60-day FRN - 2900-0782 (2016)

Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Proposed Rules
federalism implications to warrant the
preparation of a Federalism Assessment.
List of Subjects in 21 CFR Part 1308
Administrative practice and
procedure, Drug traffic control,
Reporting and recordkeeping
requirements.
For the reasons set out above, the DEA
proposes to amend 21 CFR part 1308 as
follows:
PART 1308—SCHEDULES OF
CONTROLLED SUBSTANCES
1. The authority citation for part 1308
continues to read as follows:

■

Authority: 21 U.S.C. 811, 812, 871(b),
unless otherwise noted.

2. In § 1308.11, add paragraph (h)(21)
to read as follows:

■

§ 1308.11

Schedule I

*

*
*
*
*
(h) * * *
(21) N-(1-phenethylpiperidin-4-yl)-Nphenylfuran-2-carboxamide, its isomers,
esters, ethers, salts and salts of isomers,
esters and ethers (Other names: Furanyl
fentanyl) . . . (9834).
Dated: September 15, 2016.
Chuck Rosenberg,
Acting Administrator.
BILLING CODE 4410–09–P

AGENCY FOR INTERNATIONAL
DEVELOPMENT

Agency for International
Development (USAID).
ACTION: Proposed rule.
AGENCY:

This regulation prescribes the
procedures and standards USAID
follows in processing requests for
records under the Freedom of
Information Act (‘‘FOIA’’), 5 U.S.C. 552.
The Act requires agencies to review
their FOIA regulations, and no later
than 180 days after enactment, directed
the head of each agency to issue
regulations on various elements of its
FOIA program.
DATES: Submit comments on or before
November 25, 2016.
FOR FURTHER INFORMATION CONTACT:
Lynn P. Winston, Bureau for
Management, Office of Management
Services, Information Records Division,
U.S. Agency for International
Development, Washington, DC 20523–

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List of Subjects in 22 CFR Part 212
Freedom of information.
For the reasons stated in the
preamble, USAID proposes to revise 22
CFR part 212 to read as follows:

Subpart M—FOIA Definitions
212.29 Glossary.

PART 212—PUBLIC INFORMATION

Subpart O—Privacy Act Provisions
212.31 Purpose and scope.
212.32 Privacy definitions.
212.33 Request for access to records.
212.34 Request to amend or correct records.
212.35 Appeals from denials of PA
amendment requests.
212.36 Request for accounting of record
disclosures.
212.37 Specific exemptions.

Subpart A—General Provisions
212.1 Purpose and scope.
212.2 Policy.
212.3 Records available on the Agency’s
Web site.

Subpart D—Responsibility for Responding
to Requests
212.6 Designation of authorized officials.
212.7 Processing of request.

Freedom of Information Act
Regulations

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Subpart G—Responses to Requests
212.20 Responsibility for responding to
requests.

Subpart C—Requirements for Making
Requests
212.5 How to make a request for records.

22 CFR Part 212

SUMMARY:

6601; tel. 202–712–0960, fax: 202–216–
3070.
SUPPLEMENTARY INFORMATION: On June
30, 2016, President Obama signed into
law the FOIA Improvement Act of 2016.
The Act addresses a range of procedural
issues that affect agency FOIA
regulations, including requirements that
agencies establish a minimum of 90
days for requesters to file an
administrative appeal, and that they
provide dispute resolution services at
various times throughout the FOIA
process. The Act also, among other
things, codifies the Department of
Justice’s ‘‘foreseeable harm’’ standard,
amends Exemption 5, creates a new
‘‘Chief FOIA Officer Council,’’ and adds
two new elements to agency Annual
FOIA Reports.

Subpart B—Proactive Disclosures of
Agency Records
212.4 Materials available for public
inspection and copying.

[FR Doc. 2016–23183 Filed 9–26–16; 8:45 am]

66227

Subpart E—Reasons for Withholding Some
Records
212.8 General policy.
212.9 Exemption 1: National defense and
foreign policy.
212.10 Exemption 2: Internal personnel
rules and practices.
212.11 Exemption 3: Records exempted by
other statutes.
212.12 Exemption 4: Trade secrets and
confidential commercial or financial
information.
212.13 Exemption 5: Internal memoranda.
212.14 Exemption 6: Clearly unwarranted
invasion of personal privacy.
212.15 Exemption 7: Law enforcement.
212.16 Exemption 8: Records on financial
institutions.
212.17 Exemption 9: Records concerning
geological information.
212.18 Exclusions one through three.
Subpart F—Timing of Responses to
Requests
212.19 Time limits.

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Subpart H—Confidential Commercial
Information
212.21 Policy and procedures.
Subpart I—Administrative Appeals
212.22 Appeal procedures.
212.23 Mediation and dispute services.
Subpart J—Preservation of Records
212.24 Policy and procedures.
Subpart K—Fees
212.25 Fees to be charged—general.
212.26 Fees to be charged—requester
categories.
Subpart L—Annual Reporting Requirements
212.27 Annual Report.
212.28 Chief FOIA Officer’s Report.

Subpart N—Other Rights and Services
212.30 Rights and services qualified by the
FOIA statute.

Subpart A—General Provisions
§ 212.1

Purpose and scope.

This subpart contains the rules that
the United States Agency of
International Development (hereinafter
‘‘USAID’’ or ‘‘the Agency’’) follows in
processing requests for records under
the Freedom of Information Act
(‘‘FOIA’’), 5 U.S.C. 552. The rules in this
subpart should be read in conjunction
with the text of the FOIA. Requests
made by individuals for records about
themselves under the Privacy Act of
1974, are processed under Subpart O.
Definitions of FOIA terms are referenced
in Subpart L. As a matter of policy, the
Agency makes discretionary disclosures
of records or information exempt from
disclosure under the FOIA whenever
disclosure would not foreseeably harm
an interest protected by a FOIA
exemption, but this policy does not
create any right enforceable in court.
§ 212.2

Policy.

(a) As a general policy, USAID follows
a balanced approach in administering
the FOIA. USAID recognizes the right of
the public to access information in the
possession of the Agency. USAID also
recognizes the legitimate interests of

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organizations or persons who have
submitted records to the Agency or who
would otherwise be affected by release
of records. USAID has no discretion to
release certain records, such as trade
secrets and confidential commercial
information, prohibited from release by
law. USAID’s policy calls for the fullest
responsible disclosure consistent with
those requirements of administrative
necessity and confidentiality which are
recognized under the FOIA.
(b) Definitions. For purposes of
subparts A through K, M, and O of this
part, record means information
regardless of its physical form or
characteristics including information
created, stored, and retrievable by
electronic means that is created or
obtained by the Agency and under the
control of the Agency at the time of the
request, including information
maintained for the Agency by an entity
under Government contract for records
management purposes. It does not
include records that are not already in
existence and that would have to be
created specifically to respond to a
request. Information available in
electronic form shall be searched and
compiled in response to a request unless
such search and compilation would
significantly interfere with the operation
of the Agency’s automated information
systems.
§ 212.3 Records available on the Agency’s
Web site.

Information that is required to be
published in the Federal Register under
5 U.S.C. 552(a)(1) is regularly updated
by the Agency and found on its public
Web site: www.usaid.gov/foia-requests.
Records that are required by the FOIA
to be made available for public
inspection and copying under 5 U.S.C.
552(a)(2) also are available on the
Agency’s public Web site.
Subpart B—Proactive Disclosures of
Agency Records

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§ 212.4 Materials available for public
inspection and copying.

(a) In accordance with this subpart,
the Agency shall make the following
materials available for public inspection
and copying:
(1) Operational policy in USAID’s
Automated Directives System (ADS)
which have been adopted by the Agency
and are not published in the Federal
Register;
(2) Administrative staff manuals and
instructions to staff that affect any
member of the public; and
(3) Copies of all records, regardless of
form or format, which have been
released pursuant to a FOIA request,

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and which have been requested three (3)
or more times, or because of the nature
of their subject matter, have become or
are likely to become the subject of
subsequent requests for substantially the
same records. The Agency shall decide
on a case by case basis whether records
fall into this category, based on the
following factors:
(i) Previous experience with similar
records;
(ii) The particular characteristics of
the records involved, including their
nature and the type of information
contained in them; and
(iii) The identity and number of
requesters and whether there is
widespread media, historical, academic,
or commercial interest in the records.
Subpart C—Requirements for Making
Requests
§ 212.5

How to make a request for records.

(a) General information. USAID has a
centralized system for responding to
FOIA requests. The Bureau for
Management, Office of Management
Services, Information and Records
Division (M/MS/IRD) is the central
processing point for requests for USAID
records contained in Washington, DC,
and its overseas missions. All FOIA
requests must be submitted to this
office. To make a request for the
Agency’s records, a requester may send
request via one of the following
mediums:
(1) By Email: [email protected]. Please
include your mailing address, email
address and phone number with your
request. While our FOIA Specialists are
happy to answer questions about the
FOIA Program and/or help you
formulate your request over the phone,
please be advised that FOIA requests
cannot accept by phone.
(2) Online Portal: To submit your
request online, please click the
subsequent link: https://
foiarequest.usaid.gov/index.aspx.
(3) By US Postal Mail: United States
Agency of International Development,
Bureau for Management, Office of
Management Services, Services,
Information and Records Division, 1300
Pennsylvania Avenue NW., Washington,
DC 20523–2701, Room 2.7C RRB, (202)
712–0960.
(4) By Fax: (202) 216–3070.
(b) Third party requests. Where a
request for records pertains to a third
party, a requester may receive greater
access by submitting either a notarized
authorization signed by that individual
or a declaration made in compliance
with the requirements set forth in the
FOIA by that individual authorizing
disclosure of the records to the

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requester, or by submitting proof that
the individual is deceased (e.g., a copy
of a death certificate or an obituary). As
an exercise of administrative discretion,
the agency can require a requester to
supply additional information if
necessary in order to verify that a
particular individual has consented to
disclosure.
(c) Description of records sought.
Requesters must describe the records
sought in sufficient detail to enable the
Agency’s personnel to locate them with
a reasonable amount of effort. To the
extent possible, requesters should
include specific information that may
assist in identifying the requested
records, such as the date, title or name,
author, recipient, subject matter of the
record, case number, file designation, or
reference number. In general, requesters
should include as much detail as
possible about the specific records or
the types of records that they are
seeking. Before submitting their
requests, requesters may contact the
Agency’s FOIA contact or FOIA Public
Liaison to discuss the records they are
seeking and to receive assistance in
describing the records. If, after receiving
a request and the Agency determines
that it does not reasonably describe the
records sought, the Agency shall inform
the requester what additional
information is needed or why the
request is otherwise insufficient.
Requesters who are attempting to
reformulate or modify such a request
may discuss their request with the
Agency’s designated FOIA Specialist or
its FOIA Public Liaison, each of whom
is available to assist the requester in
reasonably describing the records
sought. If a request does not reasonably
describe the records sought, the
Agency’s response to the request may be
delayed or denied.
Subpart D—Responsibility for
Responding to Requests
§ 212.6

Designation of authorized officials.

