[Federal Register Volume 79, Number 118 (Thursday, June 19, 2014)]
[Proposed Rules]
[Pages 35127-35129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14114]



36 CFR Part 1250

[FDMS No. NARA-14-0003; Agency No. NARA-2014-037]
RIN 3095-AB73

NARA Records Subject to FOIA

AGENCY: National Archives and Records Administration.

ACTION: Supplemental notice of proposed rulemaking.


SUMMARY: NARA proposes to revise its regulation governing Freedom of 
Information Act (FOIA) access to NARA's archival holdings and NARA's 
own operational records. On August 5, 2013, NARA published a proposed 
rule in the Federal Register for a 60-day comment period. The public 
comment period closed on October 4, 2013. NARA received four sets of 
comments on the proposed rule. In the course of reviewing the proposed 
rule and addressing those comments, NARA proposed to make additional 
substantive revisions beyond those addressed in the comments and any 
administrative or plain language changes. Therefore, NARA is publishing 
those new substantive revisions for a second round of public comment. 
The revisions from both rounds of comments, and the comments received, 
will be compiled and addressed together when NARA publishes the final 

DATES: Submit comments on or before July 21, 2014.

ADDRESSES: You may submit comments, identified by RIN 3095-AB73, by any 
of the following methods:
    [ssquf] Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    [ssquf] Email: kimberly.keravuori@nara.gov. Include RIN 3095-AB73 
in the subject line of the message.
    [ssquf] Fax: 301-837-0319.
    [ssquf] Mail: (For paper, disk, or CD-ROM submissions. Include RIN 
3095-AB73 on the submission) Regulations Comments Desk, Strategy 
Division (SP); Suite 4100; National and Archives Records 
Administration; 8601 Adelphi Road; College Park, MD 20740-6001.
    [ssquf] Hand delivery or courier: Deliver comments to 8601 Adelphi 
Road; College Park, MD.
    Instructions: All submissions received must include the agency name 
and Regulatory Information Number (RIN) for this rulemaking (RIN 3095-
AB73). All comments received may be published without changes, 
including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, by telephone at 
301-837-3151, by email to kimberly.keravuori@nara.gov, or by mail to 
Kimberly Keravuori, Regulations Program Manager; Strategy Division 
(SP), Suite 4100; National Archives and Records Administration; 8601 
Adelphi Road; College Park, MD 20740-6001.

SUPPLEMENTARY INFORMATION: On August 5, 2013, NARA published a proposed 
rule in the Federal Register (78 FR 47245) for a 60-day comment period. 
This proposed rule clarified which records are subject to the FOIA, 
NARA's authority to grant access, and made adjustments to NARA's FOIA 
procedures to incorporate changes resulting from the OPEN FOIA Act of 
2009, the OPEN Government Act of 2007, and the Electronic Freedom of 
Information Act Amendments of 1996 (EFOIA).
    The public comment period closed on October 4, 2013. NARA received 
four sets of comments on the proposed rule, three from individuals and 
one from the Center for Effectiveness in Government. NARA appreciates 
the thoughtfulness and detail reflected in the comments it received. We 
have reviewed all of the submitted comments, considered carefully the 
suggestions for revision, and made certain changes on the basis of 
these comments, adopting most of them in some form. During the course 
of revising the proposed regulation in response to comments, NARA 
determined that additional changes were needed to better clarify 
certain sections and to incorporate standard language from the 
Department of Justice for consistency. NARA has included those proposed 
changes here for public review and any additional comments.

Regulatory Analysis

    This proposed rule is not a significant regulatory action for the 
purposes of Executive Order 12866 and has been reviewed by the Office 
of Management and Budget (OMB). The proposed amendment is also not a 
major rule as defined in 5 U.S.C. Chapter 8, Congressional Review of 
Agency Rulemaking. As required by the Regulatory Flexibility Act, it is 
hereby certified that this proposed rule will not have a significant 
impact on a substantial number of small entities because this 
regulation will affect only people and organizations who file FOIA 
requests with NARA. This proposed rule does not have any federalism 

List of Subjects in 36 CFR Part 1250

    Administrative practice and procedure, Archives and records, 
Confidential business information, Freedom of information, Information, 
Records, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the National Archives and 
Records Administration proposes to further amend 36 CFR part 1250 from 
the proposed rule text published in the Federal Register (78 FR 47245, 
Aug 5, 2013) as follows:


1. The authority citation for part 1250 remains as follows:

    Authority: 44 U.S.C. 2104(a) and 2204(3)(c)(1); 5 U.S.C. 552; 
E.O. 13526, 75 FR 707 and 75 FR 1013, 3 CFR, 2009 Comp., p. 298-327; 
E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.

