Freedom of Information Act and the Privacy Act, 57840-57849 [2022-20306]

Download as PDF 57840 Proposed Rules Federal Register Vol. 87, No. 183 Thursday, September 22, 2022 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. EXECUTIVE OFFICE OF THE PRESIDENT Office of the Intellectual Property Enforcement Coordinator 5 CFR Part 10400 RIN 0355–AA00 Freedom of Information Act and the Privacy Act Office of the Intellectual Property Enforcement Coordinator, Executive Office of the President. ACTION: Proposed rule. AGENCY: jspears on DSK121TN23PROD with PROPOSALS I. Background The Office of the Intellectual Property Enforcement Coordinator (IPEC) is issuing its implementing regulations for the Freedom of Information Act (FOIA) and the Privacy Act. The proposed rule describes how to make a FOIA request with IPEC and how IPEC processes requests for records. The proposed rule also states IPEC’s Privacy Act Policies and Procedures. The proposed rule describes how individuals can find out if an IPEC system of records contains information about them and, if so, how to access or amend a record. IPEC 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 October 24, 2022. ADDRESSES: You may send comments, identified by RIN number 0355–AA00, by any of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. • Email: contact@ipec.eop.gov. Include RIN number 0355–AA00 in the subject line of the message. • Mail: Executive Office of the President, Office of the Intellectual Property Enforcement Coordinator, Eisenhower Executive Office Building, Room 296, Washington DC 20503. Instructions: All submissions received must include the agency name and docket number or Regulatory SUMMARY: VerDate Sep<11>2014 16:57 Sep 21, 2022 Jkt 256001 Information Number (RIN) for this rulemaking. All comments received will be posted without change to https:// www.regulations.gov including any personal information provided. IPEC strongly recommends using electronic means for submitting comments. Comments submitted through conventional mail delivery services may not be received in a timely manner. FOR FURTHER INFORMATION CONTACT: Questions concerning this notice should be directed to Steven D. Aitken, Office of the Intellectual Property Enforcement Coordinator, Executive Office of the President, at (202) 395–4728 or Steven.D.Aitken@ipec.eop.gov. SUPPLEMENTARY INFORMATION: During its first ten years of operation, following its establishment ‘‘within the Executive Office of the President’’ in Title III of the PRO IP Act of 2008 (Pub. L. 110–403; 15 U.S.C. 8111–8116), IPEC was located within the Office of Management and Budget (OMB). With the enactment of a separate appropriation for IPEC in the Financial Services and General Government Appropriations Act. 2020 (Pub. L. 116– 93, Div. C), IPEC has moved out of OMB and become a stand-alone component of the Executive Office of the President. Accordingly, IPEC is issuing its implementing regulations 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. IPEC’s proposed regulations on FOIA and the Privacy Act incorporate guidance from OMB and the U.S. Department of Justice, Office of Information Policy. The regulations also strive 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 10400.1—Purpose and scope: This section describes the purpose of PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 the regulation, which is to implement the FOIA. Section 10400.2—IPEC: Organization and functions: This section describes the mission and leadership structure of the agency. Section 10400.3—Definitions: This section defines the key terms used in the regulation. Section 10400.4—Access to information: This section describes the types of information that IPEC will make available under FOIA. Section 10400.5—Records requiring consultation, referral, and coordination. This section describes how IPEC will process records, in the custody of IPEC, for which another agency or other Federal Government office has an interest. Section 10400.6—How to request records—form and content: This section explains what an individual must do to submit a valid FOIA request to IPEC and where a request should be sent. It also describes the information that requesters must provide so that IPEC can identify the records sought and process their requests. Section 10400.7—Response—form and content: This section explains that IPEC will respond to a 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. IPEC 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 10400.8—Expedited and multi-track processing, and aggregation of requests for processing: This section describes the circumstances where expedited processing of a FOIA request may be granted; multi-track processing may be used; and requests may be aggregated. Section 10400.9—Extension of time: This section describes and defines the ‘‘unusual circumstances’’ under which IPEC may extend the time limit for making a determination on a FOIA request. Section 10400.10—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 E:\FR\FM\22SEP1.SGM 22SEP1 Federal Register / Vol. 87, No. 183 / Thursday, September 22, 2022 / Proposed Rules IPEC will make a determination on an appeal. Section 10400.11—Fees to be charged—general: This section describes the general FOIA processing activities performed by IPEC personnel, and the rates charged by IPEC to recoup the employee costs associated with responding to FOIA requests. Section 10400.12—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. Section 10400.13—Fees to be charged—Categories of Requesters: This section describes the different categories of requesters, and the types and amounts of fees IPEC may assess to process and respond to a FOIA request. Section 10400.14—Restrictions on charging fees. This section describes the circumstances under which IPEC is restricted in charging fees normally associated with processing a FOIA request, such as when IPEC does not meet time limits mandated by the FOIA. Section 10400.15—Waiver or Reduction of Fees: This section describes the factors that IPEC may consider when deciding whether to waive or reduce the fees associated with processing FOIA requests. Section 10400.16—Aggregation of requests for fees: This section describes the circumstances under which IPEC may aggregate a series or group of requests for purposes of fee assessment. Section 10400.17—Markings on released documents: This section provides that IPEC will redact exempt information from its FOIA disclosures to the extent that exempt information can be segregated from other information subject to disclosure. Section 10400.18—Confidential commercial information: This section explains when and how a person or entity that submits information to IPEC must identify confidential commercial information. It also describes how IPEC staff will handle such information. jspears on DSK121TN23PROD with PROPOSALS Subpart B—Privacy Act Policies and Procedures Section 10400.19—Definitions: This section defines the key terms used in this Subpart. Section 10400.20—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, VerDate Sep<11>2014 16:57 Sep 21, 2022 Jkt 256001 and requesting an accounting of disclosures of records. Section 10400.21—How do I make a Privacy Act request?: This section explains what an individual must do to submit a request to IPEC 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 that IPEC can identify the records sought and determine whether the request can be granted. Section 10400.22—How will IPEC respond to my Privacy Act request?: This section describes the period of time within which IPEC will respond to requests. It also explains that IPEC 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 10400.23— What can I do if I am dissatisfied with IPEC’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 IPEC will make a determination on an appeal. Section 10400.24— 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. Statutory and Executive Order Reviews Regulatory Flexibility Act. IPEC 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. See 5 U.S.C. 601 et seq. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters, and only for certain classes of requesters and when particular conditions are satisfied. 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. Executive Order 12866 (Regulatory Planning and Review). This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993). Unfunded Mandates Reform Act of 1995. This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 57841 significantly or uniquely affect small governments. Congressional Review Act. As required by the Congressional Review Act (5 U.S.C. 801–808), before an interim or final rule takes effect, IPEC will submit for that rule a report to each House of the Congress and to the Comptroller General of the United States. This rule is not a major rule under 5 U.S.C. 804. List of Subjects in 5 CFR Part 10400 Freedom of information. Privacy. For the reasons stated in the preamble, the Office of the Intellectual Property Enforcement Coordinator is proposing to add part 10400 of title 5 of the Code of Federal Regulations to read as follows: PART 10400—PUBLIC AVAILABILITY OF INFORMATION Subpart A—Freedom of Information Act Policies and Procedures Sec. 10400.1 Purpose and scope. 10400.2 The Office of the Intellectual Property Enforcement Coordinator— organization and functions. 10400.3 Definitions. 10400.4 Access to information. 10400.5 Records requiring consultation, referral, and coordination. 10400.6 How to request records—form and content. 10400.7 Responses—form and content. 10400.8 Expedited and multi-track processing, and aggregation of requests for processing. 10400.9 Extension of time. 10400.10 Appeal procedures. 10400.11 Fees to be charged—general. 10400.12 Fees to be charged— miscellaneous provisions. 10400.13 Fees to be charged—categories of requesters. 10400.14 Restrictions on charging fees. 10400.15 Waiver or reduction of fees 10400.16 Aggregation of requests for fees. 10400.17 Markings on released documents. 10400.18 Confidential commercial information. Subpart B—Privacy Act Policies and Procedures 10400.19 Definitions. 10400.20 Purpose and scope. 10400.21 How do I make a Privacy Act request? 10400.22 How will IPEC respond to my Privacy Act request? 10400.23 What can I do if I am dissatisfied with IPEC’s response to my Privacy Act request? 