Release of Information From Department of Veterans Affairs Records, 63120-63139 [2010-25362]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 75, Number 198 (Thursday, October 14, 2010)]
[Proposed Rules]
[Pages 63120-63139]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-25362]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 1 and 2

RIN 2009-AN72


Release of Information From Department of Veterans Affairs 
Records

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations governing the submission and processing of requests for 
information under the Freedom of Information Act (FOIA) in order to 
implement provisions of the E-FOIA Act and the Openness in Government 
Act, and to reorganize and clarify existing regulations. The proposed 
regulations would establish the procedures and rules necessary for VA 
to process requests for information under the FOIA, including matters 
such as how to file a request or appeal, how requests for business 
information are handled, and how issues regarding fees are resolved. 
The intended effect of these regulations is to implement legislative 
changes made to the FOIA, as noted above, and to provide the public 
clear instructions and useful information regarding the filing and 
processing of FOIA requests.

DATES: Comments must be received on or before December 13, 2010.

ADDRESSES: Written comments may be submitted through https://www.Regulations.gov/; by mail or hand-delivery to the Director, 
Regulations Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Room 1068, Washington, DC 20420; or by fax to 
(202) 273-9026. Comments should indicate that they are submitted in 
response to ``RIN 2900-AN72, Release of Information from Department of 
Veterans Affairs Records.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 461-4902 for 
an appointment. In addition, during the comment period, comments may be 
viewed online through the Federal Docket Management System (FDMS) at 
https://www.Regulations.gov/.

FOR FURTHER INFORMATION CONTACT: Catherine Nachmann, Staff Attorney, 
Office of the General Counsel (024), Department of Veterans Affairs, 
810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7684. (This is 
not a toll free number.)

SUPPLEMENTARY INFORMATION: The FOIA, codified at 5 U.S.C. 552, requires 
an agency to publish public guidance regarding its implementation of 
the statute, such as rules of procedure and substantive rules of 
general applicability. The Privacy Act of 1974, as amended, codified at 
5 U.S.C. 552a, requires an agency to publish its rules and procedures 
implementing that statute. Section 501(a) of title 38, U.S.C., 
authorizes the Secretary of Veterans Affairs to prescribe rules and 
regulations to carry out the laws administered by VA, including when 
information may be released from claimant records under 38 U.S.C. 5701, 
what activities fall within 38 U.S.C. 5705 regarding confidentiality of 
medical quality assurance records, whether and to whom information 
pertaining to those activities may be released, and when information 
may be released from records covered by 38 U.S.C. 7332 regarding the 
identity, diagnosis, or treatment of drug abuse, alcoholism or alcohol 
abuse, infection with the human immunodeficiency virus, and sickle cell 
anemia.
    We propose to amend VA's regulations pertaining to release of 
information under 5 U.S.C. 552. VA's current FOIA regulations are 
codified at 38 CFR 1.550 through 1.557, including reserved Sec. Sec.  
1.558 and 1.559. This proposed rule would implement the FOIA in 
Sec. Sec.  1.550 through 1.562. The proposed rule would in large part 
cover the same issues as are covered in VA's current regulations, such 
as how to submit a request for records, how VA addresses a request for 
records, and fees for addressing record requests under the FOIA. We 
propose to update these regulations to accommodate current means of 
communication with VA, streamline the existing procedures based on our 
experience administering the FOIA, incorporate changes in the 
procedural requirements of the FOIA since promulgation of current 
regulations, make VA's procedures easier for the public to understand, 
and generally reorganize and renumber the applicable provisions.
    In addition, we propose to add new provisions to explicitly 
implement the E-FOIA Act, Public Law 104-231, and the Openness in 
Government Act, Public Law 110-175. For additional resources on any of 
the procedural requirements of the FOIA, E-FOIA Act, or Openness in 
Government Act in particular, see the detailed information available at 
the U.S. Department of Justice (DOJ) website. For example, a copy of 
the FOIA can be located at https://www.justice.gov/oip/amended-foia-redlined.pdf. The current edition of the VA FOIA Reference Guide can be 
located at https://www.foia.va.gov/docs/RequesterHandbook.pdf, and 
specific information about implementing the FOIA and its amendments can 
be found in guidance issued by DOJ through its FOIA Updates and FOIA 
Post publications, located at https://www.usdoj.gov/oip/foi-upd.htm and 
https://www.justice.gov/oip/foiapost/mainpage.htm.

