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$ 1.4 Agency implementing regulations.

Each agency of the Department shall promulgate regulations setting I forth the following:

(a) The location and hours of operation of the agency office or offices where members of the public may gain access to those materials required by $ 1.2 of this subpart to be made available for public inspection and copying.

(b) Information regarding the publication and distribution (by sale or otherwise) of indexes and supplements thereto which are maintained in accordance with the requirements of 5 U.S.C. 552(a)(2) and $ 1.2(b) of this subpart.

(c) The title(s) and mailing address(es) of the official(s) of the agency who are authorized to receive requests for records submitted in accordance with $ 1.3(a) of this subpart, and to make determinations regarding whether to grant or deny such requests. Authority to make such determinations includes authority to (1) extend the ten-day administrative deadline for reply pursuant to § 1.8 of this subpart, (2) make discretionary releases of records exempt from mandatory disclosure pursuant to § 1.11(b) of this subpart, and (3) make determinations regarding the charging of fees pursuant to Appendix A of this subpart.

(d) The title and mailing address of the official of the agency who is authorized to receive appeals from denials of requests for records submitted in accordance with § 1.3(e) of this subpart and to make determinations regarding whether to grant or deny such appeals. Authority to determine appeals includes authority to (1) extend the twenty-day administrative deadline for reply pursuant to $ 1.8 of this subpart (to the extent the maximum extension authorized by $ 1.8(c) was not used with regard to the initial request), (2) make discretionary releases pursuant to 1.11(b) of this subpart, and (3) make determinations regarding the charging of fees pursuant to Appendix A of this subpart.

(e) Other information which would be of concern to a person wishing to request records from that agency in accordance with this subpart.

$ 1.5 Agency response to requests for

records. (a) 5 U.S.C. 552(a)(6) provides that each agency of the Department to which a request for records is submitted in accordance with $ 1.3(a) of this subpart shall inform the requester of its determination concerning that request within ten days (excepting Saturdays, Sundays, and legal public holidays), plus any extension authorized under $ 1.8 of this subpart, of its date of receipt. If the agency determines to grant the request, it shall inform the requester of any conditions (e.g., payment of fees) and the approximate date upon which compliance will be effected. If it grants only a portion of the request, it shall treat the portion not granted as a denial. If it determines to deny the request, it shall immediately inform the requester of that decision and of the following:

(1) The reasons for the denial;

(2) The requester's right to appeal such denial and the title and address of the official to whom such appeal is to be addressed;

(3) The requirement that such appeal be made within forty-five days of the date of the denial; and

(4) The name and title or position of each person responsible for denial of the request.

(b) If the agency official designated to receive and make determinations on appeals submitted in accordance with § 1.3(e) of this subpart is a person responsible for denying an initial request, the denial shall be deemed a final agency denial, and the requester shall be so notified and furnished the information required by paragraph (e) of this section. In these circumstances a denial shall be made in accordance with $ 1.7(b) of this subpart.

(c) If the reason for not fulfilling the request is that the records requested are the records of another agency or Department, the

agency

shall inform the requester of this fact and shall forward the request to that agency or Department for processing in accordance with the latter's regulations. If the agency has no knowledge concerning the requested records it shall notify the requester of that fact. 8 1.6 Date of receipt of requests or ap

peals. (a) The date of receipt of a request or appeal which contains the phrase FOIA REQUEST or FOIA APPEAL and is addressed in accordance with applicable agency regulations, shall be the date it is received in the mailroom serving the addressee.

(b) The date of receipt of a request or appeal which is hand-delivered to the address specified in agency regulations shall be the date of such hand delivery.

(c) The date of receipt of a request or appeal which does not comply with paragraph (a) or (b) of this section shall be the date it is received by the official designated in agency regulations to make the applicable determination.

(d) 5 U.S.C. 552(a)(6) provides that each agency in the Department to which an appeal from a denial of an initial request for records is submitted in accordance with $ 1.3(e) of this subpart shall inform the requester of its determination concerning that appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays), plus any extension authorized by $ 1.8 of this subpart, of its date of receipt. If the agency determines to grant the appeal it shall inform the requester of any conditions (e.g., payment of fees) and the approximate date upon which compliance will be effected. If it grants only a portion of the appeal, it shall treat the portion not granted as a denial. If it determines to deny the appeal, it shall inform the requester of that decision and of the following:

(1) The reasons for the denial;

(2) The right to judicial review of the denial in accordance with 5 U.S.C. 552(a)(4); and

(3) The name and title or position of each person responsible for denial of the appeal.

(e) If a charge is to be made for compliance with the request in accordance with Appendix A of this subpart, the agency's response shall inform the requester of the amount and basis for the charge. It may, in accordance with Appendix A of this subpart, require payment of the entire fee, or a portion thereof, before it provides the requested records.

(f) In the event compliance with the request involves inspection of records by the requester rather than the forwarding of copies, the agency response shall include the name, mailing address and telephone number of the person to be contacted to arrange a mutually convenient time for such inspection.

