[Code of Federal Regulations]
[Title 15, Volume 1, Parts 0 to 299]
[Revised as of January 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 15CFR4.9]
[Page 36-48]
TITLE 15--COMMERCE AND FOREIGN TRADE
PART 4--PUBLIC INFORMATION--Table of Contents
Sec. 4.9 Fees.
(a) Definitions. The following definitions are applicable to this
section.
(1) The term ``direct costs'' means those expenditures which an
agency actually incurs in searching for and duplicating (and in the case
of commercial requesters, reviewing) documents to respond to a FOIA
request. Direct costs include, for example, the salary of the employee
performing work (the basic rate of pay for the employee plus 16 percent
of that rate to cover benefits) and the cost of operating duplicating
machinery. Not included in direct costs are overhead expenses such as
costs of space, and heating or lighting the facility in which the
records are stored.
(2) The term ``search'' includes all time spent looking for material
that is responsive to a request, including page-by-page or line-by-line
identification of material within documents. Such activity should be
distinguished, however, from ``review'' of material in order to
determine whether the material is exempt from disclosure (see paragraph
(a)(4) of this section). Searches may be done manually or by computer
using existing programming.
(3) The term ``duplication'' refers to the process of making a copy
of a document necessary to respond to a FOIA request. Such copies can
take the form of paper copy, microform, audio-visual materials, or
machine readable documentation (e.g., magnetic tape or disk), among
others. The copy provided must be in a form that is reasonably usable by
requesters.
(4) The term ``review'' refers to the process of examining documents
located in response to a request that is
[[Page 37]]
for a commercial use (see paragraph (a)(5) of this section) to determine
whether any portion of any document located is permitted to be withheld.
It also includes processing any documents for disclosure, e.g., doing
all that is necessary to excise them and otherwise prepare them for
release. Review does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
(5) The term ``commercial use request'' refers to a request from or
on behalf of one who seeks information for a use or purpose that
furthers the commercial, trade, or profit interests of the requester or
the person on whose behalf the request is made. In determining whether a
requester properly belongs in this category, the Department must
determine the use to which a requester will put the documents requested.
Moreover, where the department has reasonable cause to doubt the use to
which a requester will put the records sought, or where that use is not
clear from the request itself, the Department shall seek additional
clarification before assigning the request to a specific category.
(6) The term ``educational institution'' refers to a preschool, a
public or private elementary or secondary school, an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education and an institution
of vocational education, which operates a program or programs of
scholarly research.
(7) The term ``non-commercial scientific institution'' refers to an
institution that is not operated on a ``commercial'' basis as that term
is referenced in paragraph (a)(5) of this section, and which is operated
solely for the purpose of conducting scientific research the results of
which are not intended to promote any particular products or industry.
(8) The term ``representative of the news media'' refers to any
person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ``news''
means information that is about current events or that would be of
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large, and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of ``news'') who make their products available
for purchase or subscription by the general public. These examples are
not intended to be all-inclusive. Moreover, as traditional methods of
news delivery evolve (e.g., electronic dissemination of newspapers
through telecommunications services), such alternative media would be
included in this category. In the case of ``freelance'' journalists,
they may be regarded as working for a news organization if they can
demonstrate a solid basis for expecting publication through that
organization, even though not actually employed by it. A publication
contract would be the clearest proof, but the Department may also look
to the past publication record of a requester in making this
determination.
(b) Application--Uniform fee schedule. The fees described in this
section apply to FOIA requests processed by all units of the Department.
They reflect rates for the full allocable direct cost of search, review,
and duplication. The fees to be charged shall be based on the requester
category.
(1) The four specific categories and chargeable fees are:
------------------------------------------------------------------------
Category Chargeable service
------------------------------------------------------------------------
(i) Commercial Use Requesters............. Search, Review, and
Duplication.
(ii) Educational and Noncommercial Duplication (excluding the
Scientific Institution Requesters. cost of the first 100
pages).
(iii) Representatives of the News Media... Duplication (excluding the
cost of the first 100
pages).
(iv) All Other Requesters................. Search and Duplication
(excluding the cost of the
first 2 hours of search and
100 pages).
------------------------------------------------------------------------
(2) Uniform fee schedule.
------------------------------------------------------------------------
Category Rate
------------------------------------------------------------------------
(i) Manual search......................... Actual salary rate of
employee involved, plus 16
percent of salary rate.
(ii) Computerized search.................. Actual direct cost,
including operator time.
(iii) Duplication of records:.............
(A) Paper copy reproduction............... $.07 per page.
(B) Computer tape or printout reproduction Actual cost, including
operator time.
(C) Other reproduction (i.e., microfilm, Actual direct cost,
microfiche, microform). including operator time.
[[Page 38]]
(iv) Review of records (includes Actual salary rate of
preparation for release, i.e. excising). employee conducting review,
plus 16 percent of salary
rate.
------------------------------------------------------------------------
(3) Charging interest. Interest may be charged to those requesters
who fail to pay fees charged in a timely fashion. Assessment of such
interest will commence on the 31st day following the day on which the
billing was sent. Interest will be charged at the rate specified in
section 3717 of title 31 U.S.C. and will accrue from the date of the
billing. The Department reserves the right to utilize consumer reporting
agencies, and collection agencies, when appropriate, to encourage
repayment as authorized by the Debt Collection Act of 1982 (Pub. L. 97-
365).