(a) The Assistant Administrator for
the Bureau for Management (M) serves
as the USAID Chief FOIA Officer. The
Chief FOIA Officer has overall
responsibility for USAID compliance
with the FOIA. The Chief FOIA Officer
provides high level oversight and
support to USAID’s FOIA programs, and
recommends adjustments to agency
practices, personnel, and funding as
may be necessary to improve FOIA
administration, including through an
annual Chief FOIA Officers Report
submitted to the U.S. Department of
Justice. The Chief FOIA Officer is
responsible for offering training to
agency staff regarding their FOIA

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responsibilities; serves as the primary
liaison with the Office of Government
Information Services and the Office of
Information Policy; and reviews, not
less frequently than annually, all
aspects of the Agency’s administration
of the FOIA to ensure compliance with
the FOIA’s requirements.
(b) The Bureau for Management,
Office of Management Services,
Information Records Division (M/MS/
IRD) is the centralized FOIA office that
receives, tracks, and processes all of
USAID’s FOIA requests to ensure
transparency within the Agency.
(c) The Director, Bureau for
Management, Office of Management
Services (M/MS/OD) serves as the
USAID FOIA Appeals Officer. The FOIA
Appeals Officer is responsible for
receiving and acting upon appeals from
requesters whose initial FOIA requests
for USAID records have been denied, in
whole or in part.
(d) The Chief, Bureau for
Management, Office of Management
Services, Information and Records
Division (M/MS/IRD) serves as USAID’s
FOIA Officer and FOIA Public Liaison.
The FOIA Officer is responsible for
program direction, original denials, and
policy decisions required for effective
implementation of USAID’s FOIA
program. The FOIA Public Liaison
serves as a supervisory official to whom
a FOIA requester can raise concerns
about the services received, following
an initial response from the FOIA staff.
In addition, the FOIA Public Liaison
assists, as appropriate, in reducing
delays, increasing transparency and
understanding of the status of requests,
and resolving disputes.
(e) The FOIA Team Leader is the
Principal Operations Officer within
USAID for the processing of FOIA
requests and release determinations.
(f) The FOIA Specialist also known as
the Government Information Specialist
(GIS) is responsible for processing
requests and preparing records for
release when such releases are
authorized by the FOIA. They do not
have the authority to make denials,
including ‘‘no records’’ responses.
(g) The General Counsel (GC), FOIA
Backstop Attorney Advisor has
responsibility for providing legal advice
on all USAID matters regarding or
resulting from the FOIA. Upon request,
GC advises M/MS/IRD on release and
denial decisions, and apprises the FOIA
Office of all significant developments
with respect to the FOIA.
(h) Each Attorney Advisor designated
to provide legal advice to USAID
Bureaus/Independent Offices (B/IOs) is
responsible for providing, at M/MS/

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IRD’s request, legal advice on FOIA
requests assigned to those B/IOs.
(i) The designated FOIA Liaison
Officer (FLO) in each USAID Bureau
and Office is responsible for tasking and
facilitating the collection of responsive
records and monitoring the production
of records to M/MS/IRD.
§ 212.7

Processing of request.

(a) In general. In determining which
records are responsive to a request, the
Agency ordinarily will include only
records in its possession as of the date
that it begins its search. If any other date
is used, the Agency shall inform the
requester of that date.
(b) Authority to grant or deny
requests. The FOIA Officer is authorized
to grant or to deny any requests for
records that are maintained by the
Agency.
(c) Consultation, referral, and
coordination. When reviewing records
located by the Agency in response to a
request, USAID shall determine whether
another agency of the Federal
Government is better able to determine
whether the record is exempt from
disclosure under the FOIA and, if so,
whether it should be released as a
matter of discretion. As to any such
record, USAID shall proceed in one of
the following ways:
(1) Consultation. When records
originated with USAID, but contain
within them information of interest to
another agency, or other Federal
Government office, USAID should
consult with that other agency prior to
making a release determination.
(2) Referral. (i) When USAID believes
that a different agency, or other Federal
Government office is best able to
determine whether to disclose the
record, USAID should refer the
responsibility for responding to the
request regarding that record, as long as
the referral is to an agency that is
subject to the FOIA. Ordinarily, the
agency that originated the record will be
presumed to be best able to make the
disclosure determination. However, if
USAID and the originating agency
jointly agree that the former is in the
best position to respond regarding the
record, then the record may be handled
as a consultation.
(ii) Whenever USAID refers any part
of the responsibility for responding to a
request to another agency, it shall
document the referral, maintain a copy
of the record that it refers, and notify the
requester of the referral and inform the
requester of the name(s) of the agency to
which the record was referred,
including that agency’s FOIA contact
information.

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(e) Furnishing records. USAID shall
furnish copies only of records that the
Agency has in its possession. The
Agency is not compelled to create new
records. The Agency is not required to
perform research for a requester. The
Agency is required to furnish only one
copy of a record. If information exists in
different forms, the Agency will provide
the record in the form that best
conserves government resources.
Requests may specify the preferred form
or format (including electronic formats)
for the records sought by the requester.
USAID will accommodate the form or
format request if the record is readily
reproducible in that form or format.
(f) Archival records. The Agency
ordinarily transfers records in
accordance with its retirement
authority, included in ADS 502, to the
National Archives. These records
become the physical and legal custody
of the National Archives. Accordingly,
requests for retired Agency records
should be submitted to the National
Archives by mail addressed to Special
Access and FOIA Staff (NWCTF), 8601
Adelphi Road, Room 5500, College Park,
MD 20740; by fax to (301) 837–1864; or
by email to specialaccess_foia@
nara.gov.
(g) Records previously released. If
USAID has released a record, or a part
of a record, to a requester in the past,
the Agency will ordinarily release it to
a new requester. However, the Agency
will not release it to the new requester
if a statute forbids this disclosure, or if
an exemption applies that did not apply
earlier, or was applied differently in the
previous situations.
(h) Unauthorized disclosure. The
principle stated in paragraph (f) of this
section, does not apply if the previous
release was unauthorized.
(i) Poor copy. If USAID cannot make
a legible copy of a record to be released,
the Agency is not required to
reconstruct it. Instead, the Agency will
furnish the best copy possible and note
its poor quality in the Agency’s reply.
Subpart E—Reasons for Withholding
Some Records
§ 212.8

General policy.

(a) Section 552(b) of the Freedom of
Information Act contains nine
exemptions to the mandatory disclosure
of records. Information obtained by the
Agency from any individual or
organization, furnished in reliance on a
provision for confidentiality authorized
by applicable statute or regulation, will
not be disclosed, to the extent it can be
withheld under one of these
exemptions. This section does not itself
authorize the giving of any pledge of

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confidentiality by any officer or
employee of the Agency.
(b) USAID shall:
(1) Withhold information under the
FOIA only if the agency reasonably
foresees that disclosure would harm an
interest protected by an exemption or
disclosure is prohibited by law.
(2) Consider whether partial
disclosure of information is possible
whenever the agency determines that a
full disclosure of a requested record is
not possible.
(3) Take reasonable steps necessary to
segregate and release nonexempt
information.
§ 212.9 Exemption 1: National defense and
foreign policy.

Exemption 1 of the FOIA permits the
withholding of matters specifically
authorized under criteria established by
an Executive Order to be kept secret in
the interest of national defense or
foreign policy and which are in fact
properly classified under such
Executive Order.
§ 212.10 Exemption 2: Internal personnel
rules and practices.

Exemption 2 of the FOIA covers
matters related solely to USAID’s
internal personnel rules and practices of
the Agency.
§ 212.11 Exemption 3: Records exempted
by other statutes.

(a) Exemption 3 of the FOIA
incorporates the various nondisclosure
provisions that are contained in other
federal statutes. Exemption 3 allows the
withholding of information prohibited
from disclosure by another statute only
if one of two disjunctive requirements
are met. The statute either:
(1) Requires that the matters be
withheld from the public in such a
manner as to leave no discretion on the
issue, or
(2) Establishes particular criteria for
withholding or refers to particular types
of matters to be withheld.
(b) A statute thus falls within
Exemption 3 coverage if it satisfies any
one of its disjunctive requirements.

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§ 212.12 Exemption 4: Trade secrets and
confidential commercial or financial
information.

Exemption 4 of the FOIA protects
trade secrets and commercial or
financial information obtain for a person
[that is] privilege or confidential.
(a) A trade secret has been narrowly
defined by the courts under the FOIA as
a commercially valuable plan, formula,
process, or device that is used for
making, preparing, compounding or
processing trade commodities and that
can be said to be the end product of
either innovation or substantial effort.

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(b) Confidential commercial or
financial information is information that
relates to business or trade that has been
obtained from a person (other than a
federal employee), and has not been
shared or made available to the public.
§ 212.13 Exemption 5: Internal
memoranda.

