9 October 1997
Source: http://www.access.gpo.gov/su_docs/aces/aces140.html

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[Federal Register: October 9, 1997 (Volume 62, Number 196)]
[Proposed Rules]
[Page 52668-52670]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09oc97-11]

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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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[[Page 52668]]

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OFFICE OF MANAGEMENT AND BUDGET

5 CFR Part 1303

RIN 0348-AB42


Freedom of Information Act

AGENCY: Office of Management and Budget, Executive Office of the
President.

ACTION: Proposed rule.

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SUMMARY: The Office of Management and Budget (OMB) seeks public comment
on a proposed rule that would revise OMB's regulations implementing 5
U.S.C. 552, the Freedom of Information Act (FOIA). These revisions are
being proposed to simplify and streamline OMB's FOIA regulations, as
well as to implement the Electronic Freedom of Information Act
Amendments of 1996 (Pub. L. 104-231).

DATES: Comments must be received no later than December 8, 1997.

ADDRESSES: Comments on the proposed rule should be addressed to:
Darrell A. Johnson, Deputy Assistant Director for Administration,
Office of Management and Budget, Room 9026, New Executive Office
Building, Washington, D.C. 20503. Comments up to three pages in length
may be submitted via facsimile to (202) 395-3504. Electronic mail
comments may be submitted via Internet to FOIAREG@A1.EOP.GOV. Please
include the full body of electronic mail comments in the text and not
as an attachment. Please include the name, title, organization, postal
address, and E-mail address in the text of the message.

FOR FURTHER INFORMATION CONTACT: Darrell A. Johnson, Deputy Assistant
Director for Administration, Office of Management and Budget, at (202)
395-5715.

SUPPLEMENTARY INFORMATION: OMB is seeking public comment on proposed
revisions to OMB's regulations at Part 1303 implementing the Freedom of
Information Act (FOIA). Currently, OMB's FOIA regulations consist of
the regulations as issued in 1982 (47 FR 33483; August 3, 1982), and as
amended in 1987 (52 FR 4512; December 30, 1987). The proposed revisions
are intended to: implement the Electronic Freedom of Information Act
Amendments of 1996, P.L. 104-231 (E-FOIA); update OMB's regulations to
reflect current practice; and streamline OMB's regulations to eliminate
redundant or otherwise unnecessary materials. The following is a
summary of the proposed changes.
    Section 1303.2 (``Authority and functions''), which summarizes
OMB's authority and functions, has been streamlined.
    Section 1303.3 (``Organization'') has been revised to reflect
changes over time in OMB's organizational structure.
    Section 1303.10 (``Methods of operation'') has been revised to
update information and to reflect the provisions of E-FOIA. Among the
revisions to Section 1303.10 are provisions revising the initial
response period from 10 days to 20 days (see Section 8(b) of E-FOIA,
amending 5 U.S.C. 552(a)(6)(A)(i)); establishing an expedited-response
process (see Section 8(a) of E-FOIA, adding 5 U.S.C. 552(a)(6)(E));
establishing a requirement that administrative appeals of OMB denials
be made within 30 days of receipt of the denial (the current
regulations do not set a deadline); and providing for OMB consultations
with a requester to determine if a FOIA request may be modified in
order to allow for a timely response, or to arrange an alternative time
frame for a response (see Section 7(b) of E-FOIA, amending 5 U.S.C.
552(a)(6)(B)). Finally, Section 1303.10 explains that OMB materials may
be obtained electronically from OMB's home page; these materials
include documents described in 5 U.S.C. 552(a)(2).
    Section 1303.20 (``Inspection, copying, and exceptions'') has been
streamlined by deleting subsections (b) and (c). The deletion of
subsection (b) is consistent with the courts' decisions in Ryan v.
Department of Justice, 617 F.2d 781, 786-89 (D.C. Cir. 1980), and Meyer
v. Bush, 981 F.2d 1288, 1292 n.2, 1294 (D.C. Cir. 1993), and it also
reflects OMB's practice (in response to FOIA requests, the files of the
OMB units described in subsection (b) are searched for responsive
documents, and such documents are reviewed for applicable exemptions,
in the same manner as the files of other OMB units). Subsection (c) has
been deleted because its recitation of the exemptions in 5 U.S.C.
552(b) is unnecessary (i.e., OMB may directly rely upon the statutory
exemptions).
    Section 1303.30 (``Definitions'') has been revised to reflect E-
FOIA by more clearly defining the terms ``search'' and ``duplication.''
See Section 5 of E-FOIA, amending 5 U.S.C. 552(a)(3).
    Finally, Section 1303.60 (``Miscellaneous fee provisions'') has
been revised to conform to the aggregation provision in Section
1303.10(g), and to the new time limit under the FOIA for initial
responses.
    In implementing E-FOIA, OMB considered adopting a multi-track
processing system that would distinguish simple and complex FOIA
requests and place them on separate processing tracks. See Section 7(a)
of E-FOIA, adding 5 U.S.C. 552(a)(6)(D). However, after considering
this option, OMB decided to retain its current system. Unlike other
agencies, OMB does not have a central office dedicated to searching for
documents in response to FOIA requests; instead, OMB has a
decentralized system, with the primary responsibility for responding to
individual FOIA requests generally assigned to the program office with
responsibility for the subject matter of the particular request.
Accordingly, pending FOIA requests are generally processed
concurrently, rather than on a consecutive, request-by-request basis.
For this reason, the time needed to respond to complex requests
generally does not delay OMB's ability to respond to simple requests.
Thus, the adoption of multitrack processing would not be likely to
accelerate OMB's ability to respond to requests.
    OMB requests comments on the proposed revisions to OMB's FOIA
regulations.

