing work (i.e., the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the actual costs incurred while operating equipment. Duplicate means the process of making a copy of a document. Such copies may take the form of paper, microform, audio-visual materials, or machine-readable documentation. Requesters may specify the preferred form or format (including electronic formats) for the records they seek. ONDCP will try to accommodate formatting requests if the record is readily reproducible in that form or format. Educational institution means preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education that operates a program or programs of scholarly research. Noncommercial scientific institution means an institution that is not operated on a commercial basis as that term is defined in 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. OGIS means the Office of Government Information Services of the National Archives and Records Administration. OGIS offers FOIA dispute resolution services, which is a voluntary process. If ONDCP agrees to participate in the E:\FR\FM\22MYP1.SGM 22MYP1 31090 Federal Register / Vol. 85, No. 100 / Friday, May 22, 2020 / Proposed Rules dispute resolution services provided by OGIS, ONDCP will actively engage as a partner to the process in an attempt to resolve the dispute. Records and any other terms used in this part in reference to information includes any information that would be an agency record subject to the requirements of this part when maintained in any format, including electronic format. Representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into distinct work, and distributes that work to an audience. The term ‘‘news’’ means information that is about current events or information that would be of interest to the public. Examples of the news media include television or radio stations that broadcast to the public at large and publishers of news periodicals that make their products available to the general public for purchase or subscription. Freelance journalists may be regarded as working for the news media where they demonstrate a reasonable basis for expecting publication through that organization, even though not actually employed by it. Request means a letter or other written communication seeking records or information under FOIA. Review means the process of examining documents that are located during a search to determine if any portion should lawfully be withheld. It is the processing of determining disclosability. Search means to review, manually or by automated means, agency records for the purpose of locating those records responsive to a request. § 1401.4 Access to information. The Office of National Drug Control Policy makes available information pertaining to matters issued, adopted, or promulgated by ONDCP, that are within the scope of 5 U.S.C. 552(a)(2). Such information is located at https:// www.whitehouse.gov/ondcp. § 1401.5 Proactive disclosures. ONDCP will make records that the FOIA requires us to make available for public inspection and copying in an electronic format (with appropriate exemptions applied), through our website: http://www.whitehouse.gov/ ondcp. These records consist of information that has been requested three or more times or that has been released to a requester and that ONDCP determines has become, or are likely to become, the subject of subsequent VerDate Sep<11>2014 16:20 May 21, 2020 Jkt 250001 requests for substantially the same records. § 1401.6 Records requiring consultation. Requests for records that are in ONDCP’s custody but in which other agencies have equities shall be reviewed by ONDCP and then ONDCP will either consult with or refer the records to the other agency or agencies for further processing. § 1401.7 How to request records—form and content. (a) You must describe the records you seek in sufficient detail and in writing to enable ONDCP personnel to locate them with a reasonable amount of effort. To satisfy this requirement, you should be as detailed as possible when describing the records you seek. To the extent possible, each request must reasonably describe the record(s) sought including the type of document, specific event or action, title or name, author, recipient, subject matter of the record, date or time period, location, and all other pertinent data. Before or after submitting their requests, requesters may contact ONDCP’s FOIA Public Liaison to discuss the records they seek and for assistance in describing the records. A list of Agency FOIA Public Liaisons is available at https:// www.foia.gov/#agency-search (b)(1) If you are making a request for records about yourself, you must comply with the verification of identity provision set forth in § 1401.24(f) of this part. (2) If a request for records pertains to a third party, you may receive greater access by submitting either a notarized authorization signed by that individual or an unsworn declaration under 26 U.S.C. 1746 by that individual authorizing disclosure of the records to you. If the other individual is deceased, you should submit proof of death such as a copy of the death certificate or an obituary. As an exercise of administrative discretion, ONDCP may require you to provide additional information if necessary in order to verify that a particular individual has consented to disclosure. (c) Whenever it is appropriate to do so, ONDCP automatically processes a Privacy Act request for access to records under both the Privacy Act and the FOIA, following the rules contained in this part. ONDCP processes a request under both the FOIA and Privacy Act so you will receive the maximum amount of information available to you by law. (d) Requests must be received by ONDCP through methods specified on the FOIA page of ONDCP’s website: https://www.whitehouse.gov/ondcp/ PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 about/foia-and-legal/. Requests may be emailed to FOIA@ondcp.eop.gov. (e) The words ‘‘FOIA REQUEST’’ or ‘‘REQUEST FOR RECORDS’’ must be clearly marked on all FOIA request communications. The time limitations imposed by § 1401.10 will not begin until the Office of General Counsel identifies a communication as a FOIA request. (f) You must provide contact information, such as your phone number, email address and mailing address, so we will be able to communicate with you about your request and provide released records. If we cannot contact you, or you do not respond within twenty calendar days to our request for clarification, we will close your request. (g) To protect our computer systems, we will not open attachments to emailed requests—you must include your request within the body of the email. We will not process email attachments. § 1401.8 Initial determination. The General Counsel or his or her designee shall have the authority to approve or deny requests received pursuant to these regulations. § 1401.9 Responses–form and content. (a) When a requested record has been identified and is available, the General Counsel or his or her designee shall send the record to the person making the request or notify the person making the request as to where and when the record will be available. The notification shall also advise the person making the request of any fees assessed under § 1401.10 of this part. ONDCP will inform the requester of the availability of its FOIA Public Liaison. (b) A denial or partial denial of a request for a record shall be in writing signed by the General Counsel or his or her designee and shall include: (1) The name and title of the person making the determination; (2) Either a reference to the specific exemption under FOIA authorizing the withholding of the record or a statement that, after diligent effort, the requested records have not been found. (3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate 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. See 5 U.S.C. 552(a)(6)(F). E:\FR\FM\22MYP1.SGM 22MYP1 Federal Register / Vol. 85, No. 100 / Friday, May 22, 2020 / Proposed Rules (4) A statement that the denial may be appealed to the Director or his/her designee within 90 days of the date of the response. The requirements for making an appeal are specified in § 1401.13. (5) A statement notifying the requester of the assistance available from the ONDCP’s FOIA Public Liaison and the dispute resolution services offered by OGIS. § 1401.10 Expedited process. (a) A request for expedited processing may be made at any time. ONDCP must process requests and appeals on an expedited basis whenever it is determined that they involve: (1) The lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (2) An urgency to inform the public about an actual or alleged Federal Government activity, beyond the public’s right to know about government activity generally, and the request is made by a person primarily engaged in disseminating information. (b) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for requesting expedited processing. For example, under paragraph (a)(2) of this section, a requester who is not a fulltime member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester’s sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request, beyond the public’s right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an ‘‘urgency to inform’’ the public on the topic. The formality of certification may be waived as a matter of administrative discretion. (c) Within ten days of receipt of a request for expedited processing, ONDCP will decide whether to grant it and will notify the requester of the decision. If a request for expedited treatment is granted, the request will be given priority and will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously. § 1401.11 Prompt response. (a) The General Counsel, or designee, will determine within 20 days VerDate Sep<11>2014 16:20 May 21, 2020 Jkt 250001 (excepting Saturdays, Sundays, and legal public holidays) after the receipt of a FOIA request whether it is appropriate to grant the request and will provide written notification to the person making the request. If the request is denied, the written notification will include the names of the individuals who participated in the determination, the reasons for the denial, and that an appeal may be filed with the Office of National Drug Control Policy under § 1401.13. (b) When additional time is required, the General Counsel or his or her designee shall acknowledge receipt of the request within the 20 working day period and shall assign the request an individualized tracking number. The acknowledgment will include the tracking number and a brief explanation of the reason(s) for delay. Where the extension exceeds 10 working days, ONDCP must provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request. ONDCP will make available its designated FOIA contact or its FOIA Public Liaison for this purpose, and will alert requesters to the availability of the OGIS to provide dispute resolution services. § 1401.12 Extension of time. (a) In unusual circumstances, the Office of General Counsel may extend the time limit prescribed in § 1401.7 or § 1401.9 by written notice to the FOIA requester. The notice will state the reasons for the extension. (b) The phrase ‘‘unusual circumstances’’ means: (1) The requested records are located in establishments that are separated from the office processing the request; (2) A voluminous amount of separate and distinct records are demanded in a single request; or (3) Another agency or two or more components in the same agency have substantial interest in the determination of the request. (c) Whenever ONDCP cannot meet the statutory time limit for processing a request because of ‘‘unusual circumstances,’’ as defined by 5 U.S.C. 552(a)(b)(B), and ONDCP extends the time limit on that basis, the agency must, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which ONDCP estimates processing of the request will be completed. Where the extension exceeds 10 working days, ONDCP must, as described by the FOIA, provide the requester with an opportunity to modify the request or PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 31091 arrange an alternative time period for processing the original or modified request. The agency must make available its designated FOIA contact or its FOIA Public Liaison for this purpose. The agency must also alert requesters to the availability of the Office of Government Information Services (OGIS) to provide dispute resolution services. (d) To satisfy unusual circumstances under the FOIA, ONDCP 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. ONDCP cannot aggregate multiple requests that involve unrelated matters. § 1401.13 Appeal procedures. (a) An appeal to the ONDCP must explain in writing the legal and factual basis for the appeal. It must be received by email at FOIA@ondcp.eop.gov or another method specified on the FOIA page of ONDCP’s website within 90 days of the date of the response. The appeal must be in writing, addressed to the Director, Executive Office of the President, Office of National Drug Control Policy, 1800 G Street NW, 9th Floor, Washington, DC 20006, ATTN: Office of General Counsel. The communication should clearly be labeled as a ‘‘Freedom of Information Act Appeal.’’ (b) The Director or designee will decide the appeal within 20 days (excepting Saturdays, Sundays, and legal public holidays). If the Director or designee deny an appeal in whole or in part, the written determination will contain the reason for the denial, the names of the individuals who participated in the determination, and the provisions for judicial review of the denial and ruling on appeal provided in 5 U.S.C. 552(a)(4). The denial will also inform the requestor of the dispute resolution services offered by OGIS as a non-exclusive alternate to litigation. If ONDCP agrees to participate in voluntary dispute resolution services provided by OGIS, it will actively engage in an attempt to resolve the dispute. § 1401.14 Fees to be charged—general. ONDCP will assess a fee to process FOIA requests in accordance with the provisions of this section and OMB Guidelines. We shall ensure that searches, review and duplication are conducted in the most efficient and the least expensive manner. ONDCP will ordinarily collect all applicable fees E:\FR\FM\22MYP1.SGM 22MYP1 31092 Federal Register / Vol. 85, No. 100 / Friday, May 22, 2020 / Proposed Rules before sending copies of records to a requester. ONDCP will charge the following fees unless a waiver or reduction of fees is granted under § 1401.18, or the total fee to be charged is less than $25.00. We will notify you if we estimate that charges will exceed $25 including a breakdown of the fees for search, review or duplication and whether applicable entitlements to duplication and search at no charge have been provided. We will not process your request until you either commit in writing to pay the actual or estimated total fee, or designate some amount of fees you are willing to pay. (a) Manual search for records. ONDCP will charge $77.00 per hour, which is a blended hourly rate for all personnel that respond to FOIA requests, plus 16 percent of that rate to cover benefits. (b) Computerized search for records. ONDCP will charge $77.00 per hour, which is a blended hourly rate for all personnel that respond to FOIA requests, plus 16 percent of that rate to cover benefits. (c) Review of records. ONDCP will charge $77.00 per hour, which is a blended hourly rate for all personnel that responded to FOIA requests, plus 16 percent of that rate to cover benefits. Records or portions of records withheld under an exemption subsequently determined not to apply may be reviewed to determine the applicability of exemptions not considered. The cost for a subsequent review is assessable. (d) Duplication of records. We will charge duplication fees to all requesters. We will honor your preference for receiving a record in a particular format if we can readily reproduce it in the form or format requested. If we provide photocopies, we will make one copy per request at the cost of $.10 per page. For copies of records produced on tapes, disks or other media, we will charge the direct costs of producing the copy, including operator time. Where we must scan paper documents in order to comply with your preference to receive the records in an electronic format, we will charge you the direct costs associated with scanning those materials. For other forms of duplication, we will charge the direct costs. We will provide the first 100 pages of duplication (or the cost equivalent for other media) without charge except for requesters seeking records for a commercial use. (e) Other charges. ONDCP will recover the costs of providing other services such as certifying records or sending records by special methods. VerDate Sep<11>2014 16:20 May 21, 2020 Jkt 250001 § 1401.15 Fees to be charged— miscellaneous provisions. (a) Payment for FOIA services may be made through the methods specified on the FOIA page of ONDCP’s website. (b) ONDCP may require advance payment where the estimated fee exceeds $250, or a requester previously failed to pay within 30 days of the billing date. (c) ONDCP may assess interest charges beginning the 31st day of billing. Interest will be at the rate prescribed in section 3717 of title 31 of the United States Code and will accrue from the date of the billing. (d) ONDCP may assess search charges where records are not located or where records are exempt from disclosure. (e) ONDCP may aggregate individual requests and charge accordingly for requests seeking portions of a document or documents. § 1401.16 Fees to be charged—categories of requesters. (a) There are four categories of FOIA requesters: Commercial use requesters; educational and non-commercial scientific institutions; representatives of the news media; and all other requesters. (b) The specific levels of fees for each of these categories are: (1) Commercial use requesters. ONDCP will recover the full direct cost of providing search, review and duplication services. Commercial use requesters will not receive free searchtime or free reproduction of documents. (2) Educational and non-commercial scientific institution requesters. ONDCP will charge the cost of reproduction, excluding charges for the first 100 pages. Requesters must demonstrate the request is authorized by and under the auspices of a qualifying institution and that the records are sought for scholarly or scientific research not a commercial use. (3) Requesters who are representatives of the news media. ONDCP will charge the cost of reproduction, excluding charges for the first 100 pages. Requesters must meet the criteria in § 1401.3(h), and the request must not be made for a commercial use. A request that supports the news dissemination function of the requester shall not be considered a commercial use. (4) All other requesters. ONDCP will recover the full direct cost of the search and the reproduction of records, excluding the first 100 pages of reproduction and the first two hours of search time. § 1401.17 Restrictions on charging fees. (a) No search fees will be charged for requests by educational institutions PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 (unless the records are sought for a commercial use), noncommercial scientific institutions, or representatives of the news media. (b) If ONDCP fails to comply with the FOIA’s time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in § 1401.16(b)(2), may not charge duplication fees, except as described in paragraphs (c), (d), and (e) of this section. (c) If ONDCP determines that unusual circumstances as defined by the FOIA apply and the agency provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days. (d) If ONDCP determines that unusual circumstances as defined by the FOIA apply, and more than 5,000 pages are necessary to respond to the request, the agency may charge search fees, or, in the case of requesters described in § 1401.16(b)(2) of this section, may charge duplication fees if the following steps are taken. ONDCP must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the agency must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, ONDCP may charge all applicable fees incurred in the processing of the request. (e) If a court has determined that exceptional circumstances exist as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order. (f) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review. (g) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (c) of this section is $25.00 or less for any request, no fee will be charged. § 1401.18 Waiver or reduction of fees. Requirements for waiver or reduction of fees: (a) Requesters may seek a waiver of fees by submitting a written application demonstrating how 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 E:\FR\FM\22MYP1.SGM 22MYP1 Federal Register / Vol. 85, No. 100 / Friday, May 22, 2020 / Proposed Rules government and is not primarily in the commercial interest of the requester. (b) ONDCP must furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that 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 is not primarily in the commercial interest of the requester. In deciding whether this standard is satisfied the agency must consider the factors described in paragraphs (b)(1) through (3) of this section: (1) Disclosure of the requested information would shed light on the operations or activities of the government. 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) Disclosure of the requested information would be likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met: (i) Disclosure of the requested records must be meaningfully informative about government 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 be meaningfully informative if nothing new would be added to the public’s understanding. (ii) 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 the requester’s ability and intention to effectively convey information to the public must be considered. Components will presume that a representative of the news media will satisfy this consideration. (3) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, components will consider the following criteria: (i) Components must identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration. VerDate Sep<11>2014 16:20 May 21, 2020 Jkt 250001 (ii) If there is an identified commercial interest, the component must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of § 1401.17(b)(1) and (2) are satisfied and any commercial interest is not the primary interest furthered by the request. Components ordinarily will presume that when a news media requester has satisfied the requirements of § 1401.17(b)(1) and (2), the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest. (c) 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. (d) Requests for a waiver or reduction of fees should be made when the request is first submitted to ONDCP 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 shall be required to pay any costs incurred up to the date the fee waiver request was received. § 1401.19 Aggregation of requests. When an agency 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, the agency may aggregate those requests and charge accordingly. Agencies may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, agencies will aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters cannot be aggregated. § 1401.20 Deletion of exempted information. When requested records contain matters that are exempted under 5 U.S.C. 552(b), but such exempted matters can be reasonably segregated from the remainder of the records, the records shall be disclosed by ONDCP with the necessary redactions. If records are disclosed in part, ONDCP will mark PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 31093 them to show the amount and location of information redacted and the exemption(s) under which the redactions were made unless doing so would harm an interest protected by an applicable exemption. § 1401.21 Confidential commercial information. (a) Definitions— Confidential commercial information means commercial or financial information obtained by ONDCP from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to the Federal Government. (b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, at the time of submission, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period. (c) When notice to submitters is required. (1) ONDCP must promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if ONDCP determines that it may be required to disclose the records, provided: (i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (ii) ONDCP has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure. (2) The notice must either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, ONDCP may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications. E:\FR\FM\22MYP1.SGM 22MYP1 31094 Federal Register / Vol. 85, No. 100 / Friday, May 22, 2020 / Proposed Rules (d) Exceptions to submitter notice requirements. The notice requirements of this section do not apply if: (1) ONDCP determines that the information is exempt under the FOIA, and therefore will not be disclosed; (2) The information has been lawfully published or has been officially made available to the public; (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; or (4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, ONDCP must give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a specified disclosure date. (e) Opportunity to object to disclosure. (1) ONDCP must specify a reasonable time period within which the submitter must respond to the notice referenced above. (2) If a submitter has any objections to disclosure, it should provide ONDCP a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as the basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential. (3) A submitter who fails to respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. ONDCP is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA. (f) Analysis of objections. ONDCP must consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose the requested information. (g) Notice of intent to disclose. Whenever ONDCP decides to disclose information over the objection of a submitter, ONDCP must provide the submitter written notice, which must 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 copies of the records as ONDCP intends to release them; and (3) A specified disclosure date, which must be a reasonable time after the notice. VerDate Sep<11>2014 16:20 May 21, 2020 Jkt 250001 (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, ONDCP must promptly notify the submitter. (i) Requester notification. ONDCP must notify the requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information. (j) No right or benefit. The requirements of this section such as notification do not create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its agencies, its officers, or any person. Subpart B—Privacy Act Policies and Procedures § 1401.22 Definitions. For purposes of this subpart: Access means making a record available to a subject individual. Amendment means any correction, addition to or deletion of information in a record. Individual means a natural person who either is a citizen of the United States or an alien lawfully admitted to the United States for permanent residence. Maintain includes the term ‘‘maintain’’, collect, use, or disseminate. Privacy Act Office means the ONDCP officials who are authorized to respond to requests and to process requests for amendment of records ONDCP maintains under the Privacy Act. Record means any item, collection or grouping of information about an individual that ONDCP maintains within a system of records and contains the individual’s name or the identifying number, symbol or other identifying particular assigned to the individual, such as a finger or voice print or photograph. System of records means a group of records ONDCP maintains or controls from which information is retrieved by the name of an individual or by some identifying number, symbol or other identifying particular assigned to the individual. § 1401.23 Purpose and scope. This subpart implements the Privacy Act, 5 U.S.C. 552a, a Federal law that requires Federal agencies to protect private information about individuals that the agencies collect or maintain. It establishes ONDCP’s rules for access to records in systems of records we PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 maintain that are retrieved by an individual’s name or another personal identifier. It describes the procedures by which individuals may request access to records, request amendment or correction of those records, and request an accounting of disclosures of those records by ONDCP. Whenever it is appropriate to do so, ONDCP automatically processes a Privacy Act request for access to records under both the Privacy Act and the FOIA, following the rules contained in this part. ONDCP processes a request under both the Privacy Act and the FOIA so you will receive the maximum amount of information available to you by law. § 1401.24 request? How do I make a Privacy Act (a) In general. You can make a Privacy Act request for records about yourself. You also can make a request on behalf of another individual as the parent or legal guardian of a minor, or as the legal guardian of someone determined by a court to be incompetent. (b) How do I make a request?