Exemption 5 of the FOIA applies to
inter-agency or intra-agency
memorandums or letters which would
not be available by law to a party other
than an agency in litigation with the
Agency. This includes internal advice,
recommendations, and subjective
evaluations, as opposed to factual
matters contained in records that
pertain to the decision-making process
of an agency, whether within or among
agencies. The three primary privileges
incorporated in Exemption 5 are the
deliberative process privilege, the
attorney work-product privilege, and the
attorney-client privilege.
(a) The deliberative process privilege
allows the Agency to withhold
documents which reflect deliberative,
pre-decisional communications. This
privilege protects the integrity of
agencies’ decision-making processes.
There are two requirements that must be
met to withhold under the deliberative
process privilege: Information must be
pre-decisional and deliberative. The
Agency has an obligation to segregate
out and release factual portions. The
deliberative process privilege shall not
apply to records created 25 years or
more before the date on which the
records were requested.
(b) The attorney work-product
privilege only applies when the
document was created by or at the
direction of an attorney; and created in
reasonable anticipation of litigation.
This privilege covers both factual and
deliberative materials, therefore, the
Agency is not required to segregate out
and release factual portions of attorney
work-product documents.
(c) The attorney-client privilege
protects confidential communications
between an attorney and his/her client
relating to a legal matter for which the
client has sought professional advice.
This privilege is not limited to litigation
and includes protection for facts
provided by the client as well as the
attorney’s opinions. This privilege
covers both factual and deliberative
materials.
§ 212.14 Exemption 6: Clearly unwarranted
invasion of personal privacy.

Exemption 6 of the FOIA applies to
personnel, medical, and similar files the
disclosure of which would constitute a
clearly unwarranted invasion of

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personal privacy. This exemption
protects the privacy interests of
individuals by allowing USAID to
withhold personal data kept in its files
where there is an expectation of privacy.
Once it has been determined that a
personal privacy interest is threatened
by a requested disclosure, the
exemption requires agencies to strike a
balance between an individual’s privacy
interest and the public’s interest in
disclosure.
§ 212.15

Exemption 7: Law enforcement.

Exemption 7 of the FOIA allows
agencies to withhold records or
information compiled for law
enforcement purposes, but only to the
extent that the production of such
records would cause one of the
following harms of Exemption 7
described below:
(a) Exemption (7)(A) allows the
withholding of a law enforcement
record that could reasonably be
expected to interfere with enforcement
proceedings.
(b) Exemption (7)(B) allows the
withholding of law enforcement
information that would deprive a person
of a right to a fair trial or an impartial
adjudication.
(c) Exemption (7)(C) recognizes that
individuals have a privacy interest in
information maintained in law
enforcement files. If the disclosure of
information could reasonably be
expected to constitute an unwarranted
invasion of personal privacy, the
information may be exempt from
disclosure.
(d) Exemption (7)(D) protects the
identity of confidential sources.
Information that could reasonably be
expected to reveal the identity of a
confidential source is exempt. A
confidential source can include a state,
local, or foreign agency or authority, or
a private institution that furnished
information on a confidential basis. In
addition, the exemption protects
information furnished by a confidential
source if the data was compiled by a
criminal law enforcement authority
during a criminal investigation.
(e) Exemption (7)(E) protects from
disclosure information that would
reveal techniques and procedures for
law enforcement investigations or
prosecutions or that would disclose
guidelines for law enforcement
investigations or prosecutions if
disclosure of the information could
reasonably be expected to risk
circumvention of the law.
(f) Exemption (7)(F) protects law
enforcement information that could
reasonably be expected to endanger the
life or physical safety of any individual.

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§ 212.16 Exemption 8: Records on
financial institutions.

Exemption 8 of the FOIA protects
information that is contained in or
related to examination, operating, or
condition reports prepared by, on behalf
of, or for the use of an agency
responsible for the regulation or
supervision of financial institutions
(such as Federal Deposit Insurance
Corporation (FDIC), the Federal Reserve,
or similar agencies).
§ 212.17 Exemption 9: Records concerning
geological information.

Exemption 9 of the FOIA covers
geological and geophysical information
and data, including maps, concerning
wells.

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§ 212.18

Exclusions one through three.

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Subpart F—Timing of Responses to
Requests
§ 212.19

(a) The FOIA contains three special
protection provisions that expressly
authorize federal law enforcement
agencies, for especially sensitive records
under certain specified circumstances,
to treat the records as not subject to the
FOIA. USAID may not be required to
confirm the existence of these categories
of records. If these records are
requested, USAID may respond that
there are no records responsive to the
request. However, these exclusions do
not broaden the authority of the USAID
to withhold documents from the public.
The exclusions are only applicable to
information that is otherwise exempt
from disclosure.
(1) Exclusion 1. (i) The first exclusion
may be used when a request seeks
information described in the FOIA,
subsection (b)(7)(A), and meets the
following requirements:
(A) The investigation in question
must involve a possible violation of
criminal law.
(B) There must be reason to believe
that the subject of the investigation is
not already aware that the investigation
is underway.
(C) Disclosure of the existence of the
records could reasonably be expected to
interfere with enforcement proceedings.
(ii) USAID may respond to a FOIA
request for investigatory records as if the
records are not subject to the
requirements of the FOIA when all of
these conditions exist. In other words,
the USAID response does not have to
reveal that it is conducting an
investigation.
(2) Exclusion 2. Informant records
maintained by USAID criminal law
enforcement filed under the informant’s
name or personal identifier are covered
by Exclusion 2. USAID is not required
to confirm the existence of these records
unless the informant’s status has been
officially confirmed. This exclusion

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helps agencies to protect the identity of
confidential informants.
(3) Exclusion 3. The third exclusion
only applies to records maintained by
the Federal Bureau of Investigation,
which pertain to foreign intelligence,
counterintelligence, or international
terrorism. When the existence of these
types of records is classified, the FBI
may treat the records as not subject to
the requirements of FOIA.
(b) Requesters who believe that
records were improperly withheld
because of the exclusions can seek
judicial review by filing suit in Federal
District Court.

Time limits.

(a) In general. The Agency ordinarily
will respond to requests according to
their order of receipt. In instances
involving misdirected requests that are
re-routed, the response time will
commence on the date that the request
is received by the FOIA office that is
designated to receive requests.
(b) Multitrack processing. (1) When
the Agency has a significant number of
requests, the nature of which precludes
a determination within 20 working
days, the requests may be processed in
a multitrack processing system, based
on the date of receipt, the amount of
work and time involved in processing
the request, and whether the request
qualifies for expedited processing.
(2) The Agency may establish as many
processing tracks as appropriate;
processing within each track shall
ordinarily be based on a ‘‘first-in, firstout’’ concept, and rank-ordered by the
date of receipt of the request.
(3) The Agency may provide a
requester whose request does not
qualify for the fastest track an
opportunity to limit the scope of the
request in order to qualify for a faster
track. This multitrack processing system
does not lessen agency responsibility to
exercise due diligence in processing
requests in the most expeditious manner
possible.
(4) The Agency shall process requests
in each track on a ‘‘first-in, first-out’’
basis, unless there are unusual
circumstances as set forth in paragraph
(c) of this section, or the requester is
entitled to expedited processing as set
forth paragraph (e) of this section.
(c) Unusual circumstances. Whenever
the statutory time limit for processing a
request cannot be met because of
‘‘unusual circumstances,’’ as defined in
the FOIA, and the Agency extends the
time limit on that basis, the Agency
shall, before expiration of the 20-day

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period to respond, notify the requester
in writing of the unusual circumstances
involved and of the date by which
processing of the request can be
expected to be completed. Where the
extension exceeds 10 working days, the
Agency shall, in the written notice,
notify the requester of right to seek
dispute resolution services from the
Office of Government Information
Services (OGIS). In addition, the Agency
shall, as described by the FOIA, provide
the requester with an opportunity to
modify the request or arrange an
alternative time period for processing.
(d) Aggregating requests. For the
purposes of satisfying unusual
circumstances under the FOIA, the
Agency may aggregate requests in cases
where it reasonably appears that
multiple requests, submitted either by a
requester or by a group of requesters
acting in concert, constitute a single
request that would otherwise involve
unusual circumstances. The Agency
shall not aggregate multiple requests
that involve unrelated matters.
(e) Expedited processing. (1) Requests
and appeals shall be processed on an
expedited basis whenever it is
determined that they involve:
(i) Circumstances in which the lack of
expedited processing could reasonably
be expected to pose an imminent threat
to the life or physical safety of an
individual;
(ii) An urgency to inform the public
about an actual or alleged Federal
Government activity, if made by a
person who is primarily engaged in
disseminating information;
(iii) The loss of substantial due
process rights; or
(iv) A matter of widespread and
exceptional media interest in which
there exist possible questions about the
government’s integrity that affect public
confidence.
(2) A requester who seeks expedited
processing must submit a statement,
certified to be true and correct,
explaining in detail the basis for making
the request for expedited processing.
For example, under paragraph (e)(1)(ii)
of this section, a requester who is not a
full-time member of the news media
must establish that the requester is a
person whose primary professional
activity or occupation is information
dissemination, though it need not be the
requester’s sole occupation. Such a
requester also must establish a
particular urgency to inform the public
about the government activity involved
in the request—one that extends beyond
the public’s right to know about
government activity generally. The
existence of numerous articles
published on a given subject can be

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helpful in establishing the requirement
that there be an ‘‘urgency to inform’’ the
public on the topic. As a matter of
administrative discretion, the Agency
may waive the formal certification
requirement.
(3) The Agency shall notify the
requester within 10 calendar days of the
receipt of a request for expedited
processing of its decision whether to
grant or deny expedited processing. If
expedited processing is granted, the
request shall be given priority, placed in
the processing track for expedited
requests, and shall be processed as soon
as practicable. If a request for expedited
processing is denied, any appeal of that
decision shall be acted on
expeditiously.
Subpart G—Responses to Requests

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§ 212.20 Responsibility for responding to
requests.

