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Rule2023-02552

Freedom of Information Act and the Privacy Act

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Published

February 8, 2023

Effective

March 10, 2023

Issuing agencies

Executive Office of the PresidentIntellectual Property Enforcement Coordinator Office

Abstract

The Office of the Intellectual Property Enforcement Coordinator (IPEC) is issuing its implementing regulations for the Freedom of Information Act (FOIA) and the Privacy Act. The final rule describes how to make a FOIA request with IPEC and how IPEC processes requests for records. The final rule also states IPEC's Privacy Act Policies and Procedures. The final rule describes how individuals can find out if an IPEC system of records contains information about them and, if so, how to access or amend a record.

Full Text

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<title>Federal Register, Volume 88 Issue 26 (Wednesday, February 8, 2023)</title>
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[Federal Register Volume 88, Number 26 (Wednesday, February 8, 2023)]
[Rules and Regulations]
[Pages 8207-8217]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-02552]

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Rules and Regulations
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.

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Federal Register / Vol. 88, No. 26 / Wednesday, February 8, 2023 /
Rules and Regulations

[[Page 8207]]

EXECUTIVE OFFICE OF THE PRESIDENT

Office of the Intellectual Property Enforcement Coordinator

5 CFR Chapter CIV

RIN 0355-AA00

Freedom of Information Act and the Privacy Act

AGENCY: Office of the Intellectual Property Enforcement Coordinator,
Executive Office of the President.

ACTION: Final rule.

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SUMMARY: The Office of the Intellectual Property Enforcement
Coordinator (IPEC) is issuing its implementing regulations for the
Freedom of Information Act (FOIA) and the Privacy Act. The final rule
describes how to make a FOIA request with IPEC and how IPEC processes
requests for records. The final rule also states IPEC's Privacy Act
Policies and Procedures. The final rule describes how individuals can
find out if an IPEC system of records contains information about them
and, if so, how to access or amend a record.

DATES: This final rule is effective on March 10, 2023.

FOR FURTHER INFORMATION CONTACT: Steven D. Aitken, Office of the
Intellectual Property Enforcement Coordinator, Executive Office of the
President, at (202) 395-4728 or <a href="/cdn-cgi/l/email-protection#fdae89988b9893d3b9d3bc9489969893bd948d989ed398928dd39a928b">[email&#160;protected]</a>. Questions
concerning this notice may also be sent to <a href="/cdn-cgi/l/email-protection#345d445157525b5d55745d4451571a515b441a535b42">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

I. Background

During its first ten years of operation, following its
establishment ``within the Executive Office of the President'' in Title
III of the PRO IP Act of 2008 (Pub. L. 110-403; 15 U.S.C. 8111-8116),
IPEC was located within the Office of Management and Budget (OMB). With
the enactment of a separate appropriation for IPEC in the Financial
Services and General Government Appropriations Act, 2020 (Pub. L. 116-
93, Div. C), IPEC has moved out of OMB and become a stand-alone
component of the Executive Office of the President. Accordingly, IPEC
is issuing its implementing regulations on FOIA and the Privacy Act.
The FOIA, 5 U.S.C. 552 et seq., provides a right of access to
certain records and information that Federal agencies maintain and
control. The FOIA requires each Federal agency to publish regulations
describing how to submit a FOIA request and how people responsible for
FOIA will process these requests. IPEC's final regulations on FOIA and
the Privacy Act incorporate guidance from OMB and the U.S. Department
of Justice, Office of Information Policy. The regulations also strive
for consistency with FOIA and Privacy Act regulations among other
agencies of the Executive Office of the President.
On September 22, 2022, IPEC issued a Notice of Proposed Rulemaking
seeking comments on its proposed regulations for FOIA and the Privacy
Act (87 FR 57840). In response, IPEC received seven public comments
about the proposed rule, two of which suggested revisions to the
proposed regulatory text. IPEC appreciates the commenters' focus on the
proposed rule and the suggestions that they made.
In response to the comments (and based on a further review of the
proposed rule, the FOIA statute, and the Justice Department's guidance
on FOIA), IPEC has made several revisions to the regulatory text on
FOIA, include the following: Sec. Sec. 10400.3 (revised several of the
definitions); 10400.4 (added a ``reading room'' reference); 10400.6
(deleted paragraph (i) as unnecessary in this regulation, and revised
several paragraphs); 10400.7 (revised paragraph (a) and added new
paragraphs (c) and (d)); 10400.8 (revised paragraph (a)(2) and
paragraph (b)); 10400.9 (revised paragraph (c)); 10400.10 (revised
paragraph (a)); 10400.12 (deleted paragraph (e) as duplicative of
another provision in the regulation); 10400.13 (revised paragraph (b));
10400.14 (revised paragraphs (b) and (d)); and 10400.18 (revised
paragraph (j)). In addition, in response to a comment, IPEC has revised
the regulatory text on the Privacy Act in paragraph (a) of Sec.
10400.22; also, revisions have been made to paragraph (b) of Sec.
10400.21 and paragraphs (b)(2) and (f)(2) of Sec. 10400.23.
One commenter pointed out that, unless the disclosure of
information is prohibited by law, the FOIA Improvements Act of 2016
directs agencies to apply the ``foreseeable harm'' standard in
determining whether to withhold a record, in whole or in part, under an
applicable FOIA exemption. The ``foreseeable harm'' standard is
reiterated in the Attorney General's ``Freedom of Information Act
Guidelines'' of March 15, 2022 (<a href="https://www.justice.gov/media/1212566/dl?inline=">https://www.justice.gov/media/1212566/dl?inline=</a>). In accordance with the statute and the Attorney General's
Guidelines, IPEC will apply the ``foreseeable harm'' standard in
determining whether to exercise its discretion to withhold a record, in
whole or in part, under an applicable exemption. In addition, in
accordance with the Attorney General's Guidelines, IPEC will confirm in
its responses to a requester that it has applied this standard when
reviewing records and applying FOIA exemptions.

