[Federal Register Volume 77, Number 250 (Monday, December 31, 2012)]
[Rules and Regulations]
[Pages 76898-76915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31117]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 2
RIN 1093-AA15
Freedom of Information Act Regulations
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule revises the regulations that the Department of the
Interior (the ``Department'') follows in processing records under the
Freedom of Information Act (``FOIA''). The revisions clarify and update
procedures for requesting information from the Department and
procedures that the Department follows in responding to requests from
the public. The revisions also incorporate clarifications and updates
resulting from changes to the FOIA and case law. Finally, the revisions
include current cost figures to be used in calculating and charging
fees and increase the amount of information that members of the public
may receive from the Department without being charged processing fees.
DATES: Effective January 30, 2013.
SUPPLEMENTARY INFORMATION:
I. Why We're Publishing This Rule and What It Does
A. Introduction
The regulations are being revised to update, clarify, and
streamline the language of procedural provisions, and to incorporate
certain changes brought about by the amendments to the FOIA under the
OPEN Government Act of 2007, Public Law 110-175, 121 Stat. 2524.
Additionally, the regulations are being updated to reflect developments
in the case law and to include current cost figures to be used in
calculating and charging fees.
The revisions also incorporate changes to the language and
structure of the FOIA regulations in order to improve the Department's
FOIA performance. More nuanced multitrack processing can be found at
Sec. 2.15. Partial fee waivers are expressly permitted under Sec.
2.45. Revisions of the Department's fee schedule can be found at
Sec. Sec. 2.42, 2.49(a)(1), and Appendix A. The duplication charge for
physical records or scanning records increased from thirteen to fifteen
cents a page. The amount at or below which the Department will not
charge a fee increased from $30.00 to $50.00.
On September 13, 2012, the Department published a proposed rule in
the Federal Register (77 FR 56592) and requested comments over a 60-day
period ending on November 13, 2012. All comments received were
considered in drafting this final rule.
B. Discussion of Comments
Six commenters responded to the invitation for comments, including
one commenter from a subcomponent of a Federal agency and five
commenters from non-Federal sources. While most of the commenters
generally supported the proposed changes, they identified thirty
specific issues or recommendations, which the Department addressed as
follows:
The Final Rule Should Include More Information in Its Introductory
Section
One commenter suggested that Sec. 2.1 discuss how to submit a FOIA
request (and also expressed concern that the regulations might only
allow FOIA requests to be submitted to the Department electronically).
Because Sec. 2.3 directly addresses where to send a FOIA request (and
specifically discusses where to find the physical and email addresses
of each bureau's FOIA Officer), the Department has not adopted this
suggestion.
The Final Rule Should Not Create Unnecessary Burdens for Requesters
One commenter suggested that requiring requesters to ``write
directly to the bureau that you believe maintains those records'' in
Sec. 2.3(b) was overly burdensome and creates barriers to access,
because requesters may not know where the records are maintained.
However, Sec. 2.3(d) specifically notes that ``[q]uestions about where
to send a FOIA request should be directed to the bureau that manages
the underlying program or to the appropriate FOIA Public Liaison, as
discussed in Sec. 2.66.'' Therefore, the Department does not believe
Sec. 2.3 is unduly burdensome and has not amended it.
The Final Rule Should Provide Examples of How Requesters Can Reasonably
Describe the Records They Seek
One commenter suggested that examples of how requesters can
reasonably describe the records they seek be added to Sec. 2.5(b), and
the Department has adopted this suggestion.
The Final Rule Should Not Use the Ambiguous Phrase ``Does Not Hear From
You''
One commenter suggested, in the context of Sec. 2.5, that the use
of ``does not hear from you'' was ambiguous. The Department has adopted
this suggestion
[[Page 76899]]
by replacing the ambiguous phrase with ``does not receive a written
response from you'' everywhere it occurred (Sec. Sec. 2.5, 2.6, and
2.51).
The Final Rule Should Allow Requesters More Time To Respond to the
Department's Communications and Make Advance Payments
One commenter suggested that the time for requesters to respond to
the Department in Sec. Sec. 2.5(c), 2.6(c), and 2.50(e) be expanded
from 20 workdays (the time period in the draft version of the final
rule, as well as in the Department's previous version of the final
rule) to 30 workdays. As the commenter notes, the Department does
``expend[] numerous resources to produce documents pursuant to the
FOIA, and the agency has an interest in resolving FOIA matters in an
organized and timely fashion.'' Although the commenter believes the 20
workday deadline is ``unreasonable and arbitrary,'' it has been the
standard for the Department for over a decade and the Department
believes that it is reasonable and comports with the statutory FOIA
processing deadlines. The Department therefore declines to adopt this
suggestion.
The Final Rule Should Require the Department To Notify Requesters in
Advance Before Charging Them the Direct Costs of Converting Records to
the Format They Request
One commenter suggested Sec. 2.8(b) be revised to require a bureau
to inform requesters in advance if it intends to charge the requester
any direct costs for converting the requested records into a requested
format. The Department has adopted this suggestion by adding a cross
reference to Sec. 2.44 and adding this scenario to the examples given
in Sec. 2.44(b).
The Final Rule Should Not Confuse Expedited Processing Requests and
FOIA Requests
One commenter suggested that the juxtaposition of Sec. Sec. 2.10
and 2.11 could lead to confusion about what kinds of ``requests'' were
being referenced in these sections. The Department agrees and has
adopted this suggestion by amending Sec. 2.10.
The Final Rule Should Elaborate on the Department's Consultation and
Referral Process
One commenter suggested that, in Sec. 2.13(c) and (e), the
Department notify requesters of whether part of the request or entire
request has been referred, and the Department has adopted this
suggestion. The same commenter also suggested that the Department
provide the requester with the contact information (in addition to the
name) of the person the request had been referred to, and the
Department has adopted this suggestion. Another commenter expressed
concerns about Sec. 2.13, stating that portions of it were ``ambiguous
and have no legal basis.'' This commenter specified that Sec. 2.13(e)
permitted the Department to withhold the identity of outside agencies
to which the Department refers FOIA requests, under limited
circumstances, and Sec. Sec. 2.13(f)(2) and 2.13(f)(4) did not have
concrete examples. The Department has carefully reviewed Sec. 2.13(e)
and finds it to be unambiguous and consistent with law and policy. The
Department has also concluded that adding examples to Sec. Sec.
2.13(f)(2) and 2.13(f)(4) would not be beneficial, as the situations
that will arise under these sections are highly fact specific and
general examples would be bulky and would not be illuminating. However,
the Department agrees that the previous versions of Sec. Sec. 2.13(a)
and 2.13(h) were unintentionally confusing. The Department therefore
has adopted this suggestion in part and revised these sections for
clarity.
The Final Rule Should Not Expand the Time Period for Determining
Whether the Department Will Comply With a Request
One commenter suggested that the multiple tracks for processing
FOIA requests outlined in Sec. 2.15 violated FOIA's requirement that
agencies ``determine within 20 days [or longer in unusual
circumstances] * * * after the receipt of any [FOIA] request whether to
comply with such request * * * '' 5 U.S.C. 552(a)(6)(A). However, Sec.
2.15 does not alter the statutory requirement for a bureau to determine
whether it will comply with a request. To the contrary, it implements 5
U.S.C. 552(a)(6)(D)(i), which specifically permits agencies to
promulgate regulations ``providing for multitrack processing of
requests for records based on the amount of work or time (or both)
involved in processing requests.'' This provision of the FOIA
recognizes that a bureau exercising due diligence can determine whether
it will comply with a request within the statutory timeframe, but may
need additional time to search for and process the records in question.
It also recognizes that simple requests should not have to wait for
long periods of time while more complex requests are processed. To
clarify this point, the Department has added paragraph (f) to this
section. (The Department has also corrected a typographical error in
Sec. 2.15(c)(3) that may have created confusion about processing
times.) The same commenter also suggested the definition of ``review''
in Sec. 2.70 would violate FOIA's mandated time limits. However, the
definition addresses when fees will be charged to a requester, not how
long a bureau has to respond to a FOIA request. Neither Sec. 2.15 nor
Sec. 2.70 expands the time period for determining whether to comply
with a request and therefore neither have been amended.
The Final Rule Should Help Set Requesters' Expectations of When To
Expect a Response
One commenter suggested a clause and a sentence be added to Sec.
2.16(a) referring to the potential of a 10-day extension, to help set
the requester's expectations of when to expect a response. The
Department has adopted the suggestion to refer to the potential
extension, but consolidated the suggested language. The final rule
already has a provision discussing when the bureau may extend the basic
time limit (Sec. 2.19) and a cross reference to it has been added to
Sec. 2.16(a). The Department has also amended Sec. 2.16(a) to more
exactly track the language of 5 U.S.C. 552(a)(6)(A)(i).
The Final Rule Should Not Exceed the FOIA's Temporary Suspension
Authority
One commenter expressed concern that the provisions in Sec.
2.18(b) exceeded the FOIA's provisions for temporarily suspending the
statutory response period because a temporary suspension was allowed to
occur more than once if the bureau needed to clarify issues regarding
fee assessments. However, 5 U.S.C. 552(a)(6)(A) makes it clear that,
although a temporary suspension can occur only once when a bureau is
reasonably asking for clarifying information unrelated to fee
assessments (and the temporary suspension ends with a requester's
response), temporary suspensions of the statutory response period can
occur as many times as is necessary when a bureau needs clarifying
information regarding a fee assessment. This section therefore does not
exceed FOIA's temporary suspension authority and has not been amended.
The Final Rule Should Require the Department To Include a Brief
Description of the Subject of the Request in Acknowledgement Letters
One commenter suggested that the Department add a clause to Sec.
2.21(b) requiring bureaus to provide a brief description of the subject
of the request in its acknowledgment letter. The
[[Page 76900]]
Department declines to adopt the portion of the suggestion about making
this description mandatory, due to the increased burden it would place
on bureaus (especially those with a high rate of FOIA requests) and the
dampening effect this would have on experimenting with new forms of
written acknowledgments that could more quickly serve requesters (such
as post cards). The Department has, however, added a sentence to Sec.
2.21(b) noting this information may be included.
The Final Rule Should Clarify When Procedural Benefits Are Denied
Versus When Records Are Denied
A commenter suggested modifying Sec. 2.23 to clarify when a
request is being denied as opposed to the denial of procedural benefits
under FOIA. The Department agrees this would be helpful and has made
the suggested modifications, along with a few minor clarifications. The
Department also made a minor change to paragraph (a)(3) of this section
because a some material that had previously been included in Sec.
2.13(h), amendments to which were discussed above, made more sense in
this context.
The Final Rule Should Require the Department to State the Precise
Volume of Denied Material and Provide a Detailed Justification of Its
Withholdings
One commenter suggested Sec. 2.24 be amended to state that, where
possible, the requester will be provided with the precise volume of
denied material, rather than an estimated volume. Although the
Department has declined to adopt this exact suggestion (because it
believes the change would have a significant negative impact on the
Department's processing and response times while providing the
requester with very little, if any, additional, meaningful
information), it has amended Sec. 2.25 to more exactly track the
language of 5 U.S.C. 552(b), which the commenter referenced. Another
commenter suggested Sec. 2.24 be amended to require ``a detailed
justification for [a] denial,'' citing case law requiring detailed
justifications in a litigation context. The Department has considered
this suggestion, but declined to adopt it because it is not required at
an administrative level and would have a tremendous negative impact on
the Department's processing and response times.
