been classified or otherwise restrictively endorsed by such other department or agency, and a copy therof is in the possession of the Bureau, the originating 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 orignating 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 the Freedom of Information Act, 5 U.S.C. 552 or these regulations;

(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), establish the identity and the right of the person making the request to the 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 decion 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 accord

ance 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 passport or identification badge), or the presentation of two items of identification which do not bear a photograph but do bear both a name and signature (such as a driver's license or credit card), in the case of a request made in person; or

(ii) The presentation in person or the submission by mail of a notarized statement swearing to or affirming the person's identity.

Additional proof of a person's identity will be required before the request will be deemed to have met the requirement of paragraph (c)(5) of this section if it is determined that additional proof is necessary to protect against unauthorized disclosure of information in a particular case. A person who has identified himself to the satisfaction of Bureau officials pursuant to this paragraph has established his right to access to records pertaining to himself. A person requesting records on behalf of, or pertaining to, another person must provide adequate proof of the legal relationship under which he asserts the right to access to the requested records before the requirement of paragraph (c)(5) of this section will be deemed met. In the case of an attorney-in-fact the requester shall furnish an original of a properly executed power of attorney together with one other identifier bearing the signature of the person executing such a power of attorney. A person signing a request for disclosure on behalf of a corporation shall furnish a certificate by one of the officers of the corporation (other than the requester) that the person making the request on behalf of the corporation is properly authorized to make such a request. A person requesting access to records of a one-man corporation is properly authorized to make such a request. A person requesting access to records of a one-man corporation or of a partnership shall provide a notarized statement that the requester is in fact an officer or an official of the corporation or a member of the partnership.

(e) Date of receipt of request. Any request for records, separate agreement to pay fees, final notification of waiver of fees, or letter transmitting prepayment shall be promptly stamped with the date of receipt or dispatch by the office of the Bureau official responsible for determining disclosure of the records requested as prescribed by this Part 71. The latest of these stamped dates is deemed for purposes of this subpart to be the date of receipt of the request, provided that the requirements of paragraph (c) of this section have been satisfied, and, where applicable

(1) The requester has agreed in writing, by executing a separate contract or otherwise, to pay the fees for search and duplication determined due in accordance with § 71.25; or

(2) The fees have been waived in accordance with § 71.25(d); or

(3) Payment in advance has been received from the requester.

As soon as the date of receipt has been established as provided above, the requester shall be informed when he may expect a response within the time limits specified in paragraphs (g) (1) or (h) of this section, unless extended as provided in paragraph (i) (1) of this section, and shall be given the title of the officer responsible for the response.

(f) Search for record requested. Upon the receipt of a request, search services shall be performed by Bureau employees to identify and locate the requested records. With respect to records maintained in computerized form, a search shall include services functionally analogous to searches for records which are maintained in a conventional form. However, the Bureau is not required under 5 U.S.C. 552 to tabulate or compile information for the purpose of creating a record.

(g) Initial determintation (1) In general. Initial determinations as to whether to grant requests for records are made by the Assistant to the Director (disclosure), or, where applicable, the official authorized to disclose under §71.26. Determination shall be made and notification thereof mailed within 10 days (excepting Saturdays, Sundays, and legal public hoildays)

after the date of receipt of the request, as determined in accordance with paragraph (e) of this section, unless an extension is invoked pursuant to paragraph (i) (1) of this section or the requester otherwise agrees to an extension of the 10-day time limitation.

(2) Granting of request. If it is determined that the request is to be granted, and if the person making the request desires a copy of the requested records, a copy of these records shall be mailed to him together with a statement of the fees for search and duplication at the time of the determination or promptly thereafter, unless prepayment is required pursuant to paragraph (f)(2) of § 71.25. In the case of a request for inspection, the requester shall be notified in writing of the determination, when and where the requested records may be inspected, and of the fees involved in complying with the request. In such a case, the records shall promptly be made available for inspection at the time and place stated in a manner so as not to interfere with their use by the Bureau or to exclude other persons from making inspections. In addition, reasonable limitations may be placed on the number of records which may be inspected by a person on any given date. The person making the request is not allowed to remove the records from the room where inspection is made. If, after making inspection, the person making the request desires copies of all or a portion of the requested recordes, copies shall be furnished to him upon payment of the established fees prescribed by § 71.25.

(3) Denial of request. If it is determinded that the request for records (or any portions thereof) should be denied, the person making the request shall be notified by mail of the reasons for the denial. The letter of notification shall also specify the city or other location where the requested records are situated (if known), and shall state the name and title or position of the official responsible for the denial. The letter shall also advise the person making the request of the right to administrative appeal in accordance with paragraph (h) of this section, and

specify the offical or office to which the appeal must be submitted.

(4) Inability to locate records within time limits. If the requested records cannot be located and evaluated within the initial 10-day period or any extension thereof in accordance with paragraph (i)(1) of this section, the search for the records shall continue, but the requester shall be so notified and advised that he may consider the notification to be a denial of access within the meaning of paragraph (g)(3) of this section, and provided with the address to which an administrative appeal may be addressed. However, the requester may also be invited, in the alternative, to agree to a voluntary extension of time in which to locate the records. Such a voluntary extension of time does not constitute a waiver of the requester's right to appeal any denial of access ultimately made or his right to appeal in the event of failure to comply with the time extension granted.

