United States Agency for International Development: Regulation To Implement the Freedom of Information Act

CourtAgency For International Development
Citation86 FR 30558
Publication Date09 Jun 2021
Record Number2021-11381
30558
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
(ii) The Federal Deposit Insurance
Corporation (FDIC);
(iii) The National Credit Union
Administration (NCUA);
(iv) The Office of the Comptroller of
the Currency (OCC);
(v) The Federal Housing Finance
Board regulating lenders within the
Home Loan Bank (FHLB) system.
(9) If lenders cannot meet the
requirements under (a)(1) through (8),
they may demonstrate its ability to
originate and underwrite loans by
submitting appropriate documentation,
examples of which include, but are not
limited to: * * *
(10) A lender that proposes to service
loans that cannot meet (a)(1) through (8)
must demonstrate its ability by
submitting appropriate documentation,
examples of which include but are not
limited to: * * *
(b) Financial Requirements for Non-
Supervised Lenders. All lenders not
covered in paragraph (8) of this section,
must have:
(i) A minimum adjusted net worth of
$250,000, or $50,000 in working capital
plus one percent of the total volume in
excess of $25 million in guaranteed
loans originated, serviced or purchased
during the lender’s prior fiscal year, up
to a maximum required adjusted net
worth of $2.5 million, and
(ii) one or more lines of credit with a
minimum aggregate of one million
dollars.
* * * * *
(c) SFHGLP participation
requirements Lenders and their agents
must comply with the following
requirements:
(1) Keep up to date, and comply with,
all Agency regulations and handbooks,
including all amendments and revisions
of program requirements and policies.
Lenders must also comply with all other
applicable federal, state, and local laws,
rules, and requirements, including those
under the purview of the Consumer
Financial Protection Bureau, such as the
Real Estate Settlement Procedures Act
and the Truth in Lending Act. Lenders
who originate a minimal number loans,
as determined by the Agency, in a 24
month time frame may be required to
take updated training to ensure a
lender’s continued knowledge of the
program;
(2) Regularly check Rural
Development’s website for new
issuances related to the program;
(3) Underwrite loans according to
Rural Development regulations and
process and approve loans in
accordance with program instructions;
(4) Review loan applications for
accuracy and completeness;
(5) Ensure that applicant income
limits are not exceeded;
(6) Ensure that borrowers have
adequate loan repayment ability and
acceptable credit histories;
(7) Ensure that loss claims include
only supportable costs;
(8) Cooperate fully with Agency
reporting and monitoring requirements;
(9) Comply with limitations on loan
purposes, loan limitations, interest
rates, and loan terms;
(10) Inform Rural Development
immediately after the sale, transfer, or
change of servicers of any Agency
guaranteed loan;
(11) Maintain reasonable and prudent
business practices consistent with
generally accepted mortgage industry
standards, such as maintaining fidelity
bonding;
(12) Remain responsible for servicing
even if servicing has been contracted to
a third party;
(13) Use Rural Development, HUD,
Fannie Mae, or Freddie Mac forms,
unless otherwise approved by Rural
Development;
(14) Maintain eligibility under
paragraph (a) of this section;
(15) Notify Rural Development if there
are any material changes in organization
or practices;
(16) Be neither debarred nor
suspended from participation in Federal
programs, not debarred, suspended or
sanctioned under state licensing and
certification laws and regulations;
(17) Notify Rural Development in the
event of its bankruptcy or insolvency;
(18) Remain free from default and
delinquency on any debt owed to the
Federal government;
(19) Allow Rural Development or its
representative access to the lender’s
records, including, but not limited to,
records necessary for on-site and desk
reviews of the lender’s operation and
the operations of any of its agents to
verify compliance with Agency
regulations and guidelines;
(20) Maintain adequate operational
quality control and reporting procedures
to prevent fraud;
(21) Maintain complete loan files with
all required documentation that is
accessible by Agency upon request for
review;
(22) Execute a lender’s agreement
provided by Rural Development;
(23) Evidence that principal officers
must have a minimum of two years of
experience in originating or servicing
guaranteed mortgage loans; and
(24) Provide documentation as
required by the Agency to be reviewed
every two years for continued lender
participation.
* * * * *
§ 3555.105 [Amended]
4. Amend § 3555.105 by removing
paragraphs (b)(4) and (5) and
renumbering paragraph (b)(6) as
appropriate.
5. Amend § 3555.151 by adding
paragraph (i)(9) to read as follows:
§ 3555.151 Eligibility Requirements.
* * * * *
(i) * * *
(9) Applicants with delinquent child
support payments subject to collection
by administrative offset are ineligible
unless the payments are brought
current, the debt is paid in full, or
otherwise satisfied.
* * * * *
Chadwick Parker,
Acting Administrator, Rural Housing Service.
[FR Doc. 2021–11937 Filed 6–8–21; 8:45 am]
BILLING CODE 3410–XV–P
AGENCY FOR INTERNATIONAL
DEVELOPMENT
22 CFR Part 212
RIN 0412–AA97
United States Agency for International
Development: Regulation To
Implement the Freedom of Information
Act
AGENCY
: Agency for International
Development (USAID).
ACTION
: Proposed rule.
SUMMARY
: This regulation updates
certain procedures and standards
USAID follows in processing requests
for records under the Freedom of
Information Act (‘‘FOIA’’).
DATES
: Submit comments on or before
August 9, 2021.
ADDRESSES
: Address all comments for
this proposed rule to Alecia S. Sillah,
Supervisory FOIA Team Lead, Bureau
for Management, Office of Management
Services, Information Records Division,
U.S. Agency for International
Development, electronically at foia@
usaid.gov.
FOR FURTHER INFORMATION CONTACT
:
Christopher A. Colbow, Bureau for
Management, Office of Management
Services, Information Records Division,
U.S. Agency for International
Development, 1300 Pennsylvania
Avenue, USAID Annex, Room 2.4.0A,
Washington, DC 20523; tel. 202–916–
4661; foia@usaid.gov.
SUPPLEMENTARY INFORMATION
:
I. Background
This rulemaking proposes revisions to
22 CFR part 212, USAID’s regulations
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30559
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
under the Freedom of Information Act
(FOIA) and the Privacy Act. The Agency
is revising its regulations to update
several procedural provisions, including
methods for submitting requests under
the FOIA, and initial appeals of denials
of requests, for records of the Office of
the USAID Inspector General (OIG). The
Inspector General Act of 1978, as
amended (5 U.S.C. App. 3) was enacted
to, ‘‘create independent and objective
units,’’ to perform investigative and
monitoring functions within Executive
Departments and Agencies of the
Federal Government, including USAID.
These revisions will further the OIG’s
independence and streamline the
processing of requests that seek OIG
records.
List of Subjects in 22 CFR Part 212
Freedom of information.
For the reasons stated in the
preamble, USAID proposes to revise 22
CFR part 212 to read as follows:
PART 212—PUBLIC INFORMATION
Subpart A—General Provisions
Sec.
212.1 Purpose and scope.
212.2 Policy.
212.3 Records available on the Agency’s
website.
Subpart B—Proactive Disclosures of
Agency Records
212.4 Materials available for public
inspection and copying.
Subpart C—Requirements for Making
Requests
212.5 How to make a request for records.
Subpart D—Responsibility for Responding
to Requests
212.6 Designation of authorized officials.
212.7 Processing of request.
Subpart E—Timing of Responses to
Requests
212.8 Time limits.
Subpart F—Responses to Requests
212.9 Responsibility for responding to
requests.
Subpart G—Confidential Commercial
Information
212.10 Policy and procedures.
Subpart H—Administrative Appeals
212.11 Appeal procedures.
212.12 Mediation and dispute services.
Subpart I—Preservation of Records
212.13 Policy and procedures.
Subpart J—Fees
212.14 Fees to be charged—general.
212.15 Fees to be charged—requester
categories.
Subpart K—FOIA Definitions
212.16 Glossary.
Subpart L—Other Rights and Services
212.17 Rights and services qualified by the
FOIA statute.
Subpart M—Privacy Act Provisions
212.18 Purpose and scope.
212.19 Privacy definitions.
212.20 Request for access to records.
212.21 Request to amend or correct records.
212.22 Request for accounting of record
disclosures.
212.23 Appeals from denials of PA
amendment requests.
212.24 Specific exemptions.
Authority: Pub. L. 114–185, 130 Stat. 538.
Subpart A—General Provisions
§ 212.1 Purpose and scope.
This subpart contains the rules that
the United States Agency for
International Development (hereinafter
‘‘USAID’’ or ‘‘the Agency’’) follows in
processing requests for records under
the Freedom of Information Act
(‘‘FOIA’’), 5 U.S.C. 552. The rules in this
subpart should be read in conjunction
with the text of the FOIA. Requests
made by individuals for records about
themselves under the Privacy Act of
1974, are processed under subpart O.
Definitions of FOIA terms are referenced
in subpart L.
§ 212.2 Policy.
(a) General policy. As a general
policy, USAID follows a balanced
approach in administering the FOIA.
USAID recognizes the right of the public
to access information in the possession
of the Agency. USAID also recognizes
the legitimate interests of organizations
or persons who have submitted records
to the Agency or who would otherwise
be affected by release of records. USAID
has no discretion to release certain
records, such as trade secrets and
confidential commercial information,
prohibited from release by law. USAID’s
policy calls for the fullest responsible
disclosure consistent with those
requirements of administrative necessity
and confidentiality which are
recognized under the FOIA.