II. Section-by-Section Analysis

Subpart A--Freedom of Information Act Policies and Procedures

Section 10400.1--Purpose and scope: This section describes the
purpose of the regulation, which is to implement the FOIA.
Section 10400.2--IPEC: Organization and functions: This section
describes the mission and leadership structure of the agency.
Section 10400.3--Definitions: This section defines the key terms
used in the regulation.
Section 10400.4--Access to information: This section describes the
types of information that IPEC will make available under FOIA.
Section 10400.5--Records requiring consultation, referral, and
coordination. This section describes how IPEC will process records, in
the custody of IPEC, for which another agency or other Federal
Government office has an interest.
Section 10400.6--How to request records--form and content: This
section explains what an individual must do to submit a valid FOIA
request to IPEC and where a request should be sent. It also describes
the information that

[[Page 8208]]

requesters must provide so that IPEC can identify the records sought
and process their requests.
Section 10400.7--Responses--form and content: This section explains
that IPEC will respond to a request in writing either with the
requested records or an explanation of the reasons why all or portions
of the requested records were not disclosed. IPEC also will provide
information about the right of appeal and the mediation services
offered by the Office of Government Information Services of the
National Archives and Records Administration. The response will include
any fees associated with the FOIA request.
Section 10400.8--Expedited and multi-track processing, and
aggregation of requests for processing: This section describes the
circumstances where expedited processing of a FOIA request may be
granted; multi-track processing may be used; and requests may be
aggregated.
Section 10400.9--Extension of time: This section describes and
defines the ``unusual circumstances'' under which IPEC may extend the
time limit for making a determination on a FOIA request.
Section 10400.10--Appeal procedures: This section describes when
and how a requester may appeal a determination on a FOIA request, and
how and within what period of time IPEC will make a determination on an
appeal.
Section 10400.11--Fees to be charged--general: This section
describes the general FOIA processing activities performed by IPEC
staff, and the rates charged by IPEC to recoup the employee costs
associated with responding to FOIA requests.
Section 10400.12--Fees to be charged--Miscellaneous provisions:
This section contains miscellaneous FOIA fee provisions such as where
payment should be sent, when advance payment is required, and rates of
interest charged on late payments.
Section 10400.13--Fees to be charged--Categories of Requesters:
This section describes the different categories of requesters, and the
types and amounts of fees IPEC may assess to process and respond to a
FOIA request.
Section 10400.14--Restrictions on charging fees. This section
describes the circumstances under which IPEC is restricted in charging
fees normally associated with processing a FOIA request, such as when
IPEC does not meet time limits mandated by the FOIA.
Section 10400.15--Waiver or Reduction of Fees: This section
describes the factors that IPEC may consider when deciding whether to
waive or reduce the fees associated with processing FOIA requests.
Section 10400.16--Aggregation of requests for fees: This section
describes the circumstances under which IPEC may aggregate a series or
group of requests for purposes of fee assessment.
Section 10400.17--Markings on released documents: This section
provides that IPEC will redact exempt information from its FOIA
disclosures to the extent that exempt information can be segregated
from other information subject to disclosure.
Section 10400.18--Confidential commercial information: This section
explains when and how a person or entity that submits information to
IPEC must identify confidential commercial information. It also
describes how IPEC staff will handle such information.

Subpart B--Privacy Act Policies and Procedures

Section 10400.19--Definitions: This section defines the key terms
used in this Subpart.
Section 10400.20--Purpose and scope: This section describes the
purpose of the regulation, which is to implement the Privacy Act, and
explains general policies and procedures for individuals requesting
access to records, requesting amendments or corrections to records, and
requesting an accounting of disclosures of records.
Section 10400.21--How do I make a Privacy Act request?: This
section explains what an individual must do to submit a request to IPEC
for access to records, to amend or correct records, or for an
accounting of disclosures of records. It also describes the information
an individual must provide so that IPEC can identify the records sought
and determine whether the request can be granted.
Section 10400.22--How will IPEC respond to my Privacy Act request?:
This section describes the period of time within which IPEC will
respond to requests. It also explains that IPEC will grant or deny
requests in writing, provide reasons if a request is denied in whole or
in part, and explain the right of appeal.
Section 10400.23--What can I do if I am dissatisfied with IPEC's
response to my Privacy Act request?: This section describes when and
how an individual may appeal a determination on a Privacy Act request
and how and within what time period IPEC will make a determination on
an appeal.
Section 10400.24--What does it cost to get records under the
Privacy Act?: This section explains that requesters are required to pay
fees for the duplication of requested records.

III. Statutory and Executive Order Reviews

Regulatory Flexibility Act. IPEC has considered the impact of the
final rule and determined that the final rule it is not likely to have
a significant economic impact on a substantial number of small business
entities. See 5 U.S.C. 601 et seq. Under the FOIA, agencies may recover
only the direct costs of searching for, reviewing, and duplicating the
records processed for requesters, and only for certain classes of
requesters and when particular conditions are satisfied.
Paperwork Reduction Act. The final rule does not contain any
information collection requirement that requires approval from the
Office of Management and Budget under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq.
Executive Order 12866 (Regulatory Planning and Review). This
rulemaking has been determined to be not significant for purposes of
Executive Order 12866 (Sept. 30, 1993).
Unfunded Mandates Reform Act of 1995. This rule will not result in
the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more in any one
year, and it will not significantly or uniquely affect small
governments.
Congressional Review Act. As required by the Congressional Review
Act (5 U.S.C. 801-808), IPEC will submit a report on the final rule to
each House of the Congress and to the Comptroller General of the United
States. This rule is not a major rule under 5 U.S.C. 804.

List of Subjects in 5 CFR Part 10400

Freedom of information. Privacy.

0
For the reasons stated in the preamble, the Office of the Intellectual
Property Enforcement Coordinator is adding part 10400 of title 5 of the
Code of Federal Regulations to read as follows:

PART 10400--PUBLIC AVAILABILITY OF INFORMATION

Subpart A--Freedom of Information Act Policies and Procedures
Sec.
10400.1 Purpose and scope.
10400.2 The Office of the Intellectual Property Enforcement
Coordinator-- organization and functions.
10400.3 Definitions.
10400.4 Access to information.
10400.5 Records requiring consultation, referral, and coordination.
10400.6 How to request records--form and content.

[[Page 8209]]

10400.7 Responses--form and content.
10400.8 Expedited and multi-track processing, and aggregation of
requests for processing.
10400.9 Extension of time.
10400.10 Appeal procedures.
10400.11 Fees to be charged--general.
10400.12 Fees to be charged--miscellaneous provisions.
10400.13 Fees to be charged--categories of requesters.
10400.14 Restrictions on charging fees.
10400.15 Waiver or reduction of fees.
10400.16 Aggregation of requests for fees.
10400.17 Markings on released documents.
10400.18 Confidential commercial information.
Subpart B--Privacy Act Policies and Procedures
10400.19 Definitions.
10400.20 Purpose and scope.
10400.21 How do I make a Privacy Act request?
10400.22 How will IPEC respond to my Privacy Act request?
10400.23 What can I do if I am dissatisfied with IPEC's response to
my Privacy Act request?
10400.24 What does it cost to get records under the Privacy Act?

Authority: 5 U.S.C. 552, 552a

Subpart A--Freedom of Information Act Policies and Procedures

Sec. 10400.1 Purpose and scope.

The regulations in this part prescribe procedures by which
individuals may obtain access to agency records of the Office of the
Intellectual Property Enforcement Coordinator (IPEC) under the Freedom
of Information Act (FOIA), 5 U.S.C. 552, as amended, as well as the
procedures IPEC must follow in response to requests for records under
the FOIA. The regulations should be read together with the FOIA and the
``Uniform Freedom of Information Fee Schedule and Guidelines'' issued
by the Office of Management and Budget. All requests for access to
information contained within a system of records pursuant to the
Privacy Act of 1974, 5 U.S.C. 552a, shall be processed in accordance
with these regulations. Nothing in this part shall be construed to
entitle any person to any service or to the disclosure of any record to
which such person is not entitled under the FOIA or the Privacy Act.