—(1) Where do I send my written request? To make a request for access to a record, you should write directly to our Office of General Counsel. Heightened security delays mail delivery. To avoid mail delivery delays, we strongly suggest that you email your request to foia@ ondcp.eop.gov. Our mailing address is: Executive Office of the President, Office of National Drug Control Policy, 1800 G Street NW, 9th Floor, Washington, DC 20006, Attn: Office of General Counsel. To make sure that the Office of General Counsel receives your request without delay, you should include the notation ‘‘Privacy Act Request’’ in the subject line of your email or on the front of your envelope and also at the beginning of your request. (2) Security concerns. To protect our computer systems, we will not open attachments to emailed requests—you must include your request within the body of the email. We will not process email attachments. (c) What should my request include? You must describe the record that you seek in enough detail to enable the Office of General Counsel to locate the system of records containing the record with a reasonable amount of effort. Include specific information about each record sought, such as the time period in which you believe it was compiled, the name or identifying number of each system of records in which you believe it is kept, and the date, title or name, author, recipient, or subject matter of the record. As a general rule, the more specific you are about the record that you seek, the more likely we will be E:\FR\FM\22MYP1.SGM 22MYP1 Federal Register / Vol. 85, No. 100 / Friday, May 22, 2020 / Proposed Rules able to locate it in response to your request. (d) How do I request amendment of a record? If you are requesting an amendment of an ONDCP record, you must identify each particular record in question and the system of records in which the record is located, describe the amendment that you seek, and state why you believe that the record is not accurate, relevant, timely or complete. You may submit any documentation that you think would be helpful, including an annotated copy of the record. (e) How do I request an accounting of record disclosures? If you are requesting an accounting of disclosures made by ONDCP to another person, organization or Federal agency, you must identify each system of records in question. An accounting generally includes the date, nature and purpose of each disclosure, as well as the name and address of the person, organization, or Federal agency to which the disclosure was made. (f) Verification of identity. When making a Privacy Act request, you must verify your identity in accordance with these procedures to protect your privacy or the privacy of the individual on whose behalf you are acting. If you make a Privacy Act request and you do not follow these identity verification procedures, ONDCP cannot process your request. (1) How do I verify my own identity? You must include in your request your full name, citizenship status, current address, and date and place of birth. We may request additional information to verify your identity. To verify your own identity, you must provide an unsworn declaration under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury. To fulfill this requirement, you must include the following statement just before the signature on your request: I declare under penalty of perjury that the foregoing is true and correct. Executed on [date]. (2) How do I verify parentage or guardianship? If you make a request as the parent or legal guardian of a minor, or as the legal guardian of someone determined by a court to be incompetent, for access to records or information about that individual, you must establish: (i) The identity of the individual who is the subject of the record, by stating the individual’s name, citizenship status, current address, and date and place of birth; (ii) Your own identity, as required in paragraph (f)(1) of this section; (iii) That you are the parent or legal guardian of the individual, which you VerDate Sep<11>2014 16:20 May 21, 2020 Jkt 250001 may prove by providing a copy of the individual’s birth certificate showing your parentage or a court order establishing your guardianship; and (iv) That you are acting on behalf of the individual in making the request. § 1401.25 How will ONDCP respond to my Privacy Act request? (a) When will we respond to your request? We will search to determine if the requested records exist in a system of records ONDCP owns or controls. The Office of General Counsel will respond to you in writing within twenty days after we receive your request and/or within ten working days after we receive your request for an amendment, if it meets the requirements of this subpart. We may extend the response time in unusual circumstances, such as the need to consult with another agency about a record or to retrieve a record that is in storage. (b) What will our response include? (1) Our written response will include our determination whether to grant or deny your request in whole or in part, a brief explanation of the reasons for the determination, and the amount of the fee charged, if any, under § 1401.27. If you requested access to records, we will make the records, if any, available to you. If you requested amendment of a record, the response will describe any amendments made and advise you of your right to obtain a copy of the amended record. (2) We will also notify the individual who is subject to the record in writing, if, based on your request, any system of records contains a record pertaining to him or her. (3) If the Office of General Counsel makes an adverse determination with respect to your request, our written response will identify the name and address of the person responsible for the adverse determination, that the adverse determination is not a final agency action, and describe the procedures by which you may appeal the adverse determination under § 1401.26. An adverse determination is a response to a Privacy Act request that: (i) Withholds any requested record in whole or in part; (ii) Denies a request to amend a record in whole or in part; (iii) Declines to provide an accounting of disclosures; (iv) Advises that a requested record does not exist or cannot be located; (v) Finds that what you requested is not a record subject to the Privacy Act; or (vi) Advises on any disputed fee matter. PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 31095 § 1401.26 What can I do if I am dissatisfied with ONDCP’s response to my Privacy Act request? (a) What can I appeal? You can appeal any adverse determination in writing to our Director or designee within ninety calendar days after the date of our response. We provide a list of adverse determinations in § 1401.25(b)(3). (b) How do I make an appeal?—(1) What should I include? You may appeal by submitting a written statement giving the reasons why you believe the Director or designee should overturn the adverse determination. Your written appeal may include as much or as little related information as you wish to provide, as long as it clearly identifies the determination (including the request number, if known) that you are appealing. (2) Where do I send my appeal? You should mark both your letter and the envelope, or the subject of your email, ‘‘Privacy Act Appeal.’’ To avoid mail delivery delays caused by heightened security, we strongly suggest that you email any appeal to foia@ ondcp.eop.gov. Our mailing address is: Executive Office of the President, Office of National Drug Control Policy, 1800 G Street NW, 9th Floor, Washington, DC 20006, Attn: Office of General Counsel. (c) Who will decide your appeal? (1) The Director or designee will act on all appeals under this section. (2) We ordinarily will not adjudicate an appeal if the request becomes a matter of litigation. (3) On receipt of any appeal involving classified information, the Director or designee must take appropriate action to ensure compliance with applicable classification rules. (d) When will we respond to your appeal? The Director or designee will notify you of its appeal decision in writing within thirty days from the date it receives an appeal that meets the requirements of paragraph (b) of this section. We may extend the response time in unusual circumstances, such as the need to consult with another agency about a record or to retrieve a record shipped offsite for storage. (e) What will our response include? The written response will include the Director or designee’s determination whether to grant or deny your appeal in whole or in part, a brief explanation of the reasons for the determination, and information about the Privacy Act provisions for court review of the determination. (1) Appeals concerning access to records. If your appeal concerns a request for access to records and the appeal is granted in whole or in part, we E:\FR\FM\22MYP1.SGM 22MYP1 31096 Federal Register / Vol. 85, No. 100 / Friday, May 22, 2020 / Proposed Rules will make the records, if any, available to you. (2) Appeals concerning amendments. If your appeal concerns amendment of a record, the response will describe any amendment made and advise you of your right to obtain a copy of the amended record. We will notify all persons, organizations or Federal agencies to which we previously disclosed the record, if an accounting of that disclosure was made, that the record has been amended. Whenever the record is subsequently disclosed, the record will be disclosed as amended. If our response denies your request for an amendment to a record, we will advise you of your right to file a statement of disagreement under paragraph (f) of this section. (f) Statements of disagreement—(1) What is a statement of disagreement? A statement of disagreement is a concise written statement in which you clearly identify each part of any record that you dispute and explain your reason(s) for disagreeing with our denial in whole or in part of your appeal requesting amendment. (2) How do I file a statement of disagreement? You should mark both your letter and the envelope, or the subject of your email, ‘‘Privacy Act Statement of Disagreement.’’ To avoid mail delivery delays caused by heightened security, we strongly suggest that you email a statement of disagreement to foia@ondcp.eop.gov. Our mailing address is: Executive Office of the President, Office of National Drug Control Policy, 1800 G Street NW, 9th Floor, Washington, DC 20006, Attn: Office of General Counsel. (3) What will we do with your statement of disagreement? We shall clearly note any portion of the record that is disputed and provide copies of the statement and, if we deem appropriate, copies of our statement that denied your request for an appeal for amendment, to persons or other agencies to whom the disputed record has been disclosed. (g) When appeal is required. Under this section, you generally first must submit a timely administrative appeal, before seeking review of an adverse determination or denial request by a court. § 1401.27 What does it cost to get records under the Privacy Act? (a) Agreement to pay fees. Your request is an agreement to pay fees. We consider your Privacy Act request as your agreement to pay all applicable fees unless you specify a limit on the amount of fees you agree to pay. We will VerDate Sep<11>2014 16:20 May 21, 2020 Jkt 250001 not exceed the specified limit without your written agreement. (b) How do we calculate fees? We will charge a fee for duplication of a record under the Privacy Act in the same way we charge for duplication of records under the FOIA in § 1401.14(d). There are no fees to search for or review records requested under the Privacy Act. Michael J. Passante, Acting General Counsel. [FR Doc. 2020–09826 Filed 5–20–20; 8:45 am] BILLING CODE 3280–F5–P to the extent practicable on paper, to its public docket. Send paper submissions to: CC:PA:LPD:PR (REG–124327–19), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, call Barbara J. Campbell, (202) 317– 4137; concerning submissions of comments and requests for a public hearing, call Regina Johnson, (202) 317– 5177 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG–124327–19] RIN 1545–BP56 Rehabilitation Credit Allocated Over a 5-Year Period Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking. AGENCY: This document contains proposed regulations concerning the rehabilitation credit, including rules to coordinate the new 5-year period over which the credit may be claimed with other special rules for investment credit property. These proposed regulations affect taxpayers that claim the rehabilitation credit. DATES: Written or electronic comments and requests for a public hearing must be received by July 21, 2020. Requests for a public hearing must be submitted as prescribed in the ‘‘Comments and Requests for a Public Hearing’’ section. ADDRESSES: Commenters are strongly encouraged to submit public comments electronically. Submit electronic submissions via the Federal eRulemaking Portal at www.regulations.gov (indicate IRS and REG–124327–19) by following the online instructions for submitting comments. Once submitted to the Federal eRulemaking Portal, comments cannot be edited or withdrawn. The IRS expects to have limited personnel available to process public comments that are submitted on paper through mail. Until further notice, any comments submitted on paper will be considered to the extent practicable. The Department of the Treasury (Treasury Department) and the IRS will publish for public availability any comment submitted electronically, and SUMMARY: PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 This document contains proposed amendments to Title 26 part 1 under section 47 of the Internal Revenue Code (Code). The rehabilitation credit under section 47 is listed as an investment credit under section 46, and the investment credit under section 46 is a current year general business credit under section 38. On December 22, 2017, section 47 was amended by section 13402 of Public Law 115–97, 131 Stat. 2054 (2017), commonly referred to as the Tax Cuts and Jobs Act (TCJA). Prior to the TCJA, former section 47(a) provided a two-tier credit for qualified rehabilitation expenditures (QREs) incurred in connection with the rehabilitation of a qualified rehabilitated building (QRB). Former section 47(a)(2) allowed a 20-percent credit for QREs with respect to a certified historic structure, and former section 47(a)(1) allowed a 10-percent credit for QREs with respect to a QRB other than a certified historic structure (for certain buildings first placed in service before 1936 (pre-1936 buildings)). Under former section 47, both the 20-percent and 10-percent credits were fully allowed in the taxable year the QRB was placed in service. Section 13402(a) of the TCJA repealed the 10-percent credit for pre-1936 buildings and modified the rules for claiming the 20-percent credit for certified historic structures. Section 13402(c)(1) of the TCJA provides that these amendments are generally applicable to QRE amounts paid or incurred after December 31, 2017, subject to a transition rule provided in section 13402(c)(2) of the TCJA. This statutory transition rule provides that in the case of QREs (for either a certified historic structure eligible for a 20percent credit or a pre-1936 building eligible for a 10-percent credit prior to December 31, 2017), with respect to any building owned or leased (as provided under present law) by the taxpayer at all times on and after January 1, 2018, the E:\FR\FM\22MYP1.SGM 22MYP1