Regulatory Flexibility Act, Unfunded Mandates Reform Act, and
Executive Orders 12866 and 12875

    For purposes of the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the proposed rule will not, if promulgated, have a significant
economic effect on a substantial number of small entities; the proposed
rule addresses the procedures to be followed when responding to
requests for information under the Freedom of Information Act. For
purposes of the Unfunded Mandates

[[Page 52669]]

Reform Act of 1995 (Pub. L. 104-4), as well as Executive Orders No.
12866 and 12875, the proposed rule would not significantly or uniquely
affect small governments, and would not result in increased
expenditures by State, local, and tribal governments, or by the private
sector, of $100 million or more.
Franklin D. Raines,
Director.

    For the reasons set forth in the preamble, OMB proposes to amend 5
CFR Part 1303 as follows:

PART 1303--[AMENDED]

    1. The authority citation for part 1303 is revised to read as
follows:

    Authority: 5 U.S.C. 552.

    2. Section 1303.2 is revised to read as follows:

Sec. 1303.2  Authority and functions.

    The general functions of the Office of Management and Budget, as
provided by statute and executive order, are to develop and execute the
budget, oversee implementation of Administration policies and programs,
advise and assist the President, and develop and implement management
policies for the government.
    3. Section 1303.3 is revised to read as follows:

Sec. 1303.3  Organization.

    (a) The brief description of the central organization of the Office
of Management and Budget follows:
    (1) The Director's Office includes the Director, the Deputy
Director, the Deputy Director for Management, and the Executive
Associate Director.
    (2) Staff Offices include General Counsel, Legislative Affairs,
Communications, Administration, and Economic Policy.
    (3) Offices that provide OMB-wide support include the Legislative
Reference and Budget Review Divisions.
    (4) Resource Management Offices. These offices develop and support
the President's management and budget agenda in the areas of Natural
Resources, Energy and Science, National Security and International
Affairs, Health and Personnel, Human Resources, and General Government
and Finance.
    (5) Statutory offices include the Office of Federal Financial
Management, Office of Federal Procurement Policy, and the Office of
Information and Regulatory Affairs.
    (b) The Office of Management and Budget is located in Washington,
DC, and has no field offices. Staff are housed in either the Old
Executive Office Building, 17th Street and Pennsylvania Ave, NW, or the
New Executive Office Building, 725 17th Street NW, Washington, D.C.
20503. Persons desiring to visit offices or employees of the Office of
Management and Budget, in either building, must write or telephone
ahead to make an appointment. Security in both buildings prevents
visitors from entering the building without an appointment.
    5. Section 1303.10 is revised to read as follows:

Sec. 1303.10  Access to information.