Sec. 10400.2 The Office of the Intellectual Property Enforcement
Coordinator--organization and functions.

The Office of the Intellectual Property Enforcement Coordinator was
created by Title III of the Pro IP Act of 2008, 15 U.S.C. 8111 et seq.
The mission of IPEC is to advise the President and coordinate with
Cabinet departments and agencies on the development of the United
States' overall intellectual property policy and strategy, to promote
innovation and creativity, and to ensure effective intellectual
property protection and enforcement, domestically and abroad. IPEC is
headed by the Intellectual Property Enforcement Coordinator.

Sec. 10400.3 Definitions.

For the purpose of this part, all the terms defined in the Freedom
of Information Act apply.
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. IPEC'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. IPEC will notify requesters of their placement in this
category.
Direct costs means the expenses (excluding overhead) actually
expended for searching, reviewing (for commercial-use requests), or
duplicating in response to a FOIA request. Direct costs include 116% of
the salary of the employee performing work (i.e., the basic rate of pay
for the employee plus 16 percent of that rate to cover benefits) and
the cost of operating computers and other electronic equipment, such as
photocopiers and scanners.
Disclose and disclosure refer to making records available, upon
request, for examination and copying, or furnishing a copy of records.
Duplicate and duplication mean the process of making a copy of a
document. Such copies may take the form of paper, microform, audio-
visual materials, or machine-readable documentation.
Educational institution is any school that operates a program of
scholarly research. A requester in this fee category must show that the
request is made in connection with the requester's role at the
educational institution. IPEC may seek verification from the requester
that the request furthers scholarly research, and IPEC will advise
requesters of their placement in this category.
Fee waiver means the waiver or reduction of processing fees if a
requester can demonstrate that certain statutory standards are
satisfied, including that the information is in the public interest and
is not primarily in the commercial interest of the requester.
FOIA public liaison means a supervisory agency official who assists
requesters in reducing processing delays, increasing transparency and
understanding of the status of requests, and assisting in the
resolution of disputes.
Noncommercial scientific institution is an institution that is not
operated on a ``commercial'' basis 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.
IPEC will advise requesters of their placement in this category.
OGIS means the Office of Government Information Services of the
National Archives and Records Administration. OGIS offers FOIA dispute
resolution services, which is a voluntary process. If IPEC agrees to
participate in the dispute resolution services provided by OGIS, IPEC
will actively engage as a partner to the process in an attempt to
resolve the dispute.
Records and any other terms used in this part in reference to
information includes any information that would be an agency record
subject to the requirements of this part when maintained in any format,
including electronic format.
Representative of the news media and news media requester is any
person or entity that gathers information of potential interest to a
segment of the public, uses its editorial skills to turn the raw
materials into distinct work, and distributes that work to an audience.
The term ``news'' means information that is about current events or
information that would be of 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 will not be
considered to be for a commercial use. ``Freelance'' journalists who
demonstrate a solid basis for expecting publication through a news
media entity will be considered as a representative of the news media.
A publishing contract would provide the clearest evidence that
publication is expected; IPEC can also consider a requester's past
publication record in making this determination. IPEC will advise
requesters of their placement in this category.

[[Page 8210]]

Request means a letter or other written communication seeking
records or information under FOIA.
Requester category means one of the four categories that IPEC will
place requesters in for the purpose of determining whether a requester
will be charged fees for search, review, and duplication. The
categories are: commercial use requests; requests by non-commercial
scientific or educational institutions; news media requesters; and all
other requesters.
Review means the process of examining documents that are located
during a search to determine if any portion should lawfully be
withheld. It is the process of determining disclosability. 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 under Sec. 10400.18, but it does not
include time spent resolving general legal or policy issues regarding
the application of exemptions.
Search is the process of looking for, manually or by automated
means, agency records for the purpose of locating those records
responsive to a request.
Working day means a Federal working day, and thus does not include
Saturdays, Sundays, and legal public holidays.

Sec. 10400.4 Access to information.

The Office of the Intellectual Property Enforcement Coordinator
makes available information pertaining to matters issued, adopted, or
promulgated by IPEC, that are within the scope of 5 U.S.C. 552(a)(2).
Such ``reading room'' information is located at <a href="https://www.whitehouse.gov/ipec">https://www.whitehouse.gov/ipec</a>. Included in that information are IPEC's
proactive disclosures. Proactive disclosures are records that have been
requested three or more times, or that have been released to a
requester and that IPEC determines have become, or are likely to
become, the subject of subsequent requests for substantially the same
records.

Sec. 10400.5 Records requiring consultation, referral, and
coordination.

Requests for records that are in IPEC's custody, and for which
other agencies (or other Federal Government offices) have an interest,
shall be reviewed by IPEC. IPEC will then either consult with the other
agencies or offices regarding the records; refer the records to the
other agencies for further processing; or coordinate with the other
agencies when a referral is not appropriate.
(a) Consultation. When records originated with IPEC, and contain
within them information of interest to another agency or other Federal
Government office, IPEC will consult with that agency or office prior
to making a release determination.
(b) Referral--(1) Determination. When IPEC believes that a
different agency is best able to determine whether to disclose the
record, IPEC will refer to that agency the responsibility for
responding to the request regarding that record. Ordinarily, the agency
that originated the record is presumed to be the best agency to make
the disclosure determination. However, if IPEC and the originating
agency jointly agree that IPEC is in the best position to respond
regarding the record, then the record may be handled as a consultation.
(2) Documentation. Whenever IPEC refers any part of the
responsibility for responding to a request to another agency, IPEC must
document the referral, maintain a copy of the record that it refers,
and notify the requester of the referral, informing the requester of
the name(s) of the agency to which the record was referred, including
that agency's FOIA contact information.
(3) Coordination. The standard referral procedure is not
appropriate where disclosure of the identity of the agency to which the
referral would be made could harm an interest protected by an
applicable exemption, such as the exemptions that protect personal
privacy or national security interests. In order to avoid harm to an
interest protected by an applicable exemption, IPEC will coordinate
with the originating agency to seek its views on the disclosability of
the record. IPEC will convey, to the requester, the release
determination for the record.
(c) Classified information. On receipt of any request involving
classified information, IPEC must determine whether the information is
currently and properly classified in accordance with applicable
classification rules. Whenever a request involves a record containing
information that has been classified or may be appropriate for
classification by another agency under any applicable executive order
concerning the classification of records, IPEC will refer the
responsibility for responding to the request regarding that information
to the agency that classified the information, or that should consider
the information for classification. Whenever a record contains
information that has been derivatively classified (for example, when it
contains information classified by another agency), IPEC will refer the
responsibility for responding to that portion of the request to the
agency that classified the underlying information.
(d) Timing of responses to consultations and referrals. IPEC will
handle all consultations and referrals received by IPEC according to
the date that the (consulting or referring) agency received the
perfected FOIA request.
(e) Agreements regarding consultations and referrals. IPEC may
establish agreements with other agencies to eliminate the need for
consultations or referrals with respect to particular types of records.

