PART 2004—DISCLOSURE OF RECORDS AND INFORMATION Authority: 19 U.S.C. 2171(e)(3). Source: 81 FR 89846, Dec. 13, 2016, unless otherwise noted. Subpart A—Definitions Authority: 19 U.S.C. 2171(e)(3). § 2004.0 Definitions. For purposes of this part: Days, FOIA Privacy Act OGIS USTR [81 FR 89846, Dec. 13, 2016, as amended at 82 FR 18985, Apr. 25, 2017] Subpart B—Freedom of Information Act Policies and Procedures Authority: 5 U.S.C. 552; 19 U.S.C. 2171(e)(3); Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 FR 10012, Mar. 27, 1987. Source: 81 FR 90717, Dec. 15, 2016, unless otherwise noted. § 2004.1 Purpose and scope. (a) This subpart contains the rules we follow when processing requests for records under the FOIA, a Federal law that provides a right of access to certain records and information Federal agencies maintain and control. You should read this subpart in conjunction with the text of the FOIA and the Uniform Freedom of Information Act Fee Schedule and Guidelines published by the Office of Management and Budget (OMB Guidelines). Additionally, our FOIA Reference Guide, which is available on our Web site at http://www.ustr.gov, (b) To maximize the amount of information we can provide to you, we may process requests you make for records about yourself under both this subpart and subpart C to part 2004, our rules implementing the Privacy Act. (c) We administer the FOIA with a presumption of openness. § 2004.2 Proactive disclosures. You can access records that the FOIA requires us to make available for public inspection and copying in an electronic format through our Web site: http://www.ustr.gov. Federal Register [email protected] [email protected]. § 2004.3 How do I make a request for records under the FOIA? (a) General information Where do I send my written request? [email protected]. (2) Security concerns. (3) Verifying your identity. “I declare under penalty of perjury that the foregoing is true and correct. Executed on [date].” (ii) If the other individual is deceased, you should submit proof of death such as a copy of a death certificate or an obituary. As an exercise of administrative discretion, we may require that you provide additional information if necessary in order to verify that a particular individual has consented to disclosure. (b) How do I describe the records I want? (2) If a request does not provide sufficient specific descriptive information for the FOIA Office reasonably to ascertain exactly which records you are requesting and to locate them, our response may be delayed. Please note that in response to a FOIA request, we are not required to create records, conduct research for you, analyze data, answer written questions, or parse your narrative to try and determine the specific records you are seeking. You can contact the FOIA Office before you submit your request for assistance in describing the records you are seeking. If we determine that your request does not reasonably describe the records sought, we will explain why we cannot process your request and ask for additional information. For example, we might ask you to clarify your request if you ask for all documents in a certain date range but do not include a specific subject matter, topic or personnel. We can help you reformulate or modify your request. (c) Form or format of responsive records. (d) Contact information. § 2004.4 How will we handle confidential commercial information? (a) Definitions. (1) Confidential commercial information (2) Submitter (b) How does a submitter designate confidential commercial information? (c) When will we notify a submitter? (i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under exemption 4 of the FOIA, 5 U.S.C. 552(b)(4); or (ii) We have reason to believe that the requested information may be protected from disclosure exemption 4 of the FOIA, 5 U.S.C. 552(b)(4), but have not yet determined whether the information is protected from disclosure under that exemption or any other applicable FOIA exemption. (2) Our notice either will 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, we may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure without publicly disclosing the records, instead of sending individual notifications. (3) We promptly will notify the submitter whenever a requester files a lawsuit seeking to compel the disclosure of the submitter's confidential commercial information. (d) Exceptions to submitter notice requirements. (1) We determine that the information is exempt under the FOIA, and therefore will not be disclosed; (2) The information has been lawfully published or has officially been 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, Predisclosure notification procedures for confidential commercial information; (4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, we will give the submitter written notice of any final decision to disclose the information and a reasonable time period within which to object to disclosure under paragraph (e) of this section. (e) How can a submitter object to disclosure? (2) A submitter who does not respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. We will not consider any information we receive after the date of any disclosure decision. Any information provided by the submitter under this section may itself be subject to disclosure under the FOIA. (f) Analysis of objections. (g) Notice of intent to disclose. (1) A statement of the reasons why we did not sustain each of the submitter's disclosure objections; (2) A description of the information to be disclosed or copies of the records as we intend to release them; and (3) A specified disclosure date, which will be a reasonable time after the notice. (h) When will we notify a requester? § 2004.5 Who is responsible for responding to your FOIA request? (a) In