10400.24 What does it cost to get records under the Privacy Act? Authority: 5 U.S.C. 552, 552a E:\FR\FM\22SEP1.SGM 22SEP1 57842 Federal Register / Vol. 87, No. 183 / Thursday, September 22, 2022 / Proposed Rules Subpart A—Freedom of Information Act Policies and Procedures § 10400.1 Purpose and scope. The regulations in this part prescribe procedures by which individuals may obtain access to agency records of the Office of the Intellectual Property Enforcement Coordinator (IPEC) under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, as well as the procedures IPEC must follow in response to requests for records under the FOIA. The regulations should be read together with the FOIA and the ‘‘Uniform Freedom of Information Fee Schedule and Guidelines’’ issued by the Office of Management and Budget. All requests for access to information contained within a system of records pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, shall be processed in accordance with these regulations. Nothing in this part shall be construed to entitle any person to any service or to the disclosure of any record to which such person is not entitled under the FOIA or the Privacy Act. § 10400.2 The Office of the Intellectual Property Enforcement Coordinator— organization and functions. The Office of the Intellectual Property Enforcement Coordinator was created by Title III of the Pro IP Act of 2008, 15 U.S.C. 8111 et seq. The mission of IPEC is to advise the President and coordinate with Cabinet departments and agencies on the development of the United States’ overall intellectual property policy and strategy, to promote innovation and creativity, and to ensure effective intellectual property protection and enforcement, domestically and abroad. IPEC is headed by the Intellectual Property Enforcement Coordinator. jspears on DSK121TN23PROD with PROPOSALS § 10400.3 Definitions. For the purpose of this part, all the terms defined in the Freedom of Information Act apply. Commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. An agency’s decision to place a requester in the commercial use category will be made on a case-bycase basis based on the requester’s intended use of the information. Agencies will notify requesters of their placement in this category. Direct costs means the expenses (excluding overhead) actually expended to search, review, or duplicate in response to a FOIA request. Direct costs include 116% of the salary of the VerDate Sep<11>2014 16:57 Sep 21, 2022 Jkt 256001 employee performing work (i.e., the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Disclose and disclosure refer to making records available, upon request, for examination and copying, or furnishing a copy of records. Duplicate and duplication mean 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. Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with his or her role at the educational institution. Agency may seek verification from the requester that the request furthers scholarly research, and agency will advise requesters of their placement in this category. Fee waiver means the waiver or reduction of processing fees if a requester can demonstrate that certain statutory standards are satisfied, including that the information is in the public interest and is not requested for a commercial interest. FOIA public liaison means an agency official who assists requesters in defining the scope of their request to reduce processing time, increases transparency and understanding of the status of requests, and assists in the resolution of disputes. Noncommercial scientific institution is an institution that is not operated on a ‘‘commercial’’ basis and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and are not for a commercial use. IPEC will advise requesters of their placement in this category. 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 IPEC agrees to participate in the dispute resolution services provided by OGIS, IPEC 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 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 maintained in any format, including electronic format. Representative of the news media and news media requester 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 news media entities include television or radio stations that broadcast ‘‘news’’ to the public at large and publishers of periodicals that disseminate ‘‘news’’ and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the internet. A request for records supporting the news-dissemination function of the requester will not be considered to be for a commercial use. ‘‘Freelance’’ journalists who demonstrate a solid basis for expecting publication through a news media entity will be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; IPEC can also consider a requester’s past publication record in making this determination. IPEC will advise requesters of their placement in this category. Request means a letter or other written communication seeking records or information under FOIA. Requester category means one of the four categories that IPEC will place requesters in for the purpose of determining whether a requester will be charged fees for search, review, and duplication. The categories are: commercial use requests; requests by non-commercial scientific or educational institutions; news media requesters; and all other requesters. 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. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 10400.18, but it does not E:\FR\FM\22SEP1.SGM 22SEP1 Federal Register / Vol. 87, No. 183 / Thursday, September 22, 2022 / Proposed Rules include time spent resolving general legal or policy issues regarding the application of exemptions. Search means to review, manually or by automated means, agency records for the purpose of locating those records responsive to a request. Working day means a regular Federal working day between the hours of 9:00 a.m. and 5:00 p.m. It does not include Saturdays, Sundays, or legal Federal holidays. Any requests received after 5:00 p.m. on any given working day will be considered received on the next working day. § 10400.4 Access to information. The Office of the Intellectual Property Enforcement Coordinator makes available information pertaining to matters issued, adopted, or promulgated by IPEC, that are within the scope of 5 U.S.C. 552(a)(2). Such information is located at https://www.whitehouse.gov/ ipec. Included in that information are IPEC’s proactive disclosures. Proactive disclosures are records that have been requested three or more times, or that have been released to a requester and that IPEC determines have become, or are likely to become, the subject of subsequent requests for substantially the same records. jspears on DSK121TN23PROD with PROPOSALS § 10400.5 Records requiring consultation, referral, and coordination. Requests for records that are in IPEC’s custody, and for which other agencies (or other Federal government offices) have an interest, shall be reviewed by IPEC. IPEC will then either consult with the other agencies or offices regarding the records; refer the records to the other agencies for further processing; or coordinate with the other agencies when a referral is not appropriate. (a) Consultation. When records originated with IPEC, and contain within them information of interest to another agency or other Federal government office, IPEC will consult with that agency or office prior to making a release determination. (b) Referral—(1) Determination. When IPEC believes that a different agency is best able to determine whether to disclose the record, IPEC will refer to that agency the responsibility for responding to the request regarding that record. Ordinarily, the agency that originated the record is presumed to be the best agency to make the disclosure determination. However, if IPEC and the originating agency jointly agree that IPEC is in the best position to respond regarding the record, then the record may be handled as a consultation. (2) Documentation. Whenever IPEC refers any part of the responsibility for VerDate Sep<11>2014 16:57 Sep 21, 2022 Jkt 256001 responding to a request to another agency, IPEC must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency’s FOIA contact information. (3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. In order to avoid harm to an interest protected by an applicable exemption, IPEC will coordinate with the originating agency to seek its views on the disclosability of the record. IPEC will convey, to the requester, the release determination for the record. (c) Classified information. On receipt of any request involving classified information, IPEC must determine whether the information is currently and properly classified in accordance with applicable classification rules. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another agency under any applicable executive order concerning the classification of records, IPEC will refer the responsibility for responding to the request regarding that information to the agency that classified the information, or that should consider the information for classification. Whenever a record contains information that has been derivatively classified (for example, when it contains information classified by another agency), IPEC will refer the responsibility for responding to that portion of the request to the agency that classified the underlying information. (d) Timing of responses to consultations and referrals. IPEC will handle all consultations and referrals received by IPEC according to the date that the (consulting or referring) agency received the perfected FOIA request. (e) Agreements regarding consultations and referrals. IPEC may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records. § 10400.6 How to request records—form and content. (a) A request for records must describe the records that it seeks in sufficient detail and in writing to enable IPEC to locate the records with a reasonable amount of effort. To satisfy this requirement, the request should be PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 57843 as detailed as possible when describing the records that it seeks. 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 IPEC’s FOIA Public Liaison to discuss the records they seek and for assistance in describing the records. (b)(1) If an individual is making a request for records that are about the individual, the requester must comply with the verification of identity provision set forth in § 10400.21(f) of this part. (2) If a request for records pertains to a third party, the requester 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 the requester. As an exercise of administrative discretion, IPEC may require the requester to provide additional information if necessary in order to verify that a particular individual has consented to disclosure. If the records that are requested pertain to an individual who is deceased, the requester should submit proof of death such as a copy of the death certificate or an obituary. (c) Requesters may specify the preferred form or format (including electronic formats) for the records they seek. IPEC will try to accommodate formatting requests if the record is readily reproducible in that form or format. (d) Whenever it is appropriate to do so, IPEC 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. IPEC processes a request under both the FOIA and Privacy Act so that requesters will receive the maximum amount of information available by law. (e) Requests must be received by IPEC through methods specified on the FOIA page of IPEC’s website: https:// www.whitehouse.gov/ipec. Requests may be emailed at any time to ipecfoia@ ipec.eop.gov or mailed to Executive Office of the President, Office of the Intellectual Property Enforcement Coordinator, Eisenhower Executive Office Building, Room 296, Washington DC 20503, Attn: FOIA Officer, Washington, DC 20503. Email requests are strongly preferred. (f) The words ‘‘FOIA REQUEST’’ or ‘‘REQUEST FOR RECORDS’’ should be clearly marked on all FOIA request E:\FR\FM\22SEP1.SGM 22SEP1 57844 Federal Register / Vol. 87, No. 183 / Thursday, September 22, 2022 / Proposed Rules communications. The time limitations imposed by § 10400.7 will not begin until IPEC identifies a communication as a FOIA request. (g) The requester must provide contact information, such as the requester’s phone number, email address and mailing address, so