(c) Waiver or reduction of fees. (1) Documents shall be furnished
without charge, or at reduced charges if disclosure of the information
is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the government, and is not primarily in the commercial interest of the
requester. To assure that the two basic requirements for waiver are met,
Commerce shall rely on the following factors in making a determination
on the fee waiver request:
(i) The subject of the request (whether the subject of the requested
records concerns the operations or activities of the government);
(ii) The informative value of the information to be disclosed
(whether the disclosure is likely to contribute to an understanding of
government operations or activities);
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure (whether disclosure of
the requested information will contribute to public understanding);
(iv) The significance of the contribution to public understanding
(whether the disclosure is likely to contribute significantly to public
understanding of government operations or activities);
(v) The existence and magnitude of a commercial interest (whether
the requester has a commercial interest that would be furthered by the
requested disclosure);
(vi) The primary interest in disclosure (whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is primarily in the commercial interest of the requester).
(2) Additionally, a fee shall not be charged, or alternatively it
may be reduced, in the following instances:
(i) Requests for Department records made by a Federal agency,
Federal court (excluding parties), Congressional committee or
subcommittee, the General Accounting Office, or the Library of Congress,
are not made under the Act, and fees payable under this part do not
apply.
(ii) The records are requested by a state or local government, an
intergovernmental agency, a foreign government, a public international
organization, or an agency thereof, and when it is determined by a
responsible Department official that it is an appropriate courtesy, or
the records are for purposes that are in the public interest and will
promote the objectives of the Act and of the Department.
(iii) A fee shall not be charged if the allowable charges are less
than or equal to the cost of routine collection and processing of the
fee. Therefore, if the total of charges due for processing a request is
$20 or less, no fee will be charged.
(d) Payment of fees. The following conditions shall apply to payment
of fees charged under this part.
(1) A search fee provided in paragraph (b) of this section is
chargeable even when no records responsive to the request are found, or
when the records requested are determined by the responsible Department
official to be totally exempt from disclosure. If the estimated search
or duplication charges exceed $25 the requester shall be notified of the
estimated amount of search or duplication fees, unless the requester has
previously advised the Department of a willingness to pay an amount
sufficient to cover the estimated fee. Such notice shall offer the
requester the opportunity to confer with Department personnel with the
[[Page 39]]
object of reformulating the request in order to reduce the cost.
(2) A requester may be required to make an advance payment (i.e.,
payment before work is commenced or continued on a request) if the
estimated or determined allowable charges that a requester may be
required to pay will exceed $250 or the requester has previously failed
to pay a fee charged in a timely manner (i.e., within 30 days of the
date of the billing).
(i) When the estimated charges exceed $250, the Department shall
notify the requester of the likely cost and obtain satisfactory
assurance of full payment where the requester has a history of prompt
payment of FOIA fees. If the requester has no history of prompt payment
of FOIA fees, the Department shall require an advance payment of an
amount up to the full estimated charges.
(ii) If a requester has previously failed to pay a fee charged in a
timely manner, the Department shall require the requester to pay the
full amount owed plus any applicable interest and to make an advance
payment of the full amount of the estimated fee before the Department
will process the request.
(3) Whenever the Department acts pursuant to paragraph (d)(2) of
this section, the administrative time limits prescribed in 5 U.S.C.
552(a)(6) will begin only after the agency has received payment of the
required fee.
(4) Upon the completion of processing of a request, when a specific
fee is determined to be payable and appropriate notice has been given to
the requester, the payment of such fee shall be received before the
requested records or a portion of the records are made available to the
requester.
(5) Payment of fees shall be made in cash or preferably by check or
money order payable to ``Treasury of the United States'', and they shall
be paid or sent to the unit stated in the billing notice or, if none, to
the unit handling the request. Where appropriate, the responsible
official may require that payment be made in the form of a certified
check.
(6) If an advance payment of an estimated fee exceeds the actual
total fee by $1 or more, the difference shall be refunded to the
requester.
(7) When the responsible official reasonably believes that a
requester or group of requesters acting in concert is attempting to
break a request into a series of requests for the purpose of evading the
assessment of fees, the unit may aggregate any such requests and charge
accordingly.
(e) Other charges. (1) This part does not apply to any special
statistical compilation, study, or other record requested pursuant to
statutes specifically providing for setting the level of fees for
particular types of records such as 15 U.S.C. 1525-1527. The fee for the
performance of such service is the actual cost of the work involved in
compiling the record. All monies received by the Department in payment
of the cost of this work are deposited in a separate account
administered under the direction of the Secretary, and may be used to
defray the ordinary expenses incidental to the work.
(2) The full cost of other special services will be assessed. Such
services would include:
(i) Certifying that records are true copies; and
(ii) Sending records by special methods such as express mail, etc.
[53 FR 6972, Mar. 4, 1988; 53 FR 16058, 16211, May 5, 1988]
Appendix A--Department Administrative Order 205-12--Public Information
Section 1. Purpose--.01 This order, and the rules and other
materials which implement it, are designed to carry out the
responsibilities of the Department of Commerce under the Freedom of
Information Act, as amended (5 U.S.C. 552), hereinafter referred to as
``the Act.''
02. This revision updates and clarifies the provisions of the order
(dated June 29, 1967) which it supersedes, in light of the amendments to
the Act which become effective February 19, 1975. Section 7,
``Compulsory Process Requesting Documents or Testimony'' contained in
the superseded order, is now found in Department Administrative Order
218-5, to be published separately in the Federal Register.
Sec. 2 Authorities--This order is issued pursuant to the Act: 5
U.S.C. 553; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950; and other
authority vested by law in the Secretary applicable to the dissemination
of records and
[[Page 40]]
other information of the Department and charges for services related
thereto.