The Final Rule Should Correctly State What Types of Information Can Be
Protected Under the Trade Secrets Act
One commenter suggested that Sec. 2.36 be amended to state that
only trade secrets can be withheld under the Trade Secrets Act, 18
U.S.C. 1905. However, the Trade Secrets Act is a broadly worded
criminal statute that prohibits the unauthorized disclosure of more
than simply ``trade secrets.'' See, e.g., Bartholdi Cable Co. v. FCC,
114 F.3d 274, 281 (D.C. Cir. 1997) (citing CAN Fin. Corp v. Donovan,
830 F.2d 1132, 1140 (D.C. Cir. 1987) and declaring: ``[W]e have held
that information falling within Exemption 4 of FOIA also comes within
the Trade Secrets Act.''); Parker v. Bureau of Land Mgmt., 141 F. Supp.
2d 71, 77 n.5 (D.D.C. 2001) (``Although FOIA exemptions are normally
permissive rather than mandatory, the D.C. Circuit has held that the
disclosure of material which is exempted under [Exemption 4 of the
FOIA] is prohibited under the Trade Secrets Act''). This section
therefore has not been amended.
The Final Rule Should Reflect Three Fee Categories, Rather Than Four
One commenter suggested that Sec. Sec. 2.38 and 2.70 be amended to
reflect that the FOIA provides for three fee categories, not four.
While the Department agrees that only three categories are referred to
in the FOIA, it has found over many years that requesters appreciate
and benefit from the additional clarity provided by having one of the
broader categories split in two. The Department therefore has not
adopted this suggestion.
The Final Rule Should Use Individualized Local Locality Payments
One commenter suggested that Sec. 2.41(b) be amended from ``the
fees will be the average hourly General Schedule (``GS'') base salary,
plus the District of Columbia locality payment'' to ``the fees will be
the average hourly General Schedule (``GS'') base salary, plus any
applicable locality payment.'' The Department utilized the District of
Columbia (``DC'') locality payments as its standardized locality
payment in its previous version of the final rule and found it to be
both efficient and reasonable. It allows the Department to create a
standard chart that all bureaus can use to calculate fees, rather than
each bureau calculating different amounts for different employees (in
the Department, it is not unusual for people who work on the same
request to be in multiple geographic locations) and requesters being
confused by widely varying charges for the same work. It makes sense to
use the DC locality as the standard, given the large numbers of the
Department's FOIA professionals and processors that are based in DC The
Department therefore has not adopted this suggestion.
The Final Rule Should Not Unduly Limit Agency Decisions on Fee Waivers
and Appeals
One commenter suggested that Sec. 2.45(c) unduly limits bureau
decisions on fee waivers and this would negatively impact appeal
decisions under Sec. 2.57. However, Sec. 2.45(c) merely allows a
bureau to make fee waiver decisions based on what is submitted to it by
the requester, rather than being required to seek additional
information (although it is free to do so, at its discretion). The
Department therefore has not amended these sections.
The Final Rule Should Further Clarify When Fees May Be Waived
One commenter suggested adding the following sentence to Sec.
2.45(d) in order to further assist the Department in setting
expectations for requesters regarding fee waivers: ``A fee waiver is
tied to the subject of the request in addition to the identity of the
requester.'' The Department is concerned that adopting this suggestion
would give the mistaken impression that only these two criteria are at
issue in fee waiver determinations. But, in response to this comment,
Sec. 2.45(d) now includes two cross references. These cross
references, to the fee waiver criteria in Sec. Sec. 2.45(a) and 2.48,
will help set requesters' expectations regarding fee waivers.
The Final Rule Should Say More About Where and How To File a Fee Waiver
One commenter suggested that Sec. 2.46 discuss where and how to
file a fee waiver request. Because Sec. 2.6 directly addresses where
and how to file fee waiver requests (and Sec. 2.46 already cross
references Sec. 2.6), the Department believes adopting this suggestion
is not necessary.
The Final Rule Should Not Be Narrower than FOIA's Fee Waiver Standards
One commenter expressed concern that Sec. 2.48(a)(4), which
outlines one of the four criteria bureaus are asked to consider when
evaluating a fee waiver request, was narrower than FOIA's fee waiver
standards. However, this provision does not narrow the scope of 5
U.S.C. 552(a)(4)(A)(iii), it simply helps the Department analyze
whether the disclosure of the information is likely to contribute
significantly to public understanding of the operations or
[[Page 76901]]
activities of the government. Because Sec. 2.48(a)(4) is not narrower
than FOIA's fee waiver standards, the Department has not adopted this
suggestion. The same commenter also expressed concern about a change of
phrasing in Sec. 2.48(a)(3)(iv) from the parallel provision in the
previous version of the final rule. The Department did not intend to
change the provision's meaning. Therefore, in accordance with the
commenter's suggestion, the word ``unlikely'' has been removed and the
phrase ``less likely'' restored.
The Final Rule Should Require the Department to Allow Requesters To Pay
in Installments
One commenter suggested that Sec. 2.50(e) be amended to require
the Department to ``collaborate with FOIA requesters to establish a
payment schedule that would permit requesters to pay [advance payments]
in installments instead of closing out requests.'' As the commenter
notes, this provision mirrors the applicable provision in the previous
version of the final rule. Changing it would greatly add to the
complexity, uncertainty, and time spent processing advance fee
payments, impairing the Department's FOIA processing. The Department
therefore declines to adopt this suggestion.
The Final Rule Should Clearly Articulate its Rationale for Combining or
Aggregating Requests
One commenter suggested the Department should articulate its
rationale for combining or aggregating requests more clearly in Sec.
2.54. The Department agrees the previous version of this section was
unintentionally confusing. The lettering/numbering therefore has been
amended. Additionally, a ``will'' in Sec. 2.54(a)(2) has been amended
to ``may.''
The Final Rule Should Provide Examples of Types of Records the
Department May Charge Fees for Outside the Scope of FOIA
One commenter suggested it may be helpful to include examples of
the particular types of records that a bureau may charge fees for
outside of the scope of the FOIA in Sec. 2.55. The Department has
carefully considered this suggestion and has concluded that examples in
this area would be so specific and narrow that they would be more
distracting than illuminating. The Department therefore has not adopted
this suggestion.
The Final Rule Should Allow Bureaus Not Only To Waive Fees
Discretionarily, But Also To Reduce them Discretionarily
One commenter suggested that Sec. 2.56 be amended to allow for the
discretionary reduction of fees (in addition to the discretionary
waiver of fees) and the Department has adopted this suggestion. The
same commenter also suggested that new language be added to give
Department employees additional, broader discretion for waiving or
reducing fees, for example, whenever ``the interest of the United
States Government would be served.'' The Department has declined to
adopt this suggestion, because it is concerned that it would create
unrealistic expectations on the part of requesters, undercut FOIA's
statutory fee requirements, and provide Department employees with an
unacceptably vague standard.
The Final Rule Should Strengthen the Regulations to Expand Online
Disclosures
One commenter suggested that the Department require all responses
to FOIA requests be posted online (except those that implicate the
Privacy Act) and that it adopt a policy to proactively disclose
information to the greatest extent possible. The Department has
carefully considered this suggestion, but declines to adopt it because
it believes the final rule reflects the appropriate balance between
providing useful information and an appropriate use of the Department's
resources.
The Final Rule Should Specifically Discuss Working With the Office of
Government Information Services (``OGIS'')
Two commenters suggested the final rule discuss the services
offered by OGIS. The Department agrees that OGIS's role in the FOIA
process should be noted in the final rule. Rather than waiting until
after an appeal decision has been made to introduce this information
(as one of the commenters suggested), the Department has adopted this
suggestion by requiring bureaus to provide information on OGIS in
letters taking final action on a request, which will ensure maximum
dissemination of the information at the most appropriate stage of the
process. The revised Sec. 2.21(a) both clarifies the provision and
requires the Department to provide notice of the services offered by
OGIS to all of the Department's FOIA requesters, rather than just the
ones that file appeals.
The Final Rule Should Include Procedures for Confidential Business
Information
One commenter suggested the Department require submitters of older
records to provide additional information to explain why the
information is still confidential and its release would still be
harmful after the passage of time. However, Sec. 2.28(g) already
requires this, so the Department believes adopting this suggestion is
not necessary.
The Final Rule Should Not Contravene Transparency Goals
One commenter asserted, in addition to a number of specific
comments, that the final rule directly contravenes transparency goals.
The Department has carefully considered this assertion, but believes
the final rule improves overall processing and increases transparency,
so no changes have been made based on this comment.
The Final Rule Should Not Change the FOIA, Exceed the Scope of the
Department's Rulemaking Authority, or Be Contrary to Law
One commenter's entire comment was: ``NO.Do not change the freedom
of info act.'' As noted above, this rule consists of the regulations
that the Department follows in processing records under the FOIA. It
does not change the FOIA itself in any way. Another commenter asserted,
in addition to a number of specific comments, that the final rule
exceeded the scope of the Department's rulemaking authority and was
``contrary to law.'' The Department has carefully considered these
assertions, but believes the final rule was fully within the scope of
the Department's rulemaking authority and completely consistent with
all applicable laws, so no changes have been made based on this
comment.
C. Technical and Procedural Comments
A number of commenters made suggestions related to minor word
choices, minor clarifications, and additional citations, many of which
have been adopted without further comment. The Department has also
fixed a few minor typographical errors. Additionally, the Department
added cross references, and/or made very minor clarifications in the
following sections: 2.7(a) and (b), 2.15(a), 2.17, 2.19(c), 2.20(c),
2.22(c), 2.33, 2.41(a) and (c), 2.42(a), 2.43(a), and 2.60(b). Finally,
in the interests of clarity, the Department also added phrases to
Sec. Sec. 2.31(a) and 2.63(c) and a second paragraph to Sec. 2.37(f).
[[Page 76902]]
II. Compliance With Laws and Executive Orders
1. Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs will review all significant rules. The Office of
Information and Regulatory Affairs has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
2. Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
3. Small Business Regulatory Enforcement Fairness Act (SBREFA)
This is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
4. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. This rule does not have a significant or unique effect on State,
local or tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
5. Takings (E.O. 12630)
In accordance with Executive Order 12630, this rule does not have
significant takings implications. A takings implication assessment is
not required.
6. Federalism (E.O. 13132)
In accordance with Executive Order 13132, this rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. It would not substantially and directly affect
the relationship between the Federal and state governments. A
Federalism Assessment is not required.
7. Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
8. Consultation With Indian Tribes (E.O. 13175)
Under the criteria in Executive Order 13175, we have evaluated this
rule and determined that it has no potential effects on federally
recognized Indian tribes. This rule does not have tribal implications
that impose substantial direct compliance costs on Indian Tribal
governments.
9. Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget under the Paperwork
Reduction Act is not required.
9. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 is not required.
Pursuant to Department Manual 516 DM 2.3A(2), Section 1.10 of 516 DM 2,
Appendix 1 excludes from documentation in an environmental assessment
or impact statement ``policies, directives, regulations and guidelines
of an administrative, financial, legal, technical or procedural nature;
or the environmental effects of which are too broad, speculative or
conjectural to lend themselves to meaningful analysis and will be
subject late to the NEPA process, either collectively or case-by-
case.''
10. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects is not
required. This rule will not have a significant effect on the nation's
energy supply, distribution, or use.
List of Subjects in 43 CFR Part 2
Freedom of information.
David J. Hayes,
Deputy Secretary of the Interior.
For the reasons stated in the preamble, the Department of the
Interior amends 43 CFR subtitle A as follows:
PART 2--FREEDOM OF INFORMATION ACT; RECORDS AND TESTIMONY
0
1. The authority citation for part 2 is revised to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43
U.S.C. 1460, 1461.
0
2. The heading of part 2 is revised to read as set forth above.
Subparts F through H [Redesignated as Subparts J through L]
0
3. Subpart F (consisting of Sec. 2.41), subpart G (consisting of
Sec. Sec. 2.45 through 2.79), and subpart H (consisting of Sec. Sec.
2.80 through 2.90) are redesignated as subpart J, subpart K, and
subpart L.
0
4. Subparts A through E are revised to read as follows:
Subpart A--Introduction
Sec.
2.1 What should you know up front?
2.2 What kinds of records are not covered by the regulations in
subparts A through I of this part?
Subpart B--How to Make a Request
2.3 Where should you send a FOIA request?
2.4 Does where you send your request affect its processing?
2.5 How should you describe the records you seek?
2.6 How will fee information affect the processing of your request?
2.7 What information should you include about your fee category?
2.8 Can you ask for records to be disclosed in a particular form or
format?
2.9 What if your request seeks records about another person?
2.10 May you ask for the processing of your request to be expedited?
2.11 What contact information should your request include?
Subpart C--Processing Requests
2.12 What should you know about how bureaus process requests?
2.13 How do consultations and referrals work?
[[Page 76903]]
Subpart D--Timing of Responses to Requests
2.14 In what order are responses usually made?
2.15 What is multitrack processing and how does it affect your
request?
2.16 What is the basic time limit for responding to a request?
2.17 When does the basic time limit begin for misdirected FOIA
requests?
2.18 When can the bureau suspend the basic time limit?
2.19 When may the bureau extend the basic time limit?
2.20 When will expedited processing be provided and how will it
affect your request?
Subpart E--Responses to Requests
2.21 How will the bureau respond to requests?
2.22 How will the bureau grant requests?
2.23 When will the bureau deny a request or procedural benefits?
2.24 How will the bureau deny requests?
2.25 What if the requested records contain both exempt and nonexempt
material?
Subpart A--Introduction
Sec. 2.1 What should you know up front?
(a) Subparts A through I of this part contain the rules that the
Department follows in processing records under the Freedom of
Information Act (FOIA), 5 U.S.C. 552.
(b) Definitions of terms used in Subparts A through I of this part
are found at Sec. 2.70.
(c) Subparts A through I of this part should be read in conjunction
with the text of the FOIA and the OMB Fee Guidelines.
(d) The Department's FOIA Handbook and its attachments contain
detailed information about Department procedures for making FOIA
requests and descriptions of the types of records maintained by
different Department bureaus or offices. This resource is available at
http://www.doi.gov/foia/guidance.cfm.
(e) Requests made by individuals for records about themselves under
the Privacy Act of 1974, 5 U.S.C. 552a, are processed under subparts A
through I and subpart K of this part.
(f) Part 2 does not entitle any person to any service or to the
disclosure of any record that is not required under the FOIA.
(g) Before you file a FOIA request, you are encouraged to review
the Department's electronic FOIA libraries at http://www.doi.gov/foia/libraries.cfm. The material you seek may be immediately available
electronically at no cost.
Sec. 2.2 What kinds of records are not covered by the regulations in
subparts A through I of this part?
Subparts A through I of this part do not apply to records that fall
under the law enforcement exclusions in 5 U.S.C. 552(c)(1)-(3). These
exclusions may be used only in the limited circumstances delineated by
the statute and require both prior approval from the Office of the
Solicitor and the recording of their use and approval process.
Subpart B--How To Make a Request
Sec. 2.3 Where should you send a FOIA request?
(a) The Department does not have a central location for submitting
FOIA requests and it does not maintain a central index or database of
records in its possession. Instead, the Department's records are
decentralized and maintained by various bureaus and offices throughout
the country.
(b) To make a request for Department records, you must write
directly to the bureau that you believe maintains those records.
(c) Address requests to the appropriate FOIA contact in the bureau
that maintains the requested records. The Department's FOIA Web site,
http://www.doi.gov/foia/index.cfm, lists the physical and email
addresses of each bureau's FOIA Officer, along with other appropriate
FOIA contacts at http://www.doi.gov/foia/contacts.cfm.
(d) Questions about where to send a FOIA request should be directed
to the bureau that manages the underlying program or to the appropriate
FOIA Public Liaison, as discussed in Sec. 2.66 of this part.
Sec. 2.4 Does where you send your request affect its processing?
(a) A request to a particular bureau component (for example, a
request addressed to a regional or field office) will be presumed to
seek only records from that particular component.
(b) If you seek records from an entire bureau, submit your request
to the bureau FOIA Officer. The bureau FOIA Officer will forward it to
the bureau component(s) that he or she believes has or are likely to
have responsive records.
(c) If a request to a bureau states that it seeks records located
at another specific component of the same bureau, the appropriate FOIA
contact will forward the request to the other component.
(d) If a request to a bureau states that it seeks records from
other unspecified components within the same bureau, the appropriate
FOIA contact will send the request to the Bureau FOIA Officer. He or
she will forward it to the components that the bureau FOIA Officer
believes have or are likely to have responsive records.
(e) If a request to a bureau states that it seeks records of
another specified bureau, the bureau will route the misdirected request
to the specified bureau for response.
(f) If a request to a bureau states that it seeks records from
other unspecified bureaus, the bureau's FOIA Officer may forward the
request to those bureaus which he or she believes have or are likely to
have responsive records. If the bureau FOIA Officer forwards the
request, they will notify you in writing and provide the name of a
contact in the other bureau(s). If it does not forward the request, the
bureau will return it to you, advise you to submit the request directly
to the other bureaus, notify you that it cannot comply with the
request, and close the request.
Sec. 2.5 How should you describe the records you seek?
(a) You must reasonably describe the records sought. A reasonable
description contains sufficient detail to enable bureau personnel
familiar with the subject matter of the request to locate the records
with a reasonable amount of effort.
(b) You should include as much detail as possible about the
specific records or types of records that you are seeking. This will
assist the bureau in identifying the requested records (for example,
time frames involved or specific personnel who may have the requested
records). For example, whenever possible, identify:
(1) The date, title or name, author, recipient, and subject of any
particular records you seek;
(2) The office that created the records you seek;
(3) The timeframe for which you are seeking records; and
(4) Any other information that will assist the bureau in locating
the records.
(c) The bureau's FOIA Public Liaison can assist you in formulating
or reformulating a request in an effort to better identify the records
you seek.
(d) If the request does not reasonably describe the records sought,
the bureau will inform you what additional information is needed. It
will also notify you that it will not be able to comply with your FOIA
request unless you provide the additional information requested within
20 workdays. If you receive this sort of response, you may wish to
discuss it with the bureau's designated FOIA contact or its FOIA Public
Liaison (see Sec. 2.66 of this part). If the bureau does not hear from
you within 20 workdays after asking for
[[Page 76904]]
additional information, it will presume that you are no longer
interested in the records and will close the file on the request.
Sec. 2.6 How will fee information affect the processing of your
request?
(a) Your request must explicitly state that you will pay all fees
associated with processing the request, that you will pay fees up to a
specified amount, and/or that you are seeking a fee waiver.
(b) If the bureau anticipates that the fees for processing the
request will exceed the amount you have agreed to pay, or if you did
not agree in writing to pay processing fees and the bureau anticipates
the processing costs will exceed your entitlements, the bureau will
notify you:
(1) Of the estimated processing fees;
(2) Of its need for either an advance payment (see Sec. 2.50 of
this part) or your written assurance that you will pay the anticipated
fees (or fees up to a specified amount); and
(3) That it will not be able to fully comply with your FOIA request
unless you provide the written assurance or advance payment requested.
(c) If the bureau does not receive a written response from you
within 20 workdays after requesting the information in paragraph (b) of
this section, it will presume that you are no longer interested in the
records and will close the file on the request.
(d) If you are seeking a fee waiver, your request must include
sufficient justification (see the criteria in Sec. Sec. 2.45, 2.48,
and 2.56 of this part). Failure to provide sufficient justification
will result in a denial of the fee waiver request. If you are seeking a
fee waiver, you may also indicate the amount you are willing to pay if
the fee waiver is denied. This allows the bureau to process the request
for records while it considers your fee waiver request.
(e) The bureau will begin processing the request only after the fee
issues are resolved.
(f) If you are required to pay a fee and it is later determined on
appeal that you were entitled to a full or partial fee waiver, you will
receive an appropriate refund.
Sec. 2.7 What information should you include about your fee category?
(a) A request should indicate your fee category (that is, whether
you are a commercial-use requester, news media, educational or
noncommercial scientific institution, or other requester as described
in Sec. Sec. 2.38 and 2.39 of this part).
(b) If you submit a FOIA request on behalf of another person or
organization (for example, if you are an attorney submitting a request
on behalf of a client), the bureau will determine the fee category by
considering the underlying requester's identity and intended use of the
information.
(c) If your fee category is unclear, the bureau may ask you for
additional information (see Sec. 2.51 of this part).
Sec. 2.8 Can you ask for records to be disclosed in a particular form
or format?
(a) Generally, you may choose the form or format of disclosure for
records requested. The bureau must provide the records in the requested
form or format if the bureau can readily reproduce the record in that
form or format.
(b) The bureau may charge you the direct costs involved in
converting records to the requested format if the bureau does not
normally maintain the records in that format (see Sec. 2.44 of this
part).
Sec. 2.9 What if your request seeks records about another person?
(a) When a request seeks records about another person, you may
receive greater access by submitting proof that the person either:
(1) Consents to the release of the records to you (for example, a
notarized authorization signed by that person); or
(2) Is deceased (for example, a copy of a death certificate or an
obituary).
(b) At its discretion, the bureau can require you to supply
additional information if necessary to verify that a particular person
has consented to disclosure or is deceased.
Sec. 2.10 May you ask for the processing of your request to be
expedited?
You may ask for the processing of your request to be expedited. The
bureau will determine whether to expedite the processing of your
request using the criteria outlined in Sec. 2.20.
Sec. 2.11 What contact information should your request include?
A request should include your name, mailing address, daytime
telephone number (or the name and telephone number of an appropriate
contact), email address, and fax number (if available) in case the
bureau needs additional information or clarification of your request.
Subpart C--Processing Requests
Sec. 2.12 What should you know about how bureaus process requests?
(a) Except as described in Sec. Sec. 2.4 and 2.13 of this part,
the bureau to which the request is addressed is responsible for
responding to the request and for making a reasonable effort to search
for responsive records.
(b) In determining which records are responsive to a request, the
bureau will include only records in its possession and control on the
date that it begins its search.
(c) The bureau will make reasonable efforts to search for the
requested records in electronic form or format, except when these
efforts would significantly interfere with the operation of the
bureau's automated information system.