Sec. 10400.6 How to request records--form and content.

(a) A request for records must describe the records that it seeks
in sufficient detail and in writing to enable IPEC to locate the
records with a reasonable amount of effort. To the extent possible,
each request must reasonably describe the record(s) sought, including
by referencing the type of document; a specific event or action; the
title or name, author, recipient, subject matter, date or time period,
and/or location of the record; and any other pertinent data that would
assist in identifying the record(s) sought. If after receiving a
request IPEC determines that the request does not reasonably describe
the record(s) sought, IPEC will inform the requester what additional
information is needed or why the request is otherwise insufficient.
Before or after submitting their requests, requesters may contact
IPEC's FOIA contact or FOIA Public Liaison to discuss the record(s)
they seek and for assistance in describing the record(s).
(b)(1) If an individual is making a request for records that are
about the individual, the requester must comply with the verification
of identity provision set forth in Sec. 10400.21(f).
(2) If a request for records pertains to a third party, the
requester may receive greater access by submitting either a notarized
authorization signed by that individual or an unsworn declaration under
26 U.S.C. 1746 by that individual authorizing disclosure of the records
to the requester. As an exercise of administrative discretion, IPEC may
require the requester to provide additional information if necessary in
order to verify that a particular individual has consented to
disclosure. If the records that are requested pertain

[[Page 8211]]

to an individual who is deceased, the requester should submit proof of
death such as a copy of the death certificate or an obituary.
(c) Requesters may specify the preferred form or format (including
electronic formats) for the records they seek. IPEC will accommodate
formatting requests if the record is readily reproducible in that form
or format.
(d) Whenever it is appropriate to do so, IPEC automatically
processes a Privacy Act request for access to records under both the
Privacy Act and the FOIA, following the rules contained in this part.
IPEC processes a request under both the FOIA and Privacy Act so that
requesters will receive the maximum amount of information available by
law.
(e) Requests must be received by IPEC through methods specified on
the FOIA page of IPEC's website: <a href="https://www.whitehouse.gov/ipec">https://www.whitehouse.gov/ipec</a>.
Requests may be emailed at any time to <a href="/cdn-cgi/l/email-protection#d1b8a1b4b2b7beb8b091b8a1b4b2ffb4bea1ffb6bea7">[email&#160;protected]</a> or mailed
to Office of the Intellectual Property Enforcement Coordinator,
Executive Office of the President, Washington, DC 20503, Attn: FOIA
Officer. Emailed requests are strongly preferred.
(f) The words ``FOIA REQUEST'' or ``REQUEST FOR RECORDS'' should be
clearly marked on all FOIA request communications.
(g) The requester must provide contact information, such as the
requester's phone number, email address or mailing address, so that
IPEC will be able to communicate with the requester about the request
and provide released records. If IPEC cannot contact the requester, or
the requester does not respond within 30 working days to our request
for clarification, IPEC will close the request.
(h) To protect our computer systems, IPEC reserves the right to not
open attachments to emailed requests. Please include the request within
the body of the email, along with such additional information that is
relevant, such as information in support of a request for expedited
processing, for a fee categorization, or for a fee waiver. If after
receiving a request IPEC determines that it does not include sufficient
information on which to grant, or deny, a request for expedited
process, a fee categorization, or a fee waiver, IPEC will so inform the
requester and provide the requester an opportunity to submit additional
information in support of such request.

Sec. 10400.7 Responses--form and content.

(a) Determinations. (1) In determining which records are responsive
to a request, IPEC will include only records that were in its
possession as of the date of the search. If any other date is used,
IPEC will inform the requester of that date.
(2) Under the FOIA, an agency is to make an initial determination
acknowledging and granting, partially granting, or denying a request
for records within 20 working days after the agency receives a FOIA
request (an agency may extend this period for ``unusual
circumstances''; see Sec. 10400.9). The FOIA Officer or designee will
determine whether to grant the request and will provide written
notification to the person making the request. The notification shall
also advise the person making the request of any fees assessed under
Sec. Sec. 10400.11 through 10400.16. IPEC will inform the requester of
the availability of its FOIA Public Liaison.
(b) Tracking number. IPEC will assign a request an individualized
tracking number if it will take longer than 10 working days to process
the request. IPEC may assign, at our discretion, such a tracking number
for a request that will take less than 10 working days to process.
(c) Estimated dates of completion and interim responses. Upon
request, IPEC will provide an estimated date by which IPEC expects to
provide a response to the requester. If a request involves a voluminous
amount of material, or searches in multiple locations, IPEC may provide
interim responses, including on a rolling basis.
(d) Use of record exclusions. A record that is excluded from the
requirements of the FOIA pursuant to 5 U.S.C. 552(c) is not considered
responsive to a request. In the event that IPEC identifies records that
may be subject to exclusion from the requirements of the FOIA pursuant
to 5 U.S.C. 552(c), IPEC will confer with the Department of Justice,
Office of Information Policy (OIP), to obtain approval to apply the
exclusion, and IPEC will maintain an administrative record of the
process of invocation and approval of the exclusion by OIP.
(e) Adverse determinations. If IPEC makes an adverse determination
denying a request in any respect, it must 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.
(f) Content of denial. The denial must be signed by the FOIA
Officer or designee and must include:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reasons for the denial, including any
FOIA exemption applied by the agency in denying the request;
(3) An estimate of the volume of any records or information
withheld, such as the number of pages or some other reasonable form of
estimation, although such an estimate is not required if the volume is
otherwise indicated by deletions marked on records that are disclosed
in part or if providing an estimate would harm an interest protected by
an applicable exemption;
(4) A statement that the denial may be appealed to the FOIA Appeals
Officer (the IPEC Legal Advisor or a designee) within 90 calendar days
of the date of the response (the requirements for making an appeal are
specified in Sec. 10400.10); and
(5) A statement notifying the requester of the assistance available
from the IPEC's FOIA Public Liaison and the dispute resolution services
offered by OGIS.

Sec. 10400.8 Expedited and multi-track processing, and aggregation
of requests for processing.