that IPEC will be able to communicate with the requester about the request and provide released records. If IPEC cannot contact the requester, or the requester does not respond within 20 calendar days to our request for clarification, IPEC will close the request. (h) To protect our computer systems, IPEC reserves the right to not open attachments to emailed requests. Please include the request within the body of the email. (i) Types of records not available. The FOIA does not require an agency to: (1) Compile or create records solely for the purpose of satisfying a request for records; (2) Provide records not yet in existence, even if such records may be expected to come into existence at some future time; or (3) Restore records destroyed or otherwise disposed of, except that IPEC must notify the requester of the destruction or disposal of the requested records. jspears on DSK121TN23PROD with PROPOSALS § 10400.7 Responses—form and content. (a) Determinations. (1) In determining which records are responsive to a request, IPEC will ordinarily include only records that were in its possession as of the date of the request. If any other date is used, IPEC will inform the requester of that date. (2) IPEC will exercise all reasonable efforts to make an initial determination acknowledging and granting, partially granting, or denying a request for records within 20 working days after IPEC receives a FOIA request (IPEC may extend this period for ‘‘unusual circumstances’’ under § 10400.9). The FOIA Officer or designee will determine whether it is appropriate to grant the request and will provide written notification to the person making the request. The notification shall also advise the person making the request of any fees assessed under §§ 10400.11 through 10400 13. IPEC will inform the requester of the availability of its FOIA Public Liaison. (b) Tracking number. IPEC will assign a request an individualized tracking number if it will take longer than 10 working days to process the request. IPEC may assign, at our discretion, such a tracking number for a request that will take less than 10 working days to process. VerDate Sep<11>2014 16:57 Sep 21, 2022 Jkt 256001 (c) Adverse determinations. If IPEC makes an adverse determination denying a request in any respect, it must notify the requester of that determination in writing. Adverse determinations, or denials of requests, include decisions that: the requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing. (d) Content of denial. The denial must be signed by the FOIA Officer or designee and must include: (1) The name and title or position of the person responsible for the denial; (2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the agency in denying the request; (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; (4) A statement that the denial may be appealed to the FOIA Appeals Officer (the IPEC Legal Advisor or a designee) within 90 calendar days of the date of the response (the requirements for making an appeal are specified in § 10400.10); and (5) A statement notifying the requester of the assistance available from the IPEC’s FOIA Public Liaison and the dispute resolution services offered by OGIS. § 10400.8 Expedited and multi-track processing, and aggregation of requests for processing. (a) Expedited processing. (1) A request for expedited processing may be made at any time. IPEC must process requests and appeals on an expedited basis whenever it is determined that they involve: (A) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (B) An urgency to inform the public about an actual or alleged Federal Government activity, beyond the PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 public’s right to know about government activity generally, and the request is made by a person primarily engaged in disseminating information. (2) 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 who is primarily engaged in 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. (3) Within 10 calendar days of IPEC’s receipt of a request for expedited processing, IPEC will decide whether to grant it and will notify the requester of the decision. If a request for expedited processing 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. (b) Multi-track processing. IPEC will ordinarily respond to requests in order of their receipt. However, IPEC may use multi-track processing in responding to requests. Multi-track processing means placing simple requests that require a limited review in one processing track and placing more voluminous and complex requests in other processing tracks. Requests in each track are processed on a first-in, first-out basis. Track one is for requests that have received expedited processing under this section. Track two is for requests of simple-to-moderate complexity that do not involve voluminous records and do not require consultation or coordination with other entities or submitter review under § 10400.18. Track three is for complex requests that involve voluminous records, require lengthy or numerous consultations or coordination, raise unique or novel legal questions, or require submitter review under § 10400.18. In the case of requests in tracks two and three, IPEC may provide requesters the opportunity to limit the scope of their requests in order to qualify for faster processing. IPEC will do so by contacting the requester by E:\FR\FM\22SEP1.SGM 22SEP1 Federal Register / Vol. 87, No. 183 / Thursday, September 22, 2022 / Proposed Rules letter, telephone, email, or facsimile (whichever is more efficient in each case). When providing a requester with the opportunity to limit the scope of a request, IPEC shall also advise the requester of IPEC’s FOIA Public Liaison to aid in the resolution of any dispute arising between the requester and IPEC as well as the requester’s right to seek dispute resolution services from the Office of Government Information Services. (c) Aggregating requests. IPEC 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, involve related matters and constitute a single request that otherwise would involve ‘‘unusual circumstances’’ under § 10400.9. For example, IPEC may aggregate multiple requests for similar information filed by a single requester within a short period of time. In addition, as discussed in § 10400.16, IPEC may aggregate requests for fee purposes. jspears on DSK121TN23PROD with PROPOSALS § 10400.9 Extension of time. (a) In unusual circumstances, IPEC may extend the time limits prescribed in § 10400.7 and § 10400.8 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 single request seeks a voluminous amount of separate and distinct records; or (3) Another agency has a substantial interest in the determination of the request. (c) Whenever IPEC cannot meet the 20 working-day time limit under § 10400.7 for processing a request because of ‘‘unusual circumstances,’’ and IPEC extends the time limit on that basis, IPEC shall promptly notify the requester (before the expiration of the 20 workingday period) in writing of the unusual circumstances involved and of the date by which IPEC estimates that it will complete the processing of the request. For those requests for which the extension exceeds 10 working days, IPEC will provide the requester an opportunity to modify the request (so that it may be processed within an extension of 10 working days) or arrange an alternative time period for processing the original or modified request. IPEC will make available its designated FOIA contact or its FOIA Public Liaison for this purpose. IPEC will also alert requesters to the availability of the Office of Government Information VerDate Sep<11>2014 16:57 Sep 21, 2022 Jkt 256001 Services (OGIS) to provide dispute resolution services. § 10400.10 Appeal procedures. (a) An appeal to the IPEC must explain the reasoning and factual basis for the appeal. It must be received by email at ipecfoia@ipec.eop.gov or another method specified on the FOIA page of IPEC’s website within 90 calendar days of the date of the response. The appeal must be in writing, addressed to the FOIA Appeals Officer, Executive Office of the President, Office of the Intellectual Property Enforcement Coordinator, Eisenhower Executive Office Building, Room 296, Washington DC 20503, ATTN: Legal Advisor. The communication should clearly be labeled as a ‘‘Freedom of Information Act Appeal.’’ (b) The FOIA Appeals Officer (the Legal Advisor or a designee) will decide the appeal within 20 working days. If the FOIA Appeals Officer denies an appeal in whole or in part, the written determination will contain the reason for the denial, the name and title of the person responsible for the denial, any FOIA exemptions applied, 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 IPEC agrees to participate in voluntary dispute resolution services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute. § 10400.11 Fees to be charged—general. IPEC will assess a fee to process FOIA requests in accordance with the provisions of this section and the ‘‘Uniform Freedom of Information Fee Schedule and Guidelines’’ issued by the Office of Management and Budget. IPEC shall ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner. IPEC will charge the following fees unless a waiver or reduction of fees is granted under § 10400.15, or the total fee to be charged is less than $25.00. IPEC will notify the requester if IPEC estimates that charges will exceed $25.00 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. IPEC will not process the request until the requester either commits in writing to pay the actual or estimated total fee, or designates some amount of fees that it is willing to pay. PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 57845 (a) Search for records. IPEC 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) Review of records. IPEC 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. (c) Duplication of records. IPEC will charge duplication fees to all requesters. IPEC will honor a requester’s preference for receiving a record in a particular format if IPEC can readily reproduce it in the form or format requested. If IPEC provides photocopies, IPEC will make one copy per request at the cost of $.10 per page. For copies of records produced on tapes, disks or other media, IPEC will charge the direct costs of producing the copy, including operator time. Where IPEC must scan paper documents in order to comply with a requester’s preference to receive the records in an electronic format, IPEC will charge the direct costs associated with scanning those materials. For other forms of duplication, IPEC will charge the direct costs. IPEC 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. (d) Other charges. IPEC will recover the costs of providing other services such as certifying records or sending records by special methods. § 10400.12 Fees to be charged— miscellaneous provisions. (a) Payment for FOIA services may be made by check or money order made payable to the Treasury of the United States. IPEC will provide the requester with instructions on how to make the payment. IPEC will provide a receipt for fees paid upon request. IPEC will not refund fees paid for services actually rendered. (b) IPEC may require advance payment (or a satisfactory written assurance of full payment) where the estimated fee exceeds $250, or a requester previously failed to pay