(b) Definitions. For purposes of
subparts A through K, M, and O of this
part, record means information
regardless of its physical form or
characteristics including information
created, stored, and retrievable by
electronic means that is created or
obtained by the Agency and under the
control of the Agency at the time of the
request, including information
maintained for the Agency by an entity
under Government contract for records
management purposes. It does not
include records that are not already in
existence and that would have to be
created specifically to respond to a
request. Information available in
electronic form shall be searched and
compiled in response to a request unless
such search and compilation would
significantly interfere with the operation
of the Agency’s automated information
systems.
§ 212.3 Records available on the Agency’s
website.
Information that is required to be
published in the Federal Register under
5 U.S.C. 552(a)(1) is regularly updated
by the Agency and found on its public
website: https://www.usaid.gov/foia-
requests, or for records of the Office of
the USAID Inspector General (OIG), on
the FOIA page of OIG’s public website:
https://oig.usaid.gov/FOIA. Records
required by FOIA to be made available
for public inspection in an electronic
format under 5 U.S.C. 552(a)(2) are
available on the Agency’s and OIG’s
public websites.
Subpart B—Proactive Disclosures of
Agency Records
§ 212.4 Materials available for public
inspection and copying.
In accordance with this subpart, the
Agency shall make the following
materials available for public inspection
in an electronic format:
(a) Operational policy in USAID’s
Automated Directives System (ADS)
which have been adopted by the Agency
and are not published in the Federal
Register;
(b) Administrative staff manuals and
instructions to staff that affect any
member of the public; and
(c) Copies of all records, regardless of
form or format, which have been
released pursuant to a FOIA request,
and which have been requested three (3)
or more times, or because of the nature
of their subject matter, have become or
are likely to become the subject of
subsequent requests for substantially the
same records. The Agency shall decide
on a case by case basis whether records
fall into this category, based on the
following factors:
(1) Previous experience with similar
records;
(2) The particular characteristics of
the records involved, including their
nature and the type of information
contained in them; and
(3) The identity and number of
requesters and whether there is
widespread media, historical, academic,
or commercial interest in the records.
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30560
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
Subpart C—Requirements for Making
Requests
§ 212.5 How to make a request for records.
(a) General information. USAID has a
de-centralized system for responding to
FOIA requests for all USAID records.
The USAID FOIA operations are broken
down into two component FOIA
Offices: The Bureau for Management,
Office of Management Services,
Information and Records Division (M/
MS/IRD) and the Office of the USAID
Inspector General (OIG).
(b) The Bureau for Management,
Office of Management Services,
Information and Records Division (M/
MS/IRD) is the central processing point
for requests for USAID records
contained in Washington, DC and its
overseas missions. All FOIA requests for
USAID records (other than OIG records)
must be submitted to this office. To
make a request for the Agency’s records,
a requester may send request via one of
the following mediums:
(1) By Email: foia@usaid.gov. Please
include your mailing address, email
address, phone number, and fee
category with your request. While our
FOIA Specialists are happy to answer
questions about the FOIA Program and/
or help you formulate your request over
the phone, please be advised that FOIA
requests cannot be accepted by phone.
(2) Online Portal: To submit your
request online, please click the
subsequent link: https://
foiarequest.usaid.gov/index.aspx.
(3) By U.S. Postal Mail: United States
Agency for International Development
Bureau for Management, Office of
Management Services Services,
Information and Records Division,
USAID Annex, Room 2.4.0A,
Washington, DC 20523, (202) 916–4661.
(4) By Fax: (202) 916–4990.
(c) OIG records. The Inspector General
has received delegated authority from
USAID’s Administrator to process
requests and issue determinations with
respect to requests, and appeals of
initial denials of requests, for the OIG’s
records. To make a request for OIG
records, a requester may send a request
via one of the following mediums:
(1) By email: foiaoig@usaid.gov.
Please include your mailing address,
email address, phone number, and fee
category with your request.
(2) Online Portal: Please submit a
request online via the OIG website at
https://oig.usaid.gov/FOIA.
(3) By U.S. Postal Mail: United States
Agency of International Development,
Office of Inspector General, Office of
General Counsel, 1300 Pennsylvania
Avenue NW, Suite 6.06–D, Washington,
DC 20523, (202) 712–1150.
(d) Third party requests. Where a
request for records pertains to a third
party, a requester may receive greater
access by submitting either a notarized
consent form signed by the person who
is the subject of the records, or a signed
declaration by that person, made under
penalty of perjury pursuant to 28 U.S.C.
1746, authorizing disclosure of the
records to the requester, or by
submitting proof that the individual is
deceased (e.g., a copy of a death
certificate or an obituary). In addition,
requesters may present an argument that
there exists an overriding public interest
in disclosure of the information related
to official misconduct by producing
evidence that alleged Government
impropriety occurred. As an exercise of
administrative discretion, the
component’s FOIA office can require a
requester to supply additional
information if necessary in order to
verify that a particular individual has
consented to disclosure.
(e) Description of records sought.
Requesters must describe the records
sought in sufficient detail to enable the
component’s FOIA office personnel to
locate them with a reasonable amount of
effort. To the extent possible, requesters
should include specific information that
may assist in identifying the requested
records, such as the date, title or name,
author, recipient, subject matter of the
record, case number, file designation, or
reference number. In general, requesters
should include as much detail as
possible about the specific records or
the types of records that they are
seeking. Before submitting their
requests, requesters may contact the
component FOIA office’s FOIA contact
or FOIA Public Liaison to discuss the
records they are seeking and to receive
assistance in describing the records. If,
after receiving a request, the
component’s FOIA office determines
that it does not reasonably describe the
records sought, the component’s FOIA
office shall inform the requester what
additional information is needed or why
the request is otherwise insufficient.
Requesters who are attempting to
reformulate or modify such a request
may discuss their request with the
component FOIA office’s designated
FOIA Specialist or its FOIA Public
Liaison, each of whom is available to
assist the requester in reasonably
describing the records sought. If a
request does not reasonably describe the
records sought, the component FOIA
office’s response to the request may be
delayed or denied.
Subpart D—Responsibility for
Responding to Requests
§ 212.6 Designation of authorized officials.
(a) The Assistant Administrator for
the Bureau for Management (M) serves
as the USAID Chief FOIA Officer. The
Chief FOIA Officer has overall
responsibility for USAID compliance
with the FOIA. The Chief FOIA Officer
provides high level oversight and
support to USAID’s FOIA programs, and
recommends adjustments to agency
practices, personnel, and funding as
may be necessary to improve FOIA
administration, including through an
annual Chief FOIA Officers Report
submitted to the U.S. Department of
Justice. The Chief FOIA Officer is
responsible for offering training to
agency staff regarding their FOIA
responsibilities; serves as the primary
liaison with the Office of Government
Information Services and the Office of
Information Policy; and reviews, not
less frequently than annually, all
aspects of the Agency’s administration
of the FOIA to ensure compliance with
the FOIA’s requirements.
(b) The Bureau for Management,
Office of Management Services,
Information and Records Division (M/
MS/IRD) is the component FOIA office
that receives, tracks, and processes all of
USAID’s FOIA requests, other than
requests for OIG records, to ensure
transparency within the Agency.
(c) The Deputy Director, Bureau for
Management, Office of Management
Services (M/MS/OD) serves as the
USAID FOIA Appeals Officer for
requests for all USAID records other
than OIG records. The FOIA Appeals
Officer is responsible for receiving and
acting upon appeals from requesters
whose initial FOIA requests for USAID
records (other than OIG records) have
been denied, in whole or in part.
(d) The Deputy Inspector General
serves as the USAID OIG FOIA Appeals
Officer for appeals of requests for OIG
records.
(e) The Chief, Bureau for
Management, Office of Management
Services, Information and Records
Division (M/MS/IRD) serves as USAID’s
FOIA Officer and USAID’s FOIA Public
Liaison. The FOIA Officer is responsible
for program direction, original denials,
and policy decisions required for
effective implementation of USAID’s
FOIA program. The FOIA Public Liaison
serves as a supervisory official to whom
a FOIA requester can raise concerns
about the services received, following
an initial response from the FOIA staff.
In addition, the FOIA Public Liaison
assists, as appropriate, in reducing
delays, increasing transparency and
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30561
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
understanding of the status of requests,
and resolving disputes.
(f) The General Counsel to the
Inspector General serves as the OIG’s
FOIA Officer and FOIA Public Liaison.
(g) The Supervisory FOIA Team Lead
is the Principal Operations Officer
within the component’s FOIA office for
the processing of FOIA requests and
release determinations.
(h) The FOIA Specialist also known as
the Government Information Specialist
(GIS) is responsible for processing
requests and preparing records for
release when such releases are
authorized by the FOIA. They do not
have the authority to make denials,
including ‘‘no records’’ responses.
(i) The General Counsel (GC), FOIA
Backstop Attorney Advisor has
responsibility for providing legal advice
on all USAID matters regarding or
resulting from the FOIA (other than OIG
matters). Upon request, GC advises M/
MS/IRD on release and denial decisions,
and apprises the FOIA Office of all
significant developments with respect to
the FOIA.
(j) OIG attorneys have responsibility
for providing legal advice on all
requests and appeals related to OIG
records.
(k) Each Attorney Advisor designated
to provide legal advice to USAID
Bureaus/Independent Offices (B/IOs) is
responsible for providing, at M/MS/
IRD’s request, legal advice on FOIA
requests assigned to those B/IOs.
(l) The designated FOIA Liaison
Officer (FLO) in each USAID Bureau
and Office is responsible for tasking and
facilitating the collection of responsive
records and monitoring the production
of records to M/MS/IRD.
§ 212.7 Processing of request.
(a) In general. In determining which
records are responsive to a request, the
component’s FOIA office ordinarily will
include only records in its possession as
of the date that it begins its search. If
any other date is used, the component’s
FOIA office shall inform the requester of
that date.