Changes to 38 CFR Part 1

1.550 Purpose

    Current Sec.  1.550 is entitled ``General'' and provides a general 
statement of VA policy regarding disclosure of information to the 
extent permitted by law, including when VA would otherwise be 
authorized to withhold the information, if the disclosure is for a 
useful purpose or when disclosure will not affect the proper conduct of 
official

[[Page 63121]]

agency business or constitute an invasion of personal privacy. Current 
Sec.  1.550 does not provide all of the general information that may be 
useful to the public regarding a request for VA records, including 
information necessitated by recent FOIA amendments and VA policy 
updates.
    We propose to amend Sec.  1.550 to generally provide more detail 
regarding VA's FOIA program. Proposed Sec.  1.550(a) would encourage 
requesters to read the VA FOIA regulations in conjunction with the 
FOIA. Based on our experience administering the FOIA, we believe that 
FOIA requesters will benefit from a greater awareness of the context in 
which their requests are addressed. In keeping with the legal and 
policy considerations associated with the administration of the FOIA, 
proposed Sec.  1.550(a) would authorize release of information on a 
discretionary basis and without regard to otherwise applicable 
restrictions in VA's FOIA regulations when current law and governmental 
policy permit such disclosures. Proposed Sec.  1.550(b) through (e) 
would advise requesters that other regulations also apply to requests 
for particular types of records, such as Privacy Act records.

1.551 Definitions

    With the exception of current Sec.  1.554a, regarding pre-
disclosure notification, and current Sec.  1.555, regarding fees, VA's 
current FOIA regulations do not contain definitions. Accordingly, we 
propose to add a definitions section in which we would consolidate all 
applicable definitions. By providing more definitions of terms commonly 
used in the FOIA process, proposed Sec.  1.551(a) would clarify the 
regulations, provide greater understanding for requesters, and assist 
in the implementation of VA's FOIA regulations. These definitions are 
proposed for clarification purposes only. No substantive effect is 
intended.

1.552 General Provisions

    Proposed Sec.  1.552(a) would create a section that would refer 
requesters to an Internet link through which they may obtain access to 
VA's information that is electronically available under the FOIA and 
information regarding VA's processing of FOIA requests.
    Section 552(a)(6)(B)(ii), as amended by the Openness in Government 
Act, requires Federal agencies to make available a Public Liaison to 
assist in disputes arising between the agency and individual 
requesters. Proposed Sec.  1.552(b) would identify VA's Public Liaisons 
and provide contact information.
    Section 552(e)(1) through (3) requires agencies to prepare an 
Annual Report that provides details regarding the agency's 
administration of its FOIA program. Proposed Sec.  1.552(c) would 
advise the public of this requirement and provide information 
concerning the procedures for obtaining a copy of VA's Annual Report.