general. (b) Consultation, referral and coordination. (1) Consultation. (2) Referral. (3) Coordination. (c) Classified information. (d) Timing of responses to consultations and referrals. (e) Agreements regarding consultations and referrals. § 2004.6 When will we respond to your FOIA request? (a) In general. (b) Multitrack processing. (c) Unusual circumstances What is an unusual circumstance? [email protected], [email protected]. (2) Aggregating requests. (d) Expedited processing How do I request expedited processing? (2) When will we grant expedited processing? (i) Failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (ii) With respect to a request made by a person primarily engaged in disseminating information, there is an urgency to inform the public about a specific actual or alleged Federal Government activity that is the subject of the request or appeal that extends beyond the public's right to know about government activity generally. (3) When will we respond to your request for expedited processing? [81 FR 90717, Dec. 15, 2016, as amended at 88 FR 47772, July 25, 2023] § 2004.7 What will our response to your FOIA request include? (a) In general. (b) Acknowledgement of requests. (c) Granting requests. [email protected], [email protected]. (d) Adverse determinations of requests What is an adverse determination? (2) Our response. (i) The name and title or position of the person responsible for the determination; (ii) A brief statement of the reasons for the denial, including any FOIA exemption(s) we applied; (iii) An estimate of the volume of any records or information we 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; (iv) Information about our FOIA Public Liaison and the dispute resolution services provided by OGIS; and (iv) Your right to appeal our decision under § 2004.8. (3) Markings on released documents. [81 FR 89846, Dec. 13, 2016, as amended at 82 FR 18985, Apr. 25, 2017] § 2004.8 What can I do if I am dissatisfied with USTR's response to my FOIA request? (a) How do I make an appeal? What can I appeal? (2) Where do I send my appeal? [email protected]. (b) Who will decide your appeal? (2) We ordinarily will not adjudicate an appeal if the request becomes a matter of FOIA litigation. (3) On receipt of any appeal involving classified information, the FOIA Appeals Committee must take appropriate action to ensure compliance with applicable classification rules. (c) Decisions on appeals. (d) When appeal is required. [81 FR 89846, Dec. 13, 2016, as amended at 82 FR 18985, Apr. 25, 2017] § 2004.9 Fees. (a) In general. (b) Definitions. (1) Commercial use request (2) Direct costs i.e., (3) Duplication (4) Educational institution Example 1. We would presume that a request from a professor of economics for records relating to the economic effects of a trade agreement, written on letterhead of the university's department of economics, is a request from an educational institution. Example 2. We would not presume that a request from the same professor of economics seeking drug information from the Food and Drug Administration in furtherance of a murder mystery he is writing is a request from an educational institution, regardless of whether it was written on institutional stationery. Example 3. We would presume that a request from a student in furtherance of their coursework or other school-sponsored activities evidenced by a course syllabus or other reasonable documentation indicating the research purpose for the request would qualify as part of this fee category. (5) Noncommercial scientific institution (6) Representative of the news media (7) Review (8) Search (c) Charging fees. (1) Search. (ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, we will charge $76/hour, which is a blended hourly rate for all personnel in the FOIA Office, plus 16 percent of that rate to cover benefits. (iii) We will charge the direct costs if it is necessary to create a new computer program to locate the requested records. We will notify you of the costs associated with creating such a program, and you must agree to pay the associated costs before we build the program. (iv) If your request requires the retrieval of records stored at a Federal records center, we will charge additional costs in accordance with the Transactional Billing Rate Schedule established by the National Archives and Records Administration. (2) Duplication. (3) Review. i.e., (d) Other charges Special services. (2) Interest. (e) Aggregating requests. (f) If we anticipate fees will exceed $25. (1) We will not process your request until you either commit in writing to pay the actual or estimated total fee, or designate some amount of fees you are willing to pay. If you are a noncommercial use requester and we have not yet provided your statutory entitlements ( i.e., (2) If you agree to pay some designated amount of fees, but we estimate that the total fee will exceed that amount, we will toll processing when we notify you of the estimated fees in excess of the amount you had indicated a willingness to pay. When we receive your written commitment to pay the actual or estimated total fee, or designate an additional amount of fees you are willing to pay, we will restart the processing clock. (3) If you decide to reformulate your request to reduce costs, you can contact USTR's FOIA Public Liaison at [email protected] (4) We will close your request if you do not respond in writing within thirty calendar days after the date we notify you of the fee estimate. (g) Advance payments. (2) If you previously failed to pay a properly charged FOIA fee to any Federal agency within thirty calendar days of the billing date, we may require proof that you paid the full amount due, plus any applicable interest on that prior request, and that you make an