within 30 calendar days of the billing date. IPEC will not process the request until the requester either makes the advance payment or provides a satisfactory written assurance. (c) IPEC may assess interest charges beginning the 31st day of billing. Interest will be at the rate prescribed in E:\FR\FM\22SEP1.SGM 22SEP1 57846 Federal Register / Vol. 87, No. 183 / Thursday, September 22, 2022 / Proposed Rules section 3717 of Title 31, United States Code, and will accrue from the date of the billing. (d) IPEC may assess search charges where records are not located or where records are exempt from disclosure. (e) IPEC may aggregate separate requests for fee purposes in accordance with § 10400.16. § 10400.13 Fees to be charged—categories of requesters. (a) For fees, there are four categories of FOIA requesters: commercial use requests; educational and noncommercial scientific institution requests; requests from representatives of the news media; and all other requesters. (b) The specific levels of fees for each of these categories are: (1) Commercial use request. IPEC will recover the full direct cost of providing search, review, and duplication services. Commercial use requests will not receive free search-time or free reproduction of documents. (2) Educational and non-commercial scientific institution requests. IPEC 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) Requests from representatives of the news media. IPEC will charge the cost of reproduction, excluding charges for the first 100 pages. Requesters must meet the criteria in § 10400.3, 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. IPEC 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. jspears on DSK121TN23PROD with PROPOSALS § 10400.14 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 IPEC 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 § 10400.13(b)(2), may not charge duplication fees, except as described in paragraphs (c), (d), and (e) of this section. VerDate Sep<11>2014 16:57 Sep 21, 2022 Jkt 256001 (c) If IPEC 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 IPEC 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 § 10400.13(b)(2) of this section, may charge duplication fees if the following steps are taken. IPEC 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, IPEC 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. § 10400.15 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 government and is not primarily in the commercial interest of the requester. (b) IPEC 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 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 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. IPEC 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, IPEC will consider the following criteria: (i) IPEC 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, IPEC must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraph (a) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. IPEC ordinarily will presume that when a news media requester has satisfied the requirements of paragraph (a) of this section, the request is not primarily in the commercial interest of the requester. E:\FR\FM\22SEP1.SGM 22SEP1 Federal Register / Vol. 87, No. 183 / Thursday, September 22, 2022 / Proposed Rules 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 IPEC 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. § 10400.16 fees. Aggregation of requests for When IPEC 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, IPEC may aggregate those requests and charge accordingly. IPEC 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, IPEC 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. § 10400.17 Markings on released documents. jspears on DSK121TN23PROD with PROPOSALS 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 IPEC with the necessary redactions. If records are disclosed in part, IPEC 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. § 10400.18 Confidential commercial information. (a) Definitions— Confidential commercial information means commercial or financial information obtained by IPEC from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). VerDate Sep<11>2014 16:57 Sep 21, 2022 Jkt 256001 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) IPEC must promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if IPEC 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) IPEC 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, IPEC 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. (d) Exceptions to submitter notice requirements. The notice requirements of this section do not apply if: (1) IPEC 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 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 57847 such case, IPEC 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) IPEC 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 IPEC 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. IPEC 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. IPEC 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 IPEC decides to disclose information over the objection of a submitter, IPEC 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 IPEC 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, IPEC must promptly notify the submitter. (i) Requester notification. IPEC 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 E:\FR\FM\22SEP1.SGM 22SEP1 57848 Federal Register / Vol. 87, No. 183 / Thursday, September 22, 2022 / Proposed Rules § 10400.21 request? party against the United States, its agencies, its officers, or any person. Subpart B—Privacy Act Policies and Procedures § 10400.19 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 IPEC officials who are authorized to respond to requests and to process requests for amendment of records IPEC maintains under the Privacy Act. Record means any item, collection or grouping of information about an individual that IPEC 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 IPEC 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. jspears on DSK121TN23PROD with PROPOSALS § 10400.20 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 IPEC’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 IPEC. Whenever it is appropriate to do so, IPEC 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. IPEC 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. VerDate Sep<11>2014 16:57 Sep 21, 2022 Jkt 256001 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 FOIA Officer. Heightened security delays mail delivery. To avoid mail delivery delays, we strongly suggest that you email your request to ipecfoia@ipec.eop.gov. Our mailing address is: Executive Office of the President, Office of the Intellectual Property Enforcement Coordinator, Eisenhower Executive Office Building, Room 296, Washington DC 20503, Attn: FOIA Officer. To make sure that the FOIA Officer 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 reserve the right not to open attachments to emailed requests. We request that you include your request within the body of the email. (c) What should my request include? You must describe the record that you seek in enough detail to enable IPEC 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 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 IPEC 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 IPEC to another person, organization or PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 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, IPEC cannot process your request. (1) How do I verify my own identity? You must include in your request your full name, 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, 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. § 10400.22 How will IPEC 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 IPEC owns or controls. The FOIA Officer will respond to you in writing within 20 after we receive your request and/or within 10 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 E:\FR\FM\22SEP1.SGM 22SEP1 Federal Register / Vol. 87, No. 183 / Thursday, September 22, 2022 / Proposed Rules 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 ipecfoia@ ipec.eop.gov. Our mailing address is: Executive Office of the President, Office of the Intellectual Property Enforcement Coordinator, Eisenhower Executive Office Building, Room 296, Washington DC 20503, Attn: Privacy Act Appeals Officer. (c) Who will decide your appeal? (1) The Privacy Act Appeals Officer 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 Privacy Act Appeals Officer must take appropriate action to ensure compliance with applicable classification rules. (d) When will we respond to your appeal? The Privacy Act Appeals Officer will notify you of its appeal decision in writing within 30 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 Privacy Act Appeals Officer’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 § 10400.23 What can I do if I am records. If your appeal concerns a dissatisfied with IPEC’s response to my request for access to records and the Privacy Act request? appeal is granted in whole or in part, we (a) What can I appeal? You can appeal will make the records, if any, available any adverse determination in writing to to you. (2) Appeals concerning amendments. the Privacy Act Appeals Officer (the If your appeal concerns amendment of Legal Advisor or a designee) within a record, the response will describe any ninety calendar days after the date of amendment made and advise you of our response. We provide a list of your right to obtain a copy of the adverse determinations in amended record. We will notify all § 10400.22(b)(4). persons, organizations or Federal (b) How do I make an appeal?—(1) What should I include? You may appeal agencies to which we previously by submitting a written statement giving disclosed the record, if an accounting of the reasons why you believe the Privacy that disclosure was made, that the Act Appeals Officer should overturn the record has been amended. Whenever the record is subsequently disclosed, the adverse determination. Your written record will be disclosed as amended. If appeal may include as much or as little our response denies your request for an related information as you wish to amendment to a record, we will advise provide, as long as it clearly identifies jspears on DSK121TN23PROD with PROPOSALS 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 § 10400.24. 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 IPEC 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 § 10400.23. (4) 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. VerDate Sep<11>2014 16:57 Sep 21, 2022 Jkt 256001 PO 00000 Frm 00010 Fmt 4702 Sfmt 9990 57849 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 ipecfoia@ipec.eop.gov. Our mailing address is: Executive Office of the President, Office of the Intellectual Property Enforcement Coordinator, Eisenhower Executive Office Building, Room 296, Washington DC 20503, Attn: Privacy Act Appeals Officer. (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. § 10400.24 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 § 10400.11(c). There are no fees to search for or review records requested under the Privacy Act. Steven D. Aitken, Legal Advisor, Office of the Intellectual Property Enforcement Coordinator. [FR Doc. 2022–20306 Filed 9–21–22; 8:45 am] BILLING CODE 3330–F2–P E:\FR\FM\22SEP1.SGM 22SEP1

