[Code of Federal Regulations]

[Title 19, Volume 1]

[Revised as of April 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 19CFR103.5]



[Page 487-489]

 

                        TITLE 19--CUSTOMS DUTIES

 

   CHAPTER I--BUREAU OF CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF 

              HOMELAND SECURITY; DEPARTMENT OF THE TREASURY

 

PART 103_AVAILABILITY OF INFORMATION--Table of Contents

 

 Subpart A_Production of Documents/Disclosure of Information Under the 

                                  FOIA

 

Sec.  103.5  Specific requests for records.



    (a) In general. Except with respect to the records made available 

under Sec. Sec.  103.3 and 103.4, but subject to the application of the 

exemptions described in Sec.  103.12, the United States Customs Service 

is required, by 5 U.S.C. 552(a)(3), upon a request for reasonably-

described records that conforms in every respect to the rules and 

procedures of this part, to make the requested records promptly 

available to the requester. A request or an appeal from the initial 

denial of a request which does not comply with the requirements set 

forth in this part is not subject to the time limits of Sec. Sec.  

103.6, 103.7, and 103.8 until amended so as to comply. Nevertheless, 

every reasonable effort will be made to answer each request within the 

applicable time limits or, if necessary, to 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 

part. This section applies only to existing records which are in the 

possession or control of the United States Customs Service. There is no 

requirement that records be created or data be processed in other than 

the existing format in order to answer a request for records.

    (b) Requests for records not in control of the United States Customs 

Service--(1) Referral of request. Where the request is for a record in 

the possession of, under the control of, or created by a constituent 

unit of the Department of the Treasury other than the United States 

Customs Service, the appropriate Customs officer shall transfer the 

request to the appropriate constituent unit and notify the requester of 

that transfer. Forwarding a request to another constituent unit is not a 

denial of access within the meaning of these regulations. If the United 

States Customs Service receives a request forwarded from another 

constituent unit of the Department of the Treasury, the time limits for 

response set forth in Sec. Sec.  103.6(b) and 103.8(a) commence upon 

receipt of the request by the Disclosure Law Officer, U.S. Customs 

Service. If the United States Customs Service receives a request for a 

record that is not in the possession or control of any constituent unit 

of the Department of the Treasury, the appropriate Customs officer shall 

return the request to the sender with an explanation of that fact.

    (2) Request for advice. If the Customs Service has a copy of a 

requested unclassified record that was created by a Department or agency 

other than a constituent unit of the Department of the Treasury, the 

appropriate Customs officer shall ask that Department or agency for its 

advice on the release of the record. The appropriate Customs officer 

shall advise the other Department or agency that, in the absence of 

timely guidance from it, the United States Customs Service will proceed 

to make its own determination in accordance with this part. If it 

becomes necessary to respond to a requester because of the time limits 

set forth in Sec. Sec.  103.6(b) and 103.8(a) without the advice of the 

other Department or agency, the appropriate Customs officer shall make 

the determination in accordance with this part and advise the requester 

accordingly. If the appropriate Customs officer denies access to the 

record under one of the exemptions set forth in Sec.  103.12, that 

officer shall advise the requester of the right to appeal the denial and 

of the possibility of sending a request for the record directly to the 

originating Department or agency. If a requester appeals from a denial 

to the United States Customs Service, the appropriate Customs officer 

shall ask the originating Department or agency for timely advice on 

whether to release the records. Nevertheless, the ultimate decision on 

the appeal from a denial of access to a record rests with the FOIA 

Appeals Officer, as set forth in Sec.  103.7.

    (3) Classified records. If the Customs Service has a copy of a 

requested record created by a Department or agency other than a 

constituent unit of the Department of the Treasury, and that record is 

classified or contains both classified and unclassified material, the 

request shall be referred to the originating Department or agency for a 

direct response. The requester shall be notified immediately of the 

referral. Such referral shall not constitute a denial of the request and 

no appeal rights accrue to the requester.



[[Page 488]]



    (c) Form of request. Although no standard form is prescribed for a 

request, in order to be subject to the provisions of this section and 

Sec. Sec.  103.6 through 103.9, a request for records must:

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

    (2) State that it is made pursuant to the Freedom of Information 

Act, as amended (5 U.S.C. 552), or these regulations, and have 

conspicuously printed on the face of the envelope the words ``Freedom of 

Information Act Request'' or ``FOIA Request'';

    (3) Be addressed to the appropriate office or officer of the United 

States Customs Service, as set forth in paragraph (d) of this section;

    (4) Reasonably describe the records in accordance with paragraph (e) 

of this section.

    (5) 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;

    (6) State whether the requester wishes to inspect the records or 

desires to have a copy made and furnished without first inspecting them; 

and

    (7) State the firm agreement of the requester to pay the fees for 

search and duplication ultimately determined in accordance with Sec.  