(b) Authority to grant or deny
requests. The FOIA Officer is authorized
to grant or to deny any requests for
records that are maintained by the
Agency (other than OIG records). The
OIG FOIA Officer is authorized to grant
or to deny any requests for records
maintained by OIG.
(c) Consultation, referral, and
coordination. When reviewing records
located by the Agency in response to a
request, the component’s FOIA office
shall determine whether another agency
of the Federal Government is better able
to determine whether the record is
exempt from disclosure under the FOIA.
All consultations and referrals received
by the Agency will be handled
according to the date that the first
agency received the perfected FOIA
request. As to any such record, the
component’s FOIA office shall proceed
in one of the following ways:
(1) Consultation. When records
originated with USAID, but contain
within them information of substantial
interest to another agency, or other
Federal Government office, the
component’s FOIA office should consult
with that other agency prior to making
a release determination.
(2) Referral. (i) When a component’s
FOIA office believes that a different
Department, agency, or component, is
best able to determine whether to
disclose the record, the component’s
FOIA office will refer the responsibility
for responding to the request regarding
that record, as long as the referral is to
an agency that is subject to the FOIA.
Ordinarily, the agency that originated
the record will be presumed to be best
able to make the disclosure
determination. However, if the
component’s FOIA office and the
originating agency jointly agree that the
former is in the best position to respond
regarding the record, then the record
may be handled as a consultation.
(ii) Whenever the component’s FOIA
office refers any part of the
responsibility for responding to a
request to another agency, it shall
document the referral, maintain a copy
of the record that it refers, and notify the
requester of the referral and inform the
requester of the name(s) of the agency to
which the record was referred,
including that agency’s FOIA contact
information.
(iii) Re-routing of misdirected
requests. Where a component’s FOIA
office determines that a request was
misdirected within the agency, the
receiving component’s FOIA office must
route the request to the FOIA office of
the proper component within the
agency.
(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
such instances, in order to avoid harm
to an interest protected by an applicable
exemption, the component’s FOIA office
will coordinate with the originating
agency to seek its views on the
disclosability of the record. The release
determination for the record that is the
subject of the coordination will then be
conveyed to the requester by the
component’s FOIA office.
(d) Classified information. On receipt
of any request involving classified
information, the component’s FOIA
office 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, the
component’s FOIA office must 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 USAID’s
record contains information that has
been derivatively classified (for
example, when it contains information
classified by another agency), the
component’s FOIA office must refer the
responsibility for responding to that
portion of the request to the agency that
classified the underlying information.
(e) Furnishing records. The
component’s FOIA office shall furnish
copies only of records that the Agency
has in its possession. The Agency is not
compelled to create new records. The
Agency is not required to perform
research for a requester. The
component’s FOIA office is required to
furnish only one copy of a record. If
information exists in different forms, the
component’s FOIA office will provide
the record in the form that best
conserves government resources.
Requests may specify the preferred form
or format (including electronic formats)
for the records sought by the requester.
The component’s FOIA office will
accommodate the form or format request
if the record is readily reproducible in
that form or format.
(f) Archival records. The Agency
ordinarily transfers records in
accordance with its retirement
authority, included in ADS 502, to the
National Archives and Records
Administration. These records become
the physical and legal custody of the
National Archives. Accordingly,
requests for retired Agency records
should be submitted to the National
Archives by mail addressed to Special
Access and FOIA Staff (NWCTF), 8601
Adelphi Road, Room 5500, College Park,
MD 20740 by fax to (301) 837–1864; or
by email to specialaccess_foia@
nara.gov.
(g) Poor copy. If USAID cannot make
a legible copy of a record to be released,
the Agency is not required to
reconstruct it. Instead, the component’s
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30562
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
FOIA office will furnish the best copy
possible and note its poor quality in the
component’s FOIA office reply.
Subpart E—Timing of Responses to
Requests
§ 212.8 Time limits.
(a) In general. The component’s FOIA
office ordinarily will respond to
requests according to their order of
receipt.
(b) Multitrack processing. (1) The
component’s FOIA office shall designate
a specific track for requests that are
granted expedited processing, in
accordance with the standards set forth
in paragraph (e) of this section. The
component’s FOIA office may designate
additional processing tracks that
distinguish between simple and more
complex requests based on the
estimated amount of work or time
needed to process the request. Among
the factors the component’s FOIA office
may consider are, the number of pages
involved in processing the request and
the need for consultations or referrals.
The component’s FOIA office shall
advise requesters of the track into which
their request falls and, when
appropriate, shall offer the requesters an
opportunity to narrow their request so
that it can be placed in a different
processing track.
(2) The component’s FOIA office shall
generally process requests in each track
on a ‘‘first-in, first-out’’ basis.
(c) Unusual circumstances. Whenever
the statutory time limit for processing a
request cannot be met because of
‘‘unusual circumstances,’’ as defined in
the FOIA, and the component’s FOIA
office extends the time limit on that
basis, the component’s FOIA office
shall, before expiration of the 20-day
period to respond, notify the requester
in writing of the unusual circumstances
involved and of the date by which
processing of the request can be
expected to be completed. Where the
extension exceeds 10 working days, the
component’s FOIA office shall, in the
written notice, notify the requester of
the right to contact the component’s
FOIA office’s FOIA Public Liaison, or
seek dispute resolution services from
the Office of Government Information
Services (OGIS). In addition, the
component’s FOIA office shall, as
described by the FOIA, provide the
requester with an opportunity to modify
the request or arrange an alternative
time period for processing.
(d) Aggregating requests. For the
purposes of satisfying unusual
circumstances under the FOIA, the
component’s FOIA office may aggregate
requests in cases where it reasonably
appears that multiple requests,
submitted either by a requester or by a
group of requesters acting in concert,
constitute a single request that would
otherwise involve unusual
circumstances. The component’s FOIA
office shall not aggregate multiple
requests that involve unrelated matters.
(e) Expedited processing. (1) Requests
and appeals shall be processed on an
expedited basis whenever it is
determined that they involve:
(i) Circumstances in which the lack of
expedited processing could reasonably
be expected to pose an imminent threat
to the life or physical safety of an
individual;
(ii) An urgency to inform the public
about an actual or alleged Federal
Government activity, if made by a
person who is primarily engaged in
disseminating information;
(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 that affect public
confidence.
(2) A requester who seeks expedited
processing must submit a statement,
certified to be true and correct,
explaining in detail the basis for making
the request for expedited processing.
For example, under paragraph (e)(1)(ii)
of this section, a requester who is not a
full-time member of the news media
must establish that the requester is a
person whose primary activity or
occupation is information
dissemination, though it need not be the
requester’s sole occupation. Such a
requester also must establish a
particular urgency to inform the public
about the government activity involved
in the request—one that extends 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. As a matter of
administrative discretion, the
component’s FOIA office may waive the
formal certification requirement.
(3) The component’s FOIA office shall
notify the requester within 10 calendar
days of the receipt of a request for
expedited processing of its decision
whether to grant or deny expedited
processing. If expedited processing is
granted, the request shall be given
priority, placed in the processing track
for expedited requests, and shall be
processed as soon as practicable. If a
request for expedited processing is
denied, any appeal of that decision shall
be acted on expeditiously.
Subpart F—Responses to Requests
§ 212.9 Responsibility for responding to
requests.
(a) In general. The component’s FOIA
office should, to the extent practicable,
communicate with requesters having
access to the internet using electronic
means, such as email or web portal.
(b) Acknowledgments of requests. The
component’s FOIA office shall
acknowledge the request and assign it
an individualized tracking number. The
component’s FOIA office shall include
in the acknowledgment a brief
description of the records sought to
allow requesters to more easily keep
track of their requests.
(c) Grants of requests. Once the
component’s FOIA office makes a
determination to grant a request in full
or in part, it shall notify the requester
in writing. The component’s FOIA office
also shall inform the requester of any
fees charged and shall disclose the
requested records to the requester
promptly upon payment of any
applicable fees.
(d) Consultations and referrals.
Whenever the component’s FOIA office
consults with another Federal
Government office over the releasability
of a record, the component’s FOIA office
shall notify the requester of the
consultation and inform the requester of
the name(s) of the agency or office with
which the consultation is taking place.
Whenever the component’s FOIA office
refers any part of the responsibility for
responding to a request to another
Federal Government office, the
component’s FOIA office shall
document the referral, maintain a copy
of the record that it refers, notify the
requester of the referral, and inform the
requester of the name(s) of the agency to
which the record was referred,
including that agency’s FOIA contact
information.
(e) Adverse determinations of
requests. If the component’s FOIA office
has made an adverse determination
denying a request in any respect, the
component’s FOIA office shall notify
the requester of that determination in
writing, and provide the contact
information for the FOIA Public Liaison,
as well as a description of the
requester’s right to seek mediation
services from the Office of Government
Information Services (OGIS). 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
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30563
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
destroyed; or the requested record is not
readily reproducible in the form or
format sought by the requester. A
response will provide an estimate of the
volume of any records or any
information withheld. Adverse
determinations also include denials
involving fees or fee waiver matters or
denials of requests for expedited
processing.
(f) Information furnished. All denials
are in writing and describe in general
terms the material withheld; state the
reasons for the denial, including, as
applicable, a reference to the specific
exemption of the FOIA authorizing the
withholding; explain your right to
appeal the decision and identify the
official to whom you should send the
appeal; and are signed by the person
who made the decision to deny all or
part of the request. Records disclosed in
part must be marked clearly to show the
amount of information deleted and the
exemption under which the deletion
was made unless doing so would harm
an interest protected by an applicable
exemption. The location of the
information deleted must also be
indicated on the record, if technically
feasible.