Agencies

[Federal Register Volume 87, Number 183 (Thursday, September 22, 2022)]
[Proposed Rules]
[Pages 57840-57849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20306]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 87, No. 183 / Thursday, September 22, 2022 / 
Proposed Rules

[[Page 57840]]



EXECUTIVE OFFICE OF THE PRESIDENT

Office of the Intellectual Property Enforcement Coordinator

5 CFR Part 10400

RIN 0355-AA00


Freedom of Information Act and the Privacy Act

AGENCY: Office of the Intellectual Property Enforcement Coordinator, 
Executive Office of the President.

ACTION: Proposed rule.

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SUMMARY: The Office of the Intellectual Property Enforcement 
Coordinator (IPEC) is issuing its implementing regulations for the 
Freedom of Information Act (FOIA) and the Privacy Act. The proposed 
rule describes how to make a FOIA request with IPEC and how IPEC 
processes requests for records. The proposed rule also states IPEC's 
Privacy Act Policies and Procedures. The proposed rule describes how 
individuals can find out if an IPEC system of records contains 
information about them and, if so, how to access or amend a record. 
IPEC 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 October 24, 2022.

ADDRESSES: You may send comments, identified by RIN number 0355-AA00, 
by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include RIN number 0355-AA00 
in the subject line of the message.
     Mail: Executive Office of the President, Office of the 
Intellectual Property Enforcement Coordinator, Eisenhower Executive 
Office Building, Room 296, Washington DC 20503.
    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 
https://www.regulations.gov including any personal information provided.
    IPEC strongly recommends using electronic means for submitting 
comments. Comments submitted through conventional mail delivery 
services may not be received in a timely manner.

FOR FURTHER INFORMATION CONTACT: Questions concerning this notice 
should be directed to Steven D. Aitken, Office of the Intellectual 
Property Enforcement Coordinator, Executive Office of the President, at 
(202) 395-4728 or [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    During its first ten years of operation, following its 
establishment ``within the Executive Office of the President'' in Title 
III of the PRO IP Act of 2008 (Pub. L. 110-403; 15 U.S.C. 8111-8116), 
IPEC was located within the Office of Management and Budget (OMB). With 
the enactment of a separate appropriation for IPEC in the Financial 
Services and General Government Appropriations Act. 2020 (Pub. L. 116-
93, Div. C), IPEC has moved out of OMB and become a stand-alone 
component of the Executive Office of the President. Accordingly, IPEC 
is issuing its implementing regulations 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. IPEC's proposed regulations on FOIA and the 
Privacy Act incorporate guidance from OMB and the U.S. Department of 
Justice, Office of Information Policy. The regulations also strive 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 10400.1--Purpose and scope: This section describes the 
purpose of the regulation, which is to implement the FOIA.
    Section 10400.2--IPEC: Organization and functions: This section 
describes the mission and leadership structure of the agency.
    Section 10400.3--Definitions: This section defines the key terms 
used in the regulation.
    Section 10400.4--Access to information: This section describes the 
types of information that IPEC will make available under FOIA.
    Section 10400.5--Records requiring consultation, referral, and 
coordination. This section describes how IPEC will process records, in 
the custody of IPEC, for which another agency or other Federal 
Government office has an interest.
    Section 10400.6--How to request records--form and content: This 
section explains what an individual must do to submit a valid FOIA 
request to IPEC and where a request should be sent. It also describes 
the information that requesters must provide so that IPEC can identify 
the records sought and process their requests.
    Section 10400.7--Response--form and content: This section explains 
that IPEC will respond to a 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. IPEC 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 10400.8--Expedited and multi-track processing, and 
aggregation of requests for processing: This section describes the 
circumstances where expedited processing of a FOIA request may be 
granted; multi-track processing may be used; and requests may be 
aggregated.
    Section 10400.9--Extension of time: This section describes and 
defines the ``unusual circumstances'' under which IPEC may extend the 
time limit for making a determination on a FOIA request.
    Section 10400.10--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

[[Page 57841]]

IPEC will make a determination on an appeal.
    Section 10400.11--Fees to be charged--general: This section 
describes the general FOIA processing activities performed by IPEC 
personnel, and the rates charged by IPEC to recoup the employee costs 
associated with responding to FOIA requests.
    Section 10400.12--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.
    Section 10400.13--Fees to be charged--Categories of Requesters: 
This section describes the different categories of requesters, and the 
types and amounts of fees IPEC may assess to process and respond to a 
FOIA request.
    Section 10400.14--Restrictions on charging fees. This section 
describes the circumstances under which IPEC is restricted in charging 
fees normally associated with processing a FOIA request, such as when 
IPEC does not meet time limits mandated by the FOIA.
    Section 10400.15--Waiver or Reduction of Fees: This section 
describes the factors that IPEC may consider when deciding whether to 
waive or reduce the fees associated with processing FOIA requests.
    Section 10400.16--Aggregation of requests for fees: This section 
describes the circumstances under which IPEC may aggregate a series or 
group of requests for purposes of fee assessment.
    Section 10400.17--Markings on released documents: This section 
provides that IPEC will redact exempt information from its FOIA 
disclosures to the extent that exempt information can be segregated 
from other information subject to disclosure.
    Section 10400.18--Confidential commercial information: This section 
explains when and how a person or entity that submits information to 
IPEC must identify confidential commercial information. It also 
describes how IPEC staff will handle such information.

Subpart B--Privacy Act Policies and Procedures

    Section 10400.19--Definitions: This section defines the key terms 
used in this Subpart.
    Section 10400.20--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, and 
requesting an accounting of disclosures of records.
    Section 10400.21--How do I make a Privacy Act request?: This 
section explains what an individual must do to submit a request to IPEC 
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 that IPEC can identify the records sought 
and determine whether the request can be granted.
    Section 10400.22--How will IPEC respond to my Privacy Act request?: 
This section describes the period of time within which IPEC will 
respond to requests. It also explains that IPEC 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 10400.23-- What can I do if I am dissatisfied with IPEC'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 IPEC will make a determination on an 
appeal.
    Section 10400.24-- 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. Statutory and Executive Order Reviews

    Regulatory Flexibility Act. IPEC 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. See 5 U.S.C. 601 et seq. Under the FOIA, 
agencies may recover only the direct costs of searching for, reviewing, 
and duplicating the records processed for requesters, and only for 
certain classes of requesters and when particular conditions are 
satisfied.
    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.
    Executive Order 12866 (Regulatory Planning and Review). This 
rulemaking has been determined to be not significant for purposes of 
Executive Order 12866 (Sept. 30, 1993).
    Unfunded Mandates Reform Act of 1995. This rule will not result in 
the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more in any one 
year, and it will not significantly or uniquely affect small 
governments.
    Congressional Review Act. As required by the Congressional Review 
Act (5 U.S.C. 801-808), before an interim or final rule takes effect, 
IPEC will submit for that rule a report to each House of the Congress 
and to the Comptroller General of the United States. This rule is not a 
major rule under 5 U.S.C. 804.

List of Subjects in 5 CFR Part 10400

    Freedom of information. Privacy.

    For the reasons stated in the preamble, the Office of the 
Intellectual Property Enforcement Coordinator is proposing to add part 
10400 of title 5 of the Code of Federal Regulations to read as follows:

PART 10400--PUBLIC AVAILABILITY OF INFORMATION

Subpart A--Freedom of Information Act Policies and Procedures
Sec.
10400.1 Purpose and scope.
10400.2 The Office of the Intellectual Property Enforcement 
Coordinator--organization and functions.
10400.3 Definitions.
10400.4 Access to information.
10400.5 Records requiring consultation, referral, and coordination.
10400.6 How to request records--form and content.
10400.7 Responses--form and content.
10400.8 Expedited and multi-track processing, and aggregation of 
requests for processing.
10400.9 Extension of time.
10400.10 Appeal procedures.
10400.11 Fees to be charged--general.
10400.12 Fees to be charged--miscellaneous provisions.
10400.13 Fees to be charged--categories of requesters.
10400.14 Restrictions on charging fees.
10400.15 Waiver or reduction of fees
10400.16 Aggregation of requests for fees.
10400.17 Markings on released documents.
10400.18 Confidential commercial information.
Subpart B--Privacy Act Policies and Procedures
10400.19 Definitions.
10400.20 Purpose and scope.
10400.21 How do I make a Privacy Act request?
10400.22 How will IPEC respond to my Privacy Act request?
10400.23 What can I do if I am dissatisfied with IPEC's response to 
my Privacy Act request?
10400.24 What does it cost to get records under the Privacy Act?