Agencies

[Federal Register Volume 85, Number 100 (Friday, May 22, 2020)]
[Proposed Rules]
[Pages 31087-31096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09826]


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EXECUTIVE OFFICE OF THE PRESIDENT

Office of National Drug Control Policy

21 CFR Part 1401

RIN 3201-AA01


Freedom of Information Act

AGENCY: Office of National Drug Control Policy.

ACTION: Proposed rule.

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SUMMARY: The Office of National Drug Control Policy (ONDCP) is updating 
its Freedom of Information Act (FOIA) implementing regulation to 
comport with the FOIA Improvement Act of 2016 and best practices. The 
proposed rule describes how to make a FOIA request with ONDCP and how 
the Office of General Counsel, which includes the ONDCP officials 
authorized to evaluate FOIA requests, processes requests for records. 
The proposed rule also states ONDCP's Privacy Act Policies and 
Procedures. The proposed rule describes how individuals can find out if 
an ONDCP system of records contains information about them and, if so, 
how to access or amend a record. ONDCP seeks comments on all aspects of 
the proposed rule and will thoroughly consider all comments that are 
submitted on time.

DATES: Send comments on or before June 30, 2020.

ADDRESSES: You may send comments, identified by RIN number 3201-AA01 
and/or docket number ONDCP-2020-002, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include docket number ONDCP-
2020-002 and/or RIN number 3201-AA01 in the subject line of the 
message.
     Mail: Executive Office of the President, Office of 
National Drug Control Policy, 1800 G Street NW, 9th Floor, Washington, 
DC 20006.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
rulemaking. All comments received will be posted without change to 
http://www.regulations.gov including any personal information provided.
    ONDCP strongly recommends using electronic means for submitting 
comments. Due to COVID-19, comments submitted through conventional mail 
delivery services may not be received in a timely manner.

FOR FURTHER INFORMATION CONTACT: Questions concerning this notice 
should

[[Page 31088]]

be directed to Michael J. Passante, Acting General Counsel, Office of 
General Counsel, Office of National Drug Control Policy, Executive 
Office of the President, at (202) 395-6622 or [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    ONDCP has undertaken a review of agency practices related to the 
collection, use, protection and disclosure of ONDCP records and 
information in light of the FOIA Improvement Act of 2016 and the 
Privacy Act. As a result of that review, ONDCP is updating its 
regulation on FOIA and the Privacy Act. The FOIA, 5 U.S.C. 552 et seq., 
provides a right of access to certain records and information Federal 
agencies maintain and control. The FOIA requires each Federal agency to 
publish regulations describing how to submit a FOIA request and how 
people responsible for FOIA will process these requests. ONDCP's 
current FOIA regulation, codified at 21 CFR part 1401, was last revised 
in 1999. See 64 FR 69901 (Dec. 15, 1999). Due to the passage of time 
and amendments to the FOIA, we are updating the regulation. ONDCP's 
proposed regulation on FOIA and the Privacy Act incorporates the 
practical experience of the agency's staff who handle FOIA and privacy 
issues and guidance from the Office of Management and Budget and the 
U.S. Department of Justice, Office of Information Policy. It also 
strives for consistency with FOIA and Privacy Act regulations among 
other agencies of the Executive Office of the President.

II. Section-by-Section Analysis

Subpart A--Freedom of Information Act Policies and Procedures

    Section 1401.1--Purpose: This section describes the purpose of the 
regulation, which is to implement the FOIA.
    Section 1401.2--ONDCP: Organization and functions: This section 
describes the mission and leadership structure of the agency. It 
specifies where media inquiries may be submitted and notes that oral 
requests for information under FOIA will be rejected.
    Section 1401.3--Definitions: This section defines the key terms 
used in the regulation.
    Section 1401.4--Access to information: This section describes the 
types of information that ONDCP will make available under FOIA.
    Section 1401.5--Proactive disclosures: This section describes 
information about ONDCP the public can access without filing a FOIA 
request. Pursuant to the FOIA Improvement Act of 2016, ONDCP will make 
records available that have been requested three or more times in an 
electronic format.
    Section 1401.6--Records requiring consultation. This section 
describes how ONDCP will process records that originated with another 
agency but are in the custody of ONDCP.
    Section 1401.7--How to request records--Form and content: This 
section explains what an individual must do to submit a valid FOIA 
request to ONDCP and where a request should be sent. It also describes 
the information requesters must provide so ONDCP can identify the 
records sought and process their requests.
    Section 1401.8--Initial determination: This section provides that 
the ONDCP General Counsel has the authority to approve or deny FOIA 
requests and describes how to appeal FOIA decisions made by the General 
Counsel.
    Section 1401.9--Response--form and content: This section explains 
that ONDCP will respond to your request in writing either with the 
requested records or an explanation of the reasons why all or portions 
of the requested records were not disclosed. We also will provide 
information about the right of appeal and the mediation services 
offered by the Office of Government Information Services of the 
National Archives and Records Administration. The response will include 
any fees associated with the FOIA request.
    Section 1401.10--Expedited Process: This section describes the 
circumstances under which expedited processing of a FOIA request may be 
granted.
    Section 1401.11--Prompt response: This section describes the period 
of time within which ONDCP will determine whether it is appropriate to 
grant or deny a FOIA request, i.e., ordinarily within twenty working 
days after the date the request is received. If ONDCP determines that a 
request is denied or that additional time is required to process the 
request, it will provide written notification to the requestor with an 
explanation of the reasons for denial or delay.
    Section 1401.12--Extension of Time: This section describes and 
defines the ``unusual circumstances'' under which ONDCP may extend the 
time limit for making a determination on a FOIA request.
    Section 1401.13--Appeal procedures: This section describes when and 
how a requester may appeal a determination on a FOIA request and how 
and within what period of time ONDCP will make a determination on an 
appeal.
    Section 1401.14--Fees to be charged--general: This section 
describes the general FOIA processing activities performed by ONDCP 
personnel and the rates charged by ONDCP to recoup the employee costs 
associated with responding to FOIA requests.
    Section 1401.15--Fees to be charged--Miscellaneous provisions: This 
section contains miscellaneous FOIA fee provisions such as where 
payment should be sent, when advance payment is required, and rates of 
interest charged on late payments, etc.
    Section 1401.16--Fees to be charged--Categories of Requester: This 
section describes the different categories of requesters and the types 
and amounts of fees ONDCP may assess to process and respond to a FOIA 
request.
    Section 1401.17--Restrictions on charging fees. This provision 
describes the circumstances under which ONDCP is restricted in charging 
fees normally associated with processing FOIA request such as when 
ONDCP does not meet time limits mandated by the FOIA.
    Section 1401.18--Waiver or Reduction of Fees: This section 
describes the factors that ONDCP may consider when deciding whether to 
waive or reduce the fees associated with processing FOIA requests.
    Section 1401.19--Aggregation of requests: This section describes 
the circumstances under which ONDCP may aggregate a series or group of 
requests for purposes of fee assessment.
    Section 1401.20--Deletion of exempted information: This section 
provides that ONDCP will redact exempt information from its FOIA 
disclosures to the extent that exempt information can be segregated 
from other information subject to disclosure.
    Section 1401.21--Confidential commercial information: This section 
explains when and how a person or entity that submits information to 
ONDCP must identify confidential commercial information. It also 
describes how ONDCP staff will handle such information.