(a) In general. USAID should, to the
extent practicable, communicate with
requesters having access to the Internet
using electronic means, such as email or
web portal.
(b) Acknowledgments of requests.
USAID shall acknowledge the request
and assign it an individualized tracking
number. The Agency shall include in
the acknowledgment a brief description
of the records sought to allow requesters
to more easily keep track of their
requests.
(c) Grants of requests. Once the
Agency makes a determination to grant
a request in full or in part, it shall notify
the requester in writing. The Agency
also shall inform the requester of any
fees charged and shall disclose the
requested records to the requester
promptly upon payment of any
applicable fees.
(d) Adverse determinations of
requests. If the Agency has made an
adverse determination denying a request
in any respect, the Agency shall notify
the requester of that determination in
writing. Adverse determinations, or
denials of requests, include decisions
that: The requested record is exempt, in
whole or in part; the request does not
reasonably describe the records sought;
the information requested is not a
record subject to the FOIA; the
requested record does not exist, cannot
be located, or has been destroyed; or the
requested record is not readily
reproducible in the form or format
sought by the requester. Adverse
determinations also include denials
involving fees or fee waiver matters or
denials of requests for expedited
processing.
(e) Information furnished. All denials
are in writing and describe in general

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terms the material withheld; state the
reasons for the denial, including, as
applicable, a reference to the specific
exemption of the FOIA authorizing the
withholding; explain your right to
appeal the decision and identify the
official to whom you should send the
appeal; and are signed by the person
who made the decision to deny all or
part of the request.
(f) Conducting searches. USAID
performs a diligent search for records to
satisfy your request. Nevertheless, the
Agency may not be able to find the
records requested using the information
provided, or the records may not exist.
If the Agency advises the requester that
the Agency has been unable to find the
records despite a diligent search, this
does not constitute a denial of the
request and preserves the right to
appeal.
Subpart H—Confidential Commercial
Information
§ 212.21

Policy and procedure.

(a) Definitions. (1) Confidential
commercial information means
commercial or financial information
obtained by the Agency from a
submitter that may be protected from
disclosure under Exemption 4 of the
FOIA, 5 U.S.C. 552(b)(4).
(2) Business submitter means any
person or entity, including a
corporation, State, or foreign
government, but not including another
Federal Government entity, that
provides information, either directly or
indirectly to the Federal Government.
(b) Designation of confidential
commercial information. A submitter of
confidential commercial information
must use good faith efforts to designate
by appropriate markings, either at the
time of submission or within a
reasonable time thereafter, any portion
of its submission that it considers to be
protected from disclosure under
Exemption 4. These designations shall
expire 10 years after the date of the
submission unless the submitter
requests and provides justification for a
longer designation period.
(c) When notice to business submitters
is required. (1) The Agency shall
promptly provide written notice to a
business submitter of confidential
commercial information whenever
records containing such information are
requested under the FOIA if, after
reviewing the request, the responsive
records, and any appeal by the
requester, the Agency determines that it
may be required to disclose the records,
provided:
(i) The requested information has
been designated in good faith by the

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business submitter as information
considered protected from disclosure
under Exemption 4; or
(ii) The Agency has a reason to
believe that the requested information
may be protected from disclosure under
Exemption 4, but has not yet
determined whether the information is
protected from disclosure under that
exemption or any other applicable
exemption.
(2) The notice shall either describe the
commercial information requested or
include a copy of the requested records
or portions of records containing the
information. In cases involving a
voluminous number of submitters,
notice may be made by posting or
publishing the notice in a place or
manner reasonably likely to accomplish
it.
(d) Exceptions to business submitter
notice requirements. The notice
requirements of this section shall not
apply if:
(1) The Agency determines that the
information is exempt under the FOIA;
(2) The information has been lawfully
published or has been officially made
available to the public;
(3) Disclosure of the information is
required by a statute other than the
FOIA or by a regulation issued in
accordance with the requirements of
Executive Order 12600 of June 23, 1987;
or
(4) The designation made by the
business submitter appears obviously
frivolous, except that, in such a case, the
Agency shall give the business
submitter written notice of any final
decision to disclose the information and
must provide that notice within a
reasonable number of days prior to a
specified disclosure date.
(e) Opportunity to object to disclosure.
(1) The Agency shall specify a
reasonable time period within which
the business submitter must respond to
the notice referenced above. If a
business submitter has any objections to
disclosure, the business submitter
should:
(i) Provide the Agency with a detailed
written statement that specifies all
grounds for withholding the particular
information under any exemption of the
FOIA. In order to rely on Exemption 4
as basis for nondisclosure, the business
submitter must explain why the
information constitutes a trade secret or
commercial or financial information
that is privileged or confidential.
(ii) Designate by appropriate
markings, either at the time a record is
submitted to the Agency or within a
reasonable period time thereafter, those
portions of the record which it deems to
contain confidential commercial

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information. The designation shall be
accompanied by a certification made by
the business submitter, its agent or
designee that to the best of the business
submitter’s knowledge, information and
belief, the record does, in fact, contain
confidential commercial information
that has not previously been disclosed
to the public.
(2) A business submitter who fails to
respond within the time period
specified in the notice shall be
considered to have no objection to
disclosure of the information.
Information received by the Agency
after the date of any disclosure decision
shall not be considered by the Agency.
Any information provided by a business
submitter under this subpart may itself
be subject to disclosure under the FOIA.
(f) Analysis of objections. The Agency
shall consider a business submitter’s
objections and specific grounds for
nondisclosure in deciding whether to
disclose the requested information.
(g) Notice of intent to disclose.
Whenever the Agency decides to
disclose information over the objection
of a business submitter, the Agency
shall provide the business submitter
written notice, which shall include:
(1) A statement of the reasons why
each of the business submitter’s
disclosure objections was not sustained;
(2) A description of the information to
be disclosed; and
(3) A specified disclosure date, which
shall be a reasonable time subsequent to
the notice.
(h) Notice of FOIA lawsuit. Whenever
a requester files a lawsuit seeking to
compel the disclosure of confidential
commercial information, the Agency
shall promptly notify the business
submitter.
Subpart I—Administrative Appeals

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§ 212.22

Appeal procedures.

USAID must inform the requester of
the reasons for the denial and the
requester’s right to appeal the denial to
the FOIA Appeals Officer whenever a
FOIA request is denied.
(a) What a requester can appeal. A
requester may appeal the withholding of
a document or denial of a fee waiver
request. A requester may contest the
type or amount of fees that were
charged, or may appeal any other type
of adverse determination under the
FOIA. A requester may also appeal
because USAID failed to conduct an
adequate search for the documents
requested. However, a requester may not
file an administrative appeal for the lack
of a timely response. A requester may
administratively appeal any portion
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part and denied in part. An appeal does
not affect the release of the documents
that may be disclosed if the Agency has
agreed to disclose some but not all
requested documents.
(b) Requirements for making an
appeal. A requester may appeal any
adverse determinations to USAID. The
requester must make the appeal in
writing. To be considered timely, the
appeal must be postmarked, or in the
case of electronic submissions,
transmitted, within 90 calendar days
after the date of the response. The
appeal should clearly identify the
Agency’s determination that is being
appealed and the assigned request
number. To facilitate handling, the
requester should mark both the appeal
letter and envelope, or subject line of
the electronic transmission, ‘‘Freedom
of Information Act Appeal.’’
(c) Adjudication of appeals. (1) The
Director of the Bureau for Management
Services or designee will conduct de
novo review and make the final
determination on the appeals.
(2) An appeal ordinarily will not be
adjudicated if the request becomes a
matter of FOIA litigation.
(d)) Decisions on appeals. A decision
on an appeal must be made in writing.
A decision that upholds the Agency’s
determination will contain a statement
that identifies the reasons for the
affirmance, including any FOIA
exemptions applied. The decision will
provide the requester with notification
of the statutory right to file a lawsuit
and will inform the requester of the
mediation services offered by the Office
of Government Information Services of
the National Archives and Records
Administration as a non-exclusive
alternative to litigation. If the Agency’s
decision is remanded or modified on
appeal, the requester will be notified of
that determination in writing. The
Agency will thereafter further process
the request in accordance with that
appeal determination and respond
directly to the requester.
(e) When appeal is required. Before
seeking review by a court of the
Agency’s adverse determination, a
requester generally must first submit a
timely administrative appeal.
(f) Where to file an appeal. An appeal
may be filed by sending a letter to: FOIA
Appeals Officer, Bureau for
Management Director, Office of
Management Services, U.S. Agency for
International Development Room 2.12–
010, RRB, Washington, DC 20523–4601.
There is no charge for filing an
administrative appeal.

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§ 212.23

66233

Mediation and dispute services.

The Office of Government Information
Services of the National Archives and
Records Administration (OGIS) is a
Freedom of Information Act (FOIA)
resource for the public and the
government. Congress has charged OGIS
with reviewing FOIA policies,
procedures and compliance of Federal
agencies and to recommend changes to
the FOIA. OGIS’ mission also includes
resolving FOIA disputes between
Federal agencies and requesters. In the
Administrative appeal process, OGIS
works as a non-exclusive alternative to
litigation.
When USAID makes a determination
on a request, the Agency shall offer the
services of the FOIA Public Liaison, and
will notify requesters of the mediation
services provided by OGIS. Specifically,
USAID will include in the Agency’s
notification to the requester;
(a) The right of the requester to seek
assistance from the FOIA Public Liaison
of the Agency, and in the case of an
adverse determination;
(b) The right of the requester to seek
dispute resolution services from the
FOIA Public Liaison of the agency or the
Office of Government Information
Services.
Subpart J—Preservation of Records
§ 212.24

Policy and procedures.

The Agency shall preserve all
correspondence relating to the requests
it receives under this subpart, and all
records processed pursuant to such
requests, until such time as the
destruction of such correspondence and
records is authorized pursuant to Title
44 of the United States Code, and
appropriate records disposition
authority granted by NARA. Under no
circumstances shall records be sent to a
Federal Records Center, transferred to
the permanent custody of NARA, or
destroyed while they are the subject of
a pending request, appeal, or civil
action under the FOIA.
Subpart K—Fees
§ 212.25

Fees to be charged—general.

