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(iii) Specifically exempted from disclosure by statute (other than 5 U.S.C. 552(b)), provided that such stature (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(iv) Trade secrets and commercial, financial, or other information obtained from a person and privileged or confidential;

(v) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(vi) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(vii) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would:

(A) Interfere with enforcement proceedings; (B) deprive a person of a right to a fair trial or an impartial adjudication; (C) constitute an unwarranted invasion of personal privacy; (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by a confidential source; (E) disclose investigative techniques and procedures; or (F) endanger the life or physical safety of law enforcement personnel;

(viii) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(ix) Geological and geophysical information and data, including maps, concerning wells.

A reference in this paragraph to a provision of Title 26 of the U.S. Code is considered to be a reference also to any corresponding provisions of prior law

and regulations promulgated thereunder. (See § 71.26 for special rules pertaining to the disclosure of in

formation in the case of certain specified matters.)

(2) Segregable portions of records. Any reasonably segregable portion of a record shall be provided to any person making a request for the record, after deletion of the portions which are exempt under 5 U.S.C. 552(b) (see paragraph (b)(1) of this section). The term "reasonably segregable portion," as used in this paragraph, means any protion of the requested record which is not exempt from disclosure by 5 U.S.C. 552(b) and which, after deletion of the exempted material, still conveys intelligible information.

(3) Application of exemptions. Even though an exemption described in paragraph (b)(1) of this section may be fully applicable to a matter in a particular case, the Bureau may, if not precluded by law, elect under the circumstances of that case not to apply the exemption to such matter. The fact that the exemption is not applied by the Bureau in that particular case has no precedential significance.

§ 71.22 Publication in the "FEDERAL REGISTER."

(a) Requirement. Subject to the application of the exemptions described in paragraph (b) of § 71.21 and subject to the limitations provided in paragraph (b) of this section, the Bureau is required under 5 U.S.C. 552(a)(1) to separately state, publish, and maintain current in the FEDERAL REGISTER for the guidance of the public the following information:

(1) Descriptions of its central and field organization and the established places at which, the persons from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions, from the Bureau;

(2) Statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures which are available;

(3) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and in

structions as to the scope and contents of all papers, reports, or examinations;

(4) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the Bureau.

(5) Each amendment, revision, or repeal of matters referred to in paragraphs (a) (1) through (4) of this section.

Pursuant to the foregoing requirements, the Director publishes in the FEDERAL REGISTER from time to time a statement, which is not codified in this chapter, on the organization and functions of the Bureau, and such amendments as are needed to keep the statement on a current basis. In addition, there are published in the FEDERAL REGISTER the rules set forth in this part or 26 CFR Part 601, as applicable, as well as the regulations issued pursuant to the laws administered by the Bureau, such as the regulations in 27 CFR Part 178 (Commerce In Firearms and Ammunition), 27 CFR Part 55 (Commerce In Explosives), and 27 CFR Part 19 (Distilled Spirits Plants regulations). Whenever the Director grants relief to any person pursuant to 27 CFR Part 178 (Commerce in Firearms and Ammunition), the notice of such action, including the reasons therefor, is published in the FEDERAL REGISTER.

(b) Limitation—(1) Incorporation by reference in the FEDERAL REGISTER. Matter which is reasonably available to the class of persons affected thereby, whether in a private or public publication, will be deemed published in the FEDERAL REGISTER for purposes of paragraph (a) of this section when it is incorporated by reference therein with the approval of the Director of the Office of the Federal Register. The matter which is incorporated by reference must be set forth in the private or public publication substantially in its entirety and not merely summarized or printed as a synopsis. Matter having a location and scope which are familiar to only a few persons with a special working knowledge of the activities of the Bureau may not be incorporated in the FEDERAL REGISTER by reference. Matter may be incorporated

by reference in the FEDERAL REGISTER only pursuant to the provisions of 5 U.S.C. 552(a)(1) and 1 CFR Part 51.

(2) Effect of failure to publish. Unless a person has actual and timely notice of the terms of any matter required by paragraph (a) of this section to be published in the FEDERAL REGISTER, that person is not required in any manner to resort to, or be adversely affected by, the matter if it is neither published in the FEDERAL REGISTER Nor incorporated by reference under paragraph (b)(1) of this section. For example, any such matter which imposes an obligation and which is not published or incorporated by reference in the FEDERAL REGISTER will not adversely change or affect a person's rights.

§ 71.23 Public inspection and copying.

(a) In general. Subject to the application of the exemptions described in paragraph (b) of § 71.21, the Bureau is required under 5 U.S.C. 552(a)(2) to make available for public inspection and copying or, in the alternative, to promptly publish and offer for sale the following information:

(1) Final opinions, including concurring and dissenting opinions, and orders, if such opinions and orders are made in the adjudication of cases pursuant to 27 CFR 200.116 in administrative procedures on applications for, or to suspend, revoke, or annul, permits under the alcohol and tobacco permit systems, and 27 CFR 178.78 in administrative proceedings relating to firearms licenses, and 27 CFR 181.79 in administrative proceedings relating to explosives licenses and permits.