Sec. 3. Policies--.01 The Department of Commerce, in fulfilling its
statutory missions to foster, promote and develop the foreign and
domestic commerce of the United States and to administer the specific
programs entrusted to it, regularly develops, collects, analyzes, and
disseminates facts, statistics, consensus, charts, scientific findings,
technology, and other information, and performs other services, in order
to assist the business community and other segments of the public,
according to their needs and interest. This information which the
Department develops, collates, and disseminates is generally made
readily available, either without charge or by purchase, to the affected
persons and to anyone else who may be interested, through publications,
reprints of regulations (by subscription or otherwise), press releases,
special reports, correspondence and personal interviews or conferences
with staff, speeches, and other media. It is the policy of the
Department to continue its regular practices of disseminating
information to the public prepared as a part of its program
responsibilities, to the fullest extent legally permissible and
economically feasible, and to continue to handle public requests for
such information (which may include records) in the usual manner through
its regular facilities and channels, as distinguished from those
requests for records subject to 5 U.S.C. 552(a)(3) which are to be made
and handled in accord with the rules established in and pursuant to
subsections 5.03 and 5.04 of this order.
In carrying out this policy, the officials designated in subsection 4.01
of this order shall: (a) Establish and continue an effective program of
communicating to the public the useful information obtained or developed
in the fulfillment of their organizational missions; (b) publicize the
availability of such informational materials in their rules or by other
practical means so that the public shall utilize the regular
informational programs of the Department, rather than resorting to the
formal procedures for requesting records established pursuant to 5
U.S.C. 552(a)(3); and (c) insure that any such information which is
given to individuals or special groups shall also be made available to
the general public in accord with subsections 5.01 and 5.02 of this
order, when and to the extent such information is subject to publication
or inspection under 5 U.S.C. 552(a)(1), (2), or (5).
.02 Officials responsible for determining, in accord with the Act
and this order:
(a) What materials are to be published in the Federal Register; (b)
What and how materials are to be made available for public inspection
and copying, including indexing; and (c) What and how records which are
requested are to be made available; shall, where discretion exists in
making such determinations, take an affirmative and constructive view of
the requirements of the Act. Accordingly, in making rules and specific
determinations, they shall among other factors: (1) Provide such
information to the affected public as well as enable it to deal
effectively and knowledgeably with their organizations; (2) keep within
the limits of demonstrable need the use of the legal authorities which
permit the withholding of information and records; (3) apply principles
of equal treatment to requests for records; (4) consider disclosure to
be the rule rather than the exception; (5) consider the public
convenience as well as the efficient conduct of their organizations'
business; (6) act in a timely manner; and (7) be guided by materials
prepared by the Department of Justice and the Office of General Counsel
of the Department, and by applicable court decisions.
Sec. 4. Delegation of authority--.01 The Secretary of Commerce is
responsible for the effective administration of the Act and other laws
applicable to the dissemination of records and other information of the
Department. Aside from the Secretary's retaining authority for his
immediate office, or as he otherwise may act, authority is hereby
delegated to the following officials of the Department to decide
initially whether or not to make publicly available records and other
information subject to the Act which are in the possession of their
organizations, in accord with the provisions of the Act, this order and
rules supplementing it, other applicable law, and as may be otherwise
provided by the Secretary:
a. Secretarial Officers, for their respective offices and for the
Department staff units reporting to them (as defined in Department
Organization Order 1-1, ``Mission and Organization of the Department of
Commerce'' (35 FR 19704, December 27, 1970)), as amended.
b. Heads of operating units of the Department (as defined in
Department Organization Order 1-1).
.02 Although the officials having authority under subsection 4.01
of this section may permit employees within their organizations to make
records and information publicly available under the Act, they shall
redelegate authority initially to deny such records and information only
to a limited number of officers or employees under them without power of
further redelegation.
.03 The authority to make final decisions on appeal of initially
denied requests for records is hereby delegated to the General Counsel
of the Department without power of further redelegation.
.04 The General Counsel of the Department, and his designees, shall
provide legal services to enable the officials designated in subsections
4.01 and 4.02 of this section to discharge their respective duties and
responsibilities under and pursuant to this order,
[[Page 41]]
and shall make legal interpretations of questions arising thereunder.
The General Counsel shall also act as the focal point within the
Department for consultation or other communication with the Department
of Justice with respect to any actions to be taken in connection with
the Act, this order, and rules implementing it.
.05 Program officials shall provide all support and assistance
necessary to enable the General Counsel to perform the functions
delegated in this order. This shall include (i) keeping the Office of
the General Counsel informed of Freedom of Information Act requests
received by the unit; (ii) providing prompt responses to Office of the
General Counsel instructions, or requests for assistance; (iii) as
requested, allowing the Office of the General Counsel access to relevant
records; and (iv) promptly consulting with the Office of the General
Counsel regarding any legal issues which arise during the processing of
a request.
b. The Office of the Inspector General shall comply with the
provisions of this order except that the Office of the Inspector General
need not allow the Office of the General Counsel access to records to
the extent that (i) information contained therein might reveal the
identity of a confidential source, or (ii) the Inspector General
determines that disclosure to Office of the General Counsel would
interfere with an audit, investigation, or prosecution.
Sec. 5. Functions and responsibilities--.01 Publication in the
Federal Register (5 U.S.C. 552(a)(1) of the Act).
a. The following information of the Department and its component
organizations shall be separately stated and currently published in the
Federal Register for the guidance of the public.