(a) In general. USAID shall charge for
processing requests under the FOIA in
accordance with the provisions of this
section and with the Office of
Management and Budget (OMB)
Guidelines. In order to resolve any fee
issues that arise under this section, the
Agency may contact a requester for
additional information. The Agency
shall ensure that search, review, and
duplication are conducted in the most
efficient and the least expensive
manner. USAID ordinarily will collect

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all applicable fees before sending copies
of records to a requester. Requesters
must pay fees by check or money order
made payable to the Treasury of the
United States.
(b) Definitions. For purposes of this
section:
(1) Commercial use request is a
request that asks for information for a
use or a purpose that furthers a
commercial, trade, or profit interest,
which can include furthering those
interests through litigation. The
Agency’s decision to place a requester
in the commercial use category will be
made on a case-by-case basis based on
the requester’s intended use of the
information.
(2) Direct costs are those expenses that
the Agency incurs in searching for and
duplicating (and, in the case of
commercial use requests, reviewing)
records in order to respond to a FOIA
request. Direct costs do not include
overhead expenses such as the costs of
space, and of heating or lighting a
facility.
(3) Duplication is reproducing a copy
of a record, or of the information
contained in it, necessary to respond to
a FOIA request. Copies can take the
form of paper, audiovisual materials, or
electronic records, among others.
(4) Educational institution is any
school that operates a program of
scholarly research. A requester in this
fee category must show that the request
is authorized by, and is made under the
auspices of, an educational institution
and that the records are not sought for
a commercial use, but rather are sought
to further scholarly research. To fall
within this fee category, the request
must serve the scholarly research goals
of the institution rather than an
individual research goal.
(5) Noncommercial scientific
institution is an institution that is not
operated on a ‘‘commercial’’ basis, as
defined in paragraph (b)(1) of this
section and that is operated solely for
the purpose of conducting scientific
research the results of which are not
intended to promote any particular
product or industry. A requester in this
category must show that the request is
authorized by and is made under the
auspices of a qualifying institution and
that the records are sought to further
scientific research and are not for a
commercial use.
(6) Representative of the news media
is any person or entity organized and
operated to publish or broadcast news to
the public that actively gathers
information of potential interest to a
segment of the public, uses its editorial
skills to turn the raw materials into a
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to an audience. The term ‘‘news’’ means
information that is about current events
or that would be of current interest to
the public. Examples of news media
entities include television or radio
stations that broadcast ‘‘news’’ to the
public at large and publishers of
periodicals that disseminate ‘‘news’’
and make their products available
through a variety of means to the
general public, including news
organizations that disseminate solely on
the Internet. A request for records
supporting the news-dissemination
function of the requester shall not be
considered to be for a commercial use.
‘‘Freelance’’ journalists who
demonstrate a solid basis for expecting
publication through a news media entity
shall be considered as a representative
of the news media. A publishing
contract would provide the clearest
evidence that publication is expected;
however, components shall also
consider a requester’s past publication
record in making this determination.
(7) Review is the examination of a
record located in response to a request
in order to determine whether any
portion of it is exempt from disclosure.
Review time includes processing any
record for disclosure, such as doing all
that is necessary to prepare the record
for disclosure, including the process of
redacting the record and marking the
appropriate exemptions. Review costs
are properly charged even if a record
ultimately is not disclosed. Review time
also includes time spent both obtaining
and considering any formal objection to
disclosure made by a confidential
commercial information submitter, but
it does not include time spent resolving
general legal or policy issues regarding
the application of exemptions.
(8) Search is the process of looking for
and retrieving records or information
responsive to a request. Search time
includes page-by-page or line-by-line
identification of information within
records and the reasonable efforts
expended to locate and retrieve
information from electronic records.
(c) Charging fees. In responding to
FOIA requests, the Agency shall charge
the following fees unless a waiver or
reduction of fees has been granted under
paragraph (k) of this section.
(1) Search. (i) Requests made by
educational institutions, noncommercial
scientific institutions, or representatives
of the news media are not subject to
search fees. Search fees shall be charged
for all other requesters, subject to the
restrictions of paragraph (d) of this
section. The Agency may properly
charge for time spent searching even if
they do not locate any responsive
records or if they determine that the

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records are entirely exempt from
disclosure.
(2) Duplication. Duplication fees shall
be charged to all requesters, subject to
the restrictions of paragraph (d) of this
section. The Agency shall honor a
requester’s preference for receiving a
record in a particular form or format
where it is readily reproducible by the
agency in the form or format requested.
Where photocopies are supplied, the
Agency shall provide one copy per
request at a cost of twenty cents per
page. For copies of records produced on
tapes, disks, or other media, the direct
costs of producing the copy, including
operator time shall be charged. Where
paper documents must be scanned in
order to comply with a requester’s
preference to receive the records in an
electronic format, the requester shall
pay the direct costs associated with
scanning those materials. For other
forms of duplication, the Agency shall
charge the direct costs.
(3) Review. Review fees shall be
charged to requesters who make
commercial use requests. Review fees
shall be assessed in connection with the
initial review of the record, i.e., the
review conducted by the agency to
determine whether an exemption
applies to a particular record or portion
of a record. No charge will be made for
review at the administrative appeal
stage of exemptions applied at the
initial review stage. However, if a
particular exemption is deemed to no
longer apply, any costs associated with
the Agency re-review of the records in
order to consider the use of other
exemptions may be assessed as review
fees.
(d) Restrictions on charging fees. (1)
No search fees will be charged for
requests by educational institutions
(unless the records are sought for a
commercial use), noncommercial
scientific institutions, or representatives
of the news media.
(2) When the Agency determines that
unusual circumstances apply to the
processing of a request, and the Agency
has provided timely written notice to
the requester, the delay is excused for
an additional 10 days. If the Agency
fails to comply with the extended time
limit, it may not charge search fees (or
for requesters with preferred fee status,
may not charge duplication fees).
(i) Exception: If unusual
circumstances apply and ‘‘more than
5000 pages are necessary to respond to
the request,’’ the Agency may charge
search fees (or, for requesters in
preferred fee status, may charge
duplication fees) if timely written notice
has been made to the requester and the
Agency has discussed with the requester

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via written mail, electronic mail, or
telephone (or made not less than 3 goodfaith attempts to do so) how the
requester could effectively limit the
scope of the request.
(ii) Court Determination that
exceptional circumstances exist: If a
court determines that exceptional
circumstances exist, the Agency’s
failure to comply with a time limit shall
be excused for the length of time
provided by the court order.
(3) If the Agency fails to comply with
the time limits in which to respond to
a request, and if no unusual or
exceptional circumstances, as those
terms are defined by the FOIA, apply to
the processing of the request, it may not
charge search fees, or, in the instances
of requests from requesters described in
paragraph (d)(1) of this section, may not
charge duplication fees.
(4) No search or review fees will be
charged for a quarter-hour period unless
more than half of that period is required
for search or review.
(5) Except for requesters seeking
records for a commercial use, the
Agency shall provide without charge:
(i) The first 100 pages of duplication
(or the cost equivalent for other media);
and
(ii) The first two hours of search.
(6) When, after first deducting the 100
free pages (or its cost equivalent) and
the first two hours of search, a total fee
calculated under paragraph (c) of this
section is $25.00 or less for any request,
no fee will be charged.
(e) Notice of anticipated fees in excess
of $25.00. (1) When the Agency
determines or estimates that the fees to
be assessed in accordance with this
section will exceed $25.00, the Agency
shall notify the requester of the actual
or estimated amount of the fees,
including a breakdown of the fees for
search, review or duplication, unless the
requester has indicated a willingness to
pay fees as high as those anticipated. If
only a portion of the fee can be
estimated readily, the agency shall
advise the requester accordingly. If the
requester is a noncommercial use
requester, the notice shall specify that
the requester is entitled to the statutory
entitlements of 100 pages of duplication
at no charge and, if the requester is
charged search fees, two hours of search
time at no charge, and shall advise the
requester whether those entitlements
have been provided.
(2) In cases in which a requester has
been notified that the actual or
estimated fees are in excess of $25.00,
the request shall not be considered
received and further work will not be
completed until the requester commits
in writing to pay the actual or estimated

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total fee, or designates some amount of
fees the requester is willing to pay, or
in the case of a noncommercial use
requester who has not yet been provided
with the requester’s statutory
entitlements, designates that the
requester seeks only that which can be
provided by the statutory entitlements.
The requester must provide the
commitment or designation in writing,
and must, when applicable, designate
an exact dollar amount the requester is
willing to pay. The Agency is not
required to accept payments in
installments.
(3) If the requester has indicated a
willingness to pay some designated
amount of fees, but the Agency
estimates that the total fee will exceed
that amount, the Agency shall toll the
processing of the request when it
notifies the requester of the estimated
fees in excess of the amount the
requester has indicated a willingness to
pay. The Agency shall inquire whether
the requester wishes to revise the
amount of fees the requester is willing
to pay or modify the request. Once the
requester responds, the time to respond
will resume from where it was at the
date of the notification.
(4) The Agency shall make available
their FOIA Public Liaison or other FOIA
Specialists to assist any requester in
reformulating a request to meet the
requester’s needs at a lower cost.
(f) Charges for other services.
Although not required to provide
special services, if the Agency chooses
to do so as a matter of administrative
discretion, the direct costs of providing
the service shall be charged. Examples
of such services include certifying that
records are true copies, providing
multiple copies of the same document,
or sending records by means other than
first class mail.
(g) Charging interest. The Agency may
charge interest on any unpaid bill
starting on the 31st day following the
date of billing the requester. Interest
charges shall be assessed at the rate
provided in 31 U.S.C. 3717 and will
accrue from the billing date until
payment is received by the agency. The
Agency shall follow the provisions of
the Debt Collection Act of 1982 (Pub. L.
97–365, 96 Stat. 1749), as amended, and
its administrative procedures, including
the use of consumer reporting agencies,
collection agencies, and offset.
(h) Aggregating requests. When the
Agency reasonably believes that a
requester or a group of requesters acting
in concert is attempting to divide a
single request into a series of requests
for the purpose of avoiding fees, the
Agency may aggregate those requests
and charge accordingly. The Agency