    Authority:  5 U.S.C. 552, 552a

[[Page 57842]]

Subpart A--Freedom of Information Act Policies and Procedures


Sec.  10400.1   Purpose and scope.

    The regulations in this part prescribe procedures by which 
individuals may obtain access to agency records of the Office of the 
Intellectual Property Enforcement Coordinator (IPEC) under the Freedom 
of Information Act (FOIA), 5 U.S.C. 552, as amended, as well as the 
procedures IPEC must follow in response to requests for records under 
the FOIA. The regulations should be read together with the FOIA and the 
``Uniform Freedom of Information Fee Schedule and Guidelines'' issued 
by the Office of Management and Budget. All requests for access to 
information contained within a system of records pursuant to the 
Privacy Act of 1974, 5 U.S.C. 552a, shall be processed in accordance 
with these regulations. Nothing in this part shall be construed to 
entitle any person to any service or to the disclosure of any record to 
which such person is not entitled under the FOIA or the Privacy Act.


Sec.  10400.2  The Office of the Intellectual Property Enforcement 
Coordinator--organization and functions.

    The Office of the Intellectual Property Enforcement Coordinator was 
created by Title III of the Pro IP Act of 2008, 15 U.S.C. 8111 et seq. 
The mission of IPEC is to advise the President and coordinate with 
Cabinet departments and agencies on the development of the United 
States' overall intellectual property policy and strategy, to promote 
innovation and creativity, and to ensure effective intellectual 
property protection and enforcement, domestically and abroad. IPEC is 
headed by the Intellectual Property Enforcement Coordinator.


Sec.  10400.3   Definitions.

    For the purpose of this part, all the terms defined in the Freedom 
of Information Act apply.
    Commercial use request is a request that asks for information for a 
use or a purpose that furthers a commercial, trade, or profit interest, 
which can include furthering those interests through litigation. An 
agency's decision to place a requester in the commercial use category 
will be made on a case-by-case basis based on the requester's intended 
use of the information. Agencies will notify requesters of their 
placement in this category.
    Direct costs means the expenses (excluding overhead) actually 
expended to search, review, or duplicate in response to a FOIA request. 
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 cost of operating computers and other 
electronic equipment, such as photocopiers and scanners.
    Disclose and disclosure refer to making records available, upon 
request, for examination and copying, or furnishing a copy of records.
    Duplicate and duplication mean 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.
    Educational institution is any school that operates a program of 
scholarly research. A requester in this fee category must show that the 
request is made in connection with his or her role at the educational 
institution. Agency may seek verification from the requester that the 
request furthers scholarly research, and agency will advise requesters 
of their placement in this category.
    Fee waiver means the waiver or reduction of processing fees if a 
requester can demonstrate that certain statutory standards are 
satisfied, including that the information is in the public interest and 
is not requested for a commercial interest.
    FOIA public liaison means an agency official who assists requesters 
in defining the scope of their request to reduce processing time, 
increases transparency and understanding of the status of requests, and 
assists in the resolution of disputes.
    Noncommercial scientific institution is an institution that is not 
operated on a ``commercial'' basis and that is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry. A requester in 
this category must show that the request is authorized by and is made 
under the auspices of a qualifying institution and that the records are 
sought to further scientific research and are not for a commercial use. 
IPEC will advise requesters of their placement in this category.
    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 IPEC agrees to 
participate in the dispute resolution services provided by OGIS, IPEC 
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 and news media requester 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 news 
media entities include television or radio stations that broadcast 
``news'' to the public at large and publishers of periodicals that 
disseminate ``news'' and make their products available through a 
variety of means to the general public, including news organizations 
that disseminate solely on the internet. A request for records 
supporting the news-dissemination function of the requester will not be 
considered to be for a commercial use. ``Freelance'' journalists who 
demonstrate a solid basis for expecting publication through a news 
media entity will be considered as a representative of the news media. 
A publishing contract would provide the clearest evidence that 
publication is expected; IPEC can also consider a requester's past 
publication record in making this determination. IPEC will advise 
requesters of their placement in this category.
    Request means a letter or other written communication seeking 
records or information under FOIA.
    Requester category means one of the four categories that IPEC will 
place requesters in for the purpose of determining whether a requester 
will be charged fees for search, review, and duplication. The 
categories are: commercial use requests; requests by non-commercial 
scientific or educational institutions; news media requesters; and all 
other requesters.
    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. Review 
time includes processing any record for disclosure, such as doing all 
that is necessary to prepare the record for disclosure, including the 
process of redacting the record and marking the appropriate exemptions. 
Review costs are properly charged even if a record ultimately is not 
disclosed. Review time also includes time spent both obtaining and 
considering any formal objection to disclosure made by a confidential 
commercial information submitter under Sec.  10400.18, but it does not

[[Page 57843]]

include time spent resolving general legal or policy issues regarding 
the application of exemptions.
    Search means to review, manually or by automated means, agency 
records for the purpose of locating those records responsive to a 
request.
    Working day means a regular Federal working day between the hours 
of 9:00 a.m. and 5:00 p.m. It does not include Saturdays, Sundays, or 
legal Federal holidays. Any requests received after 5:00 p.m. on any 
given working day will be considered received on the next working day.


Sec.  10400.4  Access to information.

    The Office of the Intellectual Property Enforcement Coordinator 
makes available information pertaining to matters issued, adopted, or 
promulgated by IPEC, that are within the scope of 5 U.S.C. 552(a)(2). 
Such information is located at https://www.whitehouse.gov/ipec. 
Included in that information are IPEC's proactive disclosures. 
Proactive disclosures are records that have been requested three or 
more times, or that have been released to a requester and that IPEC 
determines have become, or are likely to become, the subject of 
subsequent requests for substantially the same records.


Sec.  10400.5   Records requiring consultation, referral, and 
coordination.

    Requests for records that are in IPEC's custody, and for which 
other agencies (or other Federal government offices) have an interest, 
shall be reviewed by IPEC. IPEC will then either consult with the other 
agencies or offices regarding the records; refer the records to the 
other agencies for further processing; or coordinate with the other 
agencies when a referral is not appropriate.
    (a) Consultation. When records originated with IPEC, and contain 
within them information of interest to another agency or other Federal 
government office, IPEC will consult with that agency or office prior 
to making a release determination.
    (b) Referral--(1) Determination. When IPEC believes that a 
different agency is best able to determine whether to disclose the 
record, IPEC will refer to that agency the responsibility for 
responding to the request regarding that record. Ordinarily, the agency 
that originated the record is presumed to be the best agency to make 
the disclosure determination. However, if IPEC and the originating 
agency jointly agree that IPEC is in the best position to respond 
regarding the record, then the record may be handled as a consultation.
    (2) Documentation. Whenever IPEC refers any part of the 
responsibility for responding to a request to another agency, IPEC must 
document the referral, maintain a copy of the record that it refers, 
and notify the requester of the referral, informing the requester of 
the name(s) of the agency to which the record was referred, including 
that agency's FOIA contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. In order to avoid harm to an 
interest protected by an applicable exemption, IPEC will coordinate 
with the originating agency to seek its views on the disclosability of 
the record. IPEC will convey, to the requester, the release 
determination for the record.
    (c) Classified information. On receipt of any request involving 
classified information, IPEC must determine whether the information is 
currently and properly classified in accordance with applicable 
classification rules. Whenever a request involves a record containing 
information that has been classified or may be appropriate for 
classification by another agency under any applicable executive order 
concerning the classification of records, IPEC will refer the 
responsibility for responding to the request regarding that information 
to the agency that classified the information, or that should consider 
the information for classification. Whenever a record contains 
information that has been derivatively classified (for example, when it 
contains information classified by another agency), IPEC will refer the 
responsibility for responding to that portion of the request to the 
agency that classified the underlying information.
    (d) Timing of responses to consultations and referrals. IPEC will 
handle all consultations and referrals received by IPEC according to 
the date that the (consulting or referring) agency received the 
perfected FOIA request.
    (e) Agreements regarding consultations and referrals. IPEC may 
establish agreements with other agencies to eliminate the need for 
consultations or referrals with respect to particular types of records.


Sec.  10400.6   How to request records--form and content.