(d) If a bureau receives a request for records in its possession
that it did not create or that another bureau or a Federal agency is
substantially concerned with, it may undertake consultations and/or
referrals as described in Sec. 2.13.
Sec. 2.13 How do consultations and referrals work?
(a) Consultations and referrals can occur within the Department or
outside the Department.
(1) Paragraphs (b) and (c) of this section addresses consultations
and referrals that occur within the Department when the bureau has
responsive records.
(2) Paragraphs (d) through (g) of this section address
consultations and referrals that occur outside the Department when the
bureau has responsive records.
(3) Paragraph (h) of this section addresses what happens when the
bureau has no responsive records but believes responsive records may be
in the possession of a Federal agency outside the Department.
(b) If a bureau (other than the Office of Inspector General)
receives a request for records in its possession that another bureau
created or is substantially concerned with, it will either:
(1) Consult with the other bureau before deciding whether to
release or withhold the records; or
(2) Refer the request, along with the records, to that other bureau
for direct response.
(c) The bureau that originally received the request will notify you
of the referral in writing. When the bureau notifies you of the
referral, it will tell you whether the referral was for part or all of
your request and provide the name and contact information for the other
bureau.
(d) If, while responding to a request, the bureau locates records
that originated with another Federal agency, it usually will refer the
request and any responsive records to that other agency for a release
determination and direct response.
(e) If the bureau refers records to another agency, it will
document the
[[Page 76905]]
referral and maintain a copy of the records that it refers and notify
you of the referral in writing, unless the notification will itself
disclose a sensitive, exempt fact. When the bureau notifies you of the
referral, it will tell you whether the referral was for part or all of
your request and provide the name and contact information for the other
agency. You may treat such a response as a denial of records and file
an appeal, in accordance with the procedures in Sec. 2.59 of this
part.
(f) If the bureau locates records that originated with another
Federal agency while responding to a request, the bureau will make the
release determination itself (after consulting with the originating
agency) when:
(1) The record is of primary interest to the Department (for
example, a record may be of primary interest to the Department if it
was developed or prepared according to the Department's regulations or
directives, or in response to a Departmental request);
(2) The Department is in a better position than the originating
agency to assess whether the record is exempt from disclosure;
(3) The originating agency is not subject to the FOIA; or
(4) It is more efficient or practical depending on the
circumstances.
(g) If the bureau receives a request for records that another
Federal agency has classified under any applicable executive order
concerning record classification, it must refer the request to that
agency for response.
(h) If the bureau receives a request for records not in its
possession, but that the bureau believes may be in the possession of a
Federal agency outside the Department, the bureau will return the
request to you, may advise you to submit it directly to the agency,
will notify you that the bureau cannot comply with the request, and
will close the request.
Subpart D--Timing of Responses to Requests
Sec. 2.14 In what order are responses usually made?
The bureau ordinarily will respond to requests according to their
order of receipt within their processing track.
Sec. 2.15 What is multitrack processing and how does it affect your
request?
(a) Bureaus use processing tracks to distinguish simple requests
from more complex ones on the basis of the estimated number of workdays
needed to process the request.
(b) In determining the number of workdays needed to process the
request, the bureau considers factors such as the number of pages
involved in processing the request or the need for consultations.
(c) The basic processing tracks are designated as follows:
(1) Simple: requests in this track will take between one to five
workdays to process;
(2) Normal: requests in this track will take between six to twenty
workdays to process;
(3) Complex: requests in this track will take between twenty-one
workdays and sixty workdays to process; or
(4) Exceptional/Voluminous: requests in this track involve very
complex processing challenges, which may include a large number of
potentially responsive records, and will take over sixty workdays to
process.
(d) Bureaus also have a specific processing track for requests that
are granted expedited processing under the standards in Sec. 2.20 of
this part. These requests will be processed as soon as practicable.
(e) Bureaus must advise you of the track into which your request
falls and, when appropriate, will offer you an opportunity to narrow
your request so that it can be placed in a different processing track.
(f) The use of multitrack processing does not alter the statutory
deadline for a bureau to determine whether to comply with your FOIA
request (see Sec. 2.16 of this part).
Sec. 2.16 What is the basic time limit for responding to a request?
(a) Ordinarily, the bureau has 20 workdays after the date of
receipt to determine whether to comply with (for example, grant,
partially grant, or deny) a FOIA request, but unusual circumstances may
allow the bureau to take longer than 20 workdays (see Sec. 2.19).
(b) A consultation or referral under Sec. 2.13 of this part does
not restart the statutory time limit for responding to a request.
Sec. 2.17 When does the basic time limit begin for misdirected FOIA
requests?
The basic time limit for a misdirected FOIA request (see Sec.
2.4(e) of this part) begins no later than ten workdays after the
request is first received by any component of the Department that is
designated to receive FOIA requests.
Sec. 2.18 When can the bureau suspend the basic time limit?
(a) The basic time limit in Sec. 2.16 of this part may be
temporarily suspended for the time it takes you to respond to one
written communication from the bureau reasonably asking for clarifying
information.
(b) The basic time limit in Sec. 2.16 may also repeatedly be
temporarily suspended for the time it takes you to respond to written
communications from the bureau that are necessary to clarify issues
regarding fee assessment (see Sec. 2.51 of this part).
Sec. 2.19 When may the bureau extend the basic time limit?
(a) The bureau may extend the basic time limit if unusual
circumstances exist. Before the expiration of the basic 20 workday time
limit to respond, the bureau will notify you in writing of:
(1) The unusual circumstances involved; and
(2) The date by which it expects to complete processing the
request.
(b) If the processing time will extend beyond a total of 30
workdays, the bureau will:
(1) Give you an opportunity to limit the scope of the request or
agree to an alternative time period for processing; and
(2) Make available its FOIA Public Liaison (see Sec. 2.66 of this
part) to assist in resolving any disputes between you and the bureau.
(c) If the bureau extends the time limit under this section and you
do not receive a response in accordance with Sec. 2.16(a) in that time
period, you may consider the request denied and file an appeal in
accordance with the procedures in Sec. 2.59.
(d) Your refusal to reasonably modify the scope of a request or
arrange an alternative time frame for processing a request after being
given the opportunity to do so may be considered for litigation
purposes as a factor when determining whether exceptional circumstances
exist.
Sec. 2.20 When will expedited processing be provided and how will it
affect your request?
(a) The bureau will provide expedited processing upon request if
you demonstrate to the satisfaction of the bureau that there is a
compelling need for the records. The following circumstances
demonstrate a compelling need:
(1) Where failure to expedite the request could reasonably be
expected to pose an imminent threat to the life or physical safety of
an individual; or
(2) Where there is an urgency to inform the public about an actual
or alleged Federal Government activity and the request is made by a
person primarily engaged in disseminating information.
(i) In most situations, a person primarily engaged in disseminating
[[Page 76906]]
information will be a representative of the news media.
(ii) If you are not a full time member of the news media, to
qualify for expedited processing here, you must establish that your
main professional activity or occupation is information dissemination,
although it need not be your sole occupation.
(iii) The requested information must be the type of information
which has particular value that will be lost if not disseminated
quickly; this ordinarily refers to a breaking news story of general
public interest.
(iv) Information of historical interest only or information sought
for litigation or commercial activities would not qualify, nor would a
news media deadline unrelated to breaking news.
(b) If you seek expedited processing, you must submit a statement
that:
(1) Explains in detail how your request meets one or both of the
criteria in paragraph (a) of this section; and
(2) Certifies that your explanation is true and correct to the best
of your knowledge and belief.
(c) You may ask for expedited processing at any time by writing to
the appropriate FOIA contact in the bureau that maintains the records
requested. When making a request for expedited processing of an
administrative appeal, submit the request to the FOIA Appeals Officer.
(d) The bureau must notify you of its decision to grant or deny
expedited processing within 10 calendar days of receiving an expedited
processing request.
(e) If expedited processing is granted, the request will be given
priority, placed in the processing track for expedited requests, and be
processed as soon as practicable.
(f) If expedited processing is denied, the bureau will notify you
of the right to appeal the decision on expedited processing in
accordance with the procedures in subpart H of this part.
(g) If you appeal the decision on expedited processing, your appeal
(if it is properly formatted under Sec. 2.59 of this part) will be
processed ahead of other appeals.
(h) If the bureau has not responded to the request for expedited
processing within 10 calendar days, you may file an appeal (for
nonresponse in accordance with Sec. 2.57(a)(8) of this part).
Subpart E--Responses to Requests
Sec. 2.21 How will the bureau respond to requests?
(a) When the bureau informs you of its decision to comply with a
request by granting, partially granting, or denying the request, it
will do so in writing and in accordance with the deadlines in subpart D
of this part. The bureau's written response will include a statement
about the services offered by the Office of Government Information
Services (OGIS), using standard language that can be found at: http://www.doi.gov/foia/news/guidance/index.cfm.
(b) If the bureau determines that your request will take longer
than 10 workdays to process, the bureau immediately will send you a
written acknowledgment that includes the request's individualized
tracking number and processing track (see Sec. 2.15(e)). The
acknowledgement may also include a brief description of the subject of
your request.
Sec. 2.22 How will the bureau grant requests?
(a) Once the bureau makes a determination to grant a request in
full or in part, it must notify you in writing.
(b) The notification will inform you of any fees charged under
subpart G of this part.
(c) The bureau will release records (or portions of records) to you
promptly upon payment of any applicable fees (or before then, in
accordance with Sec. 2.37(c) of this part).
(d) If the records (or portions of records) are not included with
the bureau's notification, the bureau will advise you how, when, and
where the records will be made available.
Sec. 2.23 When will the bureau deny a request or procedural benefits?
(a) A bureau denies a request when it makes a decision that:
(1) A requested record is exempt, in full or in part;
(2) The request does not reasonably describe the records sought;
(3) A requested record does not exist, cannot be located, or is not
in the bureau's possession; or
(4) A requested record is not readily reproducible in the form or
format you seek.
(b) A bureau denies a procedural benefit only, and not access to
the underlying records, when it makes a decision that:
(1) A fee waiver, or another fee-related issue, will not be
granted; or
(2) Expedited processing will not be provided.
(c) The bureau must consult with the Office of the Solicitor before
it denies a fee waiver request or withholds all or part of a requested
record.
Sec. 2.24 How will the bureau deny requests?
(a)The bureau must notify you in writing of any denial of your
request.
(b) The denial notification 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 a
reference to any FOIA exemption(s) applied by the bureau to withhold
records in full or in part;
(3) An estimate of the volume of any records or information
withheld, for example, by providing the number of pages or some other
reasonable form of estimation, unless such an estimate would harm an
interest protected by the exemption(s) used to withhold the records or
information;
(4) The name and title of the Office of the Solicitor attorney
consulted (if the bureau is denying a fee waiver request or withholding
all or part of a requested record); and
(5) A statement that the denial may be appealed under subpart H of
this part and a description of the requirements set forth therein.
Sec. 2.25 What if the requested records contain both exempt and
nonexempt material?
If responsive records contain both exempt and nonexempt material,
the bureau will consult with the Office of the Solicitor, as discussed
in Sec. 2.23(c). After consultation, the bureau will partially grant
and partially deny the request by:
(a) Segregating and releasing the nonexempt information, unless the
nonexempt material is so intertwined with the exempt material that
disclosure of it would leave only meaningless words and phrases;
(b) Indicating on the released portion of the record the amount of
information deleted and the FOIA exemption under which the deletion was
made, unless doing so would harm an interest protected by the FOIA
exemption used to withhold the information; and
(c) If technically feasible, placing the information required by
paragraph (b) of this section at the place in the record where the
deletion was made.