Subpart B--Privacy Act Policies and Procedures

    Section 1401.22--Definitions: This section defines the key terms 
used in this Subpart.
    Section 1401.23--Purpose and scope: This section describes the 
purpose of the regulation, which is to implement the Privacy Act, and 
explains general policies and procedures for individuals requesting 
access to records, requesting amendments or corrections to records,

[[Page 31089]]

and requesting an accounting of disclosures of records.
    Section 1401.24--How do I make a Privacy Act request?: This section 
explains what an individual must do to submit a request to ONDCP for 
access to records, to amend or correct records, or for an accounting of 
disclosures of records. It also describes the information an individual 
must provide so ONDCP can identify the records sought and determine 
whether the request can be granted.
    Section 1401.25--How will ONDCP respond to a Privacy Act request?: 
This section describes the period of time within which ONDCP will 
respond to requests. It also explains that ONDCP will grant or deny 
requests in writing, provide reasons if a request is denied in whole or 
in part, and explain the right of appeal.
    Section 1401.26--What can I do if I am dissatisfied with ONDCP's 
response to my Privacy Act request?: This section describes when and 
how an individual may appeal a determination on a Privacy Act request 
and how and within time period ONDCP will make a determination on an 
appeal.
    Section 1401.27--What does it cost to get records under the Privacy 
Act?: This section explains that requesters are required to pay fees 
for the duplication of requested records.

III. Regulatory Flexibility Act

    ONDCP has considered the impact of the proposed rule and determined 
that if adopted as a final rule it is not likely to have a significant 
economic impact on a substantial number of small business entities 
because it only applies to ONDCP's internal operations and legal 
obligations. See 5 U.S.C. 601 et seq.

IV. Paperwork Reduction Act

    The proposed rule does not contain any information collection 
requirement that requires approval from the Office of Management and 
Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects in CFR 21 Part 1401

    Freedom of information, Privacy.


0
For the reasons stated in the preamble, the Office of National Drug 
Control Policy is proposing to revise part 1401 of title 21 of the Code 
of Federal Regulations to read as follows:

PART 1401--PUBLIC AVAILABILITY OF INFORMATION

Subpart A--Freedom of Information Act Policies and Procedures

Sec.
1401.1 Purpose.
1401.2 The Office of National Drug Control Policy--organization and 
functions.
1401.3 Definitions.
1401.4 Access to information.
1401.5 Proactive disclosures.
1401.6 Records requiring consultation.
1401.7 How to request records--form and content.
1401.8 Initial determination.
1401.9 Responses-form and content.
1401.10 Expedited process.
1401.11 Prompt response.
1401.12 Extension of time.
1401.13 Appeal procedures.
1401.14 Fees to be charged--general.
1401.15 Fees to be charged--miscellaneous provisions.
1401.16 Fees to be charged--categories of requesters.
1401.17 Restrictions on charging fees.
1401.18 Waiver or reduction of fees
1401.19 Aggregation of requests.
1401.20 Deletion of exempted information.
1401.21 Confidential commercial information.
Subpart B--Privacy Act Policies and Procedures
1401.22 Definitions.
1401.23 Purpose and scope.
1401.24 How do I make a Privacy Act request?
1401.25 How will ONDCP respond to my Privacy Act request?
1401.26 What can I do if I am dissatisfied with ONDCP's response to 
my Privacy Act request?
1401.27 What does it cost to get records under the Privacy Act?

    Authority: 5 U.S.C. 552.

Subpart A--Freedom of Information Act Policies and Procedures


Sec.  1401.1  Purpose.

    The purpose of this part is to prescribe rules, guidelines and 
procedures to implement the Freedom of Information Act (FOIA), as 
amended, 5 U.S.C. 552.


Sec.  1401.2  The Office of National Drug Control Policy--organization 
and functions.

    (a) The Office of National Drug Control Policy (ONDCP) was created 
by the Anti-Drug Abuse Act of 1988, 21 U.S.C. 1501 et seq., and 
reauthorized under 21 U.S.C. 1701 et seq. and several appropriations 
acts. The mission of ONDCP is to coordinate the anti-drug efforts of 
the various agencies and departments of the Federal Government, to 
consult with States and localities and assist their anti-drug efforts, 
and to annually promulgate the National Drug Control Strategy. ONDCP is 
headed by the Director of National Drug Control Policy.
    (b) ONDCP's Office of External and Legislative Affairs is 
responsible for providing information to the press and to the general 
public. If members of the public have general questions about ONDCP, 
they may email the Office of External and Legislative Affairs at 
[email protected]. This email address should not be used to 
make FOIA requests. All oral requests for information under FOIA will 
be rejected.


Sec.  1401.3   Definitions.

    For the purpose of this part, all the terms defined in the Freedom 
of Information Act apply.
    Commercial-use request means a request from or on behalf of one who 
seeks information for a cause or purpose that furthers the commercial, 
trade or profit interests of the requester or the person or institution 
on whose behalf the request is made. In determining whether a requester 
properly belongs in this category, ONDCP will consider the intended use 
of the information.
    Direct costs means the expense actually expended to search, review, 
or duplicate in response to a FOIA request. For example, direct costs 
include 116% of the salary of the employee performing work (i.e., the 
basic rate of pay for the employee plus 16 percent of that rate to 
cover benefits) and the actual costs incurred while operating 
equipment.
    Duplicate means the process of making a copy of a document. Such 
copies may take the form of paper, microform, audio-visual materials, 
or machine-readable documentation. Requesters may specify the preferred 
form or format (including electronic formats) for the records they 
seek. ONDCP will try to accommodate formatting requests if the record 
is readily reproducible in that form or format.
    Educational institution means preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education 
that operates a program or programs of scholarly research.
    Noncommercial scientific institution means an institution that is 
not operated on a commercial basis as that term is defined in 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.
    OGIS means the Office of Government Information Services of the 
National Archives and Records Administration. OGIS offers FOIA dispute 
resolution services, which is a voluntary process. If ONDCP agrees to 
participate in the

[[Page 31090]]

dispute resolution services provided by OGIS, ONDCP will actively 
engage as a partner to the process in an attempt to resolve the 
dispute.
    Records and any other terms used in this part in reference to 
information includes any information that would be an agency record 
subject to the requirements of this part when maintained in any format, 
including electronic format.
    Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into distinct work, 
and distributes that work to an audience. The term ``news'' means 
information that is about current events or information that would be 
of interest to the public. Examples of the news media include 
television or radio stations that broadcast to the public at large and 
publishers of news periodicals that make their products available to 
the general public for purchase or subscription. Freelance journalists 
may be regarded as working for the news media where they demonstrate a 
reasonable basis for expecting publication through that organization, 
even though not actually employed by it.
    Request means a letter or other written communication seeking 
records or information under FOIA.
    Review means the process of examining documents that are located 
during a search to determine if any portion should lawfully be 
withheld. It is the processing of determining disclosability.
    Search means to review, manually or by automated means, agency 
records for the purpose of locating those records responsive to a 
request.


Sec.  1401.4  Access to information.

    The Office of National Drug Control Policy makes available 
information pertaining to matters issued, adopted, or promulgated by 
ONDCP, that are within the scope of 5 U.S.C. 552(a)(2). Such 
information is located at https://www.whitehouse.gov/ondcp.


Sec.  1401.5  Proactive disclosures.

    ONDCP will make records that the FOIA requires us to make available 
for public inspection and copying in an electronic format (with 
appropriate exemptions applied), through our website: http://www.whitehouse.gov/ondcp. These records consist of information that has 
been requested three or more times or that has been released to a 
requester and that ONDCP determines has become, or are likely to 
become, the subject of subsequent requests for substantially the same 
records.


Sec.  1401.6  Records requiring consultation.

    Requests for records that are in ONDCP's custody but in which other 
agencies have equities shall be reviewed by ONDCP and then ONDCP will 
either consult with or refer the records to the other agency or 
agencies for further processing.


Sec.  1401.7  How to request records--form and content.

    (a) You must describe the records you seek in sufficient detail and 
in writing to enable ONDCP personnel to locate them with a reasonable 
amount of effort. To satisfy this requirement, you should be as 
detailed as possible when describing the records you seek. To the 
extent possible, each request must reasonably describe the record(s) 
sought including the type of document, specific event or action, title 
or name, author, recipient, subject matter of the record, date or time 
period, location, and all other pertinent data. Before or after 
submitting their requests, requesters may contact ONDCP's FOIA Public 
Liaison to discuss the records they seek and for assistance in 
describing the records. A list of Agency FOIA Public Liaisons is 
available at https://www.foia.gov/#agency-search (b)(1) If you are 
making a request for records about yourself, you must comply with the 
verification of identity provision set forth in Sec.  1401.24(f) of 
this part.
    (2) If a request for records pertains to a third party, you may 
receive greater access by submitting either a notarized authorization 
signed by that individual or an unsworn declaration under 26 U.S.C. 
1746 by that individual authorizing disclosure of the records to you. 
If the other individual is deceased, you should submit proof of death 
such as a copy of the death certificate or an obituary. As an exercise 
of administrative discretion, ONDCP may require you to provide 
additional information if necessary in order to verify that a 
particular individual has consented to disclosure.
    (c) Whenever it is appropriate to do so, ONDCP automatically 
processes a Privacy Act request for access to records under both the 
Privacy Act and the FOIA, following the rules contained in this part. 
ONDCP processes a request under both the FOIA and Privacy Act so you 
will receive the maximum amount of information available to you by law.
    (d) Requests must be received by ONDCP through methods specified on 
the FOIA page of ONDCP's website: https://www.whitehouse.gov/ondcp/about/foia-and-legal/. Requests may be emailed to [email protected].
    (e) The words ``FOIA REQUEST'' or ``REQUEST FOR RECORDS'' must be 
clearly marked on all FOIA request communications. The time limitations 
imposed by Sec.  1401.10 will not begin until the Office of General 
Counsel identifies a communication as a FOIA request.
    (f) You must provide contact information, such as your phone 
number, email address and mailing address, so we will be able to 
communicate with you about your request and provide released records. 
If we cannot contact you, or you do not respond within twenty calendar 
days to our request for clarification, we will close your request.
    (g) To protect our computer systems, we will not open attachments 
to emailed requests--you must include your request within the body of 
the email. We will not process email attachments.