1. Descriptions of the central and field organizations and the
established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods whereby, the
public may secure information, make submittals or request, or obtain
decisions;
2. Statements of the general course and method by which functions
are channeled and determined, including the nature and requirements of
all formal and informal procedures available;
3. Rules of procedure, descriptions of forms available or the places
at which forms may be obtained, and instructions as to the scope and
contents of all papers, reports, or examinations;
4. Substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of general
applicability formulated and adopted by their agencies; and
5. Each amendment, revision, or repeal of the foregoing.
b. The information contained in paragraph 5.01a of this subsection
shall be published in the Federal Register in the form of or included
in:
1. Department Organization Orders, including any supplements and
appendices thereto. The Assistant Secretary for Administration shall
cause such materials to be published in the Federal Register. The
Department Organization Orders and their supplements and appendices
contain, among other information, the descriptions of the various
organizations, the descriptions of the various organizations of the
Department, and in many instances the other information indicated in
subparagraphs 5.01a.1 and 2. of this subsection.
2. Department Administrative Orders, including any supplements or
appendices thereto.
3. Other Office of the Secretary or operating unit directives.
4. Rules and orders contained in the various Titles of the Code of
Federal Regulations assigned to the Office of the Secretary and to the
operating units of the Department.
5. General notices.
6. Other forms of publications when incorporated by reference in the
Federal Register with the approval of the Director of the Federal
Register.
c. Officials responsible for determning what materials are to be
submitted for publication in the Federal Register pursuant to 5 U.S.C.
552(a)(1) shall consider, among other factors, in making such
determinations:
1. That those matters which fall within one or more of the
exemptions contained in 5 U.S.C. 552(b) need not be published. However,
it may be decided, in accord with subsection 3.02 of this order, that
publication even of such matters should in some instances and respects
be made.
2. That matters which are reasonably available to the class of
persons affected thereby and which have been or are to be incorporated
by reference in the Federal Register with the approval of the Director
of the Federal Register are deemed to be published in the Federal
Register. In such cases, the standards and procedures for incorporation
by reference established by the Director of the Federal Register (See 1
CFR Part 51; 37 FR 23614, November 4, 1972) shall be followed.
3. That matters to which members of the public do not have to resort
or by which they are not to be adversely affected, or which do not
impose burdens, obligations, conditions, or limitations upon persons
affected, need not be published in the Federal Register under 5 U.S.C.
552(a)(1). However, the policy considerations expressed in subsection
3.02 of this order may in certain instances suggest the publication of
such matters.
[[Page 42]]
4. That no person shall in any manner be required to resort to or be
adversely affected by any matter required to be published in the Federal
Register under 5 U.S.C. 552(a)(1) when it is not so published. However,
actual and timely notice given to such a person having such actual
notice is equally bound as one having constructive notice by Federal
Register publication. Nevertheless, such actual notice should as a
matter of policy be in addition to, rather than instead of, publication.
5. That ``currently publish'' as provided in 5 U.S.C. 552(a)(1)
means promptly at the time that the action occurs.
.02 Availability of materials for inspection and copying; indexing
(5 U.S.C. 552(a)(2) and (5) of the Act).
a. The head of each operating unit of the Department shall for his
unit, and the Assistant Secretary for Administration shall for the
officials, officers and units referred to in paragraph 4.01a. of this
order, in accordance with rules which they shall cause to be published
in the Federal Register, make available for public inspection and
copying the following materials, unless such materials are promptly
published and copies offered for sale:
1. Final opinion (including concurring and dissenting opinions), as
well as orders, made in the adjudication of cases.
2.. Those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register.
3. Administrative staff manuals and instructions to staff that
affect a member of the public.
4. Where applicable, a record of the final votes of each member of
an agency in every proceeding when the agency has more than one number.
(The terms ``agency proceeding'' and ``agency'' are defined in 5 U.S.C.
551, as amended by 5 U.S.C. 552(e).
5. An index, currently maintained, which provides identifying
information for the public as to any matter (a) which has been issued,
adopted, or promulgated since July 4, 1967, and (b) which is required to
be made available or published pursuant to 5 U.S.C. 552(a)(2). It is
hereby determined, subject to subsequent redetermination by the
Assistant Secretary for Administration pursuant to changed
circumstances, that it is unnecessary and impracticable to publish
quarterly or more frequently and distribute (by sale or otherwise)
copies of each such index and supplements thereto. Copies of such
indexes shall be provided upon request at a cost not to exceed the
direct cost of duplication.
b. The rules published in the Federal Register under paragraph 5.02a
of this subsection shall include provisions for the time, place, copying
fees, and any procedures applicable to making such materials available
at facilities or otherwise for public inspection and copying.
c. The Assistant Secretary for Administration shall establish and
maintain a centralized public reference facility for the inspection and
copying of materials subject to 5 U.S.C. 552(a)(2) and (5). The head of
an operating unit may, with the approval of the Assistant Secretary for
Administration, establish for this organization a separate place for
making the materials subject to 5 U.S.C. 552(a)(2) and (5) available to
the public for inspection and copying, and publish appropriate rules
applicable thereto approved by the Assistant Secretary for
Administration.
d. The officials responsible for determining the materials to be
available for public inspection and copying under paragraph 5.02a of
this subsection shall consider, among other factors, in promulgating the
published rules or in making such determinations:
1. That those matters which fall within one or more of the
exemptions contained in 5 U.S.C 552(b) are not required to be made
available. Nonetheless, they may be made available in any particular
respect if it is determined that this would better serve the public
interest.
2. That they may, to the extent required to prevent a clearly
unwarranted invasion of personal privacy, delete identifying details
from an opinion, statement of policy, interpretation, staff manual or
instruction, or other materials, when it is made available or published.
However, in each case the justification for the deletion shall be
explained fully in writing. Such action is to be taken in order to
provide the public with those information materials called for under 5
U.S.C. 552(a)(2), while at the same time protecting the medical, family
or other personal privacy rights of the individuals involved in such
agency materials. Agency explanations for deletions of identifying
details should provide such information as can be furnished without
defeating the purpose of the deletion provision. When an agency has a
number of recurring deletion situations, it may in its implementing
rules or other public notice specify the applicable reasons for such
deletions, and cite the rule in the preamble to each of the covered
documents, rather than contain the complete explanation in each
document.