0
5. Subparts F through I are added to read as follows:
Subpart F--Handling Confidential Information
Sec.
2.26 How will the bureau interact with the submitter of possibly
confidential information?
2.27 When will the bureau notify a submitter of a request for their
possibly confidential information?
2.28 What information will the bureau include when it notifies a
submitter of a request for their possibly confidential information?
[[Page 76907]]
2.29 When will the bureau not notify a submitter of a request for
their possibly confidential information?
2.30 How and when may a submitter object to disclosure of
confidential information?
2.31 What must a submitter include in a detailed Exemption 4
objection statement?
2.32 How will the bureau consider the submitter's objections?
2.33 What if the bureau determines it will disclose information over
the submitter's objections?
2.34 Will a submitter be notified of a FOIA lawsuit?
2.35 Will you receive notification of activities involving the
submitter?
2.36 Can a bureau release information protected by Exemption 4?
Subpart G--Fees
2.37 What general principles govern fees?
2.38 What are the requester fee categories?
2.39 Does your requester category affect the fees you are charged?
2.40 How will fee amounts be determined?
2.41 What search fees will you have to pay?
2.42 What duplication fees will you have to pay?
2.43 What review fees will you have to pay?
2.44 What fees for other services will you have to pay?
2.45 When will the bureau waive fees?
2.46 When may you ask the bureau for a fee waiver?
2.47 How will the bureau notify you if it denies your fee waiver
request?
2.48 How will the bureau evaluate your fee waiver request?
2.49 When will you be notified of anticipated fees?
2.50 When will the bureau require advance payment?
2.51 What if the bureau needs clarification about fee issues?
2.52 How will you be billed?
2.53 How will the bureau collect fees owed?
2.54 When will the bureau combine or aggregate requests?
2.55 What if other statutes require the bureau to charge fees?
2.56 May the bureau waive or reduce your fees at its discretion?
Subpart H--Administrative Appeals
2.57 When may you file an appeal?
2.58 How long do you have to file an appeal?
2.59 How do you file an appeal?
2.60 Who makes decisions on appeals?
2.61 How are decisions on appeals issued?
2.62 When can you expect a decision on your appeal?
2.63 Can you receive expedited processing of appeals?
2.64 Must you submit an appeal before seeking judicial review?
Subpart I--General Information
2.65 Where are records made available?
2.66 What are public liaisons?
2.67 When will the Department make records available without a FOIA
request?
2.68 How will FOIA materials be preserved?
2.69 How will a bureau handle a request for federally-funded
research data?
2.70 What definitions apply to subparts A through I of this part?
Subpart F--Handling Confidential Information
Sec. 2.26 How will the bureau interact with the submitter of possibly
confidential information?
(a) The Department encourages, but does not require, submitters to
designate confidential information in good faith at the time of
submission. Such designations assist the bureau in determining whether
information obtained from the submitter is confidential information,
but will not always be determinative.
(b) If, in the course of responding to a FOIA request, a bureau
cannot readily determine whether information is confidential
information, the bureau will:
(1) Consult with the submitter under Sec. Sec. 2.27 and 2.28; and
(2) Provide the submitter an opportunity to object to a decision to
disclose the information under Sec. Sec. 2.30 and 2.31 of this
subpart.
Sec. 2.27 When will the bureau notify a submitter of a request for
their possibly confidential information?
(a) Except as outlined in Sec. 2.29 of this subpart, a bureau must
promptly notify a submitter in writing when it receives a FOIA request
if either:
(1) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4 of the FOIA, found at 5 U.S.C. 552(b)(4); or
(2) The bureau believes that requested information may be protected
from disclosure under Exemption 4.
(b) If a large number of submitters are involved, the bureau may
publish a notice in a manner reasonably calculated to reach the
attention of the submitters (for example, in newspapers or newsletters,
the bureau's Web site, or the Federal Register) instead of providing a
written notice to each submitter.
Sec. 2.28 What information will the bureau include when it notifies a
submitter of a request for their possibly confidential information?
A notice to a submitter must include:
(a) Either a copy of the FOIA request or the exact language of the
request;
(b) Either a description of the possibly confidential information
located in response to the request or a copy of the responsive records,
or portions of records, containing the information;
(c) A description of the procedures for objecting to the release of
the possibly confidential information under Sec. Sec. 2.30 and 2.31 of
this subpart;
(d) A time limit for responding to the bureau--no less than 10
workdays from receipt or publication of the notice (as set forth in
Sec. 2.27(b) of this subpart)--to object to the release and to explain
the basis for the objection;
(e) Notice that information contained in the submitter's objections
may itself be subject to disclosure under the FOIA;
(f) Notice that the bureau, not the submitter, is responsible for
deciding whether the information will be released or withheld;
(g) A request for the submitter's views on whether they still
consider the information to be confidential if the submitter designated
the material as confidential commercial or financial information 10 or
more years before the request; and
(h) Notice that failing to respond within the time frame specified
under Sec. 2.28(d) of this subpart will create a presumption that the
submitter has no objection to the disclosure of the information in
question.
Sec. 2.29 When will the bureau not notify a submitter of a request
for their possibly confidential information?
The notice requirements of Sec. 2.28 of this subpart will not
apply if:
(a) The information has been lawfully published or officially made
available to the public; or
(b) Disclosure of the information is required by a statute other
than the FOIA or by a regulation (other than this part) issued in
accordance with the requirements of Executive Order 12600.
Sec. 2.30 How and when may a submitter object to the disclosure of
confidential information?
(a) If a submitter has any objections to the disclosure of
confidential information, the submitter should provide a detailed
written statement to the bureau that specifies all grounds for
withholding the particular information under any FOIA exemption (see
Sec. 2.31 of this subpart for further discussion of Exemption 4
objection statements).
(b) A submitter who does not respond within the time period
specified under Sec. 2.28(d) of this subpart will be considered to
have no objection to disclosure of the information. Responses received
by the bureau after this time period will not be considered by the
bureau unless the appropriate bureau FOIA contact determines, in his or
her sole discretion, that good cause exists to accept the late
response.
[[Page 76908]]
Sec. 2.31 What must a submitter include in a detailed Exemption 4
objection statement?
(a) To rely on Exemption 4 as basis for nondisclosure, the
submitter must explain why the information is confidential information.
To do this, the submitter must give the bureau a detailed written
statement. This statement must include a specific and detailed
discussion of why the information is a trade secret or, if the
information is not a trade secret, the following three categories must
be addressed (unless the bureau informs the submitter that a response
to one of the first two categories will not be necessary):
(1) Whether the Government required the information to be
submitted, and if so, how substantial competitive or other business
harm would likely result from release;
(2) Whether the submitter provided the information voluntarily and,
if so, how the information fits into a category of information that the
submitter does not customarily release to the public; and
(3) A certification that the information is confidential, has not
been disclosed to the public by the submitter, and is not routinely
available to the public from other sources.
(b) If not already provided, the submitter must include a daytime
telephone number, an email and mailing address, and a fax number (if
available).
Sec. 2.32 How will the bureau consider the submitter's objections?
(a) The bureau must carefully consider a submitter's objections and
specific grounds for nondisclosure in deciding whether to disclose the
requested information.
(b) The bureau, not the submitter, is responsible for deciding
whether the information will be released or withheld.
Sec. 2.33 What if the bureau determines it will disclose information
over the submitter's objections?
If the bureau decides to disclose information over the objection of
a submitter, the bureau must notify the submitter by certified mail or
other traceable mail, return receipt requested. The notification must
be sent to the submitter's last known address and must include:
(a) The specific reasons why the bureau determined that the
submitter's disclosure objections do not support withholding the
information;
(b) Copies of the records or information the bureau intends to
release; and
(c) Notice that the bureau intends to release the records or
information no less than 10 workdays after receipt of the notice by the
submitter.
Sec. 2.34 Will a submitter be notified of a FOIA lawsuit?
If you file a lawsuit seeking to compel the disclosure of
confidential information, the bureau must promptly notify the
submitter.
Sec. 2.35 Will you receive notification of activities involving the
submitter?
If any of the following occur, the bureau will notify you:
(a) The bureau provides the submitter with notice and an
opportunity to object to disclosure;
(b) The bureau notifies the submitter of its intent to disclose the
requested information; or
(c) A submitter files a lawsuit to prevent the disclosure of the
information.
Sec. 2.36 Can a bureau release information protected by Exemption 4?
If a bureau determines that the requested information is protected
from release by Exemption 4 of the FOIA, the bureau has no discretion
to release the information. Release of information protected from
release by Exemption 4 is prohibited by the Trade Secrets Act, a
criminal provision found at 18 U.S.C. 1905.
Subpart G--Fees
Sec. 2.37 What general principles govern fees?
(a) The bureau will charge for processing requests under the FOIA
in accordance with this subpart and with the OMB Fee Guidelines.
(b) The bureau may contact you for additional information to
resolve fee issues.
(c) The bureau ordinarily will collect all applicable fees before
sending copies of records to you.
(d) You may usually pay fees by check, certified check, or money
order made payable to the ``Department of the Interior'' or the bureau.
(1) Where appropriate, the bureau may require that your payment be
made in the form of a certified check.
(2) You may also be able to pay your fees by credit card. You may
contact the bureau to determine what forms of payment it accepts.
(e) The bureau should ensure that it conducts searches, review, and
duplication in the most efficient and the least expensive manner so as
to minimize costs for both you and the bureau.
(f) If the Department does not comply with any of the FOIA's
statutory time limits:
(1) The bureau cannot assess search fees for your FOIA request,
unless unusual or exceptional circumstances apply; and
(2) Depending on your fee category, the bureau may not be able to
assess duplication fees for your FOIA request, as discussed in Sec.
2.39(b) of this subpart.
Sec. 2.38 What are the requester fee categories?
(a) There are four categories of requesters for the purposes of
determining fees--commercial-use, educational and noncommercial
scientific institutions, representatives of news media, and all others.
(b) The bureau's decision to place you in a particular fee category
will be made on a case-by-case basis based on your intended use of the
information and, in most cases, your identity. If you do not submit
sufficient information in your FOIA request for the bureau to determine
your proper fee category, the bureau may ask you to provide additional
information (see Sec. 2.51 of this subpart).
(c) See Sec. 2.70 of this part for the definitions of each of
these fee categories.
Sec. 2.39 How does your requester category affect the fees you are
charged?
(a) You will be charged as shown in the following table:
----------------------------------------------------------------------------------------------------------------
Requester Category Search fees Review fees Duplication fees
----------------------------------------------------------------------------------------------------------------
Commercial use requester............. Yes.................... Yes.................... Yes.
Educational and non-commercial No..................... No..................... Yes (first 100 pages,
scientific institutions. or equivalent volume,
free).
Representative of news media No..................... No..................... Yes (first 100 pages,
requester. or equivalent volume,
free).
All other requesters................. Yes (first 2 hours No..................... Yes (first 100 pages,
free). or equivalent volume,
free).