advance payment to us of the full amount of any anticipated fee before we begin to process a new request or continue to process a pending request or any pending appeal. If we have a reasonable basis to believe that you have misrepresented your identity in order to avoid paying outstanding fees, we may require you to provide proof of identity. (3) If we require advance payment, we will not consider your request received and will not do any additional work until we receive the required payment. We will close your request if you do not pay the advance payment within thirty calendar days after the date of our fee determination. (4) Before we provide records in response to your request, we may collect payments you owe for work we already have completed. (h) Requirements for waiver or reduction of fees. (i) Shed light on the operations or activities of the government. The subject of the request must specifically concern identifiable operations or activities of the Federal government with a connection that is direct and clear, not remote or attenuated. (ii) Likely contribute significantly to public understanding of those operations or activities. 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. The disclosure must contribute to the understanding of a reasonably broad audience interested in the subject. We will consider your expertise in the subject area as well as your ability and intention to effectively convey information to the public. (iii) Primarily advance your commercial interests. For example, we ordinarily presume that the public's interest is greater than the requester's commercial interest when we receive a request from a representative of the news media. We will not presume that disclosure to data brokers or others who merely compile and market government information for direct economic return primarily serves the public interest. (2) We will grant a partial waiver when only some of the records to be released satisfy the requirements in this section. (3) You should include your fee waiver or reduction request when you first submit your FOIA request to us. You can submit a fee waiver or reduction request at a later time so long as the underlying record request is pending or on administrative appeal. If you already committed to pay fees and subsequently request a waiver of those fees that we deny, you must pay any costs incurred up to the date the fee waiver request was received. [81 FR 89846, Dec. 13, 2016, as amended at 82 FR 18986, Apr. 25, 2017] Subpart C—Privacy Act Policies and Procedures Authority: 5 U.S.C. 552a; 19 U.S.C. 2171(e)(3). Source: 82 FR 18986, Apr. 25, 2017, unless otherwise noted. § 2004.20 Definitions. For purposes of this subpart: Access Amendment Individual Maintain Privacy Act Office Record System of records Federal Register www.ustr.gov § 2004.21 Purpose and scope. (a) 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 USTR'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 USTR. Whenever it is appropriate to do so, USTR automatically processes a Privacy Act request for access to records under both the Privacy Act and the FOIA, following the rules contained in this subpart and subpart B of part 2004. USTR 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. (b) This subpart does not entitle you to any service or to the disclosure of any record to which you are not entitled under the Privacy Act. It also does not, and may not be relied upon to create any substantive or procedural right or benefit enforceable against USTR. § 2004.22 How do I make a Privacy Act request? (a) In general (b) How do I make a request? Where do I send my written request? [email protected] (2) Security concerns (c) What should my request include? (d) How do I request amendment or correction of a record? (e) How do I request an accounting of record disclosures? (f) Verification of identity (1) How do I verify my own identity? I declare under penalty of perjury that the foregoing is true and correct. Executed on [date]. (2) How do I verify parentage or guardianship? (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, and, at your option, the Social Security number of the individual; (ii) Your own identity, as required in paragraph (f)(1) of this section; (iii) That you are the parent or 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. § 2004.23 How will USTR respond to my Privacy Act request? (a) When will we respond to your request? (b) What will our response include? (c) Adverse determinations What is an adverse determination? (i) Withholds any requested record in whole or in part; (ii) Denies a request to amend or correct 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. (2) Responses that include an adverse determination § 2004.24 What can I do if I am dissatisfied with USTR's response to my Privacy Act request? (a) What can I appeal? (b) How do I make an appeal? What should I include? (2) Where do I send my appeal? [email protected] (c) Who will decide your appeal? (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 Committee must take appropriate action to ensure compliance with applicable classification rules. (d) When will we respond to your appeal? (e) What will our response include? (1) Appeals concerning access to records (2) Appeals concerning amendments or corrections (f) Statements of disagreement What is a statement of disagreement? (2) How do I file a statement of disagreement? (3) What will we do with your statement of disagreement? (g) When appeal is required § 2004.25 What does it cost to get records under the Privacy Act? (a) Your request is an agreement to pay fees (b) How do we calculate fees? § 2004.26 Are there any exemptions from the Privacy Act? (a) What is a Privacy Act exemption? (b) How do I know if the records or information I want are