(g) Conducting searches. USAID
performs a diligent search for records to
satisfy your request. Nevertheless, the
Agency may not be able to find the
records requested using the information
provided, or the records may not exist.
Subpart G—Confidential Commercial
Information
§ 212.10 Policy and procedure.
(a) Definitions. (1) Confidential
commercial information means
commercial or financial information
obtained by the Agency from a
submitter that may be protected from
disclosure under Exemption 4 of the
FOIA, 5 U.S.C. 552(b)(4).
(2) Business submitter means any
person or entity, including a
corporation, State, or foreign
government, but not including another
Federal Government entity, that
provides 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, either at the
time of submission or within a
reasonable time thereafter, any portion
of its submission that it considers to be
protected from disclosure under
Exemption 4. These designations shall
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 business submitters
is required. (1) The component’s FOIA
office shall promptly provide written
notice to a business submitter of
confidential commercial information
whenever records containing such
information are requested under the
FOIA if, after reviewing the request, the
responsive records, and any appeal by
the requester, the component’s FOIA
office determines that it may be required
to disclose the records, provided:
(i) The requested information has
been designated in good faith by the
business submitter as information
considered protected from disclosure
under Exemption 4; or
(ii) The component’s FOIA office 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
under that exemption or any other
applicable exemption.
(2) The notice shall 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,
notice may be made by posting or
publishing the notice in a place or
manner reasonably likely to accomplish
it.
(d) Exceptions to business submitter
notice requirements. The notice
requirements of this section shall not
apply if:
(1) The component’s FOIA office
determines that the information is
exempt under the FOIA;
(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
business submitter appears obviously
frivolous, except that, in such a case, the
component’s FOIA office shall give the
business submitter written notice of any
final decision to disclose the
information and must provide that
notice within a reasonable number of
days prior to a specified disclosure date.
(e) Opportunity to object to disclosure.
(1) The component’s FOIA office shall
specify a reasonable time period within
which the business submitter must
respond to the notice referenced in this
section. If a business submitter has any
objections to disclosure, the business
submitter should provide the
component’s FOIA office with 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 basis for nondisclosure, the business
submitter must explain why the
information constitutes a trade secret or
commercial or financial information
that is privileged or confidential.
(2) A business submitter who fails to
respond within the time period
specified in the notice shall be
considered to have no objection to
disclosure of the information.
Information received by the
component’s FOIA office after the date
of any disclosure decision shall not be
considered by the component’s FOIA
office. Any information provided by a
business submitter under this subpart
may itself be subject to disclosure under
the FOIA.
(f) Analysis of objections. The
component’s FOIA office shall consider
a business submitter’s objections and
specific grounds for nondisclosure in
deciding whether to disclose the
requested information.
(g) Notice of intent to disclose.
Whenever the component’s FOIA office
decides to disclose information over the
objection of a business submitter, the
component’s FOIA office shall provide
the business submitter written notice,
which shall include:
(1) A statement of the reasons why
each of the business submitter’s
disclosure objections was not sustained;
(2) A description of the information to
be disclosed; and
(3) A specified disclosure date, which
shall be a reasonable time subsequent to
the notice.
(h) Notice of FOIA lawsuit. Whenever
a requester files a lawsuit seeking to
compel the disclosure of confidential
commercial information, the
component’s FOIA office shall promptly
notify the business submitter.
(i) Requester notification. The
component’s FOIA office shall 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.
Subpart H—Administrative Appeals
§ 212.11 Appeal procedures.
The component’s FOIA office must
inform the requester of the reasons for
the denial and the requester’s right to
appeal the denial to the FOIA Appeals
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30564
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
Officer whenever a FOIA request is
denied.
(a) What a requester can appeal. A
requester may appeal the withholding of
a document or denial of a fee waiver
request. A requester may contest the
type or amount of fees that were
charged, or may appeal any other type
of adverse determination under the
FOIA. A requester may also appeal
because USAID failed to conduct an
adequate search for the documents
requested. However, a requester may not
file an administrative appeal for the lack
of a timely response. A requester may
administratively appeal any portion
denied when their request is granted in
part and denied in part.
(b) Requirements for making an
appeal. A requester may appeal any
adverse determinations to the
component’s FOIA office. The requester
must make the appeal in writing. To be
considered timely, the appeal must be
postmarked, or in the case of electronic
submissions, transmitted, within 90
calendar days after the date of the
response. The appeal should clearly
identify the component FOIA office’s
determination that is being appealed
and the assigned request number. To
facilitate handling, the requester should
mark both the appeal letter and
envelope, or subject line of the
electronic transmission, ‘‘Freedom of
Information Act Appeal.’’
(c) Adjudication of appeals. (1) The
Deputy Director of the Bureau for
Management Services or designee will
conduct de novo review and make the
final determination on the appeals
related to all Agency records other than
OIG records. The Deputy Inspector
General will conduct de novo review
and make the final determination on the
appeals relating to OIG records.
(2) An appeal ordinarily will not be
adjudicated if the request becomes a
matter of FOIA litigation.
(d) Decisions on appeals. A decision
on an appeal must be made in writing.
A decision that upholds the component
FOIA office’s determination will contain
a statement that identifies the reasons
for the affirmance, including any FOIA
exemptions applied. The decision will
provide the requester with notification
of the statutory right to file a lawsuit
and will inform the requester of the
mediation services offered by the Office
of Government Information Services of
the National Archives and Records
Administration (OGIS) as a non-
exclusive alternative to litigation.
Mediation is a voluntary process. If the
component’s FOIA office agrees to
participate in the mediation services
provided by OGIS, it will actively
engage as a partner to the process in an
attempt to resolve the dispute. If the
component FOIA office’s decision is
remanded or modified on appeal, the
requester will be notified of that
determination in writing. The
component’s FOIA office will thereafter
further process the request in
accordance with that appeal
determination and respond directly to
the requester.
(e) When appeal is required. Before
seeking review by a court of the
component FOIA office’s adverse
determination, a requester generally
must first submit a timely
administrative appeal.
(f) Where to file an appeal. An appeal
(other than appeals related to OIG
records) may be filed by sending a letter
to: FOIA Appeals Officer, Bureau for
Management, Deputy Director, Office of
Management Services, U.S. Agency for
International Development, USAID
Annex, M/MS, Room 10.8 OD,
Washington, DC 20523; or by email at
foia@usaid.gov. An appeal relating to
OIG records may be filed by sending a
letter to: Deputy Inspector General,
Office of Inspector General, U.S. Agency
for International Development, Suite
6.06–D, RRB, 1300 Pennsylvania
Avenue NW, Washington, DC 20523–
4601; or by email at foiaoig@usaid.gov.
There is no charge for filing an
administrative appeal.
§ 212.12 Mediation and dispute services.
The Office of Government Information
Services of the National Archives and
Records Administration (OGIS) is a
Freedom of Information Act (FOIA)
resource for the public and the
government. Congress has charged OGIS
with reviewing FOIA policies,
procedures and compliance of Federal
agencies and to recommend changes to
the FOIA. OGIS’ mission also includes
providing dispute resolution services
between Federal agencies and
requesters. OGIS works as a non-
exclusive alternative to litigation. When
the component’s FOIA office makes a
determination on a request, the
component’s FOIA office shall offer the
services of the FOIA Public Liaison, and
will notify requesters of the mediation
services provided by OGIS. Specifically,
the component’s FOIA office will
include in the component’s FOIA
office’s notification to the requester:
(a) The right of the requester to seek
assistance from the FOIA Public Liaison
of the component’s FOIA office, and in
the case of an adverse determination;
(b) The right of the requester to seek
dispute resolution services from the
FOIA Public Liaison of the component’s
FOIA office or the Office of Government
Information Services.
Subpart I—Preservation of Records
§ 212.13 Policy and procedures.
The component’s FOIA office shall
preserve all correspondence relating to
the requests it receives under this
subpart, and all records processed
pursuant to such requests, until such
time as the destruction of such
correspondence and records is
authorized pursuant to Title 44 of the
United States Code or the General
Records Schedule 4.2 of the National
Archives and Records Administration
(NARA). Under no circumstances shall
records be sent to a Federal Records
Center, transferred to the permanent
custody of NARA, or destroyed while
they are the subject of a pending
request, appeal, or civil action under the
FOIA.
Subpart J—Fees
§ 212.14 Fees to be charged—general.
(a) In general. The component’s FOIA
office shall charge for processing
requests under the FOIA in accordance
with the provisions of this section and
with the Office of Management and
Budget (OMB) Guidelines. In order to
resolve any fee issues that arise under
this section, the component’s FOIA
office may contact a requester for
additional information. The
component’s FOIA office shall ensure
that search, review, and duplication are
conducted in the most efficient and the
least expensive manner. The
component’s FOIA office ordinarily will
collect all applicable fees before sending
copies of records to a requester.
Requesters must pay fees by check or
money order made payable to the
Treasury of the United States.
(b) Definitions. For purposes of this
section:
(1) 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. The
component FOIA office’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.
(2) Direct costs are those expenses that
the Agency incurs in searching for and
duplicating (and, in the case of
commercial use requests, reviewing)
records in order to respond to a FOIA
request. Direct costs do not include
overhead expenses such as the costs of
space, and of heating or lighting a
facility.
(3) Duplication is reproducing a copy
of a record, or of the information
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30565
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
contained in it, necessary to respond to
a FOIA request. Copies can take the
form of paper, audiovisual materials, or
electronic records, among others.
(4) 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.
Agencies may seek verification from the
requester that the request is in
furtherance of scholarly research.
