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8 4.4 Availability of materials for inspec

tion and copying; indexes. (a) The Assistant Secretary for Administration has established and maintains a central public reference facility available to units of the Department, at which place the following materials of those units utilizing the facility shall be made available for public inspection and copying:

(1) Final opinions, 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 participating organizations and are not published in the FEDERAL REGISTER;

(3) Administrative staff manuals and instructions to staff that affect a member of the public;

(4) Current indexes providing identifying information for the public as to any matter which was issued, adopted, or promulgated after July 4, 1967, and is required by 5 U.S.C. 552(a)(2) to be made available or published;

(5) Records of the final votes of each member in every proceeding of an agency comprised of more than one member;

(6) Rules and decisions denying requests for records which otherwise im. plement or relate to the Act; and

(7) Materials published in the FEDERAL REGISTER pursuant to 5 U.S.C. 552 (a)(1) and such other materials which each unit may consider desirable and practical to make available for the convenience of the public.

(b) The Secretary of Commerce has determined (DAO 205-12, subparagraph 5.02a.5.) that it is unnecessary and impracticable to publish quarterly or more frequently and distribute (by sale or otherwise) copies of each index and supplements thereto, as provided in 5 U.S.C. 552(a)(2). Upon request, copies of such indexes shall be provided at the public reference facility at a cost not to exceed the direct cost of duplication.

(c) The central facility established by the Assistant Secretary for Administration is the Central Reference and Records Inspection Facility, Room 5319, Department of Commerce Building, 14th Street between Constitution

Avenue and E Street, NW., Washington, D.C. 20230. The facility is open to the public Monday through Friday of each week, except on official holidays of the Federal Government, between the hours of 9 a.m. and 4:30 p.m. There are no fees or formal requirements for inspection of materials. Coin-operated equipment for making copies of these materials is available nearby for use by the public. Copies of various Commerce Department materials regularly available for sale by the Department may be purchased at the facility or information about them obtained. Correspondence concerning materials available at the facility or information about the rules implementing the Act may be sent to the above address. The telephone number of the facility is Area Code 202, 3774217.

(d) The following units of the Department are participating in the use of this central facility: All components of the Office of the Secretary of Commerce.

(e) Other units of the Department which have established separate public reference facilities, listed in Appendix B to this part, may publish rules applicable to the services provided therein, not inconsistent with this part, for public inspection and copying of materials. [40 FR 11553, Mar. 12, 1975, as amended at 40 FR 24721, June 10, 1975; 44 FR 10364, Feb. 20, 1979)

$ 4.5 Requests for records.

(a) A request for a record of the Department (or information contained therein) which is not customarily made available to the public as part of the Department's regular informational services, or which is not available in a public reference facility described in $ 4.4(c) or Appendix B to this part, shall be made in writing, with the envelope and the letter clearly marked “Freedom of Information Request" or Request for Records” or the equivalent, to distinguish it from other mail to the Department. Each such request, so marked, shall be addressed to the unit of the Department identified in Appendix B to this part which the requester knows or has reason to believe

is responsible for the records request. $ 4.6 Initial determinations of availability ed. If the requester is not sure which of records. is the responsible addressee unit, it

(a) The responsible unit which reshall address the request to the cen

ceives a request for records shall tral facility identified in $ 4.4(c), or

promptly log the receipt of the reobtain advance information from that

quest, and within ten days of its refacility as to which is the responsible

ceipt (excepting Saturdays, Sundays, addressee unit.

and legal public holidays) shall initial(b) Any request for records which is

ly determine: not marked and addressed as specified

(1) Whether the request is for in paragraph (a) of this section will be

records under the Act, is for materials so marked and addressed by Depart

available otherwise than under the ment personnel and forwarded imme

Act, or is for information not condiately to the responsible unit having

tained in existing records and, therepossession or control of the records re

fore, not under the Act, The requester quested or having primary concern

shall be promptly notified in writing with such records. A request which is

how the request is being handled improperly addressed by the requester when it does not come within the Act. will not be deemed to have been “re