    (a) The Office of Management and Budget makes available information
pertaining to matters issued, adopted, or promulgated by OMB, that are
within the scope of 5 U.S.C. 552(a)(2). A public reading area is
located in the Executive Office of the President Library, Room G-102,
New Executive Office Building, 725 17th Street NW, Washington, D.C.
20503, phone (202) 395-5715. Some of these materials are also available
from the Executive Office of the President's Publications Office, Room
2200 New Executive Office Building, 725 17th Street NW, Washington,
D.C. 20503, phone (202) 395-7332. OMB issuances are also available via
fax-on-demand at (202) 395-9068, and are available electronically from
the OMB homepage at http:/www.whitehouse.gov/WH/EOP/omb. In addition,
OMB maintains the Office of Information and Regulatory Affairs (OIRA)
Docket Library, Room 10102, New Executive Office Building, 725 17th
Street NW, Washington, D.C. 20503, phone (202) 395-6880. The Docket
Library contains records related to information collections sponsored
by the Federal government and reviewed by OIRA under the Paperwork
Reduction Act of 1995. The Docket Library also maintains records
related to proposed Federal agency regulatory actions reviewed by OIRA
under Executive Order 12866 ``Regulatory Planning and Review''.
Telephone logs and materials from meetings with the public attended by
the OIRA Administrator are also available in the Docket Library.
    (b) The Deputy Assistant Director for Administration is responsible
for acting on all initial requests. Individuals wishing to file a
request under the Freedom of Information Act (FOIA) should address
their request in writing to the Deputy Assistant Director for
Administration, Office of Management and Budget, 725 17th Street NW,
Washington, DC 20503, Phone 395-5715. Requests for information shall be
as specific as possible.
    (c) Upon receipt of any request for information or records, the
Deputy Assistant Director for Administration will determine within 20
days (excepting Saturdays, Sundays and legal public holidays) after the
receipt of such request whether it is appropriate to grant the request
and will immediately provide written notification to the person making
the request. If the request is denied, the written notification to the
person making the request shall include the names of the individuals
who participated in the determination, the reasons for the denial, and
a notice that an appeal may be lodged within the Office of Management
and Budget. (Receipt of a request as used herein means the date the
request is received in the office of the Deputy Assistant Director for
Administration.)
    (d) Expedited processing. (1) Requests and appeals will be taken
out of order and given expedited treatment whenever it is determined
that they involve:
    (i) 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;
    (ii) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person primarily engaged in
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which
there exist possible questions about the government's integrity which
effect public confidence.
    (2) A request for expedited processing may be made at the time of
the initial request for records or at any later time.
    (3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
person's knowledge and belief, explaining in detail the basis for
requesting expedited processing. For example, a requester within the
category described in paragraph (d)(1)(ii) of this section, if not a
full-time member of the news media, must establish that he or she is a
person whose main professional activity or occupation is information
dissemination, though it need not be his or her sole occupation. A
requester within the category (d)(1)(ii) of this section 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 formality of
certification may be waived as a matter of administrative discretion.
    (4) Within ten days of its receipt of a request for expedited
processing, OMB

[[Page 52670]]