(2) Those statements of policy and interpretations which have been adopted by the Bureau but are not published in the FEDERAL REGISTER.

(3) Bureau administrative staff manuals and instructions to staff that affect a member of the public.

(b) Indexes. The Bureau is also required by 5 U.S.C. 552(a)(2) to maintain and make available for public inspection and copying current indexes identifying any matter, described in paragraphs (a) (1) through (3) of this section which is issued, adopted, or promulgated after July 4, 1967, and which is required to be made available

for public inspection or to be published. In addition, the Bureau shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto, unless it determines by order published in the FEDERAL REGISTER that the publication would be unnecessary and impracticable. In the latter case, the Bureau shall nonetheless provide copies of these indexes on request at a cost not to exceed the direct cost of duplication. The Bureau shall publish an annual index which shall be made available for inspection, copying, and sale at cost at any of the addresses shown in Appendix A to this subpart.

(c) Effect of failure to publish or make available. If any matter is required by paragraph (a) of this section to be made available for public inspection or to be published, the Bureau may not cite as precedent, rely upon, or use that matter against a party (other than an agency) unless the party has actual and timely notice of the terms of the matter, or unless the matter has been indexed and either made available for inspection or published. This paragraph applies only to matters which have precedential significance. It does not apply, for example, to administrative manuals property or fiscal accounting, vehicle maintenance, personnel administration, and similar proprietary functions of the Bureau. This paragraph does not apply to matters which have been made available pursuant to § 71.22.

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(d) Deletion of identifying details. To prevent a clearly unwarranted invasion of personal privacy, the Bureau may, in accordance with 5 U.S.C. 552(a)(2), delete identifying details contained in any matter described in paragraphs (a) (1) through (3) of this section before making such matter available for inspection or publishing it. However, in every case where identifying details are deleted, the justification for the deletion must be explained in writing. The written justification for the deletion is placed as a preamble to the document from which the identifying details have been deleted. However, in the case of ATF Rulings published in the Alcohol, Tobacco and Firearms Bulletin, the justi

fication for any deletion is stated in the introductory page of each issue of the Bulletin.

(e) Public reading rooms. The Bureau headquarters and each regional office of the Bureau shall make available for inspection and copying, in a reading room or otherwise, the matters described in paragraphs (a) (1) through (3) of this section which are required by paragraph (a) of this section to be made available for public inspection or published, and the current indexes to these matters. Facilities shall be provided whereby a person may inspect the material and obtain copies of that which is shelved. Fees may not be charged for access to materials, but fees are charged in accordance with § 71.25 for copies of material provided to the person. The public is not allowed to remove any records from the place of availability. (See Appendix A to this subpart for the location of the public reading rooms of the Bureau.)

(f) Inability to visit offices. If a person is unable or unwilling to visit an office where information described in this section is available, in person, but wishes to inspect identifiable material, he may request permission to inspect such material at any office of the Bureau. To the extent that the requested material is available for inspection at the office where the request was made, this material shall promptly be made available for inspection and, where facilities are available for copying in accordance with the schedule of fees prescribed by § 71.25. Copies of requested material may also be mailed to a person upon request.

§ 71.24 Specific request for other records. (a) In general. Except with respect to records made available under §§71.22 and 71.23, the Bureau shall, in accordance with 5 U.S.C. 552(a)(3), make reasonably described records promptly available to any person requesting them. The request for records must conform in every respect with the rules and procedures of this subpart, and particularly those of this section and Appendix A to this subpart. Any request or any appeal from the initial denial of a request which

does not comply with the foregoing requirements and those set forth elsewhere in this subpart is not subject to the time constraints of paragraphs (g), (h), and (i) of this section, unless and until amended so as to comply. Nevertheless, the Bureau will make every reasonable effort to comply with such requests within these time constraints or, in the alternative, promptly advise the requester in what respect the request or appeal is deficient so that it may be resubmitted or amended for consideration in accordance with this subpart. This section applies only to records in being which are in the possession or control of the Bureau. There is no requirement that records be created or data processed in a format other than required for governmental purposes in order to comply with a request for records.

(b) Request for records not in control of the Bureau. (1) Where the request is for records in the possession or under the control of a constituent unit of the Department of the Treasury other than the Bureau, the request for such records shall immediately be transferred to the appropriate constituent unit and the requester notified to that effect. Such a referral will not be deemed a denial of access within the meaning of these regulations. The constituent unit of the Department of the Treasury to which the referral is made shall treat the request as a new request addressed to it, and the time limits for response set forth by 31 CFR 1.5 (g) and (h) (relating to the disclosure of Department of the Treasury records) shall commence when the referral is received by the designated office or officer of the constituent unit. Where the request is for a record which is determined not to be in the possession or control of any constituent unit of the Department of the Treasury, the requester shall be so advised and the request shall be returned to the requester.