(2) Whether the records requested ceived" for purposes of the time period are reasonably described and can be for a request for records set forth in 5 located on the basis of the information U.S.C. 552(a)(6), until the earlier of supplied by the requester. If any of the time that (1) forwarding of the re the records requested cannot be idenquest to the responsible unit has been tified and located from the informaeffected, or (2) such forwarding would tion furnished, the unit shall prompthave been effected with the exercise ly so inform the requester in writing, of due diligence by Department per- specifying what additional identificasonnel. In each instance when a re tion is needed to assist the unit in loquest is forwarded, the responsible cating the record, and offering to unit receiving it shall notify the re- assist the requester to reformulate its quester that its request was improper request. ly addressed and of the date the re- (3) Whether the records no longer quest was received by the unit.

exist, or are not in the unit's posses(c) A request for records shall suffi sion. The unit should, if it knows ciently identify the records requested which unit of the Department or to enable Department personnel famil other agency may have the records, iar with the subject matter to locate forward the request to it. In each inthem with a reasonable amount of stance, the unit shall promptly notify effort. The requester shall, to the the requester in writing. extent possible, furnish specific de (4) Whether the requested records scription information regarding dates are the exclusive or primary concern and place the records were made, the of another executive agency. If so, the file descriptions, subject matter, persons involved, and other pertinent de to that other agency for further tails that will help identify the action under its rules, and promptly records. If the request relates to a notify the requester in writing of this matter in pending litigation, the court, referral. location and case shall be identified. (5) Whether the request is a categorWhen more than one record is re ical one. A categorical request, i.e., one quested, the request shall clearly de for all records falling within a reasonscribe each specific record, and the ably specific but broad category, shall specific information requested which be regarded as conforming to the statis contained in a record, so that its utory requirement that records be reaavailability may be separately deter- sonably described, if the particular mined. Employees at a facility or at a records can be identified, searched for, specific address listed in Appendix B collected and produced without will assist the public to a reasonable unduly burdening or disrupting the extent in framing a request.

unit's operations. If the categorical re

quest does not reasonably describe the substantial subject matter interest records requested, the unit shall therein. promptly notify the requester in writ- (3) If no determination has been ing specifying what additional identifi- sent to the requester at the end of the cation is needed, and extend to the re

initial ten day period, or the last exquester an opportunity to confer with tension thereof, the requester may Department personnel to attempt to deem his request to be initially denied, reformulate the request so as reason and exercise a right of appeal thereably to describe the records.

from. When no determination can be (6) In each of the situations set made within the applicable time forth in paragraphs (a) and (b) of this

period, the responsible unit shall nevsection, the procedures relating to fees

ertheless exercise due diligence in condescribed in $ 4.9 shall also be applied

tinuing to process the request. It shall, and coordinated as appropriate.

on expiration of the applicable time (b) An authorized official in the re

period, inform the requester of the sponsible unit shall review the request

reason for the delay, of the date a deto determine the availability of the

termination is expected to be sent, and records requested.

of the requester's right to treat the (1) The determination shall be made delay as a denial and to appeal therewithin ten days (excepting Saturdays,

from. It may ask the requester to Sundays and legal public holidays) of forego an appeal until a determination the receipt of the request (as defined

is made. in $ 4.5(b) of this part), unless the

(4) If it is determined that the time is extended as provided in para

records requested are to be made availgraph (b)(2) of this section.