(a) Expedited processing. (1) A request for expedited processing
may be made at any time. IPEC must process requests and appeals on an
expedited basis whenever it is determined that they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged
Federal Government activity, beyond the public's right to know about
government activity generally, and the request is made by a person
primarily engaged in disseminating information.
(2) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for requesting expedited processing. For example, under paragraph
(a)(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 who is
primarily engaged in information dissemination, though it need not be
the requester's sole

[[Page 8212]]

occupation. Such a requester also must establish a particular urgency
to inform the public about the government activity involved in the
request, beyond the public's right to know about government activity
generally. The existence of numerous articles published on a given
subject can be helpful in establishing the requirement that there be an
``urgency to inform'' the public on the topic. The formality of
certification may be waived as a matter of administrative discretion.
(3) Within 10 calendar days of IPEC's receipt of a request for
expedited processing, IPEC will decide whether to grant it and will
notify the requester of the decision. If a request for expedited
processing is granted, the request will be given priority and will be
processed as soon as practicable. If a request for expedited processing
is denied, any appeal of that decision will be acted on expeditiously.
(b) Multi-track processing. IPEC will ordinarily respond to
requests in order of their receipt. However, IPEC may use multi-track
processing in responding to requests. Multi-track processing means
placing requests in a track based on the estimated amount of work or
time involved in processing the request. Thus, simple requests that
require a limited review would be placed in one processing track, and
more voluminous and complex requests would be placed in other
processing tracks. Requests in each track are processed on a first-in,
first-out basis and, if a request is placed in a track, IPEC will
inform the requester of the track placement. Track one is for requests
that have received expedited processing under this section. Track two
is for requests of simple-to-moderate complexity that do not involve
voluminous records and do not require consultation or coordination with
other entities or submitter review under Sec. 10400.18. Track three is
for complex requests that involve voluminous records, require lengthy
or numerous consultations or coordination, raise unique or novel legal
questions, or require submitter review under Sec. 10400.18. In the
case of requests in tracks two and three, IPEC may provide requesters
the opportunity to limit the scope of their requests in order to
qualify for faster processing. IPEC will do so by contacting the
requester by letter, telephone, email, or facsimile (whichever is more
efficient in each case). When providing a requester with the
opportunity to limit the scope of a request, IPEC shall also advise the
requester of IPEC's FOIA Public Liaison to aid in the resolution of any
dispute arising between the requester and IPEC as well as the
requester's right to seek dispute resolution services from the Office
of Government Information Services.
(c) Aggregating requests. IPEC 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, involve
related matters and constitute a single request that otherwise would
involve ``unusual circumstances'' under Sec. 10400.9. For example,
IPEC may aggregate multiple requests for similar information filed by a
single requester within a short period of time. In addition, as
discussed in Sec. 10400.16, IPEC may aggregate requests for fee
purposes.

Sec. 10400.9 Extension of time.

(a) In unusual circumstances, IPEC may extend the time limits
prescribed in Sec. Sec. 10400.7 and 10400.8 by written notice to the
FOIA requester. The notice will state the reasons for the extension.
(b) The phrase ``unusual circumstances'' means:
(1) The requested records are located in establishments that are
separated from the office processing the request;
(2) A single request seeks a voluminous amount of separate and
distinct records; or
(3) Another agency has a substantial interest in the determination
of the request.
(c) Whenever IPEC cannot meet the 20 working-day time limit under
Sec. 10400.7 for processing a request because of ``unusual
circumstances,'' and IPEC extends the time limit on that basis, IPEC
shall promptly notify the requester (before the expiration of the 20
working-day period) in writing of the unusual circumstances involved,
that an extension of 10 working days has been made, and of the date by
which IPEC estimates that it will complete the processing of the
request (if completion is not estimated to occur within the 10 working-
day extension period). For those requests for which the extension
exceeds 10 working days, IPEC will provide the requester an opportunity
to modify the request (so that it may be processed within an extension
of 10 working days) or arrange an alternative time period for
processing the original or modified request. IPEC will make available
its designated FOIA contact or its FOIA Public Liaison for this
purpose. IPEC will also alert requesters to the availability of the
Office of Government Information Services (OGIS) to provide dispute
resolution services.

Sec. 10400.10 Appeal procedures.

(a) An appeal to the IPEC must explain the reasoning and factual
basis for the appeal. It must be received by email at
<a href="/cdn-cgi/l/email-protection#f79e87929491989e96b79e879294d9929887d9909881">[email&#160;protected]</a> or another method specified on the FOIA page of
IPEC's website within 90 calendar days of the date of the response. The
appeal must be in writing, addressed to the FOIA Appeals Officer,
Office of the Intellectual Property Enforcement Coordinator, Executive
Office of the President, Washington, DC 20503, Attn: Legal Advisor. The
communication should clearly be labeled as a ``Freedom of Information
Act Appeal.''
(b) The FOIA Appeals Officer (the Legal Advisor or a designee) will
decide the appeal within 20 working days. If the FOIA Appeals Officer
denies an appeal in whole or in part, the written determination will
contain the reason for the denial, the name and title of the person
responsible for the denial, any FOIA exemptions applied, and the
provisions for judicial review of the denial and ruling on appeal
provided in 5 U.S.C. 552(a)(4). The denial will also inform the
requestor of the dispute resolution services offered by OGIS as a non-
exclusive alternate to litigation. If IPEC agrees to participate in
voluntary dispute resolution services provided by OGIS, it will
actively engage as a partner to the process in an attempt to resolve
the dispute.

Sec. 10400.11 Fees to be charged--general.

IPEC will assess a fee to process FOIA requests in accordance with
the provisions of this section and the ``Uniform Freedom of Information
Fee Schedule and Guidelines'' issued by the Office of Management and
Budget. IPEC shall ensure that searches, review, and duplication are
conducted in the most efficient and the least expensive manner. IPEC
will charge the following fees unless a waiver or reduction of fees is
granted under Sec. 10400.15, or the total fee to be charged is less
than $25.00. IPEC will notify the requester if IPEC estimates that
charges will exceed $25.00 including a breakdown of the fees for
search, review, or duplication and whether applicable entitlements to
duplication and search at no charge have been provided. IPEC will not
process the request until the requester either commits in writing to
pay the actual or estimated total fee, or designates some amount of
fees that it is willing to pay.
(a) Search for records. IPEC will charge $77.00 per hour, which is
a blended hourly rate for all personnel that respond to FOIA requests
plus 16 percent of that rate to cover benefits.
(b) Review of records. IPEC will charge $77.00 per hour, which is a
blended hourly rate for all personnel

[[Page 8213]]

that responded to FOIA requests plus 16 percent of that rate to cover
benefits. Records or portions of records withheld under an exemption
subsequently determined not to apply may be reviewed to determine the
applicability of exemptions not considered. The cost for a subsequent
review is assessable.
(c) Duplication of records. IPEC will charge duplication fees to
all requesters. IPEC will honor a requester's preference for receiving
a record in a particular format if IPEC can readily reproduce it in the
form or format requested. If IPEC provides photocopies, IPEC will make
one copy per request at the cost of $.10 per page. For copies of
records produced on tapes, disks or other media, IPEC will charge the
direct costs of producing the copy, including operator time. Where IPEC
must scan paper documents in order to comply with a requester's
preference to receive the records in an electronic format, IPEC will
charge the direct costs associated with scanning those materials. For
other forms of duplication, IPEC will charge the direct costs. IPEC
will provide the first 100 pages of duplication (or the cost equivalent
for other media) without charge except for requesters seeking records
for a commercial use.
(d) Other charges. IPEC will recover the costs of providing other
services such as certifying records or sending records by special
methods.