Sec.  1401.8  Initial determination.

    The General Counsel or his or her designee shall have the authority 
to approve or deny requests received pursuant to these regulations.


Sec.  1401.9   Responses-form and content.

    (a) When a requested record has been identified and is available, 
the General Counsel or his or her designee shall send the record to the 
person making the request or notify the person making the request as to 
where and when the record will be available. The notification shall 
also advise the person making the request of any fees assessed under 
Sec.  1401.10 of this part. ONDCP will inform the requester of the 
availability of its FOIA Public Liaison.
    (b) A denial or partial denial of a request for a record shall be 
in writing signed by the General Counsel or his or her designee and 
shall include:
    (1) The name and title of the person making the determination;
    (2) Either a reference to the specific exemption under FOIA 
authorizing the withholding of the record or a statement that, after 
diligent effort, the requested records have not been found.
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate 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. See 5 U.S.C. 552(a)(6)(F).

[[Page 31091]]

    (4) A statement that the denial may be appealed to the Director or 
his/her designee within 90 days of the date of the response. The 
requirements for making an appeal are specified in Sec.  1401.13.
    (5) A statement notifying the requester of the assistance available 
from the ONDCP's FOIA Public Liaison and the dispute resolution 
services offered by OGIS.


Sec.  1401.10   Expedited process.

    (a) A request for expedited processing may be made at any time. 
ONDCP must process requests and appeals on an expedited basis whenever 
it is determined that they involve:
    (1) The lack of expedited treatment could reasonably be expected to 
pose an imminent threat to the life or physical safety of an 
individual; or
    (2) An urgency to inform the public about an actual or alleged 
Federal Government activity, beyond the public's right to know about 
government activity generally, and the request is made by a person 
primarily engaged in disseminating information.
    (b) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for requesting expedited processing. For example, under paragraph 
(a)(2) of this section, a requester who is not a full-time member of 
the news media must establish that the requester is a person whose 
primary professional activity or occupation is information 
dissemination, though it need not be the requester's sole occupation. 
Such a requester also must establish a particular urgency to inform the 
public about the government activity involved in the request, beyond 
the public's right to know about government activity generally. The 
existence of numerous articles published on a given subject can be 
helpful in establishing the requirement that there be an ``urgency to 
inform'' the public on the topic. The formality of certification may be 
waived as a matter of administrative discretion.
    (c) Within ten days of receipt of a request for expedited 
processing, ONDCP will decide whether to grant it and will notify the 
requester of the decision. If a request for expedited treatment is 
granted, the request will be given priority and will be processed as 
soon as practicable. If a request for expedited processing is denied, 
any appeal of that decision will be acted on expeditiously.


Sec.  1401.11   Prompt response.

    (a) The General Counsel, or designee, will determine within 20 days 
(excepting Saturdays, Sundays, and legal public holidays) after the 
receipt of a FOIA request whether it is appropriate to grant the 
request and will provide written notification to the person making the 
request. If the request is denied, the written notification will 
include the names of the individuals who participated in the 
determination, the reasons for the denial, and that an appeal may be 
filed with the Office of National Drug Control Policy under Sec.  
1401.13.
    (b) When additional time is required, the General Counsel or his or 
her designee shall acknowledge receipt of the request within the 20 
working day period and shall assign the request an individualized 
tracking number. The acknowledgment will include the tracking number 
and a brief explanation of the reason(s) for delay. Where the extension 
exceeds 10 working days, ONDCP must provide the requester with an 
opportunity to modify the request or arrange an alternative time period 
for processing the original or modified request. ONDCP will make 
available its designated FOIA contact or its FOIA Public Liaison for 
this purpose, and will alert requesters to the availability of the OGIS 
to provide dispute resolution services.


Sec.  1401.12  Extension of time.

    (a) In unusual circumstances, the Office of General Counsel may 
extend the time limit prescribed in Sec.  1401.7 or Sec.  1401.9 by 
written notice to the FOIA requester. The notice will state the reasons 
for the extension.
    (b) The phrase ``unusual circumstances'' means:
    (1) The requested records are located in establishments that are 
separated from the office processing the request;
    (2) A voluminous amount of separate and distinct records are 
demanded in a single request; or
    (3) Another agency or two or more components in the same agency 
have substantial interest in the determination of the request.
    (c) Whenever ONDCP cannot meet the statutory time limit for 
processing a request because of ``unusual circumstances,'' as defined 
by 5 U.S.C. 552(a)(b)(B), and ONDCP extends the time limit on that 
basis, the agency must, before expiration of the 20-day period to 
respond, notify the requester in writing of the unusual circumstances 
involved and of the date by which ONDCP estimates processing of the 
request will be completed. Where the extension exceeds 10 working days, 
ONDCP must, as described by the FOIA, provide the requester with an 
opportunity to modify the request or arrange an alternative time period 
for processing the original or modified request. The agency must make 
available its designated FOIA contact or its FOIA Public Liaison for 
this purpose. The agency must also alert requesters to the availability 
of the Office of Government Information Services (OGIS) to provide 
dispute resolution services.
    (d) To satisfy unusual circumstances under the FOIA, ONDCP 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. ONDCP cannot aggregate multiple requests 
that involve unrelated matters.


Sec.  1401.13   Appeal procedures.

    (a) An appeal to the ONDCP must explain in writing the legal and 
factual basis for the appeal. It must be received by email at 
[email protected] or another method specified on the FOIA page of 
ONDCP's website within 90 days of the date of the response. The appeal 
must be in writing, addressed to the Director, Executive Office of the 
President, Office of National Drug Control Policy, 1800 G Street NW, 
9th Floor, Washington, DC 20006, ATTN: Office of General Counsel. The 
communication should clearly be labeled as a ``Freedom of Information 
Act Appeal.''
    (b) The Director or designee will decide the appeal within 20 days 
(excepting Saturdays, Sundays, and legal public holidays). If the 
Director or designee deny an appeal in whole or in part, the written 
determination will contain the reason for the denial, the names of the 
individuals who participated in the determination, and the provisions 
for judicial review of the denial and ruling on appeal provided in 5 
U.S.C. 552(a)(4). The denial will also inform the requestor of the 
dispute resolution services offered by OGIS as a non-exclusive 
alternate to litigation. If ONDCP agrees to participate in voluntary 
dispute resolution services provided by OGIS, it will actively engage 
in an attempt to resolve the dispute.


Sec.  1401.14   Fees to be charged--general.

    ONDCP will assess a fee to process FOIA requests in accordance with 
the provisions of this section and OMB Guidelines. We shall ensure that 
searches, review and duplication are conducted in the most efficient 
and the least expensive manner. ONDCP will ordinarily collect all 
applicable fees

[[Page 31092]]

before sending copies of records to a requester. ONDCP will charge the 
following fees unless a waiver or reduction of fees is granted under 
Sec.  1401.18, or the total fee to be charged is less than $25.00. We 
will notify you if we estimate that charges will exceed $25 including a 
breakdown of the fees for search, review or duplication and whether 
applicable entitlements to duplication and search at no charge have 
been provided. We will not process your request until you either commit 
in writing to pay the actual or estimated total fee, or designate some 
amount of fees you are willing to pay.
    (a) Manual search for records. ONDCP will charge $77.00 per hour, 
which is a blended hourly rate for all personnel that respond to FOIA 
requests, plus 16 percent of that rate to cover benefits.
    (b) Computerized search for records. ONDCP will charge $77.00 per 
hour, which is a blended hourly rate for all personnel that respond to 
FOIA requests, plus 16 percent of that rate to cover benefits.
    (c) Review of records. ONDCP will charge $77.00 per hour, which is 
a blended hourly rate for all personnel that responded to FOIA 
requests, plus 16 percent of that rate to cover benefits. Records or 
portions of records withheld under an exemption subsequently determined 
not to apply may be reviewed to determine the applicability of 
exemptions not considered. The cost for a subsequent review is 
assessable.
    (d) Duplication of records. We will charge duplication fees to all 
requesters. We will honor your preference for receiving a record in a 
particular format if we can readily reproduce it in the form or format 
requested. If we provide photocopies, we will make one copy per request 
at the cost of $.10 per page. For copies of records produced on tapes, 
disks or other media, we will charge the direct costs of producing the 
copy, including operator time. Where we must scan paper documents in 
order to comply with your preference to receive the records in an 
electronic format, we will charge you the direct costs associated with 
scanning those materials. For other forms of duplication, we will 
charge the direct costs. We will provide the first 100 pages of 
duplication (or the cost equivalent for other media) without charge 
except for requesters seeking records for a commercial use.
    (e) Other charges. ONDCP will recover the costs of providing other 
services such as certifying records or sending records by special 
methods.


Sec.  1401.15   Fees to be charged--miscellaneous provisions.

    (a) Payment for FOIA services may be made through the methods 
specified on the FOIA page of ONDCP's website.
    (b) ONDCP may require advance payment where the estimated fee 
exceeds $250, or a requester previously failed to pay within 30 days of 
the billing date.
    (c) ONDCP may assess interest charges beginning the 31st day of 
billing. Interest will be at the rate prescribed in section 3717 of 
title 31 of the United States Code and will accrue from the date of the 
billing.
    (d) ONDCP may assess search charges where records are not located 
or where records are exempt from disclosure.
    (e) ONDCP may aggregate individual requests and charge accordingly 
for requests seeking portions of a document or documents.