exempt? § 2004.27 How are records secured? (a) Controls (1) Records are protected from public view; (2) The area in which records are kept is supervised during business hours to prevent unauthorized persons from having access to them; (3) Records are inaccessible to unauthorized persons outside of business hours; and (4) Records are not disclosed to unauthorized persons or under unauthorized circumstances in either oral or written form. (b) Limited access § 2004.28 Use and collection of Social Security numbers. We will collect Social Security numbers only when it is necessary and we are authorized to do so. At least annually, the Privacy Act Office will inform employees who are authorized to collect information that: (a) Individuals may not be denied any right, benefit or privilege as a result of refusing to provide their Social Security numbers, unless the collection is authorized either by a statute or by a regulation issued prior to 1975; and (b) They must inform individuals who are asked to provide their Social Security numbers: (1) If providing a Social Security number is mandatory or voluntary; (2) If any statutory or regulatory authority authorizes collection of a Social Security number; and (3) The uses that will be made of the Social Security number. § 2004.29 Employee responsibilities under the Privacy Act. At least annually, the Privacy Act Office will inform employees about the provisions of the Privacy Act, including the Act's civil liability and criminal penalty provisions. Unless otherwise permitted by law, a USTR employee must: (a) Collect from individuals only information that is relevant and necessary to discharge USTR's responsibilities. (b) Collect information about an individual directly from that individual whenever practicable. (c) Inform each individual from whom information is collected of: (1) The legal authority to collect the information and whether providing it is mandatory or voluntary; (2) The principal purpose for which USTR intends to use the information; (3) The routine uses, i.e., (4) The effects on the individual, if any, of not providing the information. (d) Ensure that the employee's office does not maintain a system of records without public notice and notify appropriate officials of the existence or development of any system of records that is not the subject of a current or planned public notice. (e) Maintain all records that are used in making any determination about an individual with such accuracy, relevance, timeliness and completeness as is reasonably necessary to ensure fairness to the individual in the determination. (f) Except for disclosures made to an agency or under the FOIA, make reasonable efforts, prior to disseminating any record about an individual, to ensure that the record is accurate, relevant, timely and complete. (g) When required by the Privacy Act, maintain an accounting in the specified form of all disclosures of records by USTR to persons, organizations or agencies. (h) Maintain and use records with care to prevent the unauthorized or inadvertent disclosure of a record to anyone. (i) Notify the appropriate official of any record that contains information that the Privacy Act does not permit USTR to maintain. Subpart D—Production or Disclosure of USTR Records, Information and Employee Testimony in Legal Proceedings Authority: 5 U.S.C. 301; 19 U.S.C. 2171(e)(3). § 2004.30 Purpose and scope. (a) Why are we issuing this rule? (b) What does this rule cover? (c) Not a waiver. (2) The production of records, information or testimony pursuant to this subpart does not constitute a waiver by USTR of any privilege. (d) This subpart provides guidance for USTR's internal operations and does not create any right or benefit, substantive or procedural, that a party may rely upon in any legal proceeding against USTR or the United States. § 2004.31 Definitions. For purposes of this subpart: Demand Employee General Counsel Legal proceeding Records information Request Testimony § 2004.32 Production prohibited unless approved. (a) Approval required. (b) Penalties. § 2004.33 Factors the General Counsel may consider. The General Counsel may grant an employee permission to testify regarding USTR matters and to produce records and information in response to a demand or request. Among the relevant factors the General Counsel may consider in making this determination are whether: (a) The requested records, information or testimony are reasonable in scope, relevant and material to the pending action, and unavailable from other sources such as a non-USTR employee, or a USTR employee other than the employee named. (b) Production of the records, information or testimony might result in USTR appearing to favor one litigant over another. (c) USTR has an interest in the decision that may be rendered in the legal proceeding. (d) Approving the demand or request would assist or hinder USTR in performing statutory duties or unduly burden USTR resources. (e) The demand or request is unduly burdensome or otherwise inappropriate under the rules of discovery or procedure governing the case or matter in which the demand or request arose. (f) Production of the records, information or testimony might violate or be inconsistent with a statute, Executive Order, regulation or other legal authority. (g) Disclosure, including release in camera, is appropriate or necessary under the relevant substantive law concerning privilege. (h) Disclosure, except when in camera and necessary to assert a claim of privilege, would reveal information properly classified or other matters exempt from unrestricted disclosure. (i) Disclosure would interfere with ongoing enforcement proceedings, compromise constitutional rights, reveal the identity of an intelligence source or confidential informant, or