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that the desired testimony or documents are not reasonably available from any other source. Where testimony is sought, the party must also provide a summary of the testimony desired, the intended use of the testimony, and show that Commission records could not be provided and used instead of the requested testimony. A subpoena for testimony from a Commission employee concerning official matters or for the production of documents shall be served in accordance with Rule 45 of the Federal Rules of Civil Procedure and a copy of the subpoena shall be sent to the General Counsel.

(3) Any employee or former employee who is served with a subpoena or other demand shall promptly advise the General Counsel of the service of the subpoena or other demand, the nature of the documents or information sought, and all relevant facts and circumstances.

(4) Absent written authorization from the Chairman of the Commission ("Chairman"), the employee shall respectfully decline to produce the requested documents, to testify, or to otherwise disclose requested information. If a court rules that the demand must be complied with despite the absence of such written authorization, the employee upon whom the demand is made shall respectfully refuse to comply based upon these regulations and Touhy v. Ragan, 340 U.S. 462 (1951).

(5) The Chairman will consider and act upon subpoenas under this section with due regard for statutory restrictions, the Commission's rules and the public interest, taking into account such factors as the need to conserve employees' time for conducting official business, the need to prevent the expenditure of the United States government's time and money for private purposes, the need to maintain impartiality between private litigants in cases where no substantial governmental interest is involved, and the relevant legal standards for determining whether justification exists for the disclosure of nonpublic information and documents. If the Chairman determines that the subpoenaed documents or information are protected by a privilege or that the Commission has a duty in

law or equity to protect such documents or information from disclosure, the General Counsel shall move the court to quash the subpoena or for other appropriate action.

(6) The General Counsel may consult or negotiate with counsel or the party seeking testimony or documents to refine and limit the demand so that compliance is less burdensome, or obtain information necessary to make the determination described in paragraph (c)(5) of this section. Failure of the counsel or party seeking the testimony or documents to cooperate in good faith to enable the General Counsel to make an informed recommendation to the Chairman under paragraph (c)(5) of this section may serve as the basis for a determination not to comply with the demand.

(7) Permission to testify will, in all cases, be limited to the information set forth in the affidavit as described in paragraph (c)(2) of this section, or to such portions thereof as the Chairman deems proper.

(8) If the Chairman authorizes the testimony of an employee, then the General Counsel shall arrange for the taking of the testimony by methods that are least disruptive of the official duties of the employee. Testimony may, for example, be provided by affidavits, answers to interrogatories, written depositions, or depositions transcribed, recorded, or preserved by any other means allowable by law. Costs of providing testimony, including transcripts, will be borne by the party requesting the testimony. Such costs shall also include reimbursing the Commission for the usual and ordinary expenses attendant upon the employee's absence from his or her official duties in connection with the case or matter, including the employee's salary and applicable overhead charges and any necessary travel expenses.

(9) The Secretary in consultation with the General Counsel is further authorized to charge reasonable fees to parties demanding documents or information. Such fees, calculated to reimburse the government for the expense of responding to such demand, may include the costs of time expended by Commission employees to process and respond to the demand, attorney time

for reviewing the demand and for related legal work in connection with the demand, and expenses generated by equipment used to search for, produce and copy the responsive information. In general, such fees will be assessed at the rates and in the manner specified in §201.20 of this part.

(10) This section does not affect the rights and procedures governing the public access to official documents pursuant to the Freedom of Information Act or the Privacy Act.

(11) This section is intended to provide instructions to Commission employees and does not create any right or benefit, substantive or procedural, enforceable by any party against the Commission.

[40 FR 8328, Feb. 27, 1975, as amended at 54 FR 13676, Apr. 5, 1989]

Subpart D-Safeguarding Individual Privacy Pursuant to 5 U.S.C. 552a

AUTHORITY: 5 U.S.C. 552a.

SOURCE: 40 FR 47976, Oct. 10, 1975, unless otherwise noted.

$201.22 Purpose and scope.

The purpose of these regulations is to provide certain safeguards for an individual against an invasion of personal privacy by the United States International Trade Commission. These regulations are promulgated pursuant to the requirements for all Federal Agencies contained in 5 U.S.C. 552a(f).

§201.23 Definitions.

For the purpose of these regulations, (a) The term individual means a citizen of the United States or an alien lawfully admitted for permanent residence;

(b) The term maintain includes maintain, collect, use, or disseminate;

(c) The term record means any item, collection, or grouping of information about an individual that is maintained by the Commission, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identify

ing particular assigned to the individual;

(d) The term system of records means a group of any records under the control of the Commission from which information is retrieved by the name of the individual or by some identifying particular assigned to the individual;

(e) The term Director of Personnel refers to the Director, Office of Personnel and Management Systems, United States International Trade Commission, 500 E Street SW., Washington, DC 20436, or his or her designee.

$201.24 Procedures for requests pertaining to individual records in a records system.