able, and there are no further fees to (2) In unusual circumstances, an ap

be paid, the responsible official shall propriate official authorized to make

promptly notify the requester as to initial denials of requests may extend

where and when the requested records the time for initial determination for

or copies may be obtained or otherwise up to ten days (excluding Saturdays,

provide them as agreed. If there are Sundays and legal public holidays) by

fees still to be paid by the requester, it written notice to the requester setting

shall be notified that upon their payforth the reasons for the extension and the date on which a determina

ment the records will immediately be tion is expected to be dispatched. Ex

made available. tensions of time for the initial deter

(5) Appendix C lists the limited mination and extensions of time on

number of officials who have been auappeal may not exceed a total of ten

thorized to make initial denials of redays, and time taken for the former

quests for records, except as may be counts against available appeal exten

subsequently authorized. A reply inision time. “Unusual circumstances"

tially denying, in whole or in part, a means, but only to the extent reason

request for records shall be in writing, ably necessary to the processing of a

signed by an authorized official, and it particular request:

shall include: (i) The need to search for and collect

(i) A reference to the specific exempthe requested records from field facili tion or exemptions of the Act authorties or other establishments that are izing the withholding of the records, separate from the office processing stating briefly why the exemption apthe request; (ii) the need to search for, plies and, where relevant, why a discollect, and appropriately examine a cretionary release is not appropriate. voluminous amount of separate and (ii) The name and title or position of distinct records which are demanded each official responsible for the in a single request, or (iii) the need for denial. consultation, which shall be conducted (iii) A statement of the manner in with all practical speed, with another which any reasonably segregable poragency or unit having a substantial in- tion of a record shall be provided to terest in the determination of the re- the requester after deletion of the porquest, or among two or more compo- tions which are determined to be nents of the responsible unit having exempt.

(iv) A brief statement of the right of $ 4.8 Appeals from initial denials or unthe requester to appeal the determina timely delays. tion to the General Counsel and the

(a) When a request for records has address to which the appeal should be

been initially denied in whole or in sent, in accordance with $ 4.8 (a) and

part, or has not been timely deter(b).

mined, the requester may submit a (6) A copy of each initial denial and its incoming request for records shall

written appeal within thirty calendar

days after the date of the written be provided to the Assistant General Counsel for Administration.

denial or, if there has been no deter

mination, on the last day of the appli(40 FR 11553, Mar. 12, 1975, as amended at cable time limit. The appeal shall in46 FR 62245, Dec. 23, 1981)

clude a copy of the original request, 8 4.7 Inspection and copying of disclosa

the initial denial, if any, and a state

ment of the reasons why the records ble records.

requested should be made available (a) Unless the requester has other

and why the initial denial, if any, was wise indicated, disclosable records

in error. No personal appearance, oral shall be sent to the appropriate facili

argument or hearing on appeal is proty to be held for a reasonable time for

vided. inspection by the requester, after any

(b) An appeal shall be addressed to fees due are paid.

the General Counsel, Department of (b) The requester may copy by hand

Commerce, Room 5879, 14th and Conany portion of the record may use the coin-operated copying equipment at

stitution Avenue NW., Washington, the facility to make copies, or may

D.C. 20230. Both the appeals envelope make other arrangements for copying

and the letter shall be clearly marked at specified fees.

“Freedom of Information Appeal” or (c) No change or alteration of any

“Appeal for Records" or the equivakind may be made to the record being

lent. An appeal not addressed and inspected, nor may any matter be

marked as provided herein will be so added to or deleted therefrom. Papers

marked by Department personnel bound or otherwise assembled in a

when it is so identified, and will be forrecord file may not be disassembled by

warded immediately to the General the requester. Title 18, United States Counsel. An appeal incorrectly adCode, section 2701(a) makes it a crime dressed will not be deemed to have to conceal, mutilate, obliterate, or de

been “received" for purposes of the stroy any record filed in any public time period for appeal set forth in 5 office, or to attempt to do any of the U.S.C. 552(a)(6), until the earlier of foregoing. Staff of the facility are au the time that (1) forwarding to the thorized to supervise inspection as General Counsel has been effected, or necessary to protect the records of the (2) such forwarding would have been Department, and they shall provide effected with the exercise of due diliassistance if disassembly of a record is gence by Department personnel. In necessary for copying purposes.