Sec.  1250.3  [Amended]

2. Amend Sec.  1250.3 by:
a. Removing paragraphs (k) and (l);
b. Redesignating paragraphs (m) through (r) as paragraphs (k) through 
c. Redesignating paragraphs (s) through (u) as paragraphs (r) through 
d. Adding a new paragraph (q); and
e. Revising newly designated paragraph (r).
    The addition and revision read as follows:

Sec.  1250.3  Definitions.

* * * * *
    (q) Representative of the news media means a person or entity 
organized and operated to publish or broadcast news to the public, and 
that actively gathers information of potential interest to a segment of 
the public, uses its editorial skills to turn raw materials into a

[[Page 35128]]

distinct work, and distributes that work to an audience. The term 
``news'' means information that is about current events or that would 
be of current interest to the public. Examples of news media entities 
include television or radio stations that broadcast news to the public 
at large and publishers of periodicals, including print and online 
publications, that disseminate news and make their products available 
through a variety of means to the general public. NARA considers 
requests for records that support the news-dissemination function of 
the requester to be a non-commercial use. NARA considers ``freelance'' 
journalists who demonstrate a solid basis for expecting publication 
through a news media entity as working for that entity. A publishing 
contract provides the clearest evidence that a journalist expects 
publication; however, NARA also considers a requester's past 
publication record. NARA decides whether to grant a requester media 
status on a case-by-case basis, based on the requester's intended use.
    (r) Review means examining documents responsive to a request to 
determine whether any portions of them are exempt from disclosure. 
Review time includes processing any record for disclosure (i.e., doing 
all that is necessary to prepare the record for disclosure), including 
redacting the record and marking the appropriate FOIA exemptions.
* * * * *
3. Amend Sec.  1250.20 as follows:
a. Add a semi-colon and the word ``and'' to the end of paragraph 
b. Add paragraph (a)(4);
c. Redesignate paragraphs (c) and (d) as paragraphs (d) and (e); and
d. Adding paragraph (c).
    The addition and revision read as follows:

Sec.  1250.20  What do I include in my FOIA request?

* * * * *
    (a) * * *
    (4) Author, recipient, case number, file designation, or reference 
* * * * *
    (c) Requesters who request records about themselves must do so in 
accordance with the Privacy Act and our implementing regulations at 36 
CFR part 1202. This includes requirements to verify identity set forth 
in 36 CFR 1202.40. Requesters who request records about someone other 
than themselves may receive greater access if they submit either a 
notarized certification of identity signed by the other person, or 
proof that the other person is deceased (e.g., a copy of a death 
certificate or an obituary). As an exercise of its administrative 
discretion, NARA may require a requester to supply additional 
information if necessary to verify that a particular individual has 
consented to disclosure.
* * * * *
4. Amend Sec.  1250.28 by:
a. Removing the word ``or'' at the end of paragraph (a)(2);
b. Removing the period at the end of paragraph (a)(3) and in its place 
``; or''; and
c. Adding paragraph (a)(4).
    The addition reads as follows:

Sec.  1250.28  How do I request expedited processing?

    (a) * * *
    (4) A matter of widespread and exceptional media interest in which 
there exist possible questions that affect public confidence in the 
Government's integrity.
* * * * *
5. Amend Sec.  1250.30 by revising paragraph (c) introductory text and 
adding paragraph (e) to read as follows:

Sec.  1250.30  How will NARA respond to my request?

* * * * *
    (c) NARA may withhold records in full or in part if any of the nine 
FOIA exemptions apply. NARA withholds information only where disclosure 
is prohibited by law (such as information that remains classified, or 
information that is specifically exempt by statute) or where NARA 
reasonably foresees that disclosure would cause harm to an interest 
protected by one of the FOIA exemptions. If NARA must withhold part of 
a record, NARA provides access to the rest of the information in the 
record. On the released portion of the record, NARA indicates the 
amount of information it redacted and the exemption it applied, unless 
including that indication would harm an interest the exemption 
protects. NARA may also determine that a request does not reasonably 
describe the records sought; the information requested is not a record 
subject to FOIA; the requested record does not exist, cannot be 
located, or has been destroyed; or the requested record is not readily 
reproducible in the form or format sought by the requester. Information 
that may be exempt from disclosure under the FOIA is:
* * * * *
    (e) NARA may not withhold Presidential records subject to FOIA 
under 5 U.S.C. 552(b)(5) as defined in the table under paragraph (c) of 
this section. However, NARA may withhold Presidential records under the 
remaining FOIA exemptions. In addition, Presidential records may be 
withheld under the six PRA restrictions for a period of 12 years from 
when a President leaves office, in accordance with 44 U.S.C. 2204 and 
36 CFR part 1270. Representatives of the current and former Presidents 
may also review Presidential records, and may assert constitutionally-
based privileges that would prevent NARA from releasing some or all or 
the information requested.
6. Amend Sec.  1250.50 by revising paragraph (c)(1) to read as follows:

Sec.  1250.50  General information on fees.