(a) A request by an individual to gain access to his or her record or to any information pertaining to him or her which is contained in the systems of records maintained by the Commission shall be addressed to the Director of Personnel, United States International Trade Commission, 500 E Street Sw., Washington, DC 20436, and shall indicate clearly both on the envelope and in the letter that it is a Privacy Act request.

(b) In order to facilitate location of requested records, the request of the individual shall name the systems of records maintained by the Commission which he or she believes contain records pertaining to him or her or shall reasonably describe the requested record.

(c) The Director of Personnel shall acknowledge receipt of a request within ten days (excluding Saturdays, Sundays, and legal public holidays), and wherever practicable, indicate whether or not access can be granted. If access is not to be granted, the requestor shall be notified of the reason.

(d) The Director of Personnel, or, the Inspector General, if such records are maintained by the Inspector General, shall ascertain whether the systems of records maintained by the Commission contain records pertaining to the individual, and whether access will be granted. Thereupon the Director of Personnel shall:

(1) Notify the individual whether or not the requested record is contained in any system of records maintained by the Commission; and

(2) Notify the individual of the procedures as prescribed in §§ 201.25 and 201.26 of this chapter by which the individual may gain access to those records maintained by the Commission which pertain to him or her. Access to the records will be provided within 30 days (excluding Saturdays, Sundays, and legal public holidays).

[41 FR 18810, May 7, 1976, as amended at 60 FR 37336, July 20, 1995]

$201.25 Times, places, and requirements for identification of individuals making requests.

(a) It shall be the responsibility of the individual requester to arrange an appointment with the Director of Personnel for the purpose of inspecting individual records. The time of inspection shall be during the regular office hours of the Commission, 8:45 A.M. to 5:15 P.M., Monday through Friday. The time arranged should be mutually convenient to the requester and to the Commission.

(b) The place where an individual may gain access to records maintained by the Commission which pertain to him or her shall be at the United States International Trade Commission Building, 500 E Street SW., Washington, DC 20436. The Director of Personnel shall inform the individual requester of the specific room wherein inspection will take place.

(c) An individual who requests to gain access to those records maintained by the Commission which pertain to him or her shall not be granted access to those records without first presenting adequate identification to the Director of Personnel. Adequate identification includes, but is not limited to, a government identification card, a driver's license, medicare card, a birth certificate, or a passport.

(d) Where the nature of the record or system of records permits and where the individual cannot view the records pertaining to him in person, the Director of Personnel may dispense with the requisites of §§ 201.25(a) and 201.25(b) of these regulations and provide the individual with a copy of the record by certified mail.

§201.26 Disclosure of requested information to individuals.

(a) Assuming that the individual requester has met the adequate identification criterion of §201.25(c) of these regulations, the Director of Personnel shall permit the individual to review the pertinent records and to have a copy made of all or any portion of them. Where specific exemptions within the purview of §201.32(c) would render such records or portions thereof incomprehensible, the Director of Personnel shall furnish an abstract in addition to an actual copy.

(b) The individual has the right to have a person of his or her own choosing accompany him or her to review his or her records. The Director of Personnel shall permit a person of the individual requester's choosing to accompany the individual during inspection.

(c) When the individual requests the Director of Personnel to permit a person of the individual's choosing to accompany him or her during the inspection of his or her records, the Director of Personnel shall require the individual requester to furnish a written statement authorizing discussion of the records in the accompanying person's presence.

(d) The Director of Personnel shall take all necessary steps to insure that individual privacy is protected while the individual requester is inspecting his or her records or while those records are being discussed. Only the Director of Personnel shall accompany the individual as representative of the Commission during the inspection of the individual's records. The Director of Personnel shall be authorized to discuss the pertinent records with the individual.

$201.27 Special procedures: Medical records.

(a) While an individual has an unqualified right of access to the records in systems of records maintained by the Commission which pertain to him or her, medical and psychological records merit special treatment because of the possibility that disclosure will have an adverse physical or psychological effect upon the requesting individual. Accordingly, therefore, in those instances where an individual is

requesting the medical and/or psychological records which pertain to him or her, he or she shall, in his or her Privacy Act request to the Director of Personnel as called for in §201.24(a) of these regulations, specify a physician to whom the medical and/or psychological records may be released.

(b) It shall be the responsibility of the individual requesting medical or psychological records to specify a physician to whom the requested records may be released. If an individual refuses to name a physician and insists on inspecting his or her medical or psychological records in the absence of a doctor's discussion and advice, the individual shall so state in his Privacy Act request to the Director of Personnel as called for in §201.24(a) and the Director of Personnel shall provide access to or transmit such records directly to the individual.

§201.28 Request for

amendment of record.

correction

or

(a) If, upon viewing his or her records, the individual disagrees with a portion thereof or feels sections thereof to be erroneous, the individual may request amendment(s) of the records pertaining to him or her. The individual should request such an amendment in writing. The request for amendment of records shall be addressed to the Director of Personnel, United States International Trade Commission, 500 E Street SW., Washington, DC 20436, and shall clearly indicate both on the envelope and in the letter that it is a Privacy Act request for amendment of records.