1.553 Public Reading Rooms

    Proposed Sec.  1.553 would replace current Sec.  1.552(a). Current 
Sec.  1.552(a), in part, provides (1) that statements of policy and 
interpretations adopted by VA but not published in the Federal 
Register, and administrative staff manuals and staff instructions that 
affect any member of the public, unless promptly published and copies 
offered for sale, will be indexed by VA; (2) that such indexes will be 
published, quarterly or more frequently, and distributed or that VA 
will provide copies at a cost not to exceed the direct cost of 
duplication and both the index and the materials indexed will be made 
available to the public for inspection and copying; and (3) that public 
reading facilities will be maintained by VA Central Office and VA field 
facilities for this purpose.
    Proposed Sec.  1.553(a) would advise the public that VA maintains a 
public reading room electronically at its FOIA home page on the 
Internet, which contains records and a current subject matter index of 
reading room records (updated quarterly or more frequently) that the 
FOIA requires to be regularly made available for public inspection and 
copying. In so doing, proposed Sec.  1.553(a) would implement section 
552(a)(2) of the FOIA, as amended by the E-FOIA Act, which requires 
that for records created after November 1, 1996, agencies make such 
information available by electronic means. Proposed Sec.  1.553(a) 
would also prescribe that each VA component is responsible for 
determining which of its records are required to be made available 
electronically. Proposed Sec.  1.553(a) would generally update VA's 
FOIA program with regard to public access to records by advising the 
public of the electronic availability of records. The information 
provided in this provision would be a useful starting point for an 
individual seeking access to VA records.
    Section 552(a)(2), requires agencies to make available certain 
documents for public inspection and copying. Current Sec.  1.552(b) 
implements 552(a)(2), stating that when publishing or making available 
to the public any opinion, order, statement of policy, interpretation, 
staff manual or instruction to staff, identifying details will be 
deleted, and the deletion justified in writing, to the extent required 
to prevent a clearly unwarranted invasion of personal privacy. 
Similarly, proposed Sec.  1.553(b) would prescribe that VA may delete 
some of the information that it is making publicly available, 
including, for example, when its release would result in an unwarranted 
invasion of an individual's privacy. In substance, proposed Sec.  
1.553(b) restates the provisions of current Sec.  1.552(b).
    Proposed Sec.  1.553(c) would implement Sec.  552(a)(2), which 
requires that the agency make public reading room material available 
for inspection and copying. It would provide that some VA components 
may maintain physical public reading rooms where individuals may obtain 
publicly available information. In part, current Sec.  1.552(a) 
implements the same requirement, providing for the maintenance of 
public reading facilities. Proposed Sec.  1.553(c), therefore, would 
replace that portion of current Sec.  1.552(a) that implements this 
requirement. It would also provide that contact information regarding 
VA components having physical public reading rooms is available on VA's 
Internet home page. Proposed Sec.  1.553(c) would facilitate an 
individual's access to a physical public reading room by providing 
easily accessible information regarding the availability of reading 
rooms within VA, thereby facilitating an individual's access to reading 
room material.

1.554 Requirements for Making Requests

    Proposed Sec.  1.554 would replace current Sec.  1.553. Current 
Sec.  1.553(a) prescribes that except for records made publicly 
available, requests for records will be processed under current Sec.  
1.553(b) (discussed below) and any other law applicable to the 
confidentiality of information. Current Sec.  1.553(a) also provides 
that VA will consider making records available that it is permitted to 
withhold under the FOIA if it determines that such disclosure could be 
in the public interest.
    Current Sec.  1.553(b) prescribes the requirements for submitting a 
FOIA request, including that the request must be in writing over the 
signature of the requester, that it must contain a reasonable 
description of the record sought so that it may be located with 
relative ease, and that it should be made to the office having 
jurisdiction of the record desired. Proposed Sec. Sec.  1.554(a) and 
1.554(b) would replace current Sec.  1.553(a) and (b) and clarify the 
procedure for submission of requests for

[[Page 63122]]