----------------------------------------------------------------------------------------------------------------
[[Page 76909]]
(b) If you are in the fee category of a representative of the news
media or an educational and noncommercial scientific institution and
the Department does not comply with any of the FOIA's statutory time
limits, the Department cannot assess duplication fees for the FOIA
request in question, unless unusual or exceptional circumstances apply
to the processing of the request.
Sec. 2.40 How will fee amounts be determined?
(a) The bureau will charge the types of fees discussed below unless
a waiver of fees is required under Sec. 2.39 of this subpart or has
been granted under Sec. 2.45 or Sec. 2.56.
(b) Because the types of fees discussed below already account for
the overhead costs associated with a given fee type, the bureau should
not add any additional costs to those charges.
Sec. 2.41 What search fees will you have to pay?
(a) The bureau will charge search fees for all requests, subject to
the restrictions of Sec. Sec. 2.37(f), 2.39, and 2.40(a) of this
subpart. The bureau may charge you for time spent searching even if it
does not locate any responsive records or if it determines that the
records are entirely exempt from disclosure.
(b) For each quarter hour spent by personnel searching for
requested records, including electronic searches that do not require
new programming, the fees will be the average hourly General Schedule
(GS) base salary, plus the District of Columbia locality payment, plus
16 percent for benefits, of employees in the following three
categories, as applicable:
(1) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and
below are classified as clerical for this purpose);
(2) Professional--Based on GS-11, Step 7, pay (all employees at GS-
8 through GS-12 are classified as professional for this purpose); and
(3) Managerial--Based on GS-14, Step 2, pay (all employees at GS-13
and above are classified as managerial for this purpose).
(c) You can review the current fee schedule for the categories
discussed above in paragraph (b) of this section at http://www.doi.gov/foia/fees-waivers.cfm.
(d) Some requests may require retrieval of records stored at a
Federal records center operated by the National Archives and Records
Administration. For these requests, bureaus will charge additional
costs in accordance with the Transactional Billing Rate Schedule
established by the National Archives and Records Administration.
Sec. 2.42 What duplication fees will you have to pay?
(a) The bureau will charge duplication fees, subject to the
restrictions of Sec. Sec. 2.37(f), 2.39, and 2.40(a) of this subpart.
(b) If photocopies or scans are supplied, the bureau will provide
one copy per request at the cost determined by the table in appendix A
to this part.
(c) For other forms of duplication, the bureau will charge the
actual costs of producing the copy, including the time spent by
personnel duplicating the requested records. For each quarter hour
spent by personnel duplicating the requested records, the fees will be
the same as those charged for a search under Sec. 2.41(b) of this
subpart.
(d) If the bureau must scan paper records to accommodate your
preference to receive records in an electronic format, you will pay
both the per page amount noted in Appendix A to this part and the time
spent by personnel scanning the requested records. For each quarter
hour spent by personnel scanning the requested records, the fees will
be the same as those charged for a search under Sec. 2.41(b) of this
subpart.
Sec. 2.43 What review fees will you have to pay?
(a) The bureau will charge review fees if you make a commercial-use
request, subject to the restrictions of Sec. Sec. 2.37(f), 2.39, and
2.40(a) of this subpart.
(b) The bureau will assess review fees in connection with the
initial review of the record (the review conducted by the bureau to
determine whether an exemption applies to a particular record or
portion of a record).
(c) The Department will not charge for reviews at the
administrative appeal stage of exemptions applied at the initial review
stage. However, if the appellate authority determines that an exemption
no longer applies, any costs associated with the bureau's re-review of
the records to consider the use of other exemptions may be assessed as
review fees.
(d) The bureau will charge review fees at the same rates as those
charged for a search under Sec. 2.41(b) of this subpart.
(e) The bureau can charge review fees even if the record(s)
reviewed ultimately is not disclosed.
Sec. 2.44 What fees for other services will you have to pay?
(a) Although not required to provide special services, if the
bureau chooses to do so as a matter of administrative discretion, it
will charge you the direct costs of providing the service.
(b) Examples of these services include certifying that records are
true copies under subpart L of this part, providing multiple copies of
the same record, converting records to a requested format, obtaining
research data under Sec. 2.69 of this part, or sending records by
means other than first class mail.
(c) The bureau will notify you of these fees before they accrue and
will obtain your written assurance of payment or an advance payment
before proceeding. See Sec. Sec. 2.49 and 2.50 of this subpart.
Sec. 2.45 When will the bureau waive fees?
(a) The bureau will release records responsive to a request without
charge (in other words, it will give you a full fee waiver) or at a
reduced charge (in other words, it will give you a partial fee waiver,
as discussed further in paragraph (b) of this section) if the bureau
determines, based on all available information, that you have
demonstrated (under the factors listed in Sec. 2.48 of this subpart)
that disclosing the information is:
(1) In the public interest because it is likely to contribute
significantly to public understanding of government operations or
activities, and
(2) Not primarily in your commercial interest.
(b) A partial fee waiver may be appropriate if some but not all of
the requested records are likely to contribute significantly to public
understanding of the operations and activities of the government.
(c) When deciding whether to waive or reduce fees, the bureau will
rely on the fee waiver justification submitted in your request letter.
If the letter does not include sufficient justification, the bureau
will deny the fee waiver request. The bureau may, at its discretion,
request additional information from you (see Sec. 2.51 of this
subpart).
(d) The burden is on you to justify entitlement to a fee waiver.
Requests for fee waivers are decided on a case-by-case basis under the
criteria discussed above in paragraph (a) of this section and Sec.
2.48 of this subpart. If you have received a fee waiver in the past,
that does not mean you are automatically entitled to a fee waiver for
every request submitted.
(e) Discretionary fee waivers are addressed in Sec. 2.56 of this
subpart.
(f) The bureau must not make value judgments about whether the
information at issue is ``important'' enough to be made public; it is
not the bureau's role to attempt to determine the level of public
interest in requested information.
[[Page 76910]]
Sec. 2.46 When may you ask the bureau for a fee waiver?
(a) You should request a fee waiver when your request is first
submitted to the bureau (see Sec. 2.6 of this part).
(b) You may submit a fee waiver request at a later time if the
underlying record request is still either pending or on administrative
appeal.
Sec. 2.47 How will the bureau notify you if it denies your fee waiver
request?
If the bureau denies your request for a fee waiver, it will notify
you, in writing, of the following:
(a) The basis for the denial, including a full explanation of why
the fee waiver request does not meet the Department's fee waiver
criteria in Sec. 2.48 of this subpart.
(b) The name and title or position of each person responsible for
the denial;
(c) The name and title of the Office of the Solicitor attorney
consulted; and
(d) Your right to appeal the denial to the FOIA Appeals Officer,
under the procedures in Sec. 2.57 of this part, within 30 workdays
after the date of the fee waiver denial letter.
Sec. 2.48 How will the bureau evaluate your fee waiver request?
(a) In deciding whether your fee waiver request meets the
requirements of Sec. 2.45(a)(1) of this subpart, the bureau will
consider the criteria listed in paragraphs one through four below. You
must address each of these criteria.
(1) How the records concern the operations or activities of the
Federal government.
(2) How disclosure is likely to contribute to public understanding
of those operations or activities, including:
(i) How the contents of the records are meaningfully informative;
(ii) The logical connection between the content of the records and
the operations or activities;
(iii) How disclosure will contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to your individual understanding;
(iv) Your identity, vocation, qualifications, and expertise
regarding the requested information and information that explains how
you plan to disclose the information in a manner that will be
informative to the understanding of a reasonably broad audience of
persons interested in the subject, as opposed to your individual
understanding
(v) Your ability and intent to disseminate the information to a
reasonably broad audience of persons interested in the subject (for
example, how and to whom do you intend to disseminate the information).
(3) How disclosure is likely to significantly contribute to the
understanding of a reasonably broad audience of persons interested in
the subject, as opposed to your individual understanding, including:
(i) Whether the information being requested is new;
(ii) Whether the information would confirm or clarify data that has
been released previously;
(iii) How disclosure will increase the level of public
understanding of the operations or activities of the Department or a
bureau that existed prior to disclosure; and
(iv) Whether the information is already publicly available. If the
Government previously has published the information you are seeking or
it is routinely available to the public in a library, reading room,
through the Internet, or as part of the administrative record for a
particular issue, it is less likely that there will be a significant
contribution from release.
(4) How the public's understanding of the subject in question will
be enhanced to a significant extent by the disclosure.
(b) In deciding whether the fee waiver meets the requirements in
Sec. 2.45(a)(2) of this subpart, the bureau will consider any
commercial interest of yours that would be furthered by the requested
disclosure.
(1) You are encouraged to provide explanatory information regarding
this consideration.
(2) The bureau will not find that disclosing the requested
information will be primarily in your commercial interest where the
public interest is greater than any identified commercial interest in
disclosure.
(3) If you do have a commercial interest that would be furthered by
disclosure, explain how the public interest in disclosure would be
greater than any commercial interest you or your organization may have
in the documents.
(i) Your identity, vocation, and intended use of the requested
records are all factors to be considered in determining whether
disclosure would be primarily in your commercial interest.
(ii) If you are a representative of a news media organization
seeking information as part of the news gathering process, we will
presume that the public interest outweighs your commercial interest.
(iii) If you represent a business/corporation/association or you
are an attorney representing such an organization, we will presume that
your commercial interest outweighs the public interest unless you
demonstrate otherwise.
Sec. 2.49 When will you be notified of anticipated fees?
(a) The bureau will notify you under this section unless:
(1) The anticipated fee is less than $50 (you will not be charged
if the fee for processing your request is less than $50, unless
multiple requests are aggregated under Sec. 2.54 of this subpart).
(2) You have been granted a full fee waiver; or
(3) You have previously agreed to pay all the fees associated with
the request.
(b) If none of the above exceptions apply, the bureau will:
(1) Promptly notify you of the estimated costs for search, review,
and/or duplication;
(2) Ask you to provide written assurance within 20 workdays that
you will pay all fees or fees up to a designated amount;
(3) Notify you that it will not be able to comply with your FOIA
request unless you provide the written assurance requested; and
(4) Give you an opportunity to reduce the fee by modifying the
request.
(c) If the bureau does not receive your written assurance of
payment under paragraph (b)(2) of this section within 20 workdays, the
request will be closed.
(d) After the bureau begins processing a request, if it finds that
the actual cost will exceed the amount you previously agreed to pay,
the bureau will:
(1) Stop processing the request;
(2) Promptly notify you of the higher amount and ask you to provide
written assurance of payment; and
(3) Notify you that it will not be able to fully comply with your
FOIA request unless you provide the written assurance requested; and
(4) Give you an opportunity to reduce the fee by modifying the
request.
(e) If you wish to modify your request in an effort to reduce fees,
the bureau's FOIA Public Liaison can assist you.
Sec. 2.50 When will the bureau require advance payment?
(a) The bureau will require advance payment before starting further
work when it finds the estimated fee is over $250 and:
(1) You have never made a FOIA request to the Department requiring
the payment of fees; or
(2) You did not pay a previous FOIA fee within 30 calendar days of
the date of billing.
(b) If the bureau believes that you did not pay a previous FOIA fee
within 30 calendar days of the date of billing, the bureau will require
you to either:
[[Page 76911]]
(1) Demonstrate you paid prior fee within 30 calendar days of the
date of billing; or
(2) Pay any unpaid amount of the previous fee, plus any applicable
interest penalties (see Sec. 2.53 of this subpart), and pay in advance
the estimated fee for the new request.