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may presume that multiple requests of
this type made within a 30-day period
have been made in order to avoid fees.
For requests separated by a longer
period, the Agency will aggregate them
only where there is a reasonable basis
for determining that aggregation is
warranted in view of all the
circumstances involved. Multiple
requests involving unrelated matters
shall not be aggregated.
(i) Advance payments. (1) For
requests other than those described in
paragraphs (i)(2) or (i)(3) of this section,
the agency shall not require the
requester to make an advance payment
before work is commenced or continued
on a request. Payment owed for work
already completed (i.e., payment before
copies are sent to a requester) is not an
advance payment.
(2) When the Agency determines or
estimates that a total fee to be charged
under this section will exceed $250.00,
it may require that the requester make
an advance payment up to the amount
of the entire anticipated fee before
beginning to process the request. The
Agency may elect to process the request
prior to collecting fees when it receives
a satisfactory assurance of full payment
from a requester with a history of
prompt payment.
(3) Where a requester has previously
failed to pay a properly charged FOIA
fee to the agency within 30 calendar
days of the billing date, the Agency may
require that the requester pay the full
amount due, plus any applicable
interest on that prior request, and the
Agency may require that the requester
make an advance payment of the full
amount of any anticipated fee before the
Agency begins to process a new request
or continues to process a pending
request or any pending appeal. If the
Agency has a reasonable basis to believe
that a requester has misrepresented the
requester’s identity in order to avoid
paying outstanding fees, it may require
that the requester provide proof of
identity.
(4) In cases in which the Agency
requires advance payment, the request
shall not be considered received and
further work will not be completed until
the required payment is received. If the
requester does not pay the advance
payment within 30 calendar days after
the date of the Agency’s fee
determination, the request will be
closed.
(j) Other statutes specifically
providing for fees. The fee schedule of
this section does not apply to fees
charged under any statute that
specifically requires an agency to set
and collect fees for particular types of
records. In instances where records

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responsive to a request are subject to a
statutorily-based fee schedule program,
the Agency shall inform the requester of
the contact information for that
program.
(k) Requirements for waiver or
reduction of fees. (1) Records responsive
to a request shall be furnished without
charge or at a reduced rate below the
rate established under paragraph (c) of
this section, where the Agency
determines, based on all available
information, that the requester has
demonstrated that:
(i) Disclosure of the requested
information is in the public interest
because it is likely to contribute
significantly to public understanding of
the operations or activities of the
government, and
(ii) Disclosure of the information is
not primarily in the commercial interest
of the requester.
(2) In deciding whether disclosure of
the requested information is in the
public interest because it is likely to
contribute significantly to public
understanding of operations or activities
of the government, the Agency shall
consider all four of the following
factors:
(i) The subject of the request must
concern identifiable operations or
activities of the Federal Government,
with a connection that is direct and
clear, not remote or attenuated.
(ii) Disclosure of the requested
records must be meaningfully
informative about government
operations or activities in order to be
‘‘likely to contribute’’ to an increased
public understanding of those
operations or activities. The disclosure
of information that already is in the
public domain, in either the same or a
substantially identical form, would not
contribute to such understanding where
nothing new would be added to the
public’s understanding.
(iii) The disclosure must contribute to
the understanding of a reasonably broad
audience of persons interested in the
subject, as opposed to the individual
understanding of the requester. A
requester’s expertise in the subject area
as well as the requester’s ability and
intention to effectively convey
information to the public shall be
considered. It shall be presumed that a
representative of the news media will
satisfy this consideration.
(iv) The public’s understanding of the
subject in question must be enhanced by
the disclosure to a significant extent.
However, the Agency shall not make
value judgments about whether the
information at issue is ‘‘important’’
enough to be made public.

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(3) To determine whether disclosure
of the requested information is
primarily in the commercial interest of
the requester, the Agency shall consider
the following factors:
(i) The Agency shall identify any
commercial interest of the requester, as
defined in paragraph (b)(1) of this
section, that would be furthered by the
requested disclosure. Requesters shall
be given an opportunity to provide
explanatory information regarding this
consideration.
(ii) A waiver or reduction of fees is
justified where the public interest is
greater than any identified commercial
interest in disclosure. The Agency
ordinarily shall presume that where a
news media requester has satisfied the
public interest standard, the public
interest will be the interest primarily
served by disclosure to that requester.
Disclosure to data brokers or others who
merely compile and market government
information for direct economic return
shall not be presumed to primarily serve
the public interest.
(4) Where only some of the records to
be released satisfy the requirements for
a waiver of fees, a waiver shall be
granted for those records.
(5) Requests for a waiver or reduction
of fees should be made when the request
is first submitted to the Agency and
should address the criteria referenced
above. A requester may submit a fee
waiver request at a later time so long as
the underlying record request is
pending or on administrative appeal.
When a requester who has committed to
pay fees subsequently asks for a waiver
of those fees and that waiver is denied,
the requester shall be required to pay
any costs incurred up to the date the fee
waiver request was received. A
requester may appeal the denial of a fee
waiver.

§ 212.27

§ 212.26 Fees to be charged—requester
categories.

Subpart M—FOIA Definitions

(a) The following specific fees are
charged for services rendered:

§ 212.29

(1) Commercial Use
Search: $40.00 per hour.
Search costs will be assessed even
though no records may be found or even
if, after review, there is no disclosure or
records.
Review: $55.00 per hour.
Duplication: 20¢ per page.
(2) Educational & Non-Commercial
Scientific Institutions
Search: No fee.
Review: No fee.
Duplication: 20¢ per page after the
first 100 pages.

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(3) Representatives of the News Media
Search: No fee.
Review: No fee.
Duplication: 20¢ per page after the
first 100 pages.
(4) All Others
Search: Same as ‘‘Commercial Users’’
except the first two hours shall be
furnished without charge.
Review: No fee.
Duplication: 20¢ per page after the
first 100 pages.
(b) If copies of records are provided in
other than paper format (such as on
microfiche, video tape, or as electronic
data files), or other than first-class mail
is requested or required, the requester is
charged the actual cost of providing
these additional services.
Subpart L—Annual Reporting
Requirements
Annual Report.

The FOIA requires each federal
agency to submit an Annual Report to
the Attorney General each year. The
Annual Report contains detailed
statistics on the numbers of requests
received and processed by the Agency,
the time taken to respond, and the
outcome of each request, as well as
many other vital statistics regarding the
administration of the FOIA.
§ 212.28

Chief FOIA Officer’s Report.

The Attorney General’s 2009 FOIA
Guidelines require the Chief FOIA
Officer for each federal agency to submit
a report to the Attorney General
containing a detailed description of the
steps taken by the Agency to improve
FOIA compliance and transparency.
These reports contain details of FOIA
administration, as well as the steps
taken to implement the Attorney
General’s 2009 FOIA Guidelines during
each reporting year.

Glossary.

As used in this part:
Administrative FOIA Appeal is an
independent review of the initial
determination made in response to a
FOIA request. Requesters who are
dissatisfied with the response made on
their initial request have a statutory
right to appeal the initial determination
made by the Agency.
Agency is any executive agency,
military agency, government
corporation, government controlled
corporation, or other establishment in
the executive branch of the Federal
Government, or any independent
regulatory agency. Thus, USAID is an
agency.

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Backlog is the number of requests or
administrative appeals that are pending
beyond the statutory time period for a
response.
Complex request is a request that
typically seeks a high volume of
material or requires additional steps to
process such as the need to search for
records in multiple locations.
Consultation is when USAID locates a
record that contains information of
interest to another agency, and USAID
asks for the views of that other agency
on the disclosablity of the records before
any final determination is made.
Discretionary disclosure is
information that the Agency releases
even though it could have been
withheld under one of the FOIA’s
exemptions. Agencies release
information as a matter of discretion
when there is no foreseeable harm in
disclosure.
Duplication is reproducing a copy of
a record, or of the information contained
in it, necessary to respond to a FOIA
request. Copies can take the form of
paper, audiovisual materials, or
electronic records, among others.
Electronic record is any information
that is recorded in a form that only a
computer can process and that satisfies
the definition of a Federal record per the
Federal Records Act. Federal electronic
records are not necessarily kept in a
‘‘recordkeeping system’’ but may reside
in a generic electronic information
system or are produced by an
application such as word processing or
electronic mail.
Exemptions are nine categories of
information that are not required to be
released in response to a FOIA request
because release would be harmful to a
government or private interest. These
categories are called ‘‘exemptions’’ from
disclosures.
Expedited processing is the FOIA
response track granted in certain limited
situations, specifically when a FOIA
request is processed ahead of other
pending requests.
FOIA Library is an online page on the
Agency’s FOIA Web site, where certain
categories of records are proactively
disclosed. The FOIA Library contains
both operational documents about the
Agency as well as records that have
been frequently requested under the
FOIA.
Freedom of Information Act or FOIA
is a United States federal law that grants
the public access to information
possessed by government agencies.
Upon written request, U.S. government
agencies are required to release
information unless it falls under one of
nine exemptions listed in the Act.