records under the FOIA. The proposed provisions would prescribe that VA 
will accept a facsimile (fax) or electronic mail (e-mail) FOIA request 
if it contains an image of the requester's handwritten signature. These 
amendments are necessary to clearly identify the acceptable methods of 
submitting requests and expand the methods by which requests may be 
made. They would also provide more flexibility for individuals in 
submitting a FOIA request to VA and would authorize requests in keeping 
with updated technology. Proposed Sec.  1.554(a) also would clarify 
other administrative details with respect to making a FOIA request, 
such as referring the requester to VA's list of FOIA contacts, advising 
the requester to direct the request to the proper office, and referring 
the requester to VA's FOIA Reference Guide.
    As a general rule, a record covered by the Privacy Act, 5 U.S.C. 
552a, will only be released at the request of, or with the prior 
authorization by, the subject of the record. Proposed Sec.  1.554(c) 
would add a provision advising requesters that if they wish to receive 
information about another individual, the requester should provide 
proof of his or her authorization to receive that information to cover 
instances where, after weighing personal privacy interest against the 
public interest under 5 U.S.C. 552(b)(6), FOIA does not require 
disclosure. Based on our experience in administering the FOIA, we 
believe that by providing more detailed information regarding the 
submission of FOIA requests and making such information available 
electronically, proposed Sec.  1.554(a) through (c) would facilitate 
the submission of FOIA requests and would expedite the FOIA process, 
including by directing the request to the proper address.
    Section 552(a)(3)(A) provides that upon a request for records that 
``reasonably describes'' the records and is made in accordance with the 
agency's rules and procedures, the agency shall make such records 
available. Proposed Sec.  1.554(d)(1) would clarify VA's implementation 
of the requirement that the request reasonably describe the records 
sought. Specifically, proposed Sec.  1.554(d)(1) would expand current 
Sec.  1.553(b) by requiring that requesters provide, to the extent 
possible, sufficient detail in requests to allow VA to formulate a 
response. It would also advise requesters that requests that lack 
specificity may not be considered ``reasonably described.'' Based on 
our experience in administering the FOIA, we believe these proposed 
amendments will make the FOIA process more efficient in that it would 
clarify for requesters the required level of detail for their requests, 
thereby allowing VA personnel to locate any responsive records more 
easily. The amendments would generally clarify the request process.
    Proposed Sec.  1.554(d)(2) would advise the requester that requests 
for voluminous amounts of records may be considered ``complex'' or may 
meet the criteria for ``unusual circumstances'' as set forth in 
proposed Sec.  1.556; both concepts are discussed in detail below 
regarding proposed Sec.  1.556.
    Proposed Sec.  1.554(d)(3) would expand current Sec.  1.553(b) by 
prescribing an opportunity for requesters to modify their requests if 
they do not reasonably describe the records or otherwise do not meet 
the regulatory requirements for requests. Proposed Sec.  1.554(d)(3) 
would allow VA to address a request even if the request does not 
initially meet regulatory requirements. Based on VA's experience, 
handling any insufficiencies or ambiguities in the request at the 
outset would avoid delay in addressing the request and provide the 
requester an avenue for early resolution of the request.
    Under section 552(a)(3)(A), a FOIA request must reasonably describe 
the record sought. Upon receipt, VA must respond to the request, 
ordinarily, within 20 days (excepting Saturdays, Sundays, and Federal 
legal public holidays). Proposed Sec.  1.554(d)(4) would prescribe that 
the time limit for addressing a FOIA request does not begin to run 
until VA determines that the requester has reasonably described the 
records and that, if clarification is sought and not received within 
ten business days, VA will close its file on the request. In our 
experience, the enforcement of this provision would assist in VA's 
administration of the FOIA by clarifying VA's process and providing a 
firm deadline by which an individual must respond to a request for 
clarifying information. In so doing, VA would place responsibility on 
the requester to follow request procedures, as required by section 
552(a)(3)(A), and promptly reply to VA requests for clarifying 
information. VA cannot process a request that does not reasonably 
describe the records. Attempts to address such a request would be 
futile and may delay action on other requests that meet the 
requirements. It is imperative, therefore, that the requester 
reasonably describes the record that is the subject of the request.
    Section 552(a)(4)(A) sets forth the requirements regarding the 
payment of fees for processing record requests. Proposed Sec.  1.554(e) 
would provide preliminary information regarding the payment of fees 
(fees are discussed in more detail in proposed Sec.  1.561). It is 
included at an introductory level to notify requesters of the general 
fee guidelines. Proposed Sec.  1.554(e) would restate current Sec.  
1.555(b)(2) regarding notification of an anticipated fee in excess of 
$25.00 or the amount that the requester has indicated a willingness to 
pay. It would also restate current Sec.  1.555(g)(4)(i) and (ii) 
regarding advance payment where the estimated fee is $250.00 or higher 
or the requester has previously failed to pay a fee in a timely manner.
    Proposed Sec.  1.554(e) would also implement section 
552(a)(6)(A)(ii), as amended by the Openness in Government Act, which 
authorizes an agency to toll the response due date if it is awaiting 
information from the requester or if clarification is being sought 
regarding fee issues. Proposed Sec.  1.554(e) would prescribe tolling 
of the time limit for responding to a FOIA request if necessary to 
clarify issues regarding a fee assessment. It would also amend the 
provisions in current Sec.  1.555 by advising requesters that the 
responding VA component has authority to require written assurance that 
the fee will be paid, and that if the component's FOIA Officer does not 
receive a response either to a request for more information or, under 
certain circumstances, a request for an advance payment, he or she may 
close the file. Further, proposed Sec.  1.554(e) would advise 
requesters that even if they are seeking a fee waiver, they may 
indicate a willingness to pay a fee up to a certain amount. These 
amendments are necessary to clarify VA policy regarding the assessment 
of FOIA processing fees and how fee issues may affect the processing of 
an individual's request. Based on our experience, we believe that 
setting out the parameters of the FOIA process, including with respect 
to fees, will encourage resolution of administrative issues early in 
the processing of a request, thus streamlining the process and avoiding 
unnecessary delay.
    Proposed Sec.  1.554(f) would prescribe that a request must meet 
the requirements of proposed Sec.  1.554 in order to be considered a 
perfected request. We propose this amendment to ensure that FOIA 
requesters understand that VA requirements must be met before the 
Department devotes resources to processing any request.