(5) Fee waiver is a 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.
(6) Noncommercial scientific
institution is an institution that is not
operated on a ‘‘commercial’’ basis, as
defined in paragraph (b)(1) of this
section and that is operated solely for
the purpose of conducting scientific
research the results of which are not
intended to promote any particular
product or industry. A requester in this
category must show that the request is
authorized by and is made under the
auspices of a qualifying institution and
that the records are sought to further
scientific research and are not for a
commercial use.
(7) Representative of the news media
is any person or entity that gathers
information of potential interest to a
segment of the public, uses its editorial
skills to turn the raw materials into a
distinct work, and distributes that work
to an audience. The term ‘‘news’’ means
information that is about current events
or that would be of current interest to
the public. Examples of news media
entities include television or radio
stations that broadcast ‘‘news’’ to the
public at large and publishers of
periodicals that disseminate ‘‘news’’
and make their products available
through a variety of means to the
general public, including news
organizations that disseminate solely on
the internet. A request for records
supporting the news-dissemination
function of the requester shall not be
considered to be for a commercial use.
‘‘Freelance’’ journalists who
demonstrate a solid basis for expecting
publication through a news media entity
shall be considered as a representative
of the news media. A publishing
contract would provide the clearest
evidence that publication is expected;
however, components shall also
consider a requester’s past publication
record in making this determination.
(8) Requester category is one of the
three categories that agencies place
requesters in for the purpose of
determining whether a requester will be
charged fees for search, review, and
duplication. The three categories are:
Commercial requesters; non-commercial
scientific or educational institutions or
news media requesters; and all other
requesters.
(9) Review is the examination of a
record located in response to a request
in order to determine whether any
portion of it is exempt from disclosure.
Review time includes processing any
record for disclosure, such as doing all
that is necessary to prepare the record
for disclosure, including the process of
redacting the record and marking the
appropriate exemptions. Review costs
are properly charged even if a record
ultimately is not disclosed. Review time
also includes time spent both obtaining
and considering any formal objection to
disclosure made by a confidential
commercial information submitter, but
it does not include time spent resolving
general legal or policy issues regarding
the application of exemptions.
(10) Search is the process of looking
for and retrieving records or information
responsive to a request. Search time
includes page-by-page or line-by-line
identification of information within
records and the reasonable efforts
expended to locate and retrieve
information from electronic records.
(c) Charging fees. In responding to
FOIA requests, the component’s FOIA
office shall charge the following fees
unless a waiver or reduction of fees has
been granted under paragraph (k) of this
section.
(1) Search. Requests made by
educational institutions, noncommercial
scientific institutions, or representatives
of the news media are not subject to
search fees. Search fees shall be charged
for all other requesters, subject to the
restrictions of paragraph (d) of this
section. The component’s FOIA office
may properly charge for time spent
searching even if they do not locate any
responsive records or if they determine
that the records are entirely exempt
from disclosure.
(2) Duplication. Duplication fees shall
be charged to all requesters, subject to
the restrictions of paragraph (d) of this
section. The component’s FOIA office
shall honor a requester’s preference for
receiving a record in a particular form
or format where it is readily
reproducible by the component’s FOIA
office in the form or format requested.
Where photocopies are supplied, the
component’s FOIA office shall provide
one copy per request at a cost of ten
cents per page. For copies of records
produced on tapes, disks, or other
media, the direct costs of producing the
copy, including operator time shall be
charged. Where paper documents must
be scanned in order to comply with a
requester’s preference to receive the
records in an electronic format, the
requester shall pay the direct costs
associated with scanning those
materials. For other forms of
duplication, the component’s FOIA
office shall charge the direct costs.
(3) Review. Review fees shall be
charged to requesters who make
commercial use requests. Review fees
shall be assessed in connection with the
initial review of the record, i.e., the
review conducted by the component’s
FOIA office to determine whether an
exemption applies to a particular record
or portion of a record. No charge will be
made for review at the administrative
appeal stage of exemptions applied at
the initial review stage. However, if a
particular exemption is deemed to no
longer apply, any costs associated with
the component’s FOIA office re-review
of the records in order to consider the
use of other exemptions may be
assessed as review fees.
(d) Restrictions on charging fees. (1)
No search fees will be charged for
requests by educational institutions,
noncommercial scientific institutions,
or representatives of the news media,
unless the records are sought for
commercial use.
(2) When the component’s FOIA
office determines that unusual
circumstances apply to the processing of
a request, and the component’s FOIA
office has provided timely written
notice to the requester, the delay is
excused for an additional 10 days. If the
component’s FOIA office fails to comply
with the extended time limit, it may not
charge search fees (or for requesters
with preferred fee status, may not
charge duplication fees) except as
provided in (d)(2)(i) and (ii) of this
section.
(i) Exception: If unusual
circumstances apply and more than
5000 pages are necessary to respond to
the request, the component’s FOIA
office may charge search fees (or, for
requesters in preferred fee status, may
charge duplication fees) if timely
written notice has been made to the
requester and the component’s FOIA
office has discussed with the requester
via written mail, electronic mail, or
telephone (or made not less than 3 good-
faith attempts to do so) how the
requester could effectively limit the
scope of the request.
(ii) Court Determination that
exceptional circumstances exist: If a
court determines that exceptional
circumstances exist, the component’s
FOIA office’s failure to comply with a
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30566
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
time limit shall be excused for the
length of time provided by the court
order.
(3) If the component’s FOIA office
fails to comply with the time limits in
which to respond to a request, and if no
unusual or exceptional circumstances,
as those terms are defined by the FOIA,
apply to the processing of the request,
it may not charge search fees, or, in the
instances of requests from requesters
described in paragraph (d)(1) of this
section, may not charge duplication
fees.
(4) 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.
(5) Except for requesters seeking
records for a commercial use, the
component’s FOIA office shall provide
without charge:
(i) The first 100 pages of duplication
(or the cost equivalent for other media);
and
(ii) The first two hours of search.
(6) 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.
(e) Notice of anticipated fees in excess
of $25.00. (1) When the component’s
FOIA office determines or estimates that
the fees to be assessed in accordance
with this section will exceed $25.00, the
component’s FOIA office shall notify
the requester of the actual or estimated
amount of the fees, including a
breakdown of the fees for search, review
or duplication, unless the requester has
indicated a willingness to pay fees as
high as those anticipated. If only a
portion of the fee can be estimated
readily, the component’s FOIA office
shall advise the requester accordingly. If
the requester is a noncommercial use
requester, the notice shall specify that
the requester is entitled to the statutory
entitlements of 100 pages of duplication
at no charge and, if the requester is
charged search fees, two hours of search
time at no charge, and shall advise the
requester whether those entitlements
have been provided.
(2) In cases in which a requester has
been notified that the actual or
estimated fees are in excess of $25.00,
the request shall not be considered
received and further work will not be
completed until the requester commits
in writing to pay the actual or estimated
total fee, or designates some amount of
fees the requester is willing to pay, or
in the case of a noncommercial use
requester who has not yet been provided
with the requester’s statutory
entitlements, designates that the
requester seeks only that which can be
provided by the statutory entitlements.
The requester must provide the
commitment or designation in writing,
and must, when applicable, designate
an exact dollar amount the requester is
willing to pay. The component’s FOIA
office is not required to accept payments
in installments.
(3) If the requester has indicated a
willingness to pay some designated
amount of fees, but the component’s
FOIA office estimates that the total fee
will exceed that amount, the
component’s FOIA office shall toll the
processing of the request when it
notifies the requester of the estimated
fees in excess of the amount the
requester has indicated a willingness to
pay. The component’s FOIA office shall
inquire whether the requester wishes to
revise the amount of fees the requester
is willing to pay or modify the request.
Once the requester responds, the time to
respond will resume from where it was
at the date of the notification.
(4) The component’s FOIA office shall
make available their FOIA Public
Liaison or other FOIA Specialists to
assist any requester in reformulating a
request to meet the requester’s needs at
a lower cost.
(f) Charges for other services.
Although not required to provide
special services, if the component’s
FOIA office chooses to do so as a matter
of administrative discretion, the direct
costs of providing the service shall be
charged. Examples of such services
include certifying that records are true
copies, providing multiple copies of the
same document, or sending records by
means other than first class mail.
(g) Charging interest. The
component’s FOIA office may charge
interest on any unpaid bill starting on
the 31st day following the date of billing
the requester. Interest charges shall be
assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the
billing date until payment is received by
the component’s FOIA office. The
component’s FOIA office shall follow
the provisions of the Debt Collection
Act of 1982 (Pub. L. 97–365, 96 Stat.
1749), as amended, and its
administrative procedures, including
the use of consumer reporting agencies,
collection agencies, and offset.
(h) Aggregating requests. When the
component’s FOIA office reasonably
believes that a requester or a group of
requesters acting in concert is
attempting to divide a single request
into a series of requests for the purpose
of avoiding fees, the component’s FOIA
office may aggregate those requests and
charge accordingly. The component’s
FOIA office 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, the component’s FOIA
office 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
shall not be aggregated.
(i) Advance payments. (1) For
requests other than those described in
paragraphs (i)(2) or (3) of this section,
the component’s FOIA office shall not
require the requester to make an
advance payment before work is
commenced or continued on a request.
Payment owed for work already
completed (i.e., payment before copies
are sent to a requester) is not an advance
payment.
(2) When the component’s FOIA
office determines or estimates that a
total fee to be charged under this section
will exceed $250.00, it may require that
the requester make an advance payment
up to the amount of the entire
anticipated fee before beginning to
process the request. The component’s
FOIA office may elect to process the
request prior to collecting fees when it
receives a satisfactory assurance of full
payment from a requester with a history
of prompt payment.