    (a) A request for records must describe the records that it seeks 
in sufficient detail and in writing to enable IPEC to locate the 
records with a reasonable amount of effort. To satisfy this 
requirement, the request should be as detailed as possible when 
describing the records that it seeks. 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 IPEC's FOIA Public Liaison to discuss 
the records they seek and for assistance in describing the records.
    (b)(1) If an individual is making a request for records that are 
about the individual, the requester must comply with the verification 
of identity provision set forth in Sec.  10400.21(f) of this part.
    (2) If a request for records pertains to a third party, the 
requester 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 the requester. As an exercise of administrative discretion, IPEC may 
require the requester to provide additional information if necessary in 
order to verify that a particular individual has consented to 
disclosure. If the records that are requested pertain to an individual 
who is deceased, the requester should submit proof of death such as a 
copy of the death certificate or an obituary.
    (c) Requesters may specify the preferred form or format (including 
electronic formats) for the records they seek. IPEC will try to 
accommodate formatting requests if the record is readily reproducible 
in that form or format.
    (d) Whenever it is appropriate to do so, IPEC 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. 
IPEC processes a request under both the FOIA and Privacy Act so that 
requesters will receive the maximum amount of information available by 
law.
    (e) Requests must be received by IPEC through methods specified on 
the FOIA page of IPEC's website: https://www.whitehouse.gov/ipec. 
Requests may be emailed at any time to [email protected] or mailed 
to Executive Office of the President, Office of the Intellectual 
Property Enforcement Coordinator, Eisenhower Executive Office Building, 
Room 296, Washington DC 20503, Attn: FOIA Officer, Washington, DC 
20503. Email requests are strongly preferred.
    (f) The words ``FOIA REQUEST'' or ``REQUEST FOR RECORDS'' should be 
clearly marked on all FOIA request

[[Page 57844]]

communications. The time limitations imposed by Sec.  10400.7 will not 
begin until IPEC identifies a communication as a FOIA request.
    (g) The requester must provide contact information, such as the 
requester's phone number, email address and mailing address, so that 
IPEC will be able to communicate with the requester about the request 
and provide released records. If IPEC cannot contact the requester, or 
the requester does not respond within 20 calendar days to our request 
for clarification, IPEC will close the request.
    (h) To protect our computer systems, IPEC reserves the right to not 
open attachments to emailed requests. Please include the request within 
the body of the email.
    (i) Types of records not available. The FOIA does not require an 
agency to:
    (1) Compile or create records solely for the purpose of satisfying 
a request for records;
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some future time; or
    (3) Restore records destroyed or otherwise disposed of, except that 
IPEC must notify the requester of the destruction or disposal of the 
requested records.


Sec.  10400.7  Responses--form and content.

    (a) Determinations. (1) In determining which records are responsive 
to a request, IPEC will ordinarily include only records that were in 
its possession as of the date of the request. If any other date is 
used, IPEC will inform the requester of that date.
    (2) IPEC will exercise all reasonable efforts to make an initial 
determination acknowledging and granting, partially granting, or 
denying a request for records within 20 working days after IPEC 
receives a FOIA request (IPEC may extend this period for ``unusual 
circumstances'' under Sec.  10400.9). The FOIA Officer or designee will 
determine whether it is appropriate to grant the request and will 
provide written notification to the person making the request. The 
notification shall also advise the person making the request of any 
fees assessed under Sec. Sec.  10400.11 through 10400 13. IPEC will 
inform the requester of the availability of its FOIA Public Liaison.
    (b) Tracking number. IPEC will assign a request an individualized 
tracking number if it will take longer than 10 working days to process 
the request. IPEC may assign, at our discretion, such a tracking number 
for a request that will take less than 10 working days to process.
    (c) Adverse determinations. If IPEC makes an adverse determination 
denying a request in any respect, it must notify the requester of that 
determination in writing. Adverse determinations, or denials of 
requests, include decisions that: the requested record is exempt, in 
whole or in part; the request does not reasonably describe the records 
sought; the information requested is not a record subject to the FOIA; 
the requested record does not exist, cannot be located, or has been 
destroyed; or the requested record is not readily reproducible in the 
form or format sought by the requester. Adverse determinations also 
include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (d) Content of denial. The denial must be signed by the FOIA 
Officer or designee and must include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the agency in denying the request;
    (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;
    (4) A statement that the denial may be appealed to the FOIA Appeals 
Officer (the IPEC Legal Advisor or a designee) within 90 calendar days 
of the date of the response (the requirements for making an appeal are 
specified in Sec.  10400.10); and
    (5) A statement notifying the requester of the assistance available 
from the IPEC's FOIA Public Liaison and the dispute resolution services 
offered by OGIS.


Sec.  10400.8  Expedited and multi-track processing, and aggregation of 
requests for processing.

    (a) Expedited processing. (1) A request for expedited processing 
may be made at any time. IPEC must process requests and appeals on an 
expedited basis whenever it is determined that they involve:
    (A) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (B) 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.
    (2) 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 who is 
primarily engaged in 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.
    (3) Within 10 calendar days of IPEC's receipt of a request for 
expedited processing, IPEC will decide whether to grant it and will 
notify the requester of the decision. If a request for expedited 
processing 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.
    (b) Multi-track processing. IPEC will ordinarily respond to 
requests in order of their receipt. However, IPEC may use multi-track 
processing in responding to requests. Multi-track processing means 
placing simple requests that require a limited review in one processing 
track and placing more voluminous and complex requests in other 
processing tracks. Requests in each track are processed on a first-in, 
first-out basis. Track one is for requests that have received expedited 
processing under this section. Track two is for requests of simple-to-
moderate complexity that do not involve voluminous records and do not 
require consultation or coordination with other entities or submitter 
review under Sec.  10400.18. Track three is for complex requests that 
involve voluminous records, require lengthy or numerous consultations 
or coordination, raise unique or novel legal questions, or require 
submitter review under Sec.  10400.18. In the case of requests in 
tracks two and three, IPEC may provide requesters the opportunity to 
limit the scope of their requests in order to qualify for faster 
processing. IPEC will do so by contacting the requester by

[[Page 57845]]

letter, telephone, email, or facsimile (whichever is more efficient in 
each case). When providing a requester with the opportunity to limit 
the scope of a request, IPEC shall also advise the requester of IPEC's 
FOIA Public Liaison to aid in the resolution of any dispute arising 
between the requester and IPEC as well as the requester's right to seek 
dispute resolution services from the Office of Government Information 
Services.
    (c) Aggregating requests. IPEC 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, involve 
related matters and constitute a single request that otherwise would 
involve ``unusual circumstances'' under Sec.  10400.9. For example, 
IPEC may aggregate multiple requests for similar information filed by a 
single requester within a short period of time. In addition, as 
discussed in Sec.  10400.16, IPEC may aggregate requests for fee 
purposes.


Sec.  10400.9   Extension of time.

    (a) In unusual circumstances, IPEC may extend the time limits 
prescribed in Sec.  10400.7 and Sec.  10400.8 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 single request seeks a voluminous amount of separate and 
distinct records; or
    (3) Another agency has a substantial interest in the determination 
of the request.
    (c) Whenever IPEC cannot meet the 20 working-day time limit under 
Sec.  10400.7 for processing a request because of ``unusual 
circumstances,'' and IPEC extends the time limit on that basis, IPEC 
shall promptly notify the requester (before the expiration of the 20 
working-day period) in writing of the unusual circumstances involved 
and of the date by which IPEC estimates that it will complete the 
processing of the request. For those requests for which the extension 
exceeds 10 working days, IPEC will provide the requester an opportunity 
to modify the request (so that it may be processed within an extension 
of 10 working days) or arrange an alternative time period for 
processing the original or modified request. IPEC will make available 
its designated FOIA contact or its FOIA Public Liaison for this 
purpose. IPEC will also alert requesters to the availability of the 
Office of Government Information Services (OGIS) to provide dispute 
resolution services.


Sec.  10400.10  Appeal procedures.

    (a) An appeal to the IPEC must explain the reasoning and factual 
basis for the appeal. It must be received by email at 
[email protected] or another method specified on the FOIA page of 
IPEC's website within 90 calendar days of the date of the response. The 
appeal must be in writing, addressed to the FOIA Appeals Officer, 
Executive Office of the President, Office of the Intellectual Property 
Enforcement Coordinator, Eisenhower Executive Office Building, Room 
296, Washington DC 20503, ATTN: Legal Advisor. The communication should 
clearly be labeled as a ``Freedom of Information Act Appeal.''
    (b) The FOIA Appeals Officer (the Legal Advisor or a designee) will 
decide the appeal within 20 working days. If the FOIA Appeals Officer 
denies an appeal in whole or in part, the written determination will 
contain the reason for the denial, the name and title of the person 
responsible for the denial, any FOIA exemptions applied, 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 IPEC agrees to participate in 
voluntary dispute resolution services provided by OGIS, it will 
actively engage as a partner to the process in an attempt to resolve 
the dispute.