3. That distinction should be made between those materials (a) which
do and which do not affect any member of the public, and (b) which are
and which are not to be relied upon, used or cited as precedent by the
agency against any private person or party. Those materials specified in
5 U.S.C. 552(a)(2) which affect the public and which have precedential
effect shall be made available for inspection and copying, and also
included in the index, as provided in this order, However, since the
basic purpose of this section of the Act is to disclose to the
interested
[[Page 43]]
members of the public essential information which will enable them to
deal effectively and knowingly with an agency, materials which provide
such information should be included in the appropriate facilities.
4. That an advisory interpretation made by an agency on a specific
set of facts which is requested by and addressed to a particular person
need not be made generally available under paragraph 5.02a. of this
subsection if it is not to be cited or relied upon by any official of
the agency as a precedent in the disposition of other cases.
Nonetheless, if it may serve any useful public purpose, any such
interpretation may be made publicly available upon the deletion of
identifying details to the extent necessary to protect personal privacy.
5. That the agency is not precluded using as precedent against any
affected person those matters specified in subparagraphs 1.3. of
paragraph 5.02a of this subsection as to which a person has actual and
timely notice of the terms thereof, even though they have not been
indexed and either made available or published. If the agency practice
is to furnish such notices, it is more desirable that it do so in
addition to, rather than instead of, indexing and making them publicly
available hereunder, in recognition of the purpose of 5 U.S.C. 552(a)(2)
to make the end product materials of the administrative process
available to the public.
6. That matters which are published in the Federal Register in
accordance with 5 U.S.C. 552(a)(1) are not required to be made available
under 5 U.S.C. 552(a)(2) for public inspection and copying nor need they
be indexed (the Federal Register has its own index). However, to the
extent that it would be useful and practicable to index and provide such
published information to the public for ready reference, it should be
included.
7. That an index provides sufficient identifying information for the
public if a person who exercises diligence may familiarize himself with
the materials through use of the index.
8. That an alternative to making materials available to the public
for inspection and copying is to promptly publish and offer them for
sale to the public. Such published materials, however, are subject to
the indexing requirement. If it would help the public and it is
practical to do so, a copy of such published materials should also be
made available in any facilities established for public inspection, and
if permissible, copies of the publications should be made available for
sale therein.
9. That materials required to be made available or published under 5
U.S.C. 552(a)(2), but which were adopted or issued by an agency prior to
July 4, 1967, may at any time be used, relied upon or cited as precedent
by the agency irrespective of whether they are listed in the agency's
index. Officials, however, may, to the extent they deem it practicable
and helpful to the public, also index such materials in whole or in
part.
03. Availability of records upon request (5 U.S.C. 552(a) (3), (4),
and (6) of the Act).
a. The Assistant Secretary for Administration shall cause to be
published in the Federal Register rules stating the time, place, fees
and procedures to be followed, with respect to making records of the
Department promptly available to any person requesting them, as provided
in 5 U.S.C. 552(a) (3), (4) and (6).
b. The rules published in the Federal Register pursuant to paragraph
5.03a. of this subsection shall, insofar as is practicable, be complete,
precise, and workable, suitable for the information of agency personnel
and the public alike, and shall include provisions, among other matters,
for the following:
1. Information as to the place to make requests, when requests will
be deemed received by the Department for purposes of the time limits
contained in 5 U.S.C. 552(a)(6), the timely handling of requests, and
the making of initial determinations concerning the availability of the
records requested.
2. Timely notice to the requester, as applicable, that a requested
record does not exist, has been disposed of as provided by law, or is
not in the possession or control of the Department.
3. A procedure whereby the time limits for responding to requests
for records or appeals from denials may be extended, as authorized by 5
U.S.C. 552(a)(6)(B), and wherein a failure of the agency to respond in a
timely manner may be considered a denial of the request.
4. Consultation with other operating units or offices within the
Department, or with other Federal executive agencies, when there is a
mutual agency interest or concern in the record or its contents and
there is a question as to its availability. The determination as to
availability should be made by the predominantly interested agency, if
there is one. When a record requested from the Department is the
exclusive concern of another executive agency, the request shall be
promptly referred to that other agency, and the requester so notified.
5. A procedure for administrative appeal of a request for a record
initially denied in whole or in part. The appeal procedure shall include
provisions which insure that: (i) The requester may file an appeal, in
writing, within thirty days of receipt of an initial denial; (ii) an
appeal shall be considered received when properly addressed to the
General Counsel: (iii) appeals shall be decided without right of the
requester for a personal appearance, oral argument, or hearing; (iv)
timely decisions on appeals or other notices concerning them shall be
made in writing, and communicated to the requester; (v) if the decision
is wholly or partly in favor of the requester, the General Counsel shall
[[Page 44]]
make the particular records of information available to the requester or
order that such be done; and to the extent that the decision is adverse
to the requester, it shall briefly state the reason for the decision and
the identity of the official responsible for making it, (vi) whenever
applicable, requesters shall be effectively notified of their right to
seek judicial review.