(2) Where the requested record was created by a department or agency other than a constituent unit of the Department of the Treasury or has been classified or otherwise restrictively endorsed by such other department or agency, and a copy thereof is in the possession of the Bureau, the originat

27 CFR Ch. I (4-1-85 Edition)

ing or restrictively endorsing department or agency shall be promptly requested to advise the Bureau on the releasability of that record. The request for advice shall also inform the other department or agency that, in the absence of timely guidance from it, the Bureau will proceed to make its own determination in accordance with this subpart and advise the requester accordingly. When it becomes necessary to provide a response to the requester within the time limits set forth in paragraphs (g) and (h) of this section without the advice of the other department or agency, the Bureau shall proceed to make its own determination in accordance with this subpart and advise the requester accordingly. However, where as a result access to the record is denied under one of the exemptions set forth in § 71.21(b), the requester shall be advised of his right to appeal the denial and may also be advised to make a request for the record directly to the originating department or agency. If an appeal to the Bureau results from this procedure, the originating department or agency shall again be promptly requested to provide timely advice on the releasability of the records. Nevertheless, the ultimate decision on the appeal rests with the designated Bureau official.

(c) Form of request. In order to be subject to the provisions of this section, the initial request for records shall:

(1) Be made in writing and signed by the person making the request;

(2) State that it is made pursuant to U.S.C. 552 or these regulations; the Freedom of Information Act, 5

(3) Be addressed to the Assistant to the Director (Disclosure), or, where applicable, to the officials designated in § 71.26, at the locations cited in Appendix A (and, if delivered to an office in person, be delivered during the regular office hours of that office);

(4) Reasonably describe the records in accordance with paragraph (d) of this section;

(5) In the case of a request for records the disclosure of which is limited by statute or regulations (as for example, the Privacy Act of 1974 (5 U.S.C. 552a) and 26 U.S.C. 5848, 6103,

and 7213, or regulations thereunder), I establish the identity and the right of the person making the request to the I disclosure of the records in accordance with paragraph (d) (3) of this section;

(6) Set forth the address where the person making the request desires to be notified of the determination as to whether the request will be granted;

(7) State whether the requester wishes to inspect the records or desires to have a copy made and furnished without first inspecting them; and

(8) State the firm agreement of the requester to pay the fees for search and duplication ultimately determined in accordance with § 71.25, or request that these fees be reduced or waived and state the justification for this request (see § 71.25(d)).

If the initial request, rather than stating a firm agreement to pay the fees ultimately determined in accordance with § 71.25, places an upper limit on the amount the requester agrees to pay, which upper limit is deemed likely to be lower than the fees estimated ultimately to be due, or where the requester asks for an estimate of the fees to be charged, the requester shall be promptly advised of the estimate of fees due and asked to agree to pay this amount. Where the initial request includes a request for reduction or waiver of fees, the responsible official shall determine whether to grant the request for reduction or waiver in accordance with § 71.25(d) and notify the requester of his decision and, if this decision results in the requester being liable for all or part of the fees normally due, ask the requester to agree to pay the amount so determined. The requirements of this paragraph (c) will not be deemed met until the requester has explicitly agreed to pay the fees applicable to his request for records, if any, or has made payment in advance of the fees estimated to be due. In addition, requesters are advised that only requests for records which fully comply with the requirements of this paragraph can be processed in accordance with this section. However, every effort shall be made to comply with the request, including, where appropriate, asking the requester to remedy any defects in his request.

(d) Reasonable description of records; identity and right of the requester. (1) The request for records must describe the records in reasonably sufficient detail to enable Bureau employees who are familiar with the subject area of the request to locate the records without placing an unreasonable burden upon the Bureau. While no specific formula for a reasonable description of a record can be established, the requirement will generally be satisfied if the requester gives the name, subject matter, and, if known, the date and location of the requested record. However, it is suggested that the person making the request furnish any additional information which will clearly identify the requested records. Where the request does not reasonably describe the records being sought, the requester shall be afforded an opportunity to refine his request. This opportunity may, where desirable, involve a conference with knowledgeable Bureau personnel. The reasonable description requirement shall not be used by officers or employees of the Bureau as a device for improperly witholding records from the public.

(2) The Bureau shall make every reasonable effort to comply fully with all requests for access to records subject only to any applicable exemption set forth in § 71.21(b). However, in any situation in which it is determined that a request for voluminous records would unduly burden and interfere with the operations of the Bureau, the person making the request shall be asked to be more specific and to narrow the request, and to agree on an orderly procedure for the production of the requested records, in order to satisfy the request without disproportionate adverse effects on Bureau operations.

(3) In the case of records containing information with respect to a particular person the disclosure of which is limited by statute or regulations, the person making the request must establish his identity and right to access to such records. A person requesting access to records which pertain to himself may establish his identity by: (i) The presentation of a single document bearing a photograph (such as a

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