Sec. 10400.12 Fees to be charged--miscellaneous provisions.

(a) Payment for FOIA services may be made by check or money order
made payable to the Treasury of the United States. IPEC will provide
the requester with instructions on how to make the payment. IPEC will
provide a receipt for fees paid upon request. IPEC will not refund fees
paid for services actually rendered.
(b) IPEC may require advance payment (or a satisfactory written
assurance of full payment) where the estimated fee exceeds $250, or a
requester previously failed to pay within 30 calendar days of the
billing date. IPEC will not process the request until the requester
either makes the advance payment or provides a satisfactory written
assurance.
(c) IPEC may assess interest charges beginning the 31st day of
billing. Interest will be at the rate prescribed in section 3717 of
Title 31, United States Code, and will accrue from the date of the
billing.
(d) IPEC may assess search charges where records are not located or
where records are exempt from disclosure.

Sec. 10400.13 Fees to be charged--categories of requesters.

(a) For fees, there are four categories of FOIA requesters:
commercial use requests; educational and non-commercial scientific
institution requests; requests from representatives of the news media;
and all other requesters.
(b) The specific levels of fees for each of these categories are:
(1) Commercial use request. IPEC will recover the full direct cost
of providing search, review, and duplication services. Commercial use
requests will not receive free search-time or free duplication of
documents.
(2) Educational and non-commercial scientific institution requests.
IPEC will charge the cost of duplication, excluding charges for the
first 100 pages. Requesters must demonstrate the request is authorized
by and under the auspices of a qualifying institution and that the
records are sought for scholarly or scientific research not a
commercial use.
(3) Requests from representatives of the news media. IPEC will
charge the cost of duplication, excluding charges for the first 100
pages. Requesters must meet the criteria in Sec. 10400.3, and the
request must not be made for a commercial use. A request that supports
the news dissemination function of the requester shall not be
considered a commercial use.
(4) All other requesters. IPEC will recover the full direct cost of
the search and the duplication of records, excluding the first 100
pages of duplication and the first two hours of search time.

Sec. 10400.14 Restrictions on charging fees.

(a) 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.
(b) If IPEC fails to comply with the FOIA's time limits in which to
respond to a request, it may not charge search fees, or, in the
instances of requests from requesters described in Sec. 10400.13(b)(2)
and (3), may not charge duplication fees, except as described in
paragraphs (c), (d), and (e) of this section.
(c) If IPEC determines that unusual circumstances as defined by the
FOIA apply and the agency provided timely written notice to the
requester in accordance with the FOIA, a failure to comply with the
time limit shall be excused for an additional 10 days.
(d) If IPEC determines that unusual circumstances as defined by the
FOIA apply, and more than 5,000 pages are necessary to respond to the
request, the agency may charge search fees, or, in the case of
requesters described in Sec. 10400.13(b)(2) and (3), may charge
duplication fees if the following steps are taken. IPEC must have
provided timely written notice of unusual circumstances to the
requester in accordance with the FOIA and the agency must have
discussed with the requester via written mail, email, or telephone (or
made not less than three good-faith attempts to do so) how the
requester could effectively limit the scope of the request in
accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is
satisfied, IPEC may charge all applicable fees incurred in the
processing of the request.
(e) If a court has determined that exceptional circumstances exist
as defined by the FOIA, a failure to comply with the time limits shall
be excused for the length of time provided by the court order.
(f) 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.
(g) 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.

Sec. 10400.15 Waiver or reduction of fees.

Requirements for waiver or reduction of fees:
(a) Requesters may seek a waiver of fees by submitting a written
application demonstrating how 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 is not primarily in the commercial interest of
the requester.
(b) IPEC must furnish records responsive to a request without
charge or at a reduced rate when it determines, based on all available
information, that 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 is not primarily in the commercial interest of the requester. In
deciding whether this standard is satisfied the agency must consider
the factors described in paragraphs (b)(1) through (3) of this section:
(1) Disclosure of the requested information would shed light on the
operations or activities of the government. The subject of the request
must concern identifiable operations or

[[Page 8214]]

activities of the Federal Government with a connection that is direct
and clear, not remote or attenuated.
(2) Disclosure of the requested information would be likely to
contribute significantly to public understanding of those operations or
activities. This factor is satisfied when the following criteria are
met:
(i) Disclosure of the requested records must be meaningfully
informative about government 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 be meaningfully
informative if nothing new would be added to the public's
understanding.
(ii) 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 must be
considered. IPEC will presume that a representative of the news media
will satisfy this consideration.
(3) The disclosure must not be primarily in the commercial interest
of the requester. To determine whether disclosure of the requested
information is primarily in the commercial interest of the requester,
IPEC will consider the following criteria:
(i) IPEC must identify whether the requester has any commercial
interest that would be furthered by the requested disclosure. A
commercial interest includes any commercial, trade, or profit interest.
Requesters must be given an opportunity to provide explanatory
information regarding this consideration.
(ii) If there is an identified commercial interest, IPEC must
determine whether that is the primary interest furthered by the
request. A waiver or reduction of fees is justified when the
requirements of paragraph (a) of this section are satisfied and any
commercial interest is not the primary interest furthered by the
request. IPEC ordinarily will presume that when a news media requester
has satisfied the requirements of paragraph (a) of this section, the
request is not primarily in the commercial interest of the requester.
Disclosure to data brokers or others who merely compile and market
government information for direct economic return will not be presumed
to primarily serve the public interest.
(c) 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.
(d) Requests for a waiver or reduction of fees should be made when
the request is first submitted to IPEC 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.

Sec. 10400.16 Aggregation of requests for fees.

When IPEC 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, IPEC may
aggregate those requests and charge accordingly. IPEC 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,
IPEC 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
cannot be aggregated.

Sec. 10400.17 Markings on released documents.

When requested records contain matters that are exempted under 5
U.S.C. 552(b), but such exempted matters can be reasonably segregated
from the remainder of the records, the records shall be disclosed by
IPEC with the necessary redactions. If records are disclosed in part,
IPEC will mark them to show the amount and location of information
redacted and the exemption(s) under which the redactions were made
unless doing so would harm an interest protected by an applicable
exemption.

Sec. 10400.18 Confidential commercial information.