(g) In the event the records requested contain some portions which are exempt from mandatory disclosure and others which are not, the official responding to the request shall insure that all nonexempt portions are disclosed, and that all exempt portions are identified according to the nature of information contained and the specific exemption or exemptions which are applicable.

§ 1.7 Appeals.

(a) Each agency shall provide for review of appeals by an official different than the official or officials designated to make initial denials.

(b) Each agency, upon a determination that it wishes to deny an appeal, shall send a copy of the records requested (when practicable) and of all correspondence relating to the request to the General Counsel: Attention, Research and Operations Division. When the volume of records is so large as to make sending a copy impracticable, the agency shall enclose an informative summary of those records. The agency shall not deny an appeal until it receives a response from the Office of the General Counsel regarding the legal issues involved in the appeal.

(c) The Office of the General Counsel shall promptly review the matter (including necessary consultation with the Department of Justice and coordination with the Office of Communication) and render all necessary assistance to enable the agency to respond to the appeal within the administrative deadline or any extension thereof.

8 1.8 Extension of administrative dead.

lines. (a) In unusual circumstances as specified in this section either of the administrative deadlines prescribed in § 1.5 of this subpart may be extended

and form as if it had been reached within the applicable deadline.

by an authorized agency official. Written notice of the extension shall be sent to the requester within the applicable deadline, setting forth the reasons for such extension and the date a determination is expected to be dispatched. In no event shall the extension exceed a total of ten working days.

(b) As used in this section, “unusual circumstances” shall be limited to the following:

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in single request; and

(3) The need for consultation, which shall be conducted with all practicable speed, with another Department or agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subjectmatter interest therein. (Note: consultation between an agency and the Office of the General Counsel, Office of Communication, or the Department of Justice, is not a basis for extension under this section).

(c) The ten-day extension authorized by this section may be divided between the initial and appellate reviews, but in no event shall the total extension exceed ten working days.

$ 1.10 Fee schedule.

Pursuant to authority delegated in § 2.79 of this chapter, the Director, Office of Operations, has issued regulations, following notice and public comment, setting forth a uniform schedule of fees applicable to all agencies of the Department regarding requests for records under this subpart. (See Appendix A of this subpart.) Any amendments thereto will be made by the Director pursuant to notice and opportunity for comment. Said regulations provide reasonable standard charges for document search and duplication and provide for recovery of only the direct costs of such duplication. The regulations provide that documents may be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public.

a

$ 1.9 Failure to meet administrative dead

lines. In the event an agency fails to meet either of the administrative deadlines set forth in $ 1.5 of this subpart, plus any extension authorized by $ 1.8 of this subpart, it shall notify the requester, state the reasons for the delay, and the date by which it expects to dispatch determination. Although the requester may be deemed to have exhausted his administrative remedies under 5 U.S.C. 552(a)(6)(C) the agency shall continue processing the request as expeditiously as possible and dispatch the determination when it is reached in the same manner

§ 1.11 Exemptions and discretionary re

lease. (a) All agency records, except those specifically exempted from mandatory disclosure by one or more provisions of 5 U.S.C. 552(b), shall be made promptly available to any person submitting a request under this subpart.

(b) Except where disclosure is specifically prohibited by Executive order, statute, or applicable regulations, an agency may release records exempt from mandatory disclosure under 5 U.S.C. 552(b) whenever it determines that such disclosure would be in the public interest.

(c) In no event shall release of any list of names and/or addresses of employees of the Department or of farmers, persons, organizations or firms, for political purposes be considered to be in the public interest; nor shall release for commercial solicitation purposes be considered to be in the public interest unless release is specifically authorized by the individuals named therein.

determines this action to be in the public interest.

8 1.14 Authentication.

When a request is received for an authenticated copy of a document which the agency determines to make available to the requesting party, the agency shall cause a correct copy to be prepared and sent to the Office of the General Counsel which shall certify the same and cause the seal of the Department to be affixed, except that the Judicial Officer, or the Hearing Clerk when directed by the Judicial Officer, may authenticate copies of documents in the records of the Hearing Clerk.

each per

8 1.12 Annual report.

(a) Each agency of the Department shall compile the following information for each calendar year:

(1) The number of determinations made by such agency not to comply with initial requests for records ma to it under $ 1.3(a) of this subpart, and the reasons for each such determination;

(2) The number of appeals made by persons under $ 1.3(d) of this subpart, the result of such appeals, and the reason for the action

upon each appeal that results in a denial of information; (3) The name and title or position of

responsible for the denial of records requested under this subpart and the number of instances of participation for each;

(4) The results of each proceeding conducted pursuant to 5 U.S.C. 552(a)(4)(F), including a report of the disciplinary action taken against the officer or employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken;

(5) A copy of every rule made by the agency regarding this subpart;

(6) The total amount of fees collected by the agency for making records available under this subpart; and

(7) Such other information as indicates efforts to administer fully this subpart.