will decide whether to grant it and will notify the requester of the
decision. If a request for expedited treatment is granted, the request
will be given priority and will be processed as soon as practicable. If
a request for expedited processing is denied, any appeal of that
decision will be acted on expeditiously.
    (e) Appeals shall be set forth in writing within 30 days of receipt
of a denial and addressed to the Deputy Assistant Director for
Administration at the address specified in paragraph (b) of this
section. The appeal shall include a statement explaining the basis for
the appeal. Determinations of appeals will be set forth in writing and
signed by the Deputy Director, or his designee, within 20 days
(excepting Saturdays, Sundays, and legal public holidays). If, on
appeal, the denial is in whole or in part upheld, the written
determination will also contain a notification of the provisions for
judicial review and the names of the persons who participated in the
determination.
    (f) In unusual circumstances, the time limits prescribed in
paragraphs (c) and (e) of this section may be extended for not more
than 10 days (excepting Saturdays, Sundays, or legal public holidays).
Extensions may be granted by the Deputy Assistant Director for
Administration. The extension period may be split between the initial
request and the appeal but in no instance may the total period exceed
10 working days. Extensions will be by written notice to the persons
making the request and will set forth the reasons for the extension and
the date the determination is expected.
    (g) With respect to a request for which a written notice under
paragraph (f) of this section extends the time limits prescribed under
paragraph (c) of this section, the agency shall notify the person
making the request if the request cannot be processed within the time
limit specified in paragraph (f) of this section and shall provide the
person an opportunity to limit the scope of the request so that it may
be processed within that time limit or an opportunity to arrange with
the agency an alternative time frame for processing the request or a
modified request. Refusal by the person to reasonably modify the
request or arrange such an alternative time frame shall be considered
as a factor in determining whether exceptional circumstances exist for
purposes of 5 U.S.C. 552 (a)(6)(C). When OMB reasonably believes that a
requester, or a group of requestors acting in concert, has submitted
requests that constitute a single request, involving clearly related
matters, OMB may aggregate those requests for purposes of this
paragraph. One element to be considered in determining whether a belief
would be reasonable is the time period over which the requests have
occurred.
    (h) As used herein, but only to the extent reasonably necessary to
the proper processing of the particular request, the term unusual
circumstances means:
    (1) The need to search for and collect the requested records from
establishments that are separated from the office processing the
request;
    (2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
    (3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency which have a substantial subject matter interest therein.
    6. Section 1303.20 is revised to read as follows:

Sec. 1303.20  Inspection and copying.

    When a request for information has been approved pursuant to
Sec. 1303.10, the person making the request may make an appointment to
inspect or copy the materials requested during regular business hours
by writing or telephoning the Deputy Assistant Director for
Administration at the address or telephone number listed in
Sec. 1303.10(b). Such materials may be copied and reasonable facilities
will be made available for that purpose. Copies of individual pages of
such materials will be made available at the price per page specified
in Sec. 1303.40(d); however, the right is reserved to limit to a
reasonable quantity the copies of such materials which may be made
available in this manner when copies also are offered for sale by the
Superintendent of Documents.
    7. Section 1303.30 (d) and (e) are revised to read as follows:

Sec. 1303.30  Definitions.

* * * * *
    (d) The term search means the process of looking for and retrieving
records or information responsive to a request. It includes page-by-
page or line-by-line identification of information within records and
also includes reasonable efforts to locate and retrieve information
from records maintained in electronic form or format. OMB employees
should ensure that searching for material is done in the most efficient
and least expensive manner so as to minimize costs for both the agency
and the requester. For example, employees should not engage in line-by-
line search when merely duplicating an entire document would prove the
less expensive and quicker method of complying with a request. Search
should be distinguished, moreover, from review of material in order to
determine whether the material is exempt from disclosure (see paragraph
(f) of this section).
    (e) The term duplication means the making of a copy of a document,
or of the information contained in it, necessary to respond to a FOIA
request. Such copies can take the form of paper, microform, audio-
visual materials, or electronic records (e.g., magnetic tape or disk),
among others. The requesters specified preference of form or format of
disclosure will be honored if the record is readily reproducible in
that format.
* * * * *
    8. In Sec. 1303.60, paragraph (c) and the concluding text of
paragraph (d) are revised to read as follows:

Sec. 1303.60  Miscellaneous fee provisions.

* * * * *
    (c) Aggregating requests. A requester may not file multiple
requests at the same time, each seeking portions of a document or
documents, solely in order to avoid payment of fees. When OMB
reasonably believes that a requester, or a group of requestors acting
in concert, has submitted requests that constitute a single request,
involving clearly related matters, OMB may aggregate those requests and
charge accordingly. One element to be considered in determining whether
a belief would be reasonable is the time period over which the requests
have occurred.
    (d) Advance payments. * * *
    (1) * * *
    (2) * * *
When OMB acts under paragraph (d)(1) or (2) of this section, the
administrative time limits prescribed in the FOIA, 5 U.S.C. 552(a)(6)
(i.e., 20 working days from receipt of initial requests and 20 working
days from receipt of appeals from initial denial, plus permissible
extensions of these time limits) will begin only after OMB has received
fee payments described above.
* * * * *
[FR Doc. 97-26553 Filed 10-8-97; 8:45 am]
BILLING CODE 3110-01-P