(3) Where a requester has previously
failed to pay a properly charged FOIA
fee to the component’s FOIA office
within 30 calendar days of the billing
date, the component’s FOIA office may
require that the requester pay the full
amount due, plus any applicable
interest on that prior request, and the
component’s FOIA office may require
that the requester make an advance
payment of the full amount of any
anticipated fee before the component’s
FOIA office begins to process a new
request or continues to process a
pending request or any pending appeal.
If the component’s FOIA office has a
reasonable basis to believe that a
requester has misrepresented the
requester’s identity in order to avoid
paying outstanding fees, it may require
that the requester provide proof of
identity.
(4) In cases in which the component’s
FOIA office requires advance payment,
the request shall not be considered
received and further work will not be
completed until the required payment is
received. If the requester does not pay
the advance payment within 30
calendar days after the date of the
component FOIA office’s fee
determination, the request will be
closed.
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30567
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
(j) Other statutes specifically
providing for fees. The fee schedule of
this section does not apply to fees
charged under any statute that
specifically requires an agency to set
and collect fees for particular types of
records. In instances where records
responsive to a request are subject to a
statutorily-based fee schedule program,
the component’s FOIA office shall
inform the requester of the contact
information for that program.
(k) Requirements for waiver or
reduction of fees. (1) Records responsive
to a request shall be furnished without
charge or at a reduced rate below the
rate established under paragraph (c) of
this section, where the component’s
FOIA office determines, based on all
available information, that the requester
has demonstrated that:
(i) 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
(ii) Disclosure of the information is
not primarily in the commercial interest
of the requester.
(2) In deciding whether disclosure of
the requested information is in the
public interest because it is likely to
contribute significantly to public
understanding of operations or activities
of the government, the component’s
FOIA office shall consider all four of the
following factors:
(i) 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.
(ii) Disclosure of the requested
records must be meaningfully
informative about government
operations or activities in order to be
‘‘likely to contribute’’ to an increased
public understanding of those
operations or activities. The disclosure
of information that already is in the
public domain, in either the same or a
substantially identical form, would not
contribute to such understanding where
nothing new would be added to the
public’s understanding.
(iii) 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 shall be
considered. It shall be presumed that a
representative of the news media will
satisfy this consideration.
(iv) The public’s understanding of the
subject in question must be enhanced by
the disclosure to a significant extent.
However, the component’s FOIA office
shall not make value judgments about
whether the information at issue is
‘‘important’’ enough to be made public.
(3) To determine whether disclosure
of the requested information is
primarily in the commercial interest of
the requester, the component’s FOIA
office shall consider the following
factors:
(i) The component’s FOIA office shall
identify any commercial interest of the
requester, as defined in paragraph (b)(1)
of this section, that would be furthered
by the requested disclosure. Requesters
shall be given an opportunity to provide
explanatory information regarding this
consideration.
(ii) A waiver or reduction of fees is
justified where the public interest is
greater than any identified commercial
interest in disclosure. The component’s
FOIA office ordinarily shall presume
that where a news media requester has
satisfied the public interest standard,
the public interest will be the interest
primarily served by disclosure to that
requester. Disclosure to data brokers or
others who merely compile and market
government information for direct
economic return shall not be presumed
to primarily serve the public interest.
(4) 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.
(5) Requests for a waiver or reduction
of fees should be made when the request
is first submitted to the component’s
FOIA office and should address the
criteria referenced in this section. 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. A
requester may appeal the denial of a fee
waiver.
§ 212.15 Fees to be charged—requester
categories.
(a) The following specific fees are
charged for services rendered:
(1) Commercial Use:
Search: $40.00 per hour.
Search costs will be assessed even
though no records may be found or even
if, after review, there is no disclosure or
records.
Review: $55.00 per hour.
Duplication: 10¢ per page.
(2) Educational & Non-Commercial
Scientific Institutions
Search: No fee.
Review: No fee.
Duplication: 10¢ per page after the
first 100 pages.
(3) Representatives of the News Media
Search: No fee.
Review: No fee.
Duplication: 10¢ per page after the
first 100 pages.
(4) All Others
Search: Same as ‘‘Commercial Users’’
except the first two hours shall be
furnished without charge.
Review: No fee.
Duplication: 10¢ per page after the
first 100 pages.
(b) If copies of records are provided in
other than paper format (such as on
microfiche, video tape, or as electronic
data files), or other than first-class mail
is requested or required, the requester is
charged the actual cost of providing
these additional services.
Subpart K—FOIA Definitions
§ 212.16 Glossary.
As used in this part:
Administrative FOIA Appeal is an
independent review of the initial
determination made in response to a
FOIA request. Requesters who are
dissatisfied with the response made on
their initial request have a statutory
right to appeal the initial determination
made by the component’s FOIA office.
Agency is any executive agency,
military agency, government
corporation, government-controlled
corporation, or other establishment in
the executive branch of the Federal
Government, or any independent
regulatory agency. Thus, USAID is an
agency.
Complex request is a request that
typically seeks a high volume of
material or requires additional steps to
process such as the need to search for
records in multiple locations.
Consultation is when USAID locates a
record that contains information of
substantial interest to another agency,
and the component’s FOIA office asks
for the views of that other agency on the
disclosability of the records before any
final determination is made.
Discretionary disclosure is
information that the component’s FOIA
office releases even though it could have
been withheld under one of the FOIA’s
exemptions.
Duplication is reproducing a copy of
a record, or of the information contained
in it, necessary to respond to a FOIA
request. Copies can take the form of
paper, audiovisual materials, or
electronic records, among others.
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30568
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
Electronic record is any information
that is recorded in a form that only a
computer can process and that satisfies
the definition of a Federal record per the
Federal Records Act. Federal electronic
records are not necessarily kept in a
‘‘recordkeeping system’’ but may reside
in a generic electronic information
system or are produced by an
application such as word processing or
electronic mail.
Exemptions are nine categories of
information that are not required to be
released in response to a FOIA request
because release would be harmful to a
government or private interest. These
categories are called ‘‘exemptions’’ from
disclosures.
Expedited processing is the FOIA
response track granted in certain limited
situations, specifically when a FOIA
request is processed ahead of other
pending requests.
Freedom of Information Act or FOIA
is a United States federal law that grants
the public access to information
possessed by government agencies.
Upon written request, U.S. government
agencies are required to release
information unless it falls under one of
nine exemptions listed in the Act.
Frequently requested records are
records that have been requested three
(3) or more times from the component’s
FOIA office.
Multi-track processing is a system that
divides in-coming FOIA requests
according to their complexity so that
simple requests requiring relatively
minimal review are placed in one
processing track and more complex
requests are placed in one or more other
tracks. Requests granted expedited
processing are placed in yet another
track. Requests in each track are
processed on a first in/first out basis.
Office of Government Information
Services (OGIS) offers mediation
services to resolve disputes between
FOIA requesters and agencies as an
alternative to litigation. OGIS also
reviews agency FOIA compliance,
policies, and procedures and makes
recommendations for improvement. The
Office is a part of the National Archives
and Records Administration, and was
created by Congress as part of the OPEN
Government Act of 2007, which
amended the FOIA.
Proactive disclosures are records
made publicly available by agencies
without waiting for a specific FOIA
request. Agencies now post on their
websites material concerning their
functions and mission. The FOIA itself
requires agencies to make available
certain categories of information,
including final opinions and orders,
specific policy statements, certain
administrative staff manuals and
frequently requested records.
Record means information regardless
of its physical form or characteristics
including information created, stored,
and retrievable by electronic means that
is created or obtained by the Agency
and under the control of the Agency at
the time of the request, including
information maintained for the Agency
by an entity under Government contract
for records management purposes. It
does not include records that are not
already in existence and that would
have to be created specifically to
respond to a request. Information
available in electronic form shall be
searched and compiled in response to a
request unless such search and
compilation would significantly
interfere with the operation of the
Agency’s automated information
systems.
Referral occurs when an agency
locates a record that originated with, or
is of otherwise primary interest to
another Department, agency, or
component. It will forward that record
to the other agency to process the record
and to provide the final determination
directly to the requester.
Simple request is a FOIA request that
a component’s FOIA office anticipates
will involve a small volume of material
or which will be able to be processed
relatively quickly.
Subpart L—Other Rights and Services
§ 212.17 Rights and services qualified by
the FOIA statute.
Nothing in this subpart shall be
construed to entitle any person, as a
right, to any service or to the disclosure
of any record to which such person is
not entitled under the FOIA.
Subpart M—Privacy Act Provisions
§ 212.18 Purpose and scope.
This subpart contains the rules that
the USAID follows under the Privacy
Act of 1974 (PA), 5 U.S.C. 552a, as
amended. These rules should be read
together with the text of the statute,
which provides additional information
about records maintained on
individuals. The rules in this subpart
apply to all records in systems of
records maintained by the agency that
are retrieved by an individual’s name or
personal identifier. They describe the
procedures by which individuals may
request access to records about
themselves, request amendment or
correction of those records, and request
an accounting of disclosures of those
records by the agency. If any records
retrieved pursuant to an access request
under the PA are found to be exempt
from access under that Act, they will be
processed for possible disclosure under
the FOIA, as amended. No fees shall be
charged for access to or amendment of
PA records.
§ 212.19 Privacy definitions.
As used in this subpart, the following
definitions shall apply:
(a) Individual means a citizen or a
legal permanent resident alien (LPR) of
the United States.
(b) Maintain includes maintain,
collect, use, or disseminate.
(c) Record means any item, collection,
or grouping of information about an
individual that is maintained by the
agency and that 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.