(a) Definitions--Confidential commercial information means
commercial or financial information obtained by IPEC from a submitter
that may be protected from disclosure under Exemption 4 of the FOIA, 5
U.S.C. 552(b)(4).
Submitter means any person or entity, including a corporation,
State, or foreign government, but not including another Federal
Government entity, that provides confidential commercial 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, at the time of submission, any
portion of its submission that it considers to be protected from
disclosure under Exemption 4. These designations 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 submitters is required. (1) IPEC must promptly
provide written notice to the submitter of confidential commercial
information whenever records containing such information are requested
under the FOIA if IPEC determines that it may be required to disclose
the records, provided:
(i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
(ii) IPEC 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.
(2) The notice must 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, IPEC may post or publish a notice in a place or
manner reasonably likely to inform the submitters of the proposed
disclosure, instead of sending individual notifications.
(d) Exceptions to submitter notice requirements. The notice
requirements of this section do not apply if:
(1) IPEC determines that the information is exempt under the FOIA,
and therefore will not be disclosed;
(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 submitter under paragraph (b) of
this section appears obviously frivolous. In such case, IPEC must give
the submitter written notice of any final decision to disclose the
information within a reasonable number of days prior to a specified
disclosure date.
(e) Opportunity to object to disclosure. (1) IPEC must specify a
reasonable time period within which the submitter must respond to the
notice referenced above.

[[Page 8215]]

(2) If a submitter has any objections to disclosure, it should
provide IPEC 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 the basis for nondisclosure,
the submitter must explain why the information constitutes a trade
secret or commercial or financial information that is confidential.
(3) A submitter who fails to respond within the time period
specified in the notice will be considered to have no objection to
disclosure of the information. IPEC is not required to consider any
information received after the date of any disclosure decision. Any
information provided by a submitter under this subpart may itself be
subject to disclosure under the FOIA.
(f) Analysis of objections. IPEC must consider a submitter's
objections and specific grounds for nondisclosure in deciding whether
to disclose the requested information.
(g) Notice of intent to disclose. Whenever IPEC decides to disclose
information over the objection of a submitter, IPEC must provide the
submitter written notice, which must include:
(1) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of
the records as IPEC intends to release them; and
(3) A specified disclosure date, which must be a reasonable time
after the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial
information, IPEC must promptly notify the submitter.
(i) Requester notification. IPEC must notify the requester whenever
it provides the submitter with notice and an opportunity to object to
disclosure; whenever it notifies the submitter of its intent to
disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
(j) No right or benefit. In accordance with Executive Order 12600,
the related requirements in this section, such as notification, do not
create any right or benefit, substantive or procedural, enforceable at
law or in equity by a party against the United States, its agencies,
its officers, or any person.

Subpart B--Privacy Act Policies and Procedures

Sec. 10400.19 Definitions.

For purposes of this subpart:
Access means making a record available to a subject individual.
Amendment means any correction, addition to, or deletion of
information in a record.
Individual means a natural person who either is a citizen of the
United States or an alien lawfully admitted to the United States for
permanent residence.
Maintain includes the term ``maintain'', collect, use, or
disseminate.
Privacy Act Office means the IPEC officials who are authorized to
respond to requests and to process requests for amendment of records
IPEC maintains under the Privacy Act.
Record means any item, collection or grouping of information about
an individual that IPEC maintains within a system of records and
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.
System of records means a group of records IPEC maintains or
controls from which information is retrieved by the name of an
individual or by some identifying number, symbol or other identifying
particular assigned to the individual.

Sec. 10400.20 Purpose and scope.

This subpart implements the Privacy Act, 5 U.S.C. 552a, a Federal
law that requires Federal agencies to protect private information about
individuals that the agencies collect or maintain. It establishes
IPEC's rules for access to records in systems of records we maintain
that are retrieved by an individual's name or another personal
identifier. It describes the procedures by which individuals may
request access to records, request amendment or correction of those
records, and request an accounting of disclosures of those records by
IPEC. Whenever it is appropriate to do so, IPEC automatically processes
a Privacy Act request for access to records under both the Privacy Act
and the FOIA, following the rules contained in this part. IPEC
processes a request under both the Privacy Act and the FOIA so you will
receive the maximum amount of information available to you by law.

Sec. 10400.21 How do I make a Privacy Act request?

(a) In general. You can make a Privacy Act request for records
about yourself. You also can make a request on behalf of another
individual as the parent or legal guardian of a minor, or as the legal
guardian of someone determined by a court to be incompetent.
(b) How do I make a request?--(1) Where do I send my written
request? To make a request for access to a record, you should write
directly to our FOIA Officer. Heightened security delays mail delivery.
To avoid mail delivery delays, we strongly suggest that you email your
request to <a href="/cdn-cgi/l/email-protection#85ecf5e0e6e3eaece4c5ecf5e0e6abe0eaf5abe2eaf3">[email&#160;protected]</a>. Our mailing address is: Office of the
Intellectual Property Enforcement Coordinator, Executive Office of the
President, Washington, DC 20503, Attn: FOIA Officer. To make sure that
the FOIA Officer receives your request without delay, you should
include the notation ``Privacy Act Request'' in the subject line of
your email or on the front of your envelope and also at the beginning
of your request.
(2) Security concerns. To protect our computer systems, we reserve
the right not to open attachments to emailed requests. We request that
you include your request within the body of the email.
(c) What should my request include? You must describe the record
that you seek in enough detail to enable IPEC to locate the system of
records containing the record with a reasonable amount of effort.
Include specific information about each record sought, such as the time
period in which you believe it was compiled, the name or identifying
number of each system of records in which you believe it is kept, and
the date, title or name, author, recipient, or subject matter of the
record. As a general rule, the more specific you are about the record
that you seek, the more likely we will be able to locate it in response
to your request.
(d) How do I request amendment of a record? If you are requesting
an amendment of an IPEC record, you must identify each particular
record in question and the system of records in which the record is
located, describe the amendment that you seek, and state why you
believe that the record is not accurate, relevant, timely or complete.
You may submit any documentation that you think would be helpful,
including an annotated copy of the record.
(e) How do I request an accounting of record disclosures? If you
are requesting an accounting of disclosures made by IPEC to another
person, organization or Federal agency, you must identify each system
of records in question. An accounting generally includes the date,
nature and purpose of each disclosure, as well as the name and address
of the person, organization, or Federal agency to which the disclosure
was made.
(f) Verification of identity. When making a Privacy Act request,
you must verify your identity in accordance with

[[Page 8216]]

these procedures to protect your privacy or the privacy of the
individual on whose behalf you are acting. If you make a Privacy Act
request and you do not follow these identity verification procedures,
IPEC cannot process your request.
(1) How do I verify my own identity? You must include in your
request your full name, current address, and date and place of birth.
We may request additional information to verify your identity. To
verify your own identity, you must provide an unsworn declaration under
28 U.S.C. 1746, a law that permits statements to be made under penalty
of perjury. To fulfill this requirement, you must include the following
statement just before the signature on your request:

I declare under penalty of perjury that the foregoing is true and
correct. Executed on [date].