103.10, or request that such fees be reduced or waived and state the 

justification for such request (see Sec.  103.10(d)).



Where the initial request, rather than stating a firm agreement to pay 

the fee ultimately determined in accordance with Sec.  103.10, places an 

upper limit on the amount the requester agrees to pay and that upper 

limit is likely to be lower than the estimated fee, or where the 

requester asks for an estimate of the fees to be charged, or if the fees 

are expected to exceed $50, the appropriate Customs officer shall 

promptly advise the requester of the estimated fee due and ask the 

requester to agree to pay that amount. Where the initial request 

includes a request for reduction or waiver of fees, the appropriate 

Customs officer shall determine whether to grant the request for 

reduction or waiver in accordance with Sec.  103.10(d) and notify the 

requester of the decision. If the officer decides to charge the 

requester for all or part of the fees normally due, the officer shall 

ask the requester to agree to pay the amount so determined. The 

requirements of this paragraph are not met until the requester agrees, 

in writing, to pay the fees applicable to the request for records, if 

any, or has made payment in advance of the fees estimated to be due.

    (d) To whom requests for records should be addressed--(1) 

Headquarters. Requests made by mail for records maintained at the 

Headquarters of the United States Customs Service should be addressed to 

``Freedom of Information Act Request,'' U.S. Customs Service, 1300 

Pennsylvania Avenue, NW., Washington, DC 20229. Requests may be 

delivered personally to the Disclosure Law Officer, U.S. Customs 

Service, Headquarters, Washington, DC.

    (2) Field offices. A person shall request records or information 

maintained in a field office of the United States Customs Service by 

either mailing or personally delivering the request to the director of 

the service port, or if the records concern the Office of 

Investigations, the special agent in charge, where the field office is 

located.

    (e) Reasonable description of records. A request for records must 

describe the records in reasonably sufficient detail to enable a Customs 

officer who is familiar with the subject area of the request to locate 

the records without placing an unreasonably burden upon the United 

States Customs Service. While no specific formula for a reasonable 

description of a record can be established, the requirement is usually 

satisfied if the requester gives the name, subject matter, and, if 

known, the date and location of the requested record. However, a 

requester should furnish any additional information which will more 

clearly identify the requested records. If a request does not reasonably 

describe the records being sought, the appropriate Customs officer shall 

ask the requester to refine the request. If necessary a requester may be 

granted a conference with knowledgeable Customs personnel. The 

requirement for a reasonably description is not a device for improperly 

withholding records from the public.

    (f) Date of receipt of request. A request for records is considered 

to have been



[[Page 489]]



received for purposes of this part on the later of the dates on which:

    (1) The requirements of paragraph (c) of this section have been 

satisfied; and, where applicable,

    (2) The requester has agreed in writing, by executing a separate 

contract or otherwise, to pay the fees for search and duplication 

determined to be due in accordance with Sec.  103.10; or

    (3) The fees have been waived in accordance with Sec.  103.10(d); or

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



A Customs officer or employee who receives a request for records and a 

separate agreement to pay, or a letter transmitting prepayment, or who 

issues a final notification of waiver of fees, shall stamp the date of 

receipt or dispatch by the responsible office on the materal. The latest 

of those dates is the date of receipt of the request. As soon as the 

date of receipt has been established, the appropriate Customs officer 

shall acknowledge receipt and inform the requester of the title of the 

Customs officer who is responsible for acting on the request.

    (g) Search for record requested. Upon the receipt of a request, the 

appropriate Customs officer shall attempt to identify and locate the 

requested records. With respect to records maintained in computerized 

form, a search for a record includes services functionally analogous to 

searches for records which are maintained in a conventional form. 

However, Customs personnel are not required to tabulate or compile 

information for the purpose of creating a record. Only records in 

existence at the time of the receipt of the request will be treated as 

falling within the scope of the request and no request for the 

continuing production of documents created after receipt of the request 

will be honored.

    (h) ``Request for record'' defined. For purposes of uniformity in 

recordkeeping a ``request for a record'' is defined as a written request 

for a record of the U.S. Customs Service which has not been published in 

the Federal Register, the Customs Bulletin, by press release, or 

otherwise, or made available in a public reading room, or which has not 

previously been customarily furnished to requesters, whether or not the 

request makes reference to the Freedom of Information Act, as amended (5 

U.S.C. 552).



[T.D. 81-168, 46 FR 32565, June 24, 1981; 46 FR 35084, July 7, 1981, as 

amended by T.D. 91-77, 56 FR 46114, Sept. 10, 1991; T.D. 99-27, 64 FR 

13675, Mar. 22, 1999]