(h) Administrative appeal. At any time within 35 days after the date of the notification described in paragraph (g) of this section or the date of the letter transmitting the last records released, whichever is later, the requester may submit an administrative appeal to the Director. The letter of appeal should be addressed to the Director, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C. 20226. The letter of appeal shall

(1) Be made in writing and signed by the requester;

(2) Be mailed or hand delivered to the office of the Director;

(3) Reasonably describe, in accordance with paragraph (d) of this section, the requested records which the appeal concerns;

(4) Set forth the address where the requester desires to be notified of the determination on appeal;

(5) Specify the date of the initial request and date of the letter denying the initial request; and

(6) Petition the Director to grant the request for records and cite any arguments in support thereof.

Each appeal shall be promptly stamped with the date of receipt by the office to which addressed; and the

later of this stamped date, or the stamped date of a document submitted subsequently which supplements the original appeal so that the appeal satisfies the requirements set forth in paragraphs (h)(1) through (h)(6) of this section, is deemed to be the date of receipt for all purposes of this subpart. The receipt of the appeal shall be acknowledged by the Director or his delegate and the requester advised of the date of receipt established by the foregoing and when a response is due in accordance with this paragraph. If an appeal fails to satisfy any of these requirements the person making the request shall be promptly advised in writing of the additional requirements to be met. The determination to affirm the initial denial (in whole or in part) or to grant the request for records shall be made and notification of the determination mailed within 20 days (exclusive of Saturdays, Sundays, and legal public holidays) after the date of receipt of the appeal, unless extended pursuant to paragraph (i)(1) of this section. If it is determined that the appeal from the initial denial is to be denied (in whole or in part), the requester shall be notified in writing of the denial, the reasons therefor, the name and title or position of the official responsible for the denial on appeal, and of the provisions of 5 U.S.C. 552(a)(4) for judicial review of that determination. If a determination cannot be made within the 20-day period (or any extension thereof pursuant to paragraph (i)(1) of this section), the requester shall be promptly notified in writing that the determination will be made as soon as practicable but that the requester is nonetheless entitled to commence an action in the district court as provided in paragraph (k) of this section. However, the requester may also be invited, in the alternative, to agree to a voluntary extension of time in which to decide the appeal. Such a voluntary extension does not constitute a waiver of the right of the requester ultimately to commence an action in a United States district court.

(1) Time extension—(1) 10-day extension. In unusual circumstances, the

time limitations specified in paragraphs (g) and (h) of this section may be extended by written notice from the official charged with the duty of making the determination to the person making the request or appeal setting forth the reasons for the extension and the date on which the determination is expected to be dispatched. Any extension or extensions of time may not cumulatively total more than 10 additional working days. For example, if an extension pursuant to this paragraph is invoked in connection with an initial determination, any unused days of the extension period may be invoked in connection with the determination

on administrative

appeal by written notice from the official who is to make the appellate determination. If no extension is sought for the initial determination, an extension of 10 days may be added to the ordinary 20-day period for appellate review. As used in this paragraph, “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular request, any of the following:

(i) The need to search for and collect the requested records from field facilities or other establishments in buildings other than the building in which the office of the official to whom the request is made is located.

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

(iii) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or with another constituent unit of the Department of the Treasury or among two or more components of the Bureau, other than the office of the Chief Counsel or the office of the Assistant to the Director (Disclosure), having substantial subject-matter interest in the determination of the request. Consultations with personnel of the Department of Justice concerned with requests for records under 5 U.S.C. 552 do not constitute a basis for an extension under this paragraph.

(2) Extension by judicial review. If the Bureau fails to comply with the time limitations specified in paragraph (g) or (h) of this section and the person making the request initiates a suit in accordance with paragraph (k) of this section, the court in which the suit was initiated may retain jurisdiction and allow the Bureau additional time to review its records, provided that the Bureau demonstrates the existence of exceptional circumstances and the exercise of due diligence in responding to the request.

(j) Failure to comply. If the Bureau fails to comply with the time limitations specified in paragraphs (g), (h), or (i) of this section, any person making a request for records is deemed to have exhausted his administrative remedies with respect to his request. Accordingly, the person making the request may initiate suit as set forth in paragraph (k) of this section.

(k) Judicial review. If a request for records is denied upon appeal pursuant to paragraph (h) of this section, or if no determination is made within the 10-day or 20-day periods specified in paragraphs (g) and (h) of this section, respectively, together with any extension pursuant to paragraph (i)(1) of this section or by agreement of the requester, the person making the request may commence an action in a U.S. district court in the district in which he resides, in which his principal place of business is located, in which the records are situated, or in the District of Columbia, pursuant to 5 U.S.C. 552(a)(4). Service of process in such actions shall be in accordance with the Federal Rules of Civil Procedure (28 U.S.C., App.) applicable to actions against an agency of the United States. Delivery of process upon the Bureau must be directed to the Director, Bureau of Alcohol, Tobacco and Firearms. For his location and mailing address, see Appendix A.

(1) Proceeding against officer or employee. In accordance with 5 U.S.C. 552(a)(4)(F), the Civil Service Commission is required, upon the issuance of a specified finding by a court, to initiate a proceeding to determine whether disciplinary action is warranted