1.555 Responsibility for Responding to Requests

    Proposed Sec.  1.555 would replace current Sec.  1.553a. Proposed 
Sec.  1.555(a)

[[Page 63123]]

would provide at the outset that the component's FOIA Officer may 
process the request or refer it to the appropriate VA office, that 
office will provide the FOIA Officer with all documents in their 
possession, and that the search cut-off date generally is the date that 
the search begins, i.e., no documents created after that date will be 
considered responsive to the FOIA request. If another date is used, the 
requester will be advised. In our experience, this amendment is 
necessary to clarify the processing of requests within the agency. This 
amendment, for example, would resolve questions about the FOIA 
Officer's authority to access records potentially responsive to a FOIA 
request and would establish a cut-off date for searches. Removing any 
ambiguity that exists with regard to the application of the FOIA or 
VA's processing of FOIA requests would allow the system to operate more 
effectively and efficiently.
    Proposed Sec.  1.555(b) would replace current Sec.  1.553a(a) and 
provide that the individual in each component who will be responsible 
for granting or denying a request is the ``FOIA Officer'' rather than 
the ``proper employee designated.'' This amendment would clarify that 
the individual responsible for addressing FOIA requests is the FOIA 
Officer and is intended to encourage consistency throughout the agency 
in handling FOIA requests.
    Proposed Sec.  1.555(c) and (d) would replace current Sec.  1.553a 
and prescribe that the FOIA Officer will transfer to, or consult with, 
another component or agency regarding, a request, including a request 
that involves classified information, when another component or agency 
is better able to address the request. Proposed Sec.  1.555(e) would 
provide that the FOIA Officer will notify the requester when all or 
part of the request has been referred to another component or agency. 
We propose this amendment to provide as much information as possible to 
requesters about the processing of their requests. Informing requesters 
of the administrative actions that may occur with respect to their 
requests will assist in the effective administration of the FOIA 
program.