disclose trade secrets or similarly confidential commercial or financial information. (j) Any other appropriate factor. § 2004.34 Submitting demands and requests. (a) Where do I send a demand or request? [email protected]. (b) When should I submit it? (c) What must be included? (2) A demand or request for testimony also must include an estimate of the amount of time that the employee will need to devote to the process of testifying (including anticipated travel time and anticipated duration of round trip travel), plus a showing that no document or the testimony of non-USTR persons, including retained experts, could suffice in lieu of the employee's testimony. (d) Limits. (e) Failure to meet requirements and exceptions. § 2004.35 Processing demands and requests. (a) The General Counsel will review a request or demand to produce or disclose records, information or testimony and determine whether, or under what conditions, to authorize the employee to testify regarding USTR matters or produce records and information. The General Counsel will notify the requester of the final determination, the reasons for the grant or denial of the demand or request, and any conditions on disclosure. (b) When necessary, the General Counsel will coordinate with the U.S. Department of Justice to file appropriate motions, including motions to remove the matter to Federal court, to quash, or to obtain a protective order. (c) The General Counsel will process demands and requests in the order in which they are received. Absent unusual circumstances and depending on the scope of the demand or request, the General Counsel will respond within 45 calendar days of the date USTR receives all information necessary to evaluate the demand or request. § 2004.36 Restrictions that apply to testimony. (a) The General Counsel may impose conditions or restrictions on the testimony of USTR employees including, for example, limiting the scope of testimony or requiring the requester and other parties to the legal proceeding to agree that the testimony transcript will be kept under seal or will only be used or made available in the particular legal proceeding for which testimony was requested. The General Counsel also may require a copy of the testimony transcript at the requester's expense. (b) USTR may offer the employee's written declaration in lieu of testimony. (c) If authorized to testify pursuant to this subpart, an employee may testify as to relevant facts within his or her personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee must not: (1) Disclose classified, confidential or privileged information; or (2) For a current USTR employee, testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or USTR's mission or functions, unless testimony is provided on behalf of the United States. A former employee can provide expert or opinion testimony where the testimony involves only general expertise gained while employed as a USTR employee. § 2004.37 Restrictions that apply to released records and information. (a) The General Counsel may impose conditions or restrictions on the release of records and information, including requiring the parties to the legal proceeding to obtain a protective order or to execute a confidentiality agreement to limit access and further disclosure. The terms of a protective order or confidentiality agreement must be acceptable to the General Counsel. In cases where protective orders or confidentiality agreements already have been executed, USTR may condition the release of records and information on an amendment to the existing protective order or confidentiality agreement. (b) If the General Counsel so determines, USTR may present original records for examination in response to a demand or request, but the records cannot be marked or altered or presented as evidence or otherwise used in a manner by which they could lose their status as original records. In lieu of original records, certified copies will be presented for evidentiary purposes. ( See § 2004.38 In the event of an adverse ruling. (a) Notwithstanding USTR's rejection of a demand or request for records, information or testimony, if a court or other competent authority orders a USTR employee to comply with the demand, the employee promptly must notify the General Counsel of the order, and must respectfully decline to comply, citing United States ex rel. Touhy Ragen, (b) To seek reconsideration of USTR's rejection of a demand or request, or of any restrictions on receiving records, information or testimony, a requester must send a petition for reconsideration in accordance with § 2004.34(a) within 10 days of the date of the determination. The petition must contain a clear and concise statement of the basis for the reconsideration with supporting authorities. Determinations about petitions for reconsideration are within the discretion of the United States Trade Representative or his/her designee, and are final. (c) Pursuant to section 704 of the Administrative Procedure Act, 5 U.S.C. 704, a petition for reconsideration of a final determination under this section is a prerequisite to judicial review. § 2004.39 Fees. (a) USTR may condition the production of records, information or an employee's appearance on advance payment of reasonable costs, which may include but are not limited to those associated with employee search time, copying, computer usage, and certifications. (b) Witness fees will include fees, expenses and allowances prescribed by the rules applicable to the particular legal proceeding. If no fees are prescribed, USTR will base fees on the rule of the federal district court closest to the location where the witness will appear. Such fees may include but are not limited to time for preparation, travel and attendance at the legal proceeding.