each instance when an appeal is so for(d) If a requester does not want to warded, the Office of General Counsel inspect a record by personal visit to shall notify the requester that the the facility, a copy shall be mailed to appeal was improperly addressed and the requester upon its payment of of the date the appeal was received by copying and postage fees as set forth the office. in $ 4.9 of this part, and other fees (c) The General Counsel shall act due. Original copies of records of the upon an appeal within twenty days Department shall not be sent to any (excluding Saturdays, Sundays and location other than the appropriate legal public holidays) of its receipt, facility for inspection.

unless an extension of time is made in (e) A copy of transcripts of public unusual circumstances, when the time hearings held by a unit of the Depart for action may be extended up to ten ment may be made available for in days (excluding Saturdays, Sundays spection when it is not in actual offi- and legal public holidays) minus any cial use.

days of extension granted at the initial request level. A notice of such ex- will be indexed and kept available for tension shall be sent to the requester, public inspection and copying. setting forth the reasons and the date

[40 FR 11553, Mar. 12, 1975, as amended at on which a determination of the

46 FR 62245, Dec. 23, 1981) appeal is expected to be sent. As used in this paragraph, "unusual circum 8 4.9 Fees. stances” are defined in $ 4.6(b)(2).

(a) Definitions. The following defini(d) If a decision on appeal is to make

tions are applicable to this section. the records available to the requester

(1) The term “direct costs" means in part or in whole, such records shall

those expenditures which an agency be promptly made available for inspec

actually incurs in searching for and tion and copying as provided in $ 4.7.

duplicating (and in the case of com(e) If no determination of an appeal

mercial requesters, reviewing) docuhas been sent to the requester within

ments to respond to a FOIA request. the twenty day period or the last ex

Direct costs include, for example, the tension thereof, the requester is

salary of the employee performing deemed to have exhausted his admin

work (the basic rate of pay for the emistrative remedies with respect to such

ployee plus 16 percent of that rate to request, giving rise to a right of judi

cover benefits) and the cost of operatcial review as specified in 5 U.S.C.

ing duplicating machinery. Not includ552(e)(4). When no determination can

ed in direct costs are overhead exbe sent to the requester within the

penses such as costs of space, and time limit, the General Counsel shall

heating or lighting the facility in nonetheless exercise due diligence in

which the records are stored. continuing to process the appeal.

(2) The term “search” includes all When the time limit expires, the re

time spent looking for material that is quester shall be informed of the

responsive to a request, including reason for the delay, of the date when

page-by-page or line-by-line identificaa determination may be expected to be

tion of material within documents. made, and of his right to seek judicial

Such activity should be distinguished, review. The requester may be asked to

however, from “review" of material in forego judicial review until the appeal

order to determine whether the mateis determined.

rial is exempt from disclosure (see (f) A determination on appeal shall

paragraph (a)(4) of this section). be in writing and, when it denies Searches may be done manually or by records in whole or in part, the notice

computer using existing programming.

computer using to the requester shall include: (1) No

(3) The term “duplication” refers to tation of the specific exemption or ex

the process of making a copy of a docemptions of the Act authorizing the

ument necessary to respond to a FOIA withholding, a brief explanation of request. Such copies can take the form how the exemption applies, and, when of paper copy, microform, audio-visual relevant, a statement as to why a dis materials, or machine readable docucretionary release is not appropriate; mentation (e.g., magnetic tape or (2) a statement that the decision is disk), among others. The copy providfinal for the Department; (3) advice ed must be in a form that is reasonthat judicial review of the denial is ably usable by requesters. available in the district in which the (4) The term “review” refers to the requester resides or has his principal process of examining documents locatplace of business, the district in which ed in response to a request that is for the agency records are situated, or the a commercial use (see paragraph (a)(5) District of Columbia; and (4) the of this section) to determine whether names and titles or positions of each any portion of any document located official responsible for the denial of is permitted to be withheld. It also inthe request.

cludes processing any documents for (g) The General Counsel shall send disclosure, e.g., doing all that is necesa copy of each determination on sary to excise them and otherwise preappeal to the central public reference pare them for release. Review does not facility referred to in § 4.4(c) where it include time spent resolving general

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