Sec.  1401.16   Fees to be charged--categories of requesters.

    (a) There are four categories of FOIA requesters: Commercial use 
requesters; educational and non-commercial scientific institutions; 
representatives of the news media; and all other requesters.
    (b) The specific levels of fees for each of these categories are:
    (1) Commercial use requesters. ONDCP will recover the full direct 
cost of providing search, review and duplication services. Commercial 
use requesters will not receive free search-time or free reproduction 
of documents.
    (2) Educational and non-commercial scientific institution 
requesters. ONDCP will charge the cost of reproduction, excluding 
charges for the first 100 pages. Requesters must demonstrate the 
request is authorized by and under the auspices of a qualifying 
institution and that the records are sought for scholarly or scientific 
research not a commercial use.
    (3) Requesters who are representatives of the news media. ONDCP 
will charge the cost of reproduction, excluding charges for the first 
100 pages. Requesters must meet the criteria in Sec.  1401.3(h), and 
the request must not be made for a commercial use. A request that 
supports the news dissemination function of the requester shall not be 
considered a commercial use.
    (4) All other requesters. ONDCP will recover the full direct cost 
of the search and the reproduction of records, excluding the first 100 
pages of reproduction and the first two hours of search time.


Sec.  1401.17   Restrictions on charging fees.

    (a) No search fees will be charged for requests by educational 
institutions (unless the records are sought for a commercial use), 
noncommercial scientific institutions, or representatives of the news 
media.
    (b) If ONDCP fails to comply with the FOIA's time limits in which 
to respond to a request, it may not charge search fees, or, in the 
instances of requests from requesters described in Sec.  1401.16(b)(2), 
may not charge duplication fees, except as described in paragraphs (c), 
(d), and (e) of this section.
    (c) If ONDCP determines that unusual circumstances as defined by 
the FOIA apply and the agency provided timely written notice to the 
requester in accordance with the FOIA, a failure to comply with the 
time limit shall be excused for an additional 10 days.
    (d) If ONDCP determines that unusual circumstances as defined by 
the FOIA apply, and more than 5,000 pages are necessary to respond to 
the request, the agency may charge search fees, or, in the case of 
requesters described in Sec.  1401.16(b)(2) of this section, may charge 
duplication fees if the following steps are taken. ONDCP must have 
provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA and the agency must have 
discussed with the requester via written mail, email, or telephone (or 
made not less than three good-faith attempts to do so) how the 
requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is 
satisfied, ONDCP may charge all applicable fees incurred in the 
processing of the request.
    (e) If a court has determined that exceptional circumstances exist 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order.
    (f) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (g) When, after first deducting the 100 free pages (or its cost 
equivalent) and the first two hours of search, a total fee calculated 
under paragraph (c) of this section is $25.00 or less for any request, 
no fee will be charged.


Sec.  1401.18   Waiver or reduction of fees.

    Requirements for waiver or reduction of fees:
    (a) Requesters may seek a waiver of fees by submitting a written 
application demonstrating how 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

[[Page 31093]]

government and is not primarily in the commercial interest of the 
requester.
    (b) ONDCP must furnish records responsive to a request without 
charge or at a reduced rate when it determines, based on all available 
information, that 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 is not primarily in the commercial interest of the requester. In 
deciding whether this standard is satisfied the agency must consider 
the factors described in paragraphs (b)(1) through (3) of this section:
    (1) Disclosure of the requested information would shed light on the 
operations or activities of the government. 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) Disclosure of the requested information would be likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (i) Disclosure of the requested records must be meaningfully 
informative about government 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 be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (ii) 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 the requester's ability and 
intention to effectively convey information to the public must be 
considered. Components will presume that a representative of the news 
media will satisfy this consideration.
    (3) The disclosure must not be primarily in the commercial interest 
of the requester. To determine whether disclosure of the requested 
information is primarily in the commercial interest of the requester, 
components will consider the following criteria:
    (i) Components must identify whether the requester has any 
commercial interest that would be furthered by the requested 
disclosure. A commercial interest includes any commercial, trade, or 
profit interest. Requesters must be given an opportunity to provide 
explanatory information regarding this consideration.
    (ii) If there is an identified commercial interest, the component 
must determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of Sec.  1401.17(b)(1) and (2) are satisfied and any 
commercial interest is not the primary interest furthered by the 
request. Components ordinarily will presume that when a news media 
requester has satisfied the requirements of Sec.  1401.17(b)(1) and 
(2), the request is not primarily in the commercial interest of the 
requester. Disclosure to data brokers or others who merely compile and 
market government information for direct economic return will not be 
presumed to primarily serve the public interest.
    (c) 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.
    (d) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to ONDCP 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 shall be required to pay any costs incurred up to the 
date the fee waiver request was received.


Sec.  1401.19   Aggregation of requests.

    When an agency 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, the agency 
may aggregate those requests and charge accordingly. Agencies may 
presume that multiple requests of this type made within a 30-day period 
have been made in order to avoid fees. For requests separated by a 
longer period, agencies will aggregate them only where there is a 
reasonable basis for determining that aggregation is warranted in view 
of all the circumstances involved. Multiple requests involving 
unrelated matters cannot be aggregated.


Sec.  1401.20   Deletion of exempted information.

    When requested records contain matters that are exempted under 5 
U.S.C. 552(b), but such exempted matters can be reasonably segregated 
from the remainder of the records, the records shall be disclosed by 
ONDCP with the necessary redactions. If records are disclosed in part, 
ONDCP will mark them to show the amount and location of information 
redacted and the exemption(s) under which the redactions were made 
unless doing so would harm an interest protected by an applicable 
exemption.


Sec.  1401.21   Confidential commercial information.

    (a) Definitions--
    Confidential commercial information means commercial or financial 
information obtained by ONDCP from a submitter that may be protected 
from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
    Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, at the time of submission, any 
portion of its submission that it considers to be protected from 
disclosure under Exemption 4. These designations expire 10 years after 
the date of the submission unless the submitter requests and provides 
justification for a longer designation period.
    (c) When notice to submitters is required. (1) ONDCP must promptly 
provide written notice to the submitter of confidential commercial 
information whenever records containing such information are requested 
under the FOIA if ONDCP determines that it may be required to disclose 
the records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) ONDCP has a reason to believe that the requested information 
may be protected from disclosure under Exemption 4, but has not yet 
determined whether the information is protected from disclosure.
    (2) The notice must either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, ONDCP may post or publish a notice in a place or 
manner reasonably likely to inform the submitters of the proposed 
disclosure, instead of sending individual notifications.

[[Page 31094]]

    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section do not apply if:
    (1) ONDCP determines that the information is exempt under the FOIA, 
and therefore will not be disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (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; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, ONDCP must give 
the submitter written notice of any final decision to disclose the 
information within a reasonable number of days prior to a specified 
disclosure date.
    (e) Opportunity to object to disclosure. (1) ONDCP must specify a 
reasonable time period within which the submitter must respond to the 
notice referenced above.
    (2) If a submitter has any objections to disclosure, it should 
provide ONDCP a detailed written statement that specifies all grounds 
for withholding the particular information under any exemption of the 
FOIA. In order to rely on Exemption 4 as the basis for nondisclosure, 
the submitter must explain why the information constitutes a trade 
secret or commercial or financial information that is confidential.
    (3) A submitter who fails to respond within the time period 
specified in the notice will be considered to have no objection to 
disclosure of the information. ONDCP is not required to consider any 
information received after the date of any disclosure decision. Any 
information provided by a submitter under this subpart may itself be 
subject to disclosure under the FOIA.
    (f) Analysis of objections. ONDCP must consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose the requested information.
    (g) Notice of intent to disclose. Whenever ONDCP decides to 
disclose information over the objection of a submitter, ONDCP must 
provide the submitter written notice, which must 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 copies of 
the records as ONDCP intends to release them; and
    (3) A specified disclosure date, which must be a reasonable time 
after the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, ONDCP must promptly notify the submitter.
    (i) Requester notification. ONDCP must notify the requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure; whenever it notifies the submitter of its intent 
to disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.
    (j) No right or benefit. The requirements of this section such as 
notification do not create any right or benefit, substantive or 
procedural, enforceable at law or in equity by a party against the 
United States, its agencies, its officers, or any person.

Subpart B--Privacy Act Policies and Procedures


Sec.  1401.22   Definitions.

    For purposes of this subpart:
    Access means making a record available to a subject individual.
    Amendment means any correction, addition to or deletion of 
information in a record.
    Individual means a natural person who either is a citizen of the 
United States or an alien lawfully admitted to the United States for 
permanent residence.
    Maintain includes the term ``maintain'', collect, use, or 
disseminate.
    Privacy Act Office means the ONDCP officials who are authorized to 
respond to requests and to process requests for amendment of records 
ONDCP maintains under the Privacy Act.
    Record means any item, collection or grouping of information about 
an individual that ONDCP maintains within a system of records and 
contains the individual's name or the identifying number, symbol or 
other identifying particular assigned to the individual, such as a 
finger or voice print or photograph.
    System of records means a group of records ONDCP maintains or 
controls from which information is retrieved by the name of an 
individual or by some identifying number, symbol or other identifying 
particular assigned to the individual.


Sec.  1401.23   Purpose and scope.

    This subpart implements the Privacy Act, 5 U.S.C. 552a, a Federal 
law that requires Federal agencies to protect private information about 
individuals that the agencies collect or maintain. It establishes 
ONDCP's rules for access to records in systems of records we maintain 
that are retrieved by an individual's name or another personal 
identifier. It describes the procedures by which individuals may 
request access to records, request amendment or correction of those 
records, and request an accounting of disclosures of those records by 
ONDCP. Whenever it is appropriate to do so, ONDCP automatically 
processes a Privacy Act request for access to records under both the 
Privacy Act and the FOIA, following the rules contained in this part. 
ONDCP processes a request under both the Privacy Act and the FOIA so 
you will receive the maximum amount of information available to you by 
law.