(d) System of records means a group
of any records under the control of the
agency from which information is
retrieved by the name of an individual
or by some identifying number, symbol,
or other identifying particular assigned
to an individual.
§ 212.20 Request for access to records.
(a) In general. Requests for access to
records (other than OIG records) under
the PA must be made in writing and
mailed to the Bureau for Management
Services, Information and Records
Division at the address given in § 212.5.
Requests for access to OIG records
under the PA must be made in writing
and mailed to the Office of General
Counsel for the OIG at the address given
in § 212.5.
(b) Description of records sought.
Requests for access should describe the
requested record(s) in sufficient detail to
permit identification of the record(s). At
a minimum, requests should include the
individual’s full name (including
maiden name, if appropriate) and any
other names used, current complete
mailing address, (city, state and
country). Helpful data includes the
approximate time period of the record
and the circumstances that give the
individual reason to believe that the
agency maintains a record under the
individual’s name or personal identifier,
and, if known, the system of records in
which the record is maintained. In
certain instances, it may be necessary
for the component’s FOIA office to
request additional information from the
requester, either to ensure a full search,
or to ensure that a record retrieved does
in fact pertain to the individual.
(c) Verification of personal identity.
The component’s FOIA office will
require reasonable identification of
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30569
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
individuals requesting records about
themselves under the PA’s access
provisions to ensure that records are
only accessed by the proper persons.
Requesters must state their full name,
current address, citizenship or legal
permanent resident alien status, and
date (city, state, and country). The
request must be signed, and the
requester’s signature must be either
notarized or made under penalty of
perjury pursuant to 28 U.S.C. 1746. If
the requester seeks records under
another name the requester has used, a
statement, under penalty of perjury, that
the requester has also used the other
name must be included.
(d) Third party access. The
component’s FOIA office may process
third party requests, as described in this
section. In the absence of a request by,
or prior written consent of, the
individual to whom the records pertain,
the component’s FOIA office will
process third party requests under the
FOIA. The Agency’s form, AID 507–1,
may be used to certify the identity and
provide third party authorization.
(1) Parents and guardians of minor
children. Upon presentation of
acceptable documentation of the
parental or guardian relationship, a
parent or guardian of a U.S. citizen or
LPR minor (an unmarried person under
the age of 18) may, on behalf of the
minor, request records under the PA
pertaining to the minor. In any case,
U.S. citizen or LPR minors may request
such records on their own behalf.
(2) Guardians. A guardian of an
individual who has been declared by a
court to be incompetent may act for and
on behalf of the incompetent individual
upon presentation of appropriate
documentation of the guardian
relationship.
(3) Authorized representatives or
designees. Third-party access to an
individual’s records shall be granted
pursuant to a written request by, or with
the prior written consent of, the
individual. The designated third party
must submit identity verification
information described in paragraph (c)
of this section.
(e) Referrals and consultations. If the
component’s FOIA office determines
that records retrieved as responsive to
the request were created by another
Department, agency, or component it
ordinarily will refer the records to the
originating agency for direct response to
the requester. If the agency determines
that records retrieved as responsive to
the request are of interest to another
agency, it may consult with the other
agency before responding to the request.
The component’s FOIA office may make
agreements with other agencies to
eliminate the need for consultations or
referrals for particular types of records.
(f) Records relating to civil actions.
Nothing in this subpart entitles an
individual to access to any information
compiled in reasonable anticipation of a
civil action or proceeding.
(g) Time limits. The component’s
FOIA office will acknowledge the
request promptly and furnish the
requested information as soon as
possible thereafter.
§ 212.21 Request to amend or correct
records.
(a) An individual has the right to
request that the component’s FOIA
office amend a record pertaining to the
individual that the individual believes
is not accurate, relevant, timely, or
complete.
(b) Requests to amend records must be
in writing to the component’s FOIA
office, and mailed or delivered to the
Bureau for Management, Office of
Management Services, Information and
Records Division (for non OIG records),
or the Office of the USAID Inspector
General (for OIG records) at the
addresses given in § 212.5, with
ATTENTION: PRIVACY ACT
AMENDMENT REQUEST written on the
envelope. The component’s FOIA office
will coordinate the review of the request
with the appropriate offices of the
Agency. The component’s FOIA office
will require verification of personal
identity before it will initiate action to
amend a record. Amendment requests
should contain, at a minimum,
identifying information needed to locate
the record in question, a description of
the specific correction requested, and an
explanation of why the existing record
is not accurate, relevant, timely, or
complete. The request must be signed,
and the requester’s signature must be
either notarized or made under penalty
of perjury pursuant to 28 U.S.C. 1746.
The requester should submit as much
pertinent documentation, other
information, and explanation as
possible to support the request for
amendment.
(c) All requests for amendments to
records shall be acknowledged within
10 working days.
(d) In reviewing a record in response
to a request to amend, the Agency shall
review the record to determine if it is
accurate, relevant, timely, and complete.
(e) If the Agency agrees with an
individual’s request to amend a record,
it shall:
(1) Advise the individual in writing of
its decision;
(2) Amend the record accordingly;
and
(3) If an accounting of disclosure has
been made, advise all previous
recipients of the record of the
amendment and its substance.
(f) If the Agency denies an
individual’s request to amend a record,
it shall advise the individual in writing
of its decision and the reason for the
refusal, and the procedures for the
individual to request further review. See
§ 171.25 of this chapter.
§ 212.22 Request for accounting of record
disclosures.
(a) How made. Except where
accountings of disclosures are not
required to be kept, as set forth in
paragraph (b) of this section, or where
accountings of disclosures do not need
to be provided to a requesting
individual pursuant to 5 U.S.C.
552a(c)(3), an individual has a right to
request an accounting of any disclosure
that the component’s FOIA office has
made to another person, organization, or
agency of any record about an
individual. This accounting shall
contain the date, nature, and purpose of
each disclosure as well as the name and
address of the recipient of the
disclosure. Any request for accounting
should identify each particular record in
question and may be made by writing
directly to the Appeals Officer, Bureau
for Management, Office of Management
Services at the address given in
§ 212.19.
(b) Where accountings are not
required. The component’s FOIA office
is not required to keep an accounting of
disclosures in the case of:
(1) Disclosures made to employees
within the Agency who have a need for
the record in the performance of their
duties; and
(2) Disclosures required under the
FOIA.
§ 212.23 Appeals from denials of PA
amendment requests.
(a) If the component’s FOIA office
denies a request for amendment of such
records, the requester shall be informed
of the reason for the denial and of the
right to appeal the denial to the Appeals
Review Panel. Any such appeal must be
postmarked within 60 working days of
the date of the component FOIA office’s
denial letter and sent to: Appeals
Officer, Bureau for Management, Office
of Management Services (for non OIG
records), and Deputy Inspector General,
Office of Inspector General (for OIG
records) at the addresses given in
§ 212.11.
(b) Appellants should submit an
administrative appeal of any denial, in
whole or in part, of a request for access
to the PA at the address in paragraph (a)
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30570
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
of this section. The component’s FOIA
office will assign a tracking number to
the appeal.
(c) The Appeals Review Panel will
decide appeals from denials of PA
amendment requests within 30 business
days, unless the Panel extends that
period for good cause shown, from the
date when it is received by the Panel.
(d) Appeals Review Panel decisions
will be made in writing, and appellants
will receive notification of the decision.
A reversal will result in reprocessing of
the request in accordance with that
decision. An affirmance will include a
brief statement of the reason for the
affirmance and will inform the
appellant that the decision of the Panel
represents the final decision of the
Agency and of the right to seek judicial
review of the Panel’s decision, when
applicable.
(e) If the Panel’s decision is that a
record shall be amended in accordance
with the appellant’s request, the
Chairman—USAID’S FOIA Liaison
Officer or their designee shall direct the
office responsible for the record to
amend the record, advise all previous
recipients of the record of the
amendment and its substance (if an
accounting of previous disclosures has
been made), and so advise the
individual in writing.
(f) If the Panel’s decision is that the
amendment request is denied, in
addition to the notification required by
paragraph (d) of this section, the
Chairman—USAID’S FOIA Liaison
Officer or their designee-shall advise the
appellant:
(1) Of the right to file a concise
Statement of Disagreement stating the
reasons for disagreement with the
decision of the Agency;
(2) Of the procedures for filing the
Statement of Disagreement;
(3) That any Statement of
Disagreement that is filed will be made
available to anyone to whom the record
is subsequently disclosed, together with,
at the discretion of the Agency, a brief
statement by the component’s FOIA
office summarizing its reasons for
refusing to amend the record;
(4) That prior recipients of the
disputed record will be provided a copy
of any statement of disagreement, to the
extent that an accounting of disclosures
was maintained.
(g) If the appellant files a Statement of
Disagreement under paragraph (f) of this
section, the component’s FOIA office
will clearly annotate the record so that
the fact that the record is disputed is
apparent to anyone who may
subsequently access the record. When
the disputed record is subsequently
disclosed, the component’s FOIA office
will note the dispute and provide a copy
of the Statement of Disagreement. The
component’s FOIA office may also
include a brief summary of the reasons
for not amending the record. Copies of
the component FOIA office’s statement
shall be treated as part of the
individual’s record for granting access;
however, it will not be subject to
amendment by an individual under this
part.
§ 212.24 Specific exemptions.