(c) When the bureau notifies you that an advance payment is due, it
will give you an opportunity to reduce the fee by modifying the
request.
(d) The bureau may require payment before records are sent to you;
such a payment is not considered an ``advance payment'' under Sec.
2.50(a) of this subpart.
(e) If the bureau requires advance payment, it will start further
work only after receiving the advance payment. It will also notify you
that it will not be able to comply with your FOIA request unless you
provide the advance payment. Unless you pay the advance payment within
20 workdays after the date of the bureau's fee letter, the bureau will
presume that you are no longer interested and will close the file on
the request.
Sec. 2.51 What if the bureau needs clarification about fee issues?
(a) If your FOIA request does not contain sufficient information
for the bureau to determine your proper fee category or leaves another
fee issue unclear, the bureau may ask you to provide additional
clarification. If it does so, the bureau will notify you that it will
not be able to comply with your FOIA request unless you provide the
clarification requested.
(b) If the bureau asks you to provide clarification, the 20-workday
statutory time limit for the bureau to respond to the request is
temporarily suspended.
(1) If the bureau hears from you within 20 workdays, the 20-workday
statutory time limit for processing the request will resume (see Sec.
2.16 of this part).
(2) If you still have not provided sufficient information to
resolve the fee issue, the bureau may ask you again to provide
additional clarification and notify you that it will not be able to
comply with your FOIA request unless you provide the additional
information requested within 20 workdays.
(3) If the bureau asks you again for additional clarification, the
statutory time limit for response will be temporarily suspended again
and will resume again if the bureau hears from you within 20 workdays.
(c) If the bureau asks for clarification about a fee issue and does
not receive a written response from you within 20 workdays, it will
presume that you are no longer interested and will close the file on
the request.
Sec. 2.52 How will you be billed?
If you are required to pay a fee associated with a FOIA request,
the bureau processing the request will send a bill for collection.
Sec. 2.53 How will the bureau collect fees owed?
(a) The bureau may charge interest on any unpaid bill starting on
the 31st day following the billing date.
(b) The bureau will assess interest charges at the rate provided in
31 U.S.C. 3717 and implementing regulations and interest will accrue
from the billing date until the bureau receives payment.
(c) The bureau will follow the provisions of the Debt Collection
Act of 1982 (Public Law 97-365, 96 Stat. 1749), as amended, and its
administrative procedures, including the use of consumer reporting
agencies, collection agencies, and offset to collect overdue amounts
and interest.
(d) This section does not apply if you are a state, local, or
tribal government.
Sec. 2.54 When will the bureau combine or aggregate requests?
(a) The bureau may aggregate requests and charge accordingly when
it reasonably believes that you, or a group of requesters acting in
concert with you, are attempting to avoid fees by dividing a single
request into a series of requests on a single subject or related
subjects.
(1) The bureau may presume that multiple requests of this type made
within a 30-day period have been made to avoid fees.
(2) The bureau may aggregate requests separated by a longer period
only where there is a reasonable basis for determining that aggregation
is warranted in view of all the circumstances involved.
(b) The bureau will not aggregate multiple requests involving
unrelated matters.
Sec. 2.55 What if other statutes require the bureau to charge fees?
(a) The fee schedule in appendix A to this part does not apply to
fees charged under any statute that specifically requires the bureau to
set and collect fees for particular types of records.
(b) If records otherwise responsive to a request are subject to a
statutorily-based fee schedule, the bureau will inform you whom to
contact to obtain the records.
Sec. 2.56 May the bureau waive or reduce your fees at its discretion?
(a) The bureau may waive or reduce fees at its discretion if a
request involves furnishing:
(1) A copy of a record that the bureau has reproduced for free
distribution;
(2) One copy of a personal document (for example, a birth
certificate) to a person who has been required to furnish it for
retention by the Department;
(3) One copy of the transcript of a hearing before a hearing
officer in a grievance or similar proceeding to the employee for whom
the hearing was held;
(4) Records to donors with respect to their gifts;
(5) Records to individuals or private nonprofit organizations
having an official, voluntary, or cooperative relationship with the
Department if it will assist their work with the Department;
(6) A reasonable number of records to members of the U.S. Congress;
state, local, and foreign governments; public international
organizations; or Indian tribes, when to do so is an appropriate
courtesy, or when the recipient is carrying on a function related to a
Departmental function and the waiver will help accomplish the
Department's work;
(7) Records in conformance with generally established business
custom (for example, furnishing personal reference data to prospective
employers of current or former Department employees); or
(8) One copy of a single record to assist you in obtaining
financial benefits to which you may be entitled (for example, veterans
or their dependents, employees with Government employee compensation
claims).
(b) You cannot appeal the denial of a discretionary fee waiver or
reduction.
Subpart H--Administrative Appeals
Sec. 2.57 When may you file an appeal?
(a) You may file an appeal when:
(1) The bureau withholds records, or parts of records;
(2) The bureau informs you that your request has not adequately
described the records sought;
(3) The bureau informs you that it does not possess or cannot
locate responsive records and you have reason to believe this is
incorrect or that the search was inadequate;
(4) The bureau did not address all aspects of the request for
records;
(5) You believe there is a procedural deficiency (for example, fees
are improperly calculated);
(6) The bureau denied a fee waiver;
(7) The bureau did not make a decision within the time limits in
Sec. 2.16 or, if applicable, Sec. 2.18; or
(8) The bureau denied, or was late in responding to, a request for
expedited
[[Page 76912]]
processing filed under the procedures in Sec. 2.20 of this part.
(b) An appeal under paragraph (a)(8) of this section relates only
to the request for expedited processing and does not constitute an
appeal of the underlying request for records. Special procedures apply
to requests for expedited processing of an appeal (see Sec. 2.63 of
this subpart).
(c) Before filing an appeal, you may wish to communicate with the
contact person listed in the FOIA response, the bureau's FOIA Officer,
and/or the FOIA Public Liaison to see if the issue can be resolved
informally. However, appeals must be received by the FOIA Appeals
Officer within the time limits in Sec. 2.58 of this subpart or they
will not be processed.
Sec. 2.58 How long do you have to file an appeal?
(a) Appeals covered by Sec. 2.57(a)(1) through (5) of this subpart
must be received by the FOIA Appeals Officer no later than 30 workdays
from the date of the final response.
(b) Appeals covered by Sec. 2.57(a)(6) of this subpart must be
received by the FOIA Appeals Officer no later than 30 workdays from the
date of the letter denying the fee waiver.
(c) Appeals covered by Sec. 2.57(a)(7) of this subpart may be
filed any time after the time limit for responding to the request has
passed.
(d) Appeals covered by Sec. 2.57(a)(8) of this subpart should be
filed as soon as possible.
(e) Appeals arriving or delivered after 5 p.m. Eastern Time, Monday
through Friday, will be deemed received on the next workday.
Sec. 2.59 How do you file an appeal?
(a) You must submit the appeal in writing by mail, fax or email to
the FOIA Appeals Officer (using the address available at http://www.doi.gov/foia/appeals.cfm). Your failure to send an appeal directly
to the FOIA Appeals Officer may delay processing.
(b) The appeal must include:
(1) Copies of all correspondence between you and the bureau
concerning the FOIA request, including the request and the bureau's
response (if there is one); and
(2) An explanation of why you believe the bureau's response was in
error.
(c) The appeal should include your name, mailing address, daytime
telephone number (or the name and telephone number of an appropriate
contact), email address, and fax number (if available) in case the
Department needs additional information or clarification.
(d) An appeal concerning a denial of expedited processing or a fee
waiver denial should also demonstrate fully how the criteria in Sec.
2.20 or Sec. Sec. 2.45 and 2.48 of this part are met.
(e) All communications concerning an appeal should be clearly
marked with the words: ``FREEDOM OF INFORMATION APPEAL.''
(f) The Department will reject an appeal that does not attach all
correspondence required by paragraph (b)(1) of this section, unless the
FOIA Appeals Officer determines, in his or her sole discretion, that
good cause exists to accept the defective appeal. The time limits for
responding to an appeal will not begin to run until the correspondence
is received.
Sec. 2.60 Who makes decisions on appeals?
(a) The FOIA Appeals Officer is the deciding official for FOIA
appeals.
(b) When necessary, the FOIA Appeals Officer will consult other
appropriate offices, including the Office of the Solicitor for denials
of records and fee waivers.
(c) The FOIA Appeals Officer normally will not make a decision on
an appeal if the request becomes a matter of FOIA litigation.
Sec. 2.61 How are decisions on appeals issued?
(a) A decision on an appeal must be made in writing.
(b) A decision that upholds the bureau's determination will notify
you of the decision and your statutory right to file a lawsuit.
(c) A decision that overturns, remands, or modifies the bureau's
determination will notify you of the decision. The bureau then must
further process the request in accordance with the appeal
determination.
Sec. 2.62 When can you expect a decision on your appeal?
(a) The basic time limit for responding to an appeal is 20 workdays
after receipt of an appeal meeting the requirements of Sec. 2.59 of
this subpart.
(b) The FOIA Appeals Officer may extend the basic time limit, if
unusual circumstances exist. Before the expiration of the basic 20-
workday time limit to respond, the FOIA Appeals Officer will notify you
in writing of the unusual circumstances involved and of the date by
which he or she expects to complete processing of the appeal.
(c) If the Department is unable to reach a decision on your appeal
within the given time limit for response, the FOIA Appeals Officer will
notify you of:
(1) The reason for the delay; and
(2) Your statutory right to seek review in a United States District
Court.
Sec. 2.63 Can you receive expedited processing of appeals?
(a) To receive expedited processing of an appeal, you must
demonstrate to the Department's satisfaction that the appeal meets one
of the criteria under Sec. 2.20 of this part and include a statement
that the need for expedited processing is true and correct to the best
of your knowledge and belief.
(b) The FOIA Appeals Officer will advise you whether the Department
will grant expedited processing within 10 calendar days of receiving
the appeal.
(c) If the FOIA Appeals Officer decides to grant expedited
processing, he or she will give the appeal priority over other pending
appeals and process it as soon as practicable.
Sec. 2.64 Must you submit an appeal before seeking judicial review?
Before seeking review by a court of the bureau's adverse
determination, you generally must first submit a timely administrative
appeal.
Subpart I--General Information
Sec. 2.65 Where are records made available?
Records that are required by the FOIA to be made proactively
available for public inspection and copying are accessible on the
Department's Web site, http://www.doi.gov/foia/libraries.cfm. They may
also be available at bureau office locations.
Sec. 2.66 What are public liaisons?
(a) Each bureau has a FOIA Public Liaison that can assist
individuals in locating bureau records.
(b) FOIA Public Liaisons report to the Department's Chief FOIA
Officer and you can raise concerns to them about the service you have
received.
(c) FOIA Public Liaisons are responsible for assisting in reducing
delays, increasing transparency and understanding of the status of
requests, and assisting in resolving disputes.
(d) A list of the Department's FOIA Public Liaisons is available at
http://doi.gov/foia/servicecenters.cfm.
Sec. 2.67 When will the Department make records available without a
FOIA request?