(b) Each agency shall compile the information required by paragraph (a) of this section for the preceding calendar year into a report and submit this report to the Director of Communication by February 1 of each year.

(c) The Director of Communication shall combine the reports from the various agencies within USDA into a Departmental report, and shall arrange for submission of this report to the Speaker of the House of Representatives and President of the Senate by March 1 of each year in accordance with 5 U.S.C. 552(d).

& 1.15 Compulsory process.

(a) (1) In any case where it is sought by subpoena, order, or other compulsory process or demand (hereinafter in this section referred to as a “demand") to require the production or disclosure of any record or material which is exempt from disclosure under 5 U.S.C. 552(b) or information related thereto acquired by an employee of this Department in the performance of his official duties or because of his official status, the matter shall be referred to an official authorized by agency regulations to make releases pursuant to § 1.11(b) of this subpart.

(2) Such official may authorize release. However, if such official determines that it would be improper to comply with the demand, he shall refer it to the agency head. The agency head may authorize release; however, if the agency head concurs with the initial conclusion, the matter shall be referred to the Secretary for final determination.

(3) If the Secretary has determined that the records, material, or information should not be produced, or if no final determination has been made, the employee who appears in answer to the demand will respectfully decline to produce or disclose the records, material, or information demanded on the ground that the disclosure is prohibited by this section. The employee shall provide the court or other authority with a copy of this subpart and a copy (when available) of the

8 1.13 Compilation of new records.

Nothing in 5 U.S.C. 552, or this subpart require that any agency compile a new record in order to fulfill a request for records. Such compilation may be undertaken voluntarily if the agency

Agriculture, Washington, D.C. 20250, and shall be made available to the public.

APPENDIX A-FEE SCHEDULE

Secretary's determination, and shall respectfully request the court or other authority to withdraw or stay the demand.

(b) (1) Whenever a demand of the type described in paragraph (a) of this section is made upon an employee of this Department not authorized to make releases pursuant to § 1.11(b) of this subpart, by a court or other authority while he is appearing before, or is otherwise in the presence of the court or other authority, the employee, or other appropriate Government official or attorney acting on behalf of the employee, shall (i) immediately inform the court or other authority that this section prohibits the employee from producing or disclosing the information or material demanded and (ii) offer to refer the demand for the prompt consideration of authorized officials, providing the court or other authority a copy of this subpart and respectfully requesting that the demand be stayed pending his receipt of appropriate instructions concerning the demand.

(2) If the employee is authorized to make a release pursuant to $ 1.11(b) of this subpart but determines that such release would be improper, he shall offer to refer the demand for the prompt consideration of the agency head and/or Secretary and shall otherwise comply with paragraph (b)(1)(ii) of this section.

(c) If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with paragraph (a) or (b) of this section pending the receipt by the employee of instructions or directions, or if the court or other authority rules adversely on any assertion made in conformity with the provisions of this subpart, the employee upon whom the demand has been made may tender the records, material, or information, demanded with a request they be held in camera until an appeal can be taken from the adverse ruling.

FEE SCHEDULE Sec. 1. General. This schedule sets forth fees to be charged for providing copies of records, including photographic reproductions, microfilm, maps and mosaics, and related services. The fees set forth in this schedule are applicable to all agencies and consitituent units of the Department of Agriculture.

Sec. 2. Facilities. Records and related services are available at the locations specified by the agencies in their statements of procedures to facilitate public inspection and copying of its records. Any material offered for sale by the Government Printing Office should be purchased from that source. Departmental agencies will not stock such material for public sale.

Agencies do not stock copies of forms and publications or maintain records at any facility which does not require these materials in its operations.

Sec. 3. Fees for materials and services. All agencies of the Department shall be guided by the fees set forth herein. Any changes or additions to this fee schedule shall be made by amendment to or revision of this schedule.

Sec. 4. Circumstances governing exceptions to the charging of fees for records and related services. (For photographic reproductions, see Sec. 12.)

a. Waiver of fees for records and related services. Fees may be waived in whole or in part under the following conditions:

(1) Where individual collections are $3 or less.

(2) Where the furnishing of the service without charge is an appropriate courtesy to a foreign country or international organization; or comparable fees are set on a reciprocal basis with a foreign country or an international organization.

(3) Where the recipient is engaged in a nonprofit activity designed for the public safety, health, or welfare.

(4) Where the agency determines that payment of the full fee by a State, local government, or nonprofit group would not be in the interest of the program involved.

b. Fees not to be charged for records and related services. Documents shall be furnished without charge or at a reduced charge under the following conditions:

(1) When the furnishing of records and related services is determined by the agency to be in the public interest as primarily benefiting the general public.

$ 1.16 Records in formal adjudication pro

ceedings. Records in formal adjudication proceedings are on file in the Office of the Hearing Clerk, U.S. Department of

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