(2) How do I verify parentage or guardianship? If you make a
request as the parent or legal guardian of a minor, or as the legal
guardian of someone determined by a court to be incompetent, for access
to records or information about that individual, you must establish:
(i) The identity of the individual who is the subject of the
record, by stating the individual's name, current address, and date and
place of birth;
(ii) Your own identity, as required in paragraph (f)(1) of this
section;
(iii) That you are the parent or legal guardian of the individual,
which you may prove by providing a copy of the individual's birth
certificate showing your parentage or a court order establishing your
guardianship; and
(iv) That you are acting on behalf of the individual in making the
request.

Sec. 10400.22 How will IPEC respond to my Privacy Act request?

(a) When will we respond to your request? We will search to
determine if the requested records exist in a system of records IPEC
owns or controls. The FOIA Officer will respond to you in writing
within 20 days after we receive your request and/or within 10 working
days after we receive your request for an amendment, if it meets the
requirements of this subpart. We may extend the response time in
unusual circumstances, such as the need to consult with another agency
about a record or to retrieve a record that is in storage.
(b) What will our response include? (1) Our written response will
include our determination whether to grant or deny your request in
whole or in part, a brief explanation of the reasons for the
determination, and the amount of the fee charged, if any, under Sec.
10400.24. If you requested access to records, we will make the records,
if any, available to you. If you requested amendment of a record, the
response will describe any amendments made and advise you of your right
to obtain a copy of the amended record.
(2) We will also notify the individual who is subject to the record
in writing, if, based on your request, any system of records contains a
record pertaining to him or her.
(3) If IPEC makes an adverse determination with respect to your
request, our written response will identify the name and address of the
person responsible for the adverse determination, that the adverse
determination is not a final agency action, and describe the procedures
by which you may appeal the adverse determination under Sec. 10400.23.
(4) An adverse determination is a response to a Privacy Act request
that:
(i) Withholds any requested record in whole or in part;
(ii) Denies a request to amend a record in whole or in part;
(iii) Declines to provide an accounting of disclosures;
(iv) Advises that a requested record does not exist or cannot be
located;
(v) Finds that what you requested is not a record subject to the
Privacy Act; or
(vi) Advises on any disputed fee matter.

Sec. 10400.23 What can I do if I am dissatisfied with IPEC's
response to my Privacy Act request?

(a) What can I appeal? You can appeal any adverse determination in
writing to the Privacy Act Appeals Officer (the Legal Advisor or a
designee) within ninety calendar days after the date of our response.
We provide a list of adverse determinations in Sec. 10400.22(b)(4).
(b) How do I make an appeal?--(1) What should I include? You may
appeal by submitting a written statement giving the reasons why you
believe the Privacy Act Appeals Officer should overturn the adverse
determination. Your written appeal may include as much or as little
related information as you wish to provide, as long as it clearly
identifies the determination (including the request number, if known)
that you are appealing.
(2) Where do I send my appeal? You should mark both your letter and
the envelope, or the subject of your email, ``Privacy Act Appeal.'' To
avoid mail delivery delays caused by heightened security, we strongly
suggest that you email any appeal to <a href="/cdn-cgi/l/email-protection#8ae3faefe9ece5e3ebcae3faefe9a4efe5faa4ede5fc">[email&#160;protected]</a>. Our mailing
address is: Office of the Intellectual Property Enforcement
Coordinator, Executive Office of the President, Washington, DC 20503,
Attn: Privacy Act Appeals Officer.
(c) Who will decide your appeal? (1) The Privacy Act Appeals
Officer will act on all appeals under this section.
(2) We ordinarily will not adjudicate an appeal if the request
becomes a matter of litigation.
(3) On receipt of any appeal involving classified information, the
Privacy Act Appeals Officer must take appropriate action to ensure
compliance with applicable classification rules.
(d) When will we respond to your appeal? The Privacy Act Appeals
Officer will notify you of its appeal decision in writing within 30
days from the date it receives an appeal that meets the requirements of
paragraph (b) of this section. We may extend the response time in
unusual circumstances, such as the need to consult with another agency
about a record or to retrieve a record shipped offsite for storage.
(e) What will our response include? The written response will
include the Privacy Act Appeals Officer's determination whether to
grant or deny your appeal in whole or in part, a brief explanation of
the reasons for the determination, and information about the Privacy
Act provisions for court review of the determination.
(1) Appeals concerning access to records. If your appeal concerns a
request for access to records and the appeal is granted in whole or in
part, we will make the records, if any, available to you.
(2) Appeals concerning amendments. If your appeal concerns
amendment of a record, the response will describe any amendment made
and advise you of your right to obtain a copy of the amended record. We
will notify all persons, organizations or Federal agencies to which we
previously disclosed the record, if an accounting of that disclosure
was made, that the record has been amended. Whenever the record is
subsequently disclosed, the record will be disclosed as amended. If our
response denies your request for an amendment to a record, we will
advise you of your right to file a statement of disagreement under
paragraph (f) of this section.
(f) Statements of disagreement--(1) What is a statement of
disagreement? A statement of disagreement is a concise written
statement in which you clearly identify each part of any record that
you dispute and explain your reason(s) for disagreeing with our denial
in whole or

[[Page 8217]]

in part of your appeal requesting amendment.
(2) How do I file a statement of disagreement? You should mark both
your letter and the envelope, or the subject of your email, ``Privacy
Act Statement of Disagreement.'' To avoid mail delivery delays caused
by heightened security, we strongly suggest that you email a statement
of disagreement to <a href="/cdn-cgi/l/email-protection#90f9e0f5f3f6fff9f1d0f9e0f5f3bef5ffe0bef7ffe6">[email&#160;protected]</a>. Our mailing address is:
Office of the Intellectual Property Enforcement Coordinator, Executive
Office of the President, Washington, DC 20503, Attn: Privacy Act
Appeals Officer.
(3) What will we do with your statement of disagreement? We shall
clearly note any portion of the record that is disputed and provide
copies of the statement and, if we deem appropriate, copies of our
statement that denied your request for an appeal for amendment, to
persons or other agencies to whom the disputed record has been
disclosed.
(g) When appeal is required. Under this section, you generally
first must submit a timely administrative appeal, before seeking review
of an adverse determination or denial request by a court.

Sec. 10400.24 What does it cost to get records under the Privacy
Act?

(a) Agreement to pay fees. Your request is an agreement to pay
fees. We consider your Privacy Act request as your agreement to pay all
applicable fees unless you specify a limit on the amount of fees you
agree to pay. We will not exceed the specified limit without your
written agreement.
(b) How do we calculate fees? We will charge a fee for duplication
of a record under the Privacy Act in the same way we charge for
duplication of records under the FOIA in Sec. 10400.11(c). There are
no fees to search for or review records requested under the Privacy
Act.

Steven D. Aitken,
Legal Advisor, and Performing the Functions and Duties of the
Intellectual Property Enforcement Coordinator, Office of the
Intellectual Property Enforcement Coordinator.
[FR Doc. 2023-02552 Filed 2-7-23; 8:45 am]
BILLING CODE 3330-F3-P

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