Sec.  10400.11  Fees to be charged--general.

    IPEC will assess a fee to process FOIA requests in accordance with 
the provisions of this section and the ``Uniform Freedom of Information 
Fee Schedule and Guidelines'' issued by the Office of Management and 
Budget. IPEC shall ensure that searches, review, and duplication are 
conducted in the most efficient and the least expensive manner. IPEC 
will charge the following fees unless a waiver or reduction of fees is 
granted under Sec.  10400.15, or the total fee to be charged is less 
than $25.00. IPEC will notify the requester if IPEC estimates that 
charges will exceed $25.00 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. IPEC will not 
process the request until the requester either commits in writing to 
pay the actual or estimated total fee, or designates some amount of 
fees that it is willing to pay.
    (a) Search for records. IPEC 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) Review of records. IPEC 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.
    (c) Duplication of records. IPEC will charge duplication fees to 
all requesters. IPEC will honor a requester's preference for receiving 
a record in a particular format if IPEC can readily reproduce it in the 
form or format requested. If IPEC provides photocopies, IPEC will make 
one copy per request at the cost of $.10 per page. For copies of 
records produced on tapes, disks or other media, IPEC will charge the 
direct costs of producing the copy, including operator time. Where IPEC 
must scan paper documents in order to comply with a requester's 
preference to receive the records in an electronic format, IPEC will 
charge the direct costs associated with scanning those materials. For 
other forms of duplication, IPEC will charge the direct costs. IPEC 
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.
    (d) Other charges. IPEC will recover the costs of providing other 
services such as certifying records or sending records by special 
methods.


Sec.  10400.12   Fees to be charged--miscellaneous provisions.

    (a) Payment for FOIA services may be made by check or money order 
made payable to the Treasury of the United States. IPEC will provide 
the requester with instructions on how to make the payment. IPEC will 
provide a receipt for fees paid upon request. IPEC will not refund fees 
paid for services actually rendered.
    (b) IPEC may require advance payment (or a satisfactory written 
assurance of full payment) where the estimated fee exceeds $250, or a 
requester previously failed to pay within 30 calendar days of the 
billing date. IPEC will not process the request until the requester 
either makes the advance payment or provides a satisfactory written 
assurance.
    (c) IPEC may assess interest charges beginning the 31st day of 
billing. Interest will be at the rate prescribed in

[[Page 57846]]

section 3717 of Title 31, United States Code, and will accrue from the 
date of the billing.
    (d) IPEC may assess search charges where records are not located or 
where records are exempt from disclosure.
    (e) IPEC may aggregate separate requests for fee purposes in 
accordance with Sec.  10400.16.


Sec.  10400.13   Fees to be charged--categories of requesters.

    (a) For fees, there are four categories of FOIA requesters: 
commercial use requests; educational and non-commercial scientific 
institution requests; requests from representatives of the news media; 
and all other requesters.
    (b) The specific levels of fees for each of these categories are:
    (1) Commercial use request. IPEC will recover the full direct cost 
of providing search, review, and duplication services. Commercial use 
requests will not receive free search-time or free reproduction of 
documents.
    (2) Educational and non-commercial scientific institution requests. 
IPEC 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) Requests from representatives of the news media. IPEC will 
charge the cost of reproduction, excluding charges for the first 100 
pages. Requesters must meet the criteria in Sec.  10400.3, 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. IPEC 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.  10400.14   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 IPEC 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.  
10400.13(b)(2), may not charge duplication fees, except as described in 
paragraphs (c), (d), and (e) of this section.
    (c) If IPEC 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 IPEC 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.  10400.13(b)(2) of this section, may 
charge duplication fees if the following steps are taken. IPEC 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, IPEC 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.  10400.15  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 government and is not primarily in the commercial interest of 
the requester.
    (b) IPEC 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. IPEC 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, 
IPEC will consider the following criteria:
    (i) IPEC 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, IPEC must 
determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraph (a) of this section are satisfied and any 
commercial interest is not the primary interest furthered by the 
request. IPEC ordinarily will presume that when a news media requester 
has satisfied the requirements of paragraph (a) of this section, the 
request is not primarily in the commercial interest of the requester.

[[Page 57847]]

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 IPEC 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.  10400.16   Aggregation of requests for fees.

    When IPEC 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, IPEC may 
aggregate those requests and charge accordingly. IPEC 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, 
IPEC 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.  10400.17   Markings on released documents.

    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 
IPEC with the necessary redactions. If records are disclosed in part, 
IPEC 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.  10400.18   Confidential commercial information.

    (a) Definitions--
    Confidential commercial information means commercial or financial 
information obtained by IPEC 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) IPEC must promptly 
provide written notice to the submitter of confidential commercial 
information whenever records containing such information are requested 
under the FOIA if IPEC 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) IPEC 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, IPEC 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.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section do not apply if:
    (1) IPEC 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, IPEC 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) IPEC 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 IPEC 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. IPEC 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. IPEC 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 IPEC decides to disclose 
information over the objection of a submitter, IPEC 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 IPEC 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, IPEC must promptly notify the submitter.
    (i) Requester notification. IPEC 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

[[Page 57848]]

party against the United States, its agencies, its officers, or any 
person.

Subpart B--Privacy Act Policies and Procedures


Sec.  10400.19  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 IPEC officials who are authorized to 
respond to requests and to process requests for amendment of records 
IPEC maintains under the Privacy Act.
    Record means any item, collection or grouping of information about 
an individual that IPEC 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 IPEC 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.  10400.20   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 
IPEC'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 
IPEC. Whenever it is appropriate to do so, IPEC 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. IPEC 
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.  10400.21   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 FOIA Officer. 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 the Intellectual Property 
Enforcement Coordinator, Eisenhower Executive Office Building, Room 
296, Washington DC 20503, Attn: FOIA Officer. To make sure that the 
FOIA Officer 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 reserve 
the right not to open attachments to emailed requests. We request that 
you include your request within the body of the email.
    (c) What should my request include? You must describe the record 
that you seek in enough detail to enable IPEC 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 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 IPEC 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 IPEC 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, IPEC cannot process your 
request.
    (1) How do I verify my own identity? You must include in your 
request your full name, 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, 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.  10400.22  How will IPEC 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 IPEC 
owns or controls. The FOIA Officer will respond to you in writing 
within 20 after we receive your request and/or within 10 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

[[Page 57849]]

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.  
10400.24. 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 IPEC 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.  10400.23.
    (4) 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.  10400.23   What can I do if I am dissatisfied with IPEC's 
response to my Privacy Act request?

    (a) What can I appeal? You can appeal any adverse determination in 
writing to the Privacy Act Appeals Officer (the Legal Advisor or a 
designee) within ninety calendar days after the date of our response. 
We provide a list of adverse determinations in Sec.  10400.22(b)(4).
    (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 Privacy Act Appeals Officer 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 the 
Intellectual Property Enforcement Coordinator, Eisenhower Executive 
Office Building, Room 296, Washington DC 20503, Attn: Privacy Act 
Appeals Officer.
    (c) Who will decide your appeal? (1) The Privacy Act Appeals 
Officer 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 
Privacy Act Appeals Officer must take appropriate action to ensure 
compliance with applicable classification rules.
    (d) When will we respond to your appeal? The Privacy Act Appeals 
Officer will notify you of its appeal decision in writing within 30 
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 Privacy Act Appeals Officer'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 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 the Intellectual Property 
Enforcement Coordinator, Eisenhower Executive Office Building, Room 
296, Washington DC 20503, Attn: Privacy Act Appeals Officer.
    (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.  10400.24  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.  10400.11(c). There are 
no fees to search for or review records requested under the Privacy 
Act.

Steven D. Aitken,
Legal Advisor, Office of the Intellectual Property Enforcement 
Coordinator.
[FR Doc. 2022-20306 Filed 9-21-22; 8:45 am]
BILLING CODE 3330-F2-P