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Frequently requested records are
records that have been requested three
(3) or more times from the Agency.
Multi-track processing is a system that
divides in-coming FOIA requests
according to their complexity so that
simple requests requiring relatively
minimal review are placed in one
processing track and more complex
requests are placed in one or more other
tracks. Requests granted expedited
processing are placed in yet another
track. Requests in each track are
processed on a first in/first out basis.
Office of Government Information
Services (OGIS) offers mediation
services to resolve disputes between
FOIA requesters and agencies as an
alternative to litigation. OGIS also
reviews agency FOIA compliance,
policies, and procedures and makes
recommendations for improvement. The
Office is a part of the National Archives
and Records Administration, and was
created by Congress as part of the OPEN
Government Act of 2007, which
amended the FOIA.
Proactive disclosures are records
made publicly available by agencies
without waiting for a specific FOIA
request. Agencies now post on their
Web sites material concerning their
functions and mission. The FOIA itself
requires agencies to make available
certain categories of information,
including final opinions and orders,
specific policy statements, certain
administrative staff manuals and
frequently requested records.
Record means information regardless
of its physical form or characteristics
including information created, stored,
and retrievable by electronic means that
is created or obtained by the Agency
and under the control of the Agency at
the time of the request, including
information maintained for the Agency
by an entity under Government contract
for records management purposes. It
does not include records that are not
already in existence and that would
have to be created specifically to
respond to a request. Information
available in electronic form shall be
searched and compiled in response to a
request unless such search and
compilation would significantly
interfere with the operation of the
Agency’s automated information
systems.
Referral occurs when an agency
locates a record that originated with, or
is of otherwise primary interest to
another agency. It will forward that
record to the other agency to process the
record and to provide the final
determination directly to the requester.
Simple request is a FOIA request that
an agency anticipates will involve a

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small volume of material or which will
be able to be processed relatively
quickly.
Subpart N—Other Rights and Services
§ 212.30 Rights and services qualified by
the FOIA statute.

Nothing in this subpart shall be
construed to entitle any person, as a
right, to any service or to the disclosure
of any record to which such person is
not entitled under the FOIA.
Subpart O—Privacy Act Provisions
§ 212.31

Purpose and scope.

This subpart contains the rules that
the USAID follows under the Privacy
Act of 1974 (PA), 5 U.S.C. 552a, as
amended. These rules should be read
together with the text of the statute,
which provides additional information
about records maintained on
individuals. The rules in this subpart
apply to all records in systems of
records maintained by the agency that
are retrieved by an individual’s name or
personal identifier. They describe the
procedures by which individuals may
request access to records about
themselves, request amendment or
correction of those records, and request
an accounting of disclosures of those
records by the agency. If any records
retrieved pursuant to an access request
under the PA are found to be exempt
from access under that Act, they will be
processed for possible disclosure under
the FOIA, as amended. No fees shall be
charged for access to or amendment of
PA records.
§ 212.32

Privacy definitions.

As used in this subpart, the following
definitions shall apply:
(a) Individual means a citizen or a
legal permanent resident alien (LPR) of
the United States.
(b) Maintain includes maintain,
collect, use, or disseminate.
(c) Record means any item, collection,
or grouping of information about an
individual that is maintained by the
agency and that contains the
individual’s name or the identifying
number, symbol, or other identifying
particular assigned to the individual,
such as a finger or voice print or
photograph.
(d) System of records means a group
of any records under the control of the
agency from which information is
retrieved by the name of an individual
or by some identifying number, symbol,
or other identifying particular assigned
to an individual.

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Request for access to records.

(a) In general. Requests for access to
records under the PA must be made in
writing and mailed to the Bureau for
Management Services, Information and
Records Division at the address given in
§ 212.7.
(b) Description of records sought.
Requests for access should describe the
requested record(s) in sufficient detail to
permit identification of the record(s). At
a minimum, requests should include the
individual’s full name (including
maiden name, if appropriate) and any
other names used, current complete
mailing address, and date and place of
birth (city, state and country). Helpful
data includes the approximate time
period of the record and the
circumstances that give the individual
reason to believe that the agency
maintains a record under the
individual’s name or personal identifier,
and, if known, the system of records in
which the record is maintained. In
certain instances, it may be necessary
for the Agency to request additional
information from the requester, either to
ensure a full search, or to ensure that a
record retrieved does in fact pertain to
the individual.
(c) Verification of personal identity.
The Agency will require reasonable
identification of individuals requesting
records about themselves under the
PA’s access provisions to ensure that
records are only accessed by the proper
persons. Requesters must state their full
name, current address, citizenship or
legal permanent resident alien status,
and date and place of birth (city, state,
and country). The request must be
signed, and the requester’s signature
must be either notarized or made under
penalty of perjury pursuant to 28 U.S.C.
1746. If the requester seeks records
under another name the requester has
used, a statement, under penalty of
perjury, that the requester has also used
the other name must be included.
(d) Authorized third party access. The
Agency shall process all properly
authorized third party requests, as
described in this section, under the PA.
In the absence of proper authorization
from the individual to whom the
records pertain, the Agency will process
third party requests under the FOIA.
The Agency’s form, AID 507–1, may be
used to certify the identity and provide
third party authorization.
(1) Parents and guardians of minor
children. Upon presentation of
acceptable documentation of the
parental or guardian relationship, a
parent or guardian of a U.S. citizen or
LPR minor (an unmarried person under
the age of 18) may, on behalf of the
minor, request records under the PA

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pertaining to the minor. In any case,
U.S. citizen or LPR minors may request
such records on their own behalf.
(2) Guardians. A guardian of an
individual who has been declared by a
court to be incompetent may act for and
on behalf of the incompetent individual
upon presentation of appropriate
documentation of the guardian
relationship.
(3) Authorized representatives or
designees. When an individual wishes
to authorize another person or persons
access to his or her records, the
individual may submit, in addition to
the identity verification information
described in paragraph (c) or paragraph
(d) of this section. The designated third
party must submit identity verification
information described in paragraph (c).
(e) Referrals and consultations. If the
Agency determines that records
retrieved as responsive to the request
were created by another agency, it
ordinarily will refer the records to the
originating agency for direct response to
the requester. If the agency determines
that records retrieved as responsive to
the request are of interest to another
agency, it may consult with the other
agency before responding to the request.
The Agency may make agreements with
other agencies to eliminate the need for
consultations or referrals for particular
types of records.
(f) Records relating to civil actions.
Nothing in this subpart entitles an
individual to access to any information
compiled in reasonable anticipation of a
civil action or proceeding.
(g) Time limits. The Agency will
acknowledge the request promptly and
furnish the requested information as
soon as possible thereafter.
§ 212.34 Request to amend or correct
records.

(a) An individual has the right to
request that the Agency amend a record
pertaining to the individual that the
individual believes is not accurate,
relevant, timely, or complete.
(b) Requests to amend records must be
in writing and mailed or delivered to
the Bureau for Management,
Management Services, Information
Records Division at the address given in
§ 212.7, with ATTENTION: PRIVACY
ACT AMENDMENT REQUEST written
on the envelope. IRD will coordinate the
review of the request with the
appropriate offices of the Agency. The
Agency will require verification of
personal identity before it will initiate
action to amend a record. Amendment
requests should contain, at a minimum,
identifying information needed to locate
the record in question, a description of
the specific correction requested, and an

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explanation of why the existing record
is not accurate, relevant, timely, or
complete. The request must be signed,
and the requester’s signature must be
either notarized or made under penalty
of perjury pursuant to 28 U.S.C. 1746.
The requester should submit as much
pertinent documentation, other
information, and explanation as
possible to support the request for
amendment.
(c) All requests for amendments to
records shall be acknowledged within
10 working days.
(d) In reviewing a record in response
to a request to amend, the Agency shall
review the record to determine if it is
accurate, relevant, timely, and complete.
(e) If the Agency agrees with an
individual’s request to amend a record,
it shall:
(1) Advise the individual in writing of
its decision;
(2) Amend the record accordingly;
and
(3) If an accounting of disclosure has
been made, advise all previous
recipients of the record of the
amendment and its substance.
(f) If the Agency denies an
individual’s request to amend a record,
it shall advise the individual in writing
of its decision and the reason for the
refusal, and the procedures for the
individual to request further review. See
§ 171.25 of this chapter.
§ 212.35 Appeals from denials of PA
amendment requests.

(a) How made. Except where
accountings of disclosures are not
required to be kept, as set forth in
paragraph (b) of this section, or where
accountings of disclosures do not need
to be provided to a requesting
individual pursuant to 5 U.S.C.
552a(c)(3), an individual has a right to
request an accounting of any disclosure
that the Agency has made to another
person, organization, or agency of any
record about an individual. This
accounting shall contain the date,
nature, and purpose of each disclosure
as well as the name and address of the
recipient of the disclosure. Any request
for accounting should identify each
particular record in question and may
be made by writing directly to the
Appeals Officer, Bureau for
Management, Office of Management
Services at the address given in
§ 212.19.
(b) Where accountings not required.
The Agency is not required to keep an
accounting of disclosures in the case of:
(1) Disclosures made to employees
within the Agency who have a need for
the record in the performance of their
duties; and

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§ 212.36 Request for accounting of record
disclosures.

(a) If the Agency denies a request for
amendment of such records, the
requester shall be informed of the
reason for the denial and of the right to
appeal the denial to the Appeals Review
Panel. Any such appeal must be
postmarked within 60 working days of
the date of the Agency’s denial letter
and sent to: Appeals Officer, Bureau for
Management, Office of Management
Services at the address given in
§ 212.19.
(b) Appellants should submit an
administrative appeal of any denial, in
whole or in part, of a request for access
to the PA at the above address. The
Agency will assign a tracking number to
the appeal.
(c) The Appeals Review Panel will
decide appeals from denials of PA
amendment requests within 30 business
days, unless the Panel extends that
period for good cause shown, from the
date when it is received by the Panel.
(d) Appeals Review Panel decisions
will be made in writing, and appellants
will receive notification of the decision.
A reversal will result in reprocessing of
the request in accordance with that
decision. An affirmance will include a
brief statement of the reason for the
affirmance and will inform the
appellant that the decision of the Panel
represents the final decision of the
Department and of the right to seek
judicial review of the Panel’s decision,
when applicable.
(e) If the Panel’s decision is that a
record shall be amended in accordance
with the appellant’s request, the
Chairman shall direct the office
responsible for the record to amend the
record, advise all previous recipients of
the record of the amendment and its
substance (if an accounting of previous
disclosures has been made), and so
advise the individual in writing.
(f) If the Panel’s decision is that the
amendment request is denied, in
addition to the notification required by
paragraph (d) of this section, the
Chairman shall advise the appellant:
(1) Of the right to file a concise
Statement of Disagreement stating the
reasons for disagreement with the
decision of the Department;
(2) Of the procedures for filing the
Statement of Disagreement;
(3) That any Statement of
Disagreement that is filed will be made
available to anyone to whom the record
is subsequently disclosed, together with,
at the discretion of the Agency, a brief
statement by the Agency summarizing

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its reasons for refusing to amend the
record;
(4) That prior recipients of the
disputed record will be provided a copy
of any statement of disagreement, to the
extent that an accounting of disclosures
was maintained.
(g) If the appellant files a Statement of
Disagreement under paragraph (f) of this
section, the Agency will clearly
annotate the record so that the fact that
the record is disputed is apparent to
anyone who may subsequently access
the record. When the disputed record is
subsequently disclosed, the Agency will
note the dispute and provide a copy of
the Statement of Disagreement. The
Agency may also include a brief
summary of the reasons for not
amending the record. Copies of the
Agency’s statement shall be treated as
part of the individual’s record for
granting access; however, it will not be
subject to amendment by an individual
under this part.
§ 212.37

Specific exemptions.