6. A schedule of fees as authorized by the Act, with procedures
which (i) put requesters of records on timely notice as to substantial
search and copying fees estimated to be incurred with respect to a
request; (ii) attempt to insure that requester pay the chargeable fees
for work to be done; (iii) which provide for appropriate waiver or
reduction of fees; and (iv) which do not intend to discourage requests
for records under the Act. Work, services, publications, or documents
which the agency as part of its regular mission has been performing or
producing or will be performed or produced for members of the public or
for those who are engaged in the transaction of official business of or
with the Government, without charge, by user charge, or by publication
or subscription charge, are to be distinguished from those records
properly requested under 5 U.S.C. 552(a)(3) and the fees charged
thereunder.
c. The officials designated in subsections 4.01 and 4.02 of this
order who are responsible for initially determining whether any records
properly requested under the Act may be made available, shall include in
their consideration:
1. Whether the records are of the type referred to in subsection
3.01 of this order, and the request is to be handled in accord with the
policy set forth therein;
2. Whether the records are subject to 5 U.S.C. 552(a) (1), (2), or
(5) and have been otherwise made publicly available pursuant to
paragraphs 5.01a or 5.02a of this section;
3. Whether the requester has complied with the published rules
covering the making of requests and the payment of fees;
4. Whether the records or information contained in them are matters
which fall within one or more of the exemptions contained in 5 U.S.C.
552(b), and if so whether they are not to be disclosed or whether, if
such discretion exists, it would nevertheless be in the public interest
to make the record or information available in whole or in part;
5. Whether any reasonably segregable portion of the record can be
disclosed after deletion of the portions which it is determined should
not be disclosed.
d. The officials who establish a facility as provided in paragraph
5.02 of this section may utilize the facility to:
1. Receive and assist in processing requests for records;
2. Receive from officials the requested records which are made
available, maintain custody of them and supervise their inspection and
copying by requesters;
3. Arrange for making certified and other copies of available
records;
4. Collect and account for fees established for services connected
with the requests;
5. Return records after inspection to their place of custody;
6. Act as a central communication center between the requesters and
the organizations involved in recordkeeping and officials making
determinations as to their availability; and
7. Provide reasonable assistance to persons requesting records,
including explanations of the applicable procedure and other rules, and
making referrals to sources of information available under regular
informational programs of the Department.
e. The Assistant Secretary for Administration shall establish such
standard forms, procedures and instructions as he deems necessary for
processing requests for records, maintaining records of related
expenditures, and obtaining information for the Departmental report
required by 5 U.S.C. 552(d).
04. Special review requirements.--a. The General Counsel or one of
his designees shall be consulted before any initial denial is issued.
b. As provided in paragraph 7.03c. of DAO 205-12, the Operating Unit
Public Affairs Office shall receive a copy of each request at the same
time as the Action Office. If the Public Affairs Officer wishes to
monitor and/or comment on any response to a particular request prior to
transmittal, the Officer shall notify the Action Office within three (3)
working days after receiving a copy of the request. The Action Office
shall cooperate with the Public Affairs Officer in this effort; and give
due consideration to any recommendations or comments from the Officer.
In addition, the Director of the Office of Public Affairs or his or her
designee shall be informed before any decision on an appeal from an
initial denial is issued.
c. As provided in Part B, Chaper IV, subsection 5.06f. of the
Department's Handbook of Security Regulations and Procedures, appeals of
initial denials based, even in part, on the ground that the matter is
exempted from disclosure under 5 U.S.C. 552(b)(1) (classified
information) shall be referred to the Departmental Information Security
Program Committee. That Committee shall conduct a declassification
review and determine if the record(s) involved may be made available to
the public.
d. Whenever, on appeal from an initially denied request, the General
Counsel and the concerned Secretarial Officer or operating unit head
cannot agree on whether applicable exemptions should be waived, as
provided in subsection 03c.4. of this section, the matter shall be
promptly referred to the Secretary for resolution.
[[Page 45]]
.05 Annual Report (5 U.S.C. 552(d) of the Act).
a. The Assistant Secretary for Administration shall prepare and
transmit to the Congress on or before March 1 of each year the annual
report by the Act.
b. To assist in the preparation of the report, each official
specified in subsection 4.01 of this order, shall, no later than January
31 of each year, provide the Assistant Secretary for Administration with
the information specified in the Act and such other information as he
may require.
Sec. 6. Supplementary rules--.01 The Secretary may from time to time
issue such supplementary rules or instructions as he deems appropriate
to carry out the purposes of this order.
.02 Each duly authorized official may issue rules covering his
respective area of responsibility designed to implement this order, and
which are consistent herewith and with any rules issued by the Assistant
Secretary for Administration.
Sec. 7. Effect on other orders. This order supersedes Department
Administrative Order 205-12 of June 29, 1967, as amended. Any other
prior orders, rules, or instructions, or parts thereof, the provisions
of which are inconsistent or in conflict with the provisions of this
order, are hereby constructively amended or superseded.
Appendix B--Freedom of Information Public Facilities and Addresses for
Requests for Records
The following public reference facilities have been established
within the Department of Commerce for: (a) Public inspection and copying
of materials from various units within the Department under 5 U.S.C.
552(a)(2), or determined to be available for response to requests made
under 5 U.S.C.(a)(3); (b) furnishing information and otherwise assisting
the public concerning Departmental operations under the Freedom of
Information Act; and (c) receipt and processing requests for records
under 5 U.S.C. 552(a)(3).
Commerce units that have separate mailing addresses are noted below.
Requests should be addressed to the unit which the requester knows or
has reason to believe has possession, control, or has primary concern
with the records sought. Otherwise, requests should be addressed to the
Central Reference and Records Inspection Facility.
Department of Commerce Freedom of Information Central Reference and
Records Inspection Facility, U.S. Department of Commerce, room 6020,
Herbert C. Hoover Building, 14th Street between Constitution Avenue and
Pennsylvania, NW., Washington, DC 20230. Phone (202) 377-4115. This
facility serves the Office of the Secretary and all other units of the
Department not identified below as explained at 15 CFR 4.4(c) and (d).