* * * * *
    (c) * * *
    (1) If you have failed to pay FOIA fees in the past, we will 
require you to pay your past-due bill and we may also require that you 
pay the anticipated fee before we begin processing your request. If we 
estimate that your fees may be greater than $250, we may also require 
advance payment or a deposit before we begin processing your request. 
If you fail to make an advance payment within 60 calendar days after 
the date of NARA's fee letter, NARA will close the request.
* * * * *
7. Amend Sec.  1250.52 by revising paragraph (b) to read as follows:

Sec.  1250.52  FOIA fee schedule for operational records.

* * * * *
    (b) Review fees. (1) NARA charges review fees for time we spend 
examining documents that are responsive to a request to determine 
whether we must apply any FOIA exemptions to withhold information. NARA 
charges review fees even if we ultimately are unable to disclose a 
    (2) The review fee is $33 per hour (or fraction thereof).
    (3) NARA does not charge review fees for time we spend resolving 
general legal or policy issues regarding the application of exemptions. 
However, NARA does charge review fees for time we spend obtaining and 
considering any formal objection to disclosure made by a confidential 
commercial information submitter.
* * * * *
8. Amend Sec.  1250.56 by revising paragraphs (b)(2) and (4) and (d) 
and adding paragraph (e) to read as follows:

Sec.  1250.56  How may I request a fee waiver for operational records?

* * * * *
    (b) * * *
    (2) How the release will reveal meaningful information that the 
public does not already know about Federal Government activities. 

[[Page 35129]]

information that is already in the public domain, in either the same or 
a substantially-identical form, does not add anything new to the 
public's understanding of Government activities.
* * * * *
    (4) Your expertise or understanding of the requested records as 
well as your ability and intention to effectively convey information to 
the public. NARA ordinarily presumes that a representative of the news 
media satisfies this consideration.
* * * * *
    (d) Requesters should ask for waiver or reduction of fees when they 
first submit their requests to NARA, and should address the criteria 
referenced above. A requester may ask for a fee waiver at a later time 
while the underlying record request is still pending or during an 
administrative appeal.
    (e) NARA may also waive (either partially or in full) or reduce 
fees for operational records in additional circumstances as a matter of 
administrative discretion.

Sec.  1250.74  [Amended]

9. Amend Sec.  1250.74(a) by removing the phrase ``, and your right to 
judicial review of the decision if information is denied under a FOIA 
10. Amend Sec.  1250.82 as follows:
a. Redesignate paragraphs (b) through (g) as paragraphs (c) through 
(h); and
b. Revise paragraph (a);
c. Add a new paragraph (b); and
d. Revise newly redesignated paragraphs (f) and (h).
    The revisions and addition read as follows:

Sec.  1250.82  How does NARA process FOIA requests for confidential 
commercial information?

* * * * *
    (a) If the records are less than 10 years old, NARA reviews the 
records in response to a FOIA request. If NARA then believes that it 
should release the records under FOIA, it makes reasonable efforts to 
inform the submitter. The notice to the submitter describes the 
business information requested or includes copies of the requested 
records. NARA does not notify the submitter when it determines that:
    (1) It must withhold the information under FOIA's exemptions;
    (2) The information has been published or made available to the 
public; or
    (3) It is required by a statute (other than the FOIA), or by a 
regulation issued in accordance with the requirements of Executive 
Order 12600, to disclose the information.
    (b) If the records are 10 or more years old, NARA reviews the 
records in response to a FOIA request as it would any other records, 
and at its discretion, informs the submitter. NARA releases the records 
if it determines that neither Exemption 4 nor any other exemption 
* * * * *
    (f) NARA reviews and considers all objections to release that it 
receives within the time limit. Any information provided by a submitter 
under this provision may itself be subject to disclosure under FOIA. 
NARA considers a submitter who fails to respond within the time period 
specified in the notice to have no objection to disclosure of the 
information. If NARA decides to release the records, it informs the 
submitter in writing, along with NARA's reasons for deciding to 
release. NARA includes with the notice copies of the records as it 
intends to release them. NARA also informs the submitter that it 
intends to release the records within a reasonable time after the date 
of the notice unless a U.S. District Court forbids disclosure. NARA 
will not consider any information it receives after the date of a 
disclosure decision.
* * * * *
    (h) NARA notifies the requester in three circumstances:
    (1) When it notifies the submitter of the opportunity to object to 
disclosure, or to extend the time for objecting;
    (2) When it notifies the submitter of its intent to disclose the 
requested information; and
    (3) When a submitter files a lawsuit to prevent the disclosure of 
the information.

    Dated: June 10, 2014.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2014-14114 Filed 6-18-14; 8:45 am]