(a) Pursuant to 5 U.S.C. 552a(k), the
Director or the Administrator may,
where there is a compelling reason to do
so, exempt a system of records, from any
of the provisions of subsections (c)(3);
(d); (e)(1); (e)(4)(G), (H), and (I); and (f)
of the Act if a system of records is:
(1) Subject to the provisions of 5
U.S.C. 552(b)(1); (2) Investigatory
material compiled for law enforcement
purposes, other than material within the
scope of subsection (j)(2) of the Act:
Provided, however, That if any
individual is denied any right, privilege,
or benefit to which he or she would
otherwise be eligible, as a result of the
maintenance of such material, such
material shall be provided to such
individual, except to the extent that the
disclosure of such material would reveal
the identity of a source who furnished
information to the Government under an
express promise that the identity of the
source would be held in confidence, or
prior to the effective date of this section,
under an implied promise that the
identity of the source would be held in
confidence;
(2) Maintained in connection with
providing protective services to the
President of the United States or other
individuals pursuant to 18 U.S.C. 3056;
(3) Required by statute to be
maintained and used solely as statistical
records;
(4) Investigatory material compiled
solely for the purpose of determining
suitability, eligibility, or qualifications
for Federal civilian employment,
military service, Federal contracts, or
access to classified information, but
only to the extent that the disclosure of

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such material would reveal the identity
of a source who furnished information
to the Government under an express
promise that the identity of the source
would be held in confidence, or, prior
to the effective date of this section,
under an implied promise that the
identity of the source would be held in
confidence;
(5) Testing or examination material
used solely to determine individual
qualifications for appointment or
promotion in the Federal service, the
disclosure of which would compromise
the objectivity or fairness of the testing
or examination process; or
(6) Evaluation material used to
determine potential for promotion in the
armed services, but only to the extent
that the disclosure of such material
would reveal the identity of a source
who furnished information to the
Government under an express promise
that the identity of the source would be
held in confidence, or, prior to the
effective date of this section, under an
implied promise that the identity of the
source would be held in confidence.
(b) Each notice of a system of records
that is the subject of an exemption
under 5 U.S.C. 552a(k) will include a
statement that the system has been
exempted, the reasons therefore, and a
reference to the Federal Register,
volume and page, where the exemption
rule can be found.
(c) The systems of records to be
exempted under section (k) of the Act,
the provisions of the Act from which
they are being exempted, and the
justification for the exemptions, are set
forth below:
(1) Criminal Law Enforcement
Records. If the 5 U.S.C. 552a(j)(2)
exemption claimed under paragraph (c)
of (216 22 CFR Ch. II–§ 215.13) and on
the notice of systems of records to be
published in the Federal Register on
this same date is held to be invalid, then
this system is determined to be exempt,
under 5 U.S.C. 552(a)(k) (1) and (2) of
the Act, from the provisions of 5 U.S.C.
552a(c)(3); (d); (e)(1); (e)(4); (G); (H); (I);
and (f). The reasons for asserting the
exemptions are to protect the materials
required by executive order to be kept
secret in the interest of the national
defense or foreign policy, to prevent
subjects of investigation from frustrating
the investigatory process, to insure the
proper functioning and integrity of law
enforcement activities, to prevent
disclosure of investigative techniques,
to maintain the ability to obtain
necessary information, to fulfill
commitments made to sources to protect
their identities and the confidentiality
of information and to avoid endangering

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Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Proposed Rules

these sources and law enforcement
personnel.
(2) Personnel Security and Suitability
Investigatory Records. This system is
exempt under U.S.C. 552a(k)(1), (k)(2),
and (k)(5) from the provisions of 5
U.S.C. 552a(c)(3); (d); (e)(1); (e)(4); (G);
(H); (I); and (f). These exemptions are
claimed to protect the materials
required by executive order to be kept
secret in the interest of national defense
or foreign policy, to prevent subjects of
investigation from frustrating the
investigatory process, to insure the
proper functioning and integrity of law
enforcement activities, to prevent
disclosure of investigative techniques,
to maintain the ability to obtain candid
and necessary information, to fulfill
commitments made to sources to protect
the confidentiality of information, to
avoid endangering those sources and,
ultimately, to facilitate proper selection
or continuance of the best applicants or
persons for a given position or contract.
Special note is made of the limitation on
the extent to which this exemption may
be asserted.
(3) Litigation Records. This system is
exempt under 5 U.S.C. 552(k)(1), (k)(2),
and (k)(5) from the provisions of 5
U.S.C. 552a(c)(3); (d); (e)(1); (e)(4) (G),
(H), (I); and (f). These exemptions are
claimed to protect the materials
required by executive order to be kept
secret in the interest of national defense
or foreign policy, to prevent subjects of
investigation from frustrating the
investigatory process, to insure the
proper functioning and integrity of law
enforcement activities, to prevent
disclosure of investigative techniques,
to maintain the ability to obtain candid
and necessary information, to fulfill
commitments made to sources to protect
the confidentiality of information.
(4) Employee Equal Employment
Opportunity Complaint Investigatory
Records. This system is exempt under 5
U.S.C. 552a(k)(1) and (k)(2) from the
provisions of 5 U.S.C. 552a(c)(3); (d);
(e)(1); (e)(4) (G), (H), (I); and (f). These
exemptions are claimed to protect the
materials required by executive order to
be kept secret in the interest of national
defense or foreign policy, to prevent
subjects of investigation from frustrating
the investigatory process, to insure the
proper functioning and integrity of law
enforcement activities, to prevent
disclosure of investigative techniques,
to maintain the ability to obtain candid
and necessary information, to fulfill
commitments made to sources to protect
the confidentiality of information, to
avoid endangering these sources.
(5) The following systems of records
are exempt under 5 U.S.C. 552a(k)(5)
from the provision of 5 U.S.C.

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552a(c)(3); (d); (e)(1); (e)(4) (G), (H), (I);
and (f): (i) Employee Conduct and
Discipline Records. (ii) Employee
Relations Records.
NOTE TO PARAGRAPH (c)(5): This
exemption is claimed for these systems
of records to maintain the ability to
obtain candid and necessary
information, to fulfill commitments
made to sources to protect the
confidentiality of information, to avoid
endangering these sources and,
ultimately, to facilitate proper selection
or continuance of the best applicants or
persons for a given position or contract.
Special note is made of the limitation on
the extent to which this exemption may
be asserted. The existence and general
character of the information exempted
will be made known to the individual
to whom it pertains.
(6) Partner Vetting System. This
system is exempt under 5 U.S.C.
552a(k)(1), (k)(2), and (k)(5) from the
provision of 5 U.S.C. 552a(c)(3); (d);
(e)(1); (e)(4)(G), (H), (I); and (f). These
exemptions are claimed to protect the
materials required by executive order to
be kept secret in the interest of national
defense or foreign policy, to prevent
subjects of investigation from frustrating
the investigatory process, to insure the
proper functioning and integrity of law
enforcement activities, to prevent
disclosure of investigative techniques,
to maintain the ability to obtain candid
and necessary information, to fulfill
commitments made to sources to protect
the confidentiality of information, to
avoid endangering these sources, and to
facilitate proper selection or
continuance of the best applicants or
persons for a given position or contract.
Dated: September 21, 2016.
Lynn P. Winston,
Chief, Information and Records Division,
FOIA Public Liaison/Agency Records Officer,
U.S. Agency for International Development.
[FR Doc. 2016–23270 Filed 9–26–16; 8:45 am]
BILLING CODE P

ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 81
[EPA–R06–OAR–2016–0275; FRL–9952–67–
Region 6]

Determination of Nonattainment and
Reclassification of the HoustonGalveston-Brazoria 2008 8-Hour Ozone
Nonattainment Area; Texas
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:

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The Environmental Protection
Agency (EPA) is proposing to determine
that the Houston-Galveston-Brazoria
ozone nonattainment area (HGB area)
failed to attain the 2008 8hour ozone
national ambient air quality standards
(NAAQS) by the applicable attainment
deadline of July 20, 2016, and thus is
classified by operation of law as
‘‘Moderate’’. In this action, EPA is also
proposing January 1, 2017 as the
deadline by which Texas must submit to
the EPA the State Implementation Plan
(SIP) revisions that meet the CAA
statutory and regulatory requirements
that apply to 2008 ozone NAAQS
nonattainment areas reclassified as
Moderate.
DATES: Written comments must be
received on or before October 27, 2016.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2016–0275, at http://
www.regulations.gov or via email to
[email protected]. Follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. The EPA may publish
any comment received to its public
docket. Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact Ms. Nevine Salem, (214) 665–
7222, [email protected]. For the
full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
http://www2.epa.gov/dockets/
commenting-epa-dockets.
Docket: The index to the docket for
this action is available electronically at
www.regulations.gov and in hard copy
at EPA Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas. While all
documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available at
either location (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Ms.
Nevine Salem, (214) 665–7222,
[email protected].
SUMMARY:

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