Bureau of the Census, Chief, Program and Policy Development Office, U.S.
Department of Commerce, room 2430, Federal Building 3, Washington, DC
20233. Phone (301) 763-2758.
The Bureau of the Census maintains a separate facility for
inspection of (a)(2) records. The location is room 2455, Federal
Building 3, Suitland, Maryland 20233.
Bureau of Economic Analysis, Public Reference Facility, U.S.
Department of Commerce, room 1115, Tower Building, 1401 K Street, NW.,
Washington, DC.
Mailing address: Freedom of Information Control Desk, Office of
Administration, Office of Economic and Statistical Affairs, U.S.
Department of Commerce, room 4838, Herbert C. Hoover Building, 14th
Street and Constitution Avenue, NW., Washington, DC 20230. Phone 377-
3308.
Economic Development Administration, Freedom of Information Records
Inspection Facility, U.S. Department of Commerce, room 7001, Herbert C.
Hoover Building, 14th Street and Constitution Avenue, NW., Washington,
DC 20230. Phone (202) 377-4687. Mailing address of Regional EDA offices:
--Philadelphia Regional Office, EDA, U.S. Department of Commerce,
Freedom of Information Request Control Desk, Liberty Square Building;
First floor, 105 South 7th Street, Philadelphia, Pennsylvania 19106.
--Atlanta Regional Office, EDA, U.S. Department of Commerce, Freedom of
Information Request Control Desk, suite 1820, 401 West Peachtree Street,
NW., Atlanta, Georgia 30308-3510.
--Denver Regional Office, EDA, U.S. Department of Commerce, Freedom of
Information Request Control Desk, room 670, 1244 Speer Boulevard,
Denver, Colorado 80204.
--Chicago Regional Office, EDA, U.S. Department of Commerce, Freedom of
Information Request Control Desk, 175 West Jackson Boulevard, suite A-
1630, Chicago, Illinois 60604.
--Seattle Regional Office, EDA, U.S. Department of Commerce, Freedom of
Information Request Control Desk, Jackson Federal Building, room 1856,
915 Second Avenue, Seattle, Washington 98174.
--Austin Regional Office, EDA, U.S. Department of Commerce, Freedom of
Information Request Control Desk, Grant Building, suite 201, 611 East
6th Street, Austin, Texas 78701.
Bureau of Export Administration, Freedom of Information Records
Inspection Facility, U.S. Department of Commerce, room 4525, Herbert C.
Hoover Building, 14th Street and Constitution Avenue, NW., Washington,
DC 20230. Phone (202) 377-5653.
International Trade Administration, Freedom of Information Records
Inspection Facility, U.S. Department of Commerce, room 4102, Herbert C.
Hoover Building, 14th Street
[[Page 46]]
and Constitution Avenue, NW., Washington, DC 20230. Phone (202) 377-
3031.
Minority Business Development Agency, Freedom of Information Office,
U.S. Department of Commerce, room 5073, Herbert C. Hoover Building, 14th
Street and Constitution Avenue, NW., Washington, DC 20230. Phone (202)
377-2881.
The Minority Business Development Agency maintains a separate
facility for public inspection of (a)(2) records. The location is room
5078B, Herbert C. Hoover Building, Washington, DC 20230.
National Institute of Standards and Technology, Freedom of
Information Records Inspection Facility, room E106, Administration
Building, Gaithersburg, Maryland 20234. Phone (301) 975-2389.
Mailing address: National Institute of Standards and Technology,
Freedom of Information Request Control Desk, U.S. Department of
Commerce, room A-1105, Gaithersburg, Maryland 20234.
National Oceanic and Atmospheric Administration, Public Reference
Facility, room 714 WSC-5, 6010 Executive Boulevard, Rockville, Maryland
20852. Phone (301) 443-8967.
National Technical Information Service, Freedom of Information
Records Inspection Facility, room 209, Forbes Building, 5285 Port Royal
Road, Springfield, Virginia 22161. Phone (703) 487-4670.
National Telecommunications and Information Administration, Freedom
of Information Request Control Desk, U.S. Department of Commerce, room
4717, Herbert C. Hoover Building, 14th Street and Constitution Avenue,
NW., Washington, DC 20504. Phone (202) 377-1816.
Patent and Trademark Office, Freedom of Information Records
Inspection Facility, Public Search Room, room 1A01, Crystal Plaza 3,
Arlington, Virginia 20231. Mailing address: Patent and Trademark Office,
Freedom of Information Request Control Desk, Box 8, Washington, DC
20231. Phone (703) 557-4035.
United States Travel and Tourism Administration, Freedom of
Information Request Control Desk, U.S. Department of Commerce, room
1524, Herbert C. Hoover Building, 14th Street and Constitution Avenue,
NW., Washington, DC 20230. Phone (202) 377-3812.
[56 FR 20533, May 6, 1991]
Appendix C--Officials Authorized To Make Initial Denials of Requests for
Records
The following officials of the Department have been delegated
authority to initially deny requests for records of their respective
units for which they are responsible. (The listings are subject to
change because of organizational changes or new delegations.)
Accordingly, the Director for Federal Assistance and Management
Support is specifically authorized to amend or revise this appendix from
time to time in order to reflect changes.
Office of the Secretary
Executive Secretariat, Director.
Office of the Deputy Secretary: Associate Deputy Secretary.
Office of Business Liaison: Director.
Office of Consumer Affairs: Director.
Office of Space Commerce: Director.
Office of the Assistant Secretary for Legislative and
Intergovernmental Affairs: Deputy Assistant Secretary for Legislative
and Intergovernmental Affairs.