(a) Each bureau must:
(1) Determine which of its records must be made publicly available
under the FOIA (for example, certain frequently requested records);
(2) Identify additional records of interest to the public that are
appropriate for public disclosure; and
(3) Post those records in FOIA libraries.
(b) Because of these proactive disclosures, you are encouraged to
review the Department's FOIA libraries
[[Page 76913]]
before filing a FOIA request. The material you seek may be immediately
available electronically at no cost.
Sec. 2.68 How will FOIA materials be preserved?
(a) Each bureau must preserve all correspondence pertaining to the
requests that it receives under subpart B of this part, as well as
copies of all requested records, until disposition or destruction is
authorized by the General Records Schedule 14 of the National Archives
and Records Administration (NARA) or another NARA-approved records
schedule.
(b) Materials that are identified as responsive to a FOIA request
will not be disposed of or destroyed while the request or a related
appeal or lawsuit is pending. This is true even if they would otherwise
be authorized for disposition or destruction under the General Records
Schedule 14 of NARA or another NARA-approved records schedule.
Sec. 2.69 How will a bureau handle a request for federally-funded
research data?
(a) If you request research data that were used by the Federal
Government in developing certain kinds of agency actions, and the
research data relate to published research findings produced under an
award, in accordance with OMB Circular A-110:
(1) If the bureau was the awarding agency, it will request the
research data from the recipient;
(2) The recipient must provide the research data within a
reasonable time; and
(3) The bureau will review the research data to see if it can be
released under the FOIA.
(b) If the bureau obtains the research data solely in response to
your FOIA request, the bureau may charge you a reasonable fee equaling
the full incremental cost of obtaining the research data.
(1) This fee should reflect costs incurred by the agency, the
recipient, and applicable subrecipients.
(2) This fee is in addition to any fees the agency may assess under
the FOIA.
(c) The bureau will forward a copy of the request to the recipient,
who is responsible for searching for and reviewing the requested
information in accordance with these FOIA regulations. The recipient
will forward a copy of any responsive records that are located, along
with any recommendations concerning the releasability of the data, and
the total cost incurred in searching for, reviewing, and providing the
data.
(d) The bureau will review and consider the recommendations of the
recipient regarding the releasability of the requested research data.
However, the bureau, not the recipient, is responsible for deciding
whether the research data will be released or withheld.
Sec. 2.70 What definitions apply to subparts A through I of this
part?
For the purposes of subparts A through I of this part, the
following definitions apply:
Bureau means any major component of the Department administering
its own FOIA program. A list of these components is available at:
http://www.doi.gov/foia/contacts.cfm.
Commercial interest means a commercial, trade, or profit interest
as these terms are commonly understood. Your status as profitmaking or
non-profitmaking is not the deciding factor in determining whether you
have a commercial interest.
Commercial use means a use that furthers your commercial, trade or
profit interests or that of the person on whose behalf the request is
made.
Confidential information means trade secrets or commercial or
financial information (that is privileged or confidential and obtained
by the Department from a person) that may be protected from disclosure
under Exemption 4 of the FOIA.
Department means the Department of the Interior.
Direct costs means those resources that the bureau expends in
searching for and duplicating (and, in the case of commercial-use
requests, reviewing) records to respond to a FOIA request. For example,
direct costs include the salary of the employee performing the work
(the basic rate of pay for the employee plus 16 percent of that rate to
cover benefits) and the cost of operating duplicating machinery, such
as photocopiers and scanners. Direct costs do not include overhead
expenses such as the costs of space and of heating or lighting a
facility.
Duplication means reproducing a copy of a record or of the
information contained in it necessary to respond to a FOIA request.
Copies can take the form of paper, audiovisual materials, or electronic
records, among others.
Educational institution means any school that operates a program of
scholarly research. In order to fall within this category, you must
show that the request is authorized by and made under the auspices of,
a qualifying institution and that the records are not sought for a
commercial use, but rather are sought to further scholarly research.
Exceptional circumstances means a delay that does not result from a
predictable workload of requests (unless the bureau demonstrates
reasonable progress in reducing its backlog of pending requests).
Exempt means the record in question, or a portion thereof, is not
subject to disclosure due to one or more of the FOIA's nine statutory
exemptions, found at 5 U.S.C. 552(b)(1)-(9).
Exemption means one or more of the FOIA's nine statutory
exemptions, found at 5 U.S.C. 552(b)(1)-(9).
Expedited processing means giving a FOIA request priority and
processing it ahead of other requests pending in the bureau because you
have shown a compelling need for the records.
Fee category means one of the four categories, discussed in
Sec. Sec. 2.38 and 2.39, that agencies place you in for the purpose of
determining whether you will be charged fees for search, review, and
duplication.
FOIA means the Freedom of Information Act, 5 U.S.C. 552, as
amended.
FOIA libraries means a physical or electronic compilation of
records required to be made available to the public for inspection and
copying under 5 U.S.C. 552(a)(2). It also includes a physical or
electronic compilation of records that the bureau, at its discretion,
makes available to the public for inspection and copying.
Frequently requested records means records that have been released
to any person in response to a FOIA request and that have been
requested, or that the bureau anticipates will be requested, at least
two more times under the FOIA.
Multitrack processing means placing simple requests, requiring
relatively minimal review, in one processing track and more voluminous
and complex requests in one or more other tracks. Requests in each
track are processed on a first-in/first-out basis.
Noncommercial scientific institution means an institution that is
not operated for commerce, trade or profit, 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. To be
in this category, you must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are not sought for a commercial use but are sought to further
scientific research.
OMB Fee Guidelines means the Uniform Freedom of Information Fee
Schedule and Guidelines published by the Office of Management and
Budget at 52 FR 10012 (Mar. 27, 1987).
Published means, for the purposes of Sec. 2.69 of this subpart
only, when:
[[Page 76914]]
(1) Research findings are published in a peer-reviewed scientific
or technical journal; or
(2) A Federal agency publicly and officially cites the research
findings in support of an agency action that has the force and effect
of law.
Recipient means, for the purposes of Sec. 2.69 of this subpart
only, an organization receiving financial assistance directly from
Federal awarding agencies to carry out a project or program. The term
includes public and private institutions of higher education, public
and private hospitals, and other quasi-public and private non-profit
organizations. The term may include commercial organizations, foreign
or international organizations (such as agencies of the United Nations)
which are recipients, subrecipients, or contractors or subcontractors
of recipients or subrecipients at the discretion of the Federal
awarding agency. The term does not include government-owned contractor-
operated facilities or research centers providing continued support for
mission-oriented, large-scale programs that are government-owned or
controlled, or are designated as federally-funded research and
development centers.
Record means an agency record that is either created or obtained by
an agency and is under agency possession and control at the time of the
FOIA request, or is maintained by an entity under Government contract
for the purposes of records management.
Representative of the news media means 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 a distinct
work, and distributes that work to an audience. The term news as used
in this definition means information that is about current events or
that would be of current interest to the public. Examples of news media
entities are newspapers, television, Web sites, or radio stations
broadcasting to the public at large, and publishers of periodicals (but
only if such entities qualify as disseminators of news) who make their
products available for purchase by or subscription by or free
distribution to the general public. These examples are not all
inclusive. As methods of news delivery evolve, alternative
representatives of news media may come into being. A freelance
journalist will qualify as a news-media entity if he or she can
demonstrate a solid basis for expecting publication through that
entity, whether or not the journalist is actually employed by that
entity (for example, a publication contract would present a solid basis
for such an expectation).
Research data means, for the purposes of Sec. 2.69 of this subpart
only, the recorded factual material commonly accepted in the scientific
community as necessary to validate research findings, but not any of
the following: preliminary analyses, drafts of scientific papers, plans
for future research, peer reviews, or communications with colleagues.
The term recorded as used in this definition excludes physical objects
(e.g., laboratory samples). Research data also do not include:
(1) Trade secrets, commercial information, materials necessary to
be held confidential by a researcher until they are published, or
similar information which is protected under law; and
(2) Personnel and medical information and similar information the
disclosure of which would constitute a clearly unwarranted invasion of
personal privacy, such as information that could be used to identify a
particular person in a research study.
Review means the examination of a record located in response to a
request to determine whether any portion of it is exempt from
disclosure. 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 time also includes time spent both
obtaining and considering any formal objection to disclosure made by a
confidential information submitter under subpart G of this part, but it
excludes time spent resolving general legal or policy issues regarding
the application of FOIA exemptions.
Search means the process of looking for and retrieving records
responsive to a request. Search time includes page-by-page or line-by-
line identification of information within records; and the reasonable
efforts expended to locate and retrieve electronic records.
Submitter means any person or entity outside the Federal Government
from whom the Department obtains confidential information, directly or
indirectly. The term includes, but is not limited to individuals,
corporations, and state, local, tribal, and foreign governments.
Unusual circumstances means the need to search for and collect
requested records from field facilities or other establishments that
are separate from the office processing the request; the need to search
for, collect, and examine a voluminous amount of separate and distinct
records which are demanded in a single request; or the need for
consultation, which shall be conducted with all practicable speed, with
another agency, or among two or more components of the Department,
having a substantial interest in the determination of the request.
Workday means a regular Federal workday. It excludes Saturdays,
Sundays, or Federal legal public holidays. Items arriving or delivered
after 5 p.m. Eastern Time will be deemed received on the next workday.
You means a person requesting records, or filing an appeal, under
the FOIA.
Appendix A to Part 2 [Removed]
0
6. Appendix A to Part 2 is removed.
Appendix B to Part 2 [Removed]
0
7. Appendix B to Part 2 is removed.
Appendix C to Part 2 [Redesignated as Appendix A to Part 2]
0
8. Appendix C to Part 2 is redesignated as Appendix A to Part 2 and
revised to read as follows.
Appendix A to Part 2--Fee Schedule
------------------------------------------------------------------------
Types of Records Fee
------------------------------------------------------------------------
(1) Physical records: ...............................
Pages no larger than 8.5 x 14 inches, $.15 per page ($.30 for double-
when reproduced by standard office sided copying).
copying machines or scanned into an
electronic format
Color copies of pages no larger than $.90 per page.
8.5 x 11 inches.
Pages larger than 8.5 x 14 inches...... Direct cost to DOI.
Color copies of pages no larger than 11 $1.50 per page.
x 17 inches.
Photographs and records requiring Direct cost to DOI.
special handling (for example, because
of age, size, or format).
(2) Electronic records:
Charges for services related to Direct cost to DOI.
processing requests for electronic
records.
[[Page 76915]]
(3) Certification Fee.
Each certificate of verification $.25
attached to authenticate copies of
records.
(4) Postage:
Charges that exceed the cost of first Postage or delivery charge.
class postage, such as express mail or
overnight delivery.
(5) Other Services:
Cost of special services or materials, Direct cost to DOI.
other than those provided for by this
fee schedule, when requester is
notified of such costs in advance and
agrees to pay them.
------------------------------------------------------------------------
Appendix D to Part 2 [Removed]
0
9. Appendix D to Part 2 is removed.
Appendix E to Part 2 [Removed]
0
10. Appendix E to Part 2 is removed.
Appendix F to Part 2 [Redesignated as Appendix B to Part 2]
0
11. Appendix F to Part 2 is redesignated as Appendix B to Part 2.
[FR Doc. 2012-31117 Filed 12-28-12; 8:45 am]
BILLING CODE 4310-10-P