(b) Not later than 10 days (Saturdays, Sundays and Federal legal public holidays excluded) after the date of receipt of a Privacy Act request for amendment of records, the Director of Personnel shall acknowledge such receipt in writing. Such a request for amendment will be granted or denied by the Director of Personnel or, for records maintained by the Inspector General, the Inspector General. If the request is granted, the Director of Personnel, or, the Inspector General, for records maintained by the Inspector General, shall promptly make any correction of any portion of the record which the individual believes is not accurate, rel

evant, timely, or complete. If, however, the request is denied, the Director of Personnel shall inform the individual of the refusal to amend the record in accordance with the individual's request and give the reason(s) for the refusal. In cases where the Director of Personnel or the Inspector General has refused to amend in accordance with an individual's request, he or she also shall advise the individual of the procedures under §201.29 of this chapter for the individual to request a review of that refusal by the full Commission or by an officer designated by the Commission.

[40 FR 47976, Oct. 10, 1975, as amended at 60 FR 37336, July 20, 1995]

$201.29 Commission review of request for correction or amendment to record.

(a) The individual who disagrees with the refusal of the Director of Personnel or the Inspector General to amend the record may request a review of the refusal by the Commission. All requests for review of refusals to amend records should be addressed to the Chairman, United States International Trade Commission, 500 E Street, SW., Washington, DC 20436, and shall clearly indicate both on the envelope and in the letter that it is a Privacy Act review request.

(b) Not later than 30 days (Saturdays, Sundays, and Federal legal public holidays excluded) from the date on which the Commission receives a request for review of the Director of Personnel's or the Inspector General's refusal to amend the record, the Commission shall complete such a review and make a final determination thereof unless, for good cause shown, the Commission extends the 30-day period.

(c) After the individual's request to amend his or her records has been reviewed by the Commission, if the Commission agrees with the Director of Personnel's or the Inspector General's refusal to amend the record in accordance with the individual's request, the Commission shall:

(1) Notify the individual in writing of the Commission's decision;

(2) Advise the individual that he or she has the right to file a concise statement of disagreement with the Commission which sets forth his or her reasons for disagreement with the refusal of the Commission to amend the records; and

(3) Notify the individual of his or her legal right to judicial review of the Commission's final determination.

(d) In any disclosure, containing information about which the individual has filed a statement of disagreement, the Director of Personnel, or, for records maintained by the Inspector General, the Inspector General, shall clearly note any portion of the record which is disputed and shall provide copies of the statement and, if the Commission deems it appropriate, copies of a concise statement of the reasons of the Commission for not making the amendments requested, to persons or other agencies to whom the disputed record has been disclosed.

[60 FR 37336, July 20, 1995]

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record to person other than the individual to whom it pertains.

(a) Except as is permitted under 5 U.S.C. 552a(b)(1)–(b)(11), it is the policy of the Commission not to disclose any record which is contained in any system of records maintained by the Commission to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.

(b) Except for disclosures either to officers and employees of the Commission, or, to contractor employees who, in the Inspector General's or the Director of Personnel's judgment, are acting as federal employees, who have a need for the record in the performance of their duties, and any disclosure required by 5 U.S.C. 552, the Director of Personnel shall keep an accurate accounting of:

(1) The date, nature, and purpose of each disclosure of a record to any person or to another agency under paragraph (a) of this section; and

(2) The name or address of the person or agency to whom the disclosure is made.

(c) The Director of Personnel shall retain the accounting required by $201.30(b) for at least five years or the life of the record, whichever is longer, after such disclosure.

(d) Except for disclosures made to other agencies for civil or criminal law enforcement purposes pursuant to 5 U.S.C. 552a(b)(7), the Director of Personnel shall make any accounting made under §201.30(b) available to the individual named in the record at the individual's request.

(e) Where the Commission has provided any person or other agency with an individual record and such accounting as required by §201.30(b) has been made, the Director of Personnel shall inform all such persons or other agencies of any correction, amendment, or notation of dispute concerning said record.

[40 FR 47976, Oct. 10, 1975, as amended at 60 FR 37336, July 20, 1995]

§201.31 Fees.

(a) The Commission shall not charge any fee for the cost of searching for and reviewing an individual's records.

(b) Reproduction, duplication or copying of records by the Commission shall be at the rate of 10 cents per page. There shall be no charge, however, when the total amount does not exceed 50 cents.

§201.32 Specific exemptions.

(a) A system of records or a record which is specifically required by Executive order to be kept secret in the interest of national defense or foreign policy, pursuant to 5 U.S.C. 552(b)(1), shall be exempt from this subpart and from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) of section 3 of the Privacy Act.

(b) Systems of records required by statute to be maintained and used solely as statistical records shall be exempt from this subpart and shall be exempt from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I) and (f) of section 3 of the Privacy Act.

(c) Personnel investigations records in the custody of the Security Officer of the Commission, which are compiled solely for the purpose of determining suitability, eligibility, or qualifications for Commission employment or

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