Office of the Inspector General: Counsel to the Inspector General.
Deputy Counsel to the Inspector General.
Office of the General Counsel: Deputy General Counsel. Assistant
General Counsel for Administration. Director of Intelligence Liaison.
Assistant Secretary for Administration
Office of the Administrative Law Judge: Office Manager.
Office of Civil Rights: Director.
Office of Financial Management: Director.
Office of Federal Assistance and Management Support: Director.
Office of Federal Assistance: Director.
Office of Budget Operations: Director.
Office of Management Support: Director.
Departmental Freedom of Information Officer
Office of Budget, Planning and Organization: Director.
Office of Management and Organization: Director.
Office of Budget: Director.
Office of Program Planning and Evaluation: Director.
Office of Personnel: Director.
Office of Personnel Operations: Director.
Office of Information Resources Management: Director.
Office of Procurement and Administrative Services: Director.
Office of Administrative Services Management: Director.
Office of Federal Property Programs: Director.
Office of Publications: Director.
Office of Security: Director.
Office of Procurement: Director.
Office of Major Systems Procurement: Director.
Office of Procurement Operations: Director.
Office of Procurement Management: Director.
Office of Small and Disadvantaged Business Utilization: Director.
[[Page 47]]
Economic and Statistical Affairs
Office of Administration: Director.
Bureau of Economic Analysis: Director.
Bureau of the Census: Chief, Program and Policy Development Office.
Technology Administration
Under Secretary for Technology: Deputy Under Secretary for
Technology. Assistant Secretary for Technology Policy. Chief Counsel.
Deputy Chief Counsel.
National Institute of Standards and Technology: Director of
Administration. Deputy Director of Administration.
National Technical Information Service: Director. Associate Director
for Administration.
Economic Development Administration
Chief Counsel.
Deputy Chief Counsel.
Export Administration
Under Secretary.
Deputy Under Secretary.
Director for Administration
Assistant Secretary for Export Administration.
Director, Office of Technology and Policy Analysis.
Director, Office of Foreign Availability.
Director, Office of Export Licensing.
Deputy Assistant Secretary for Industrial Resource Administration.
Assistant Secretary for Export Enforcement.
Director, Office of Export Enforcement.
Director, Office of Antiboycott Compliance.
Director, Office of Enforcement Support.
International Trade Administration
Deputy Under Secretary for International Trade
Deputy Assistant Secretary for Planning
Director, Office of Public Affairs
Director, Office of Legislative and Intergovernmental Affairs
International Economic Policy
Director, Office of Policy Coordination
Director, Office of Multilateral Affairs
Director, Office of Africa
Director, Office of the Near East
Director, Office of South Asia
Director, Office of Western Europe
Director, Office of European Community Affairs
Director, Office of Eastern Europe, Russia and Independent States
Director, Office of Latin America
Director, Office of Mexico
Director, Office of Canada
Director, Office of the PRC and Hong Kong
Director, Office of the Pacific Basin
Director, Office of Japan Trade Policy
Director, Office of Japan Commercial Programs
Import Administration
Director, Foreign Trade Zones Staff
Director, Office of Policy
Director, Statutory Import Programs Staff
Director, Office of Antidumping Compliance
Director, Office of Countervailing Compliance
Director, Office of Countervailing Agreements Compliance
Director, Office of Antidumping Investigations
Director, Office of Countervailing Investigations
Director, Office of Accounting
Trade Development
Director, Office of Trade and Economic Analysis
Director, Office of Export Promotion Coordination
Director, Office of Planning, Coordination and Resource Management
Director, Office of Aerospace
Director, Office of Computers and Business Equipment
Director, Office of Microelectronics, Medical Equipment and
Instrumentation
Director, Office of Telecommunications
Director, Office of Automotive Affairs
Director, Office of Materials, Machinery and Chemicals
Director, Office of Energy, Environment and Infrastructure
Director, Office of Textiles and Apparel
Director, Office of Consumer Goods
Director, Office of Export Trading Company Affairs
Director, Office of Finance
Director, Office of Service Industries
U.S. and Foreign Commercial Service
Director, Office of Information Systems
Deputy Assistant Secretary for International Operations
Deputy Assistant Secretary for Domestic Operations
Director, Planning and Resource Management Staff
Manager, Export Promotion Services
Administration
Director, Office of Organization and Management Support
Director, Office of Personnel
Director, Office of Financial Management
Director, Office of Information Resources Management
Minority Business Development Agency
Freedom of Information Officer.
[[Page 48]]
National Oceanic and Atmospheric Administration
Under Secretary.
Assistant Secretary.
Director, Office of Public Affairs.
Director, NOAA Corps.
General Counsel.
Assistant Administrator for Ocean Services and Coastal Zone
Management.
Assistant Administrator for Fisheries.
Assistant Administrator for Weather Service.
Assistant Administrator for Environmental Satellite, Data, and
Information Service.
Assistant Administrator for Oceanic and Atmospheric Research.
Director, Environmental Research Laboratories.
Director, Office of Administration.
Director, Eastern Administrative Support Center.
Director, Central Administrative Support Center.
Director, Western Administrative Support Center.
Director, Mountain Administrative Support Center.
National Telecommunications and Information Administration
Deputy Assistant Secretary.
Chief Counsel.
Legal Advisor.
Patent and Trademark Office
Solicitor, Deputy Solicitor.
United States Travel and Tourism Administration
Under Secretary.
Director, Office of Management and Administration.
[56 FR 50233, May 6, 1991, as amended at 57 FR 28781, June 29, 1992; 57
FR 48969, Oct. 29, 1992]