(a) Pursuant to 5 U.S.C. 552a(k), the
Director or the Administrator may,
where there is a compelling reason to do
so, exempt a system of records, from any
of the provisions of subsections (c)(3);
(d); (e)(1); (e)(4)(G), (H), and (I); and (f)
of the Act if a system of records is:
(1) Subject to the provisions of 5
U.S.C. 552(b)(1);
(2) Investigatory material compiled for
law enforcement purposes, other than
material within the scope of subsection
(j)(2) of the Act: Provided, however, that
if any individual is denied any right,
privilege, or benefit to which he or she
would otherwise be eligible, as a result
of the maintenance of such material,
such material shall be provided to such
individual, except to the extent that the
disclosure of such material would reveal
the identity of a source who furnished
information to the Government under an
express promise that the identity of the
source would be held in confidence, or
prior to the effective date of this section,
under an implied promise that the
identity of the source would be held in
confidence;
(3) Maintained in connection with
providing protective services to the
President of the United States or other
individuals pursuant to 18 U.S.C. 3056;
(4) Required by statute to be
maintained and used solely as statistical
records;
(5) Investigatory material compiled
solely for the purpose of determining
suitability, eligibility, or qualifications
for Federal civilian employment,
military service, Federal contracts, or
access to classified information, but
only to the extent that the disclosure of
such material would reveal the identity
of a source who furnished information
to the Government under an express
promise that the identity of the source
would be held in confidence, or, prior
to the effective date of this section,
under an implied promise that the
identity of the source would be held in
confidence;
(6) Testing or examination material
used solely to determine individual
qualifications for appointment or
promotion in the Federal service, the
disclosure of which would compromise
the objectivity or fairness of the testing
or examination process; or
(7) Evaluation material used to
determine potential for promotion in the
armed services, but only to the extent
that the disclosure of such material
would reveal the identity of a source
who furnished information to the
Government under an express promise
that the identity of the source would be
held in confidence, or, prior to the
effective date of this section, under an
implied promise that the identity of the
source would be held in confidence.
(b) Each notice of a system of records
that is the subject of an exemption
under 5 U.S.C. 552a(k) will include a
statement that the system has been
exempted, the reasons therefore, and a
reference to the Federal Register,
volume and page, where the exemption
rule can be found.
(c) The systems of records to be
exempted under section (k) of the Act,
the provisions of the Act from which
they are being exempted, and the
justification for the exemptions, are set
forth in this paragraph (c):
(1) Criminal Law Enforcement
Records. If the 5 U.S.C. 552a(j)(2)
exemption claimed under paragraph (c)
of (22 CFR 215.13) and on the notice of
systems of records to be published in
the Federal Register on this same date
is held to be invalid, then this system
is determined to be exempt, under 5
U.S.C. 552(a)(k)(1) and (2) of the Act,
from the provisions of 5 U.S.C.
552a(c)(3); (d); (e)(1); (e)(4); (G); (H); (I);
and (f). The reasons for asserting the
exemptions are to protect the materials
required by executive order to be kept
secret in the interest of the national
defense or foreign policy, to prevent
subjects of investigation from frustrating
the investigatory process, to insure the
proper functioning and integrity of law
enforcement activities, to prevent
disclosure of investigative techniques,
to maintain the ability to obtain
necessary information, to fulfill
commitments made to sources to protect
their identities and the confidentiality
of information and to avoid endangering
these sources and law enforcement
personnel.
(2) Personnel Security and Suitability
Investigatory Records. This system is
exempt under U.S.C. 552a(k)(1), (k)(2),
and (k)(5) from the provisions of 5
U.S.C. 552a(c)(3); (d); (e)(1); (e)(4); (G);
(H); (I); and (f). These exemptions are
claimed to protect the materials
required by executive order to be kept
secret in the interest of national defense
or foreign policy, to prevent subjects of
investigation from frustrating the
investigatory process, to insure the
proper functioning and integrity of law
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
30571
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
enforcement activities, to prevent
disclosure of investigative techniques,
to maintain the ability to obtain candid
and necessary information, to fulfill
commitments made to sources to protect
the confidentiality of information, to
avoid endangering those sources and,
ultimately, to facilitate proper selection
or continuance of the best applicants or
persons for a given position or contract.
Special note is made of the limitation on
the extent to which this exemption may
be asserted.
(3) Litigation Records. This system is
exempt under 5 U.S.C. 552(k)(1), (k)(2),
and (k)(5) from the provisions of 5
U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G),
(H), (I); and (f). These exemptions are
claimed to protect the materials
required by executive order to be kept
secret in the interest of national defense
or foreign policy, to prevent subjects of
investigation from frustrating the
investigatory process, to insure the
proper functioning and integrity of law
enforcement activities, to prevent
disclosure of investigative techniques,
to maintain the ability to obtain candid
and necessary information, to fulfill
commitments made to sources to protect
the confidentiality of information.
Dated: May 24, 2021.
Christopher A. Colbow,
Chief, Information and Records Division,
FOIA Public Liaison/Agency Records Officer,
U.S. Agency for International Development.
[FR Doc. 2021–11381 Filed 6–8–21; 8:45 am]
BILLING CODE 6116–02–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 64
[WC Docket No. 17–97; FCC 21–62; FR ID
30569]
Call Authentication Trust Anchor
AGENCY
: Federal Communications
Commission.
ACTION
: Proposed rule.
SUMMARY
: In this document, the Federal
Communications Commission
(Commission) seeks comment on a
proposal to shorten by one year the
STIR/SHAKEN implementation
extension for small voice service
providers that originate an especially
large number of calls, so that such
providers must implement STIR/
SHAKEN in the IP portions of their
networks no later than June 30, 2022.
The Commission believes this proposal
will protect Americans from illegal
robocalls—especially illegally spoofed
robocalls—by ensuring that voice
service providers most likely to be the
source of illegal robocalls authenticate
calls sooner, allowing terminating voice
service providers to know if the caller
ID is legitimate and take action as
appropriate, including by blocking or
labeling suspicious calls. The
Commission also seeks comment on
how to define which small voice service
providers should receive a shortened
extension and on ways to monitor
compliance.
DATES
: Comments are due on or before
July 9, 2021; reply Comments are due on
or before August 9, 2021.
ADDRESSES
: You may submit comments,
identified by WC Docket No. 17–97, by
any of the following methods:
Electronic Filers: Comments may be
filed electronically using the internet by
accessing ECFS: https://www.fcc.gov/
ecfs/.
Paper Filers: Parties who choose to
file by paper must file an original and
one copy of each filing.
Filings can be sent by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9050
Junction Drive, Annapolis Junction, MD
20701.
U.S. Postal Service first-class,
Express, and Priority mail must be
addressed to 45 L Street NE,
Washington, DC 20554.
Effective March 19, 2020, and until
further notice, the Commission no
longer accepts any hand or messenger
delivered filings. This is a temporary
measure taken to help protect the health
and safety of individuals, and to
mitigate the transmission of COVID–19.
See FCC Announces Closure of FCC
Headquarters Open Window and
Change in Hand-Delivery Policy, Public
Notice, 35 FCC Rcd 2788 (March 19,
2020), https://www.fcc.gov/document/
fcc-closes-headquarters-open-window-
and-changes-hand-delivery-policy.
In addition to filing comments with
the Secretary, a copy of any comments
on the Paperwork Reduction Act
proposed information collection
requirements contained herein should
be submitted to the Federal
Communications Commission via email
to PRA@fcc.gov and to Nicole Ongele,
FCC, via email to Nicole.Ongele@
fcc.gov.
FOR FURTHER INFORMATION CONTACT
: For
further information, please contact
Alexander Hobbs, Attorney Advisor,
Competition Policy Division, Wireline
Competition Bureau, at
Alexander.Hobbs@fcc.gov or at (202)
418–7433. For additional information
concerning the Paperwork Reduction
Act proposed information collection
requirements contained in this
document, send an email to PRA@
fcc.gov or contact Nicole Ongele at (202)
418–2991.
SUPPLEMENTARY INFORMATION
: This is a
summary of the Commission’s Third
Further Notice of Proposed Rulemaking
(Further Notice) in WC Docket No. 17–
97, FCC 21–62, adopted on May 20,
2021, and released on May 21, 2021.
The full text of this document is
available for public inspection at the
following internet address: https://
docs.fcc.gov/public/attachments/FCC-
21-62A1.pdf. To request materials in
accessible formats for people with
disabilities (e.g. braille, large print,
electronic files, audio format, etc.), send
an email to fcc504@fcc.gov or call the
Consumer & Governmental Affairs
Bureau at (202) 418–0530 (voice), or
(202) 418–0432 (TTY).
Synopsis
I. Introduction
1. In this Third Further Notice of
Proposed Rulemaking, we take further
action to stem the tide of illegal
robocalls by proposing to accelerate the
date by which small voice providers
that originate an especially large amount
of call traffic must implement the STIR/
SHAKEN caller ID authentication
framework. STIR/SHAKEN combats
illegally spoofed robocalls by allowing
voice service providers to verify that the
caller ID information transmitted with a
particular call matches the caller’s
number. In March 2020, pursuant to
Congressional direction in the Pallone-
Thune Telephone Robocall Abuse
Criminal Enforcement and Deterrence
(TRACED) Act, the Commission adopted
timelines for voice service providers to
implement STIR/SHAKEN. In
September 2020, pursuant to the
TRACED Act, the Commission provided
a two-year extension of the deadline for
all small voice service providers to
implement STIR/SHAKEN. New
evidence suggests, however, that a
subset of small voice service providers
appears to be originating a large and
increasing quantity of illegal robocalls.
To better protect Americans from
illegally spoofed robocalls, we therefore
propose to shorten that deadline from
two years to one for the subset of small
voice providers that are at a heightened
risk of originating an especially large
amount of robocall traffic.
VerDate Sep<11>2014 17:33 Jun 08, 2021 Jkt 253001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\09JNP1.SGM 09JNP1
lotter on DSK11XQN23PROD with PROPOSALS1