Sec.  1401.24   How do I make a Privacy Act request?

    (a) In general. You can make a Privacy Act request for records 
about yourself. You also can make a request on behalf of another 
individual as the parent or legal guardian of a minor, or as the legal 
guardian of someone determined by a court to be incompetent.
    (b) How do I make a request?--(1) Where do I send my written 
request? To make a request for access to a record, you should write 
directly to our Office of General Counsel. Heightened security delays 
mail delivery. To avoid mail delivery delays, we strongly suggest that 
you email your request to [email protected] Our mailing address is: 
Executive Office of the President, Office of National Drug Control 
Policy, 1800 G Street NW, 9th Floor, Washington, DC 20006, Attn: Office 
of General Counsel. To make sure that the Office of General Counsel 
receives your request without delay, you should include the notation 
``Privacy Act Request'' in the subject line of your email or on the 
front of your envelope and also at the beginning of your request.
    (2) Security concerns. To protect our computer systems, we will not 
open attachments to emailed requests--you must include your request 
within the body of the email. We will not process email attachments.
    (c) What should my request include? You must describe the record 
that you seek in enough detail to enable the Office of General Counsel 
to locate the system of records containing the record with a reasonable 
amount of effort. Include specific information about each record 
sought, such as the time period in which you believe it was compiled, 
the name or identifying number of each system of records in which you 
believe it is kept, and the date, title or name, author, recipient, or 
subject matter of the record. As a general rule, the more specific you 
are about the record that you seek, the more likely we will be

[[Page 31095]]

able to locate it in response to your request.
    (d) How do I request amendment of a record? If you are requesting 
an amendment of an ONDCP record, you must identify each particular 
record in question and the system of records in which the record is 
located, describe the amendment that you seek, and state why you 
believe that the record is not accurate, relevant, timely or complete. 
You may submit any documentation that you think would be helpful, 
including an annotated copy of the record.
    (e) How do I request an accounting of record disclosures? If you 
are requesting an accounting of disclosures made by ONDCP to another 
person, organization or Federal agency, you must identify each system 
of records in question. An accounting generally includes the date, 
nature and purpose of each disclosure, as well as the name and address 
of the person, organization, or Federal agency to which the disclosure 
was made.
    (f) Verification of identity. When making a Privacy Act request, 
you must verify your identity in accordance with these procedures to 
protect your privacy or the privacy of the individual on whose behalf 
you are acting. If you make a Privacy Act request and you do not follow 
these identity verification procedures, ONDCP cannot process your 
request.
    (1) How do I verify my own identity? You must include in your 
request your full name, citizenship status, current address, and date 
and place of birth. We may request additional information to verify 
your identity. To verify your own identity, you must provide an unsworn 
declaration under 28 U.S.C. 1746, a law that permits statements to be 
made under penalty of perjury. To fulfill this requirement, you must 
include the following statement just before the signature on your 
request:
    I declare under penalty of perjury that the foregoing is true and 
correct. Executed on [date].
    (2) How do I verify parentage or guardianship? If you make a 
request as the parent or legal guardian of a minor, or as the legal 
guardian of someone determined by a court to be incompetent, for access 
to records or information about that individual, you must establish:
    (i) The identity of the individual who is the subject of the 
record, by stating the individual's name, citizenship status, current 
address, and date and place of birth;
    (ii) Your own identity, as required in paragraph (f)(1) of this 
section;
    (iii) That you are the parent or legal guardian of the individual, 
which you may prove by providing a copy of the individual's birth 
certificate showing your parentage or a court order establishing your 
guardianship; and
    (iv) That you are acting on behalf of the individual in making the 
request.


Sec.  1401.25   How will ONDCP respond to my Privacy Act request?

    (a) When will we respond to your request? We will search to 
determine if the requested records exist in a system of records ONDCP 
owns or controls. The Office of General Counsel will respond to you in 
writing within twenty days after we receive your request and/or within 
ten working days after we receive your request for an amendment, if it 
meets the requirements of this subpart. We may extend the response time 
in unusual circumstances, such as the need to consult with another 
agency about a record or to retrieve a record that is in storage.
    (b) What will our response include? (1) Our written response will 
include our determination whether to grant or deny your request in 
whole or in part, a brief explanation of the reasons for the 
determination, and the amount of the fee charged, if any, under Sec.  
1401.27. If you requested access to records, we will make the records, 
if any, available to you. If you requested amendment of a record, the 
response will describe any amendments made and advise you of your right 
to obtain a copy of the amended record.
    (2) We will also notify the individual who is subject to the record 
in writing, if, based on your request, any system of records contains a 
record pertaining to him or her.
    (3) If the Office of General Counsel makes an adverse determination 
with respect to your request, our written response will identify the 
name and address of the person responsible for the adverse 
determination, that the adverse determination is not a final agency 
action, and describe the procedures by which you may appeal the adverse 
determination under Sec.  1401.26.
    An adverse determination is a response to a Privacy Act request 
that:
    (i) Withholds any requested record in whole or in part;
    (ii) Denies a request to amend a record in whole or in part;
    (iii) Declines to provide an accounting of disclosures;
    (iv) Advises that a requested record does not exist or cannot be 
located;
    (v) Finds that what you requested is not a record subject to the 
Privacy Act; or
    (vi) Advises on any disputed fee matter.


Sec.  1401.26   What can I do if I am dissatisfied with ONDCP's 
response to my Privacy Act request?

    (a) What can I appeal? You can appeal any adverse determination in 
writing to our Director or designee within ninety calendar days after 
the date of our response. We provide a list of adverse determinations 
in Sec.  1401.25(b)(3).
    (b) How do I make an appeal?--(1) What should I include? You may 
appeal by submitting a written statement giving the reasons why you 
believe the Director or designee should overturn the adverse 
determination. Your written appeal may include as much or as little 
related information as you wish to provide, as long as it clearly 
identifies the determination (including the request number, if known) 
that you are appealing.
    (2) Where do I send my appeal? You should mark both your letter and 
the envelope, or the subject of your email, ``Privacy Act Appeal.'' To 
avoid mail delivery delays caused by heightened security, we strongly 
suggest that you email any appeal to [email protected] Our mailing 
address is: Executive Office of the President, Office of National Drug 
Control Policy, 1800 G Street NW, 9th Floor, Washington, DC 20006, 
Attn: Office of General Counsel.
    (c) Who will decide your appeal? (1) The Director or designee will 
act on all appeals under this section.
    (2) We ordinarily will not adjudicate an appeal if the request 
becomes a matter of litigation.
    (3) On receipt of any appeal involving classified information, the 
Director or designee must take appropriate action to ensure compliance 
with applicable classification rules.
    (d) When will we respond to your appeal? The Director or designee 
will notify you of its appeal decision in writing within thirty days 
from the date it receives an appeal that meets the requirements of 
paragraph (b) of this section. We may extend the response time in 
unusual circumstances, such as the need to consult with another agency 
about a record or to retrieve a record shipped offsite for storage.
    (e) What will our response include? The written response will 
include the Director or designee's determination whether to grant or 
deny your appeal in whole or in part, a brief explanation of the 
reasons for the determination, and information about the Privacy Act 
provisions for court review of the determination.
    (1) Appeals concerning access to records. If your appeal concerns a 
request for access to records and the appeal is granted in whole or in 
part, we

[[Page 31096]]

will make the records, if any, available to you.
    (2) Appeals concerning amendments. If your appeal concerns 
amendment of a record, the response will describe any amendment made 
and advise you of your right to obtain a copy of the amended record. We 
will notify all persons, organizations or Federal agencies to which we 
previously disclosed the record, if an accounting of that disclosure 
was made, that the record has been amended. Whenever the record is 
subsequently disclosed, the record will be disclosed as amended. If our 
response denies your request for an amendment to a record, we will 
advise you of your right to file a statement of disagreement under 
paragraph (f) of this section.
    (f) Statements of disagreement--(1) What is a statement of 
disagreement? A statement of disagreement is a concise written 
statement in which you clearly identify each part of any record that 
you dispute and explain your reason(s) for disagreeing with our denial 
in whole or in part of your appeal requesting amendment.
    (2) How do I file a statement of disagreement? You should mark both 
your letter and the envelope, or the subject of your email, ``Privacy 
Act Statement of Disagreement.'' To avoid mail delivery delays caused 
by heightened security, we strongly suggest that you email a statement 
of disagreement to [email protected] Our mailing address is: 
Executive Office of the President, Office of National Drug Control 
Policy, 1800 G Street NW, 9th Floor, Washington, DC 20006, Attn: Office 
of General Counsel.
    (3) What will we do with your statement of disagreement? We shall 
clearly note any portion of the record that is disputed and provide 
copies of the statement and, if we deem appropriate, copies of our 
statement that denied your request for an appeal for amendment, to 
persons or other agencies to whom the disputed record has been 
disclosed.
    (g) When appeal is required. Under this section, you generally 
first must submit a timely administrative appeal, before seeking review 
of an adverse determination or denial request by a court.


Sec.  1401.27   What does it cost to get records under the Privacy Act?

    (a) Agreement to pay fees. Your request is an agreement to pay 
fees. We consider your Privacy Act request as your agreement to pay all 
applicable fees unless you specify a limit on the amount of fees you 
agree to pay. We will not exceed the specified limit without your 
written agreement.
    (b) How do we calculate fees? We will charge a fee for duplication 
of a record under the Privacy Act in the same way we charge for 
duplication of records under the FOIA in Sec.  1401.14(d). There are no 
fees to search for or review records requested under the Privacy Act.

Michael J. Passante,
Acting General Counsel.
[FR Doc. 2020-09826 Filed 5-20-20; 8:45 am]
 BILLING CODE 3280-F5-P