1.556 Timing of Responses to Requests

    Proposed Sec.  1.556 would replace current provisions and add 
provisions regarding the treatment of FOIA requests. Proposed Sec.  
1.556(a) would add a provision stating generally that VA components 
will respond to FOIA requests according to their order of receipt.
    Proposed Sec.  1.556(b)(1) would prescribe VA's use of a multitrack 
processing system in which, once received, FOIA requests are placed in 
one of two tracks based upon the work and time required to process the 
request. Proposed Sec.  1.556(b)(2) would require VA processors to 
advise requesters of the track to which their request is assigned 
(simple or complex). Under the proposed rule, VA would provide the 
requester the opportunity to discuss his or her request with the 
processing VA component in order to qualify for the faster processing 
track. These proposed provisions implement sections 552(a)(6)(D)(i) and 
(ii), which authorize agency rulemaking regarding multitrack processing 
of records requests and the opportunity to qualify for the faster 
track. Multitrack processing would enable VA to organize its FOIA 
request intake in such a way as to provide a greater understanding of 
the nature and extent of the work required to address various requests. 
In addition, it would allow personnel to organize their workload in 
accordance with varying degrees of complexity of the requests 
presented. Lastly, it would allow requesters to modify their requests 
to enable VA to address the request more expeditiously. In our 
experience, requesters often frame requests in a way that would include 
more material than may be necessary to answer their inquiry. Allowing 
requesters to work with VA to clarify a request before the agency 
expends resources on gathering documents that the requester does not 
want would allow a quicker resolution for the requester and would allow 
the agency to allocate resources to other requests.
    Proposed Sec.  1.556(c) would amend current Sec.  1.553a(d) in that 
it would set forth the circumstances under which VA may determine that 
unusual circumstances exist with regard to addressing a FOIA request. 
The definition of ``unusual circumstances'' is prescribed at 5 U.S.C. 
552(a)(6)(B), and includes, for example, the need to collect records 
from a facility other than the office processing the request. Proposed 
Sec.  1.556(c) would add a provision that if VA requires an extension 
of more than 10 business days to address the request, the requester may 
modify the request so that it may be processed within applicable time 
limits or arrange an alternative time period with the VA component that 
is processing the request. Similar to proposed Sec.  1.556(b)(2), 
proposed Sec.  1.556(c) would prescribe consultation with the requester 
to allow for modification of the request or arrange an alternative time 
period within which VA must process the request. This provision 
encourages early clarification of the request and should promote 
expeditious processing. Our experience is that communication with the 
requester in cases such as this is beneficial to all parties, as it 
clarifies issues for the agency and notifies the requester that the 
agency is interested in processing the request as expeditiously as 
possible.
    Proposed Sec.  1.556(c)(1)(i) through (iii) would replace current 
Sec.  1.553a(d)(1) through (3) and incorporate statutory requirements 
in section 552(a)(6)(B)(i) through (iv) regarding the meaning of 
``unusual circumstances.''
    Proposed Sec.  1.556(c)(2) would authorize the aggregation of 
requests if VA determines that certain requests are from the same 
requester, or a group of requesters acting in concert, actually 
constitute the same request and that as such, the requests would 
otherwise meet the requirements for ``unusual circumstances,'' as 
defined in section 552(a)(6)(B)(iii). This provision would allow VA to 
address the substance of a request rather than the form of the request; 
in other words, when a request, in substance, meets the unusual 
circumstances requirements, the agency would address it as such. The 
proposed revision in this regard would result in a more equitable 
distribution of FOIA requests and request workload as it would allow 
the agency to consider the nature of the request in determining how to 
characterize it.
    Section 552(a)(6)(E)(i) through (vi) requires VA rulemaking 
regarding the procedures for expedited processing of requests. We 
propose to implement these procedures in Sec.  1.556(d). Proposed Sec.  
1.556(d)(1) would prescribe the circumstances that represent a 
``compelling need'' for the information, a requirement that must be met 
in order to meet the requirement for expedited review under the FOIA. 
Proposed Sec.  1.556(d)(2) restates section 552(a)(6)(E)(vi), which 
provides that a requester seeking expedited processing must submit a 
certified statement to the processing agency regarding the request for 
expedited review. Proposed Sec.  1.556(d)(3) restates section 
552(a)(6)(E)(ii), which requires agencies to make a determination 
regarding a request for expedited processing within 10 days of the 
receipt of the request.

1.557 Responses to Requests

    Proposed Sec.  1.557(a) would require the processing VA component 
to acknowledge receipt of the request and assign a docket number to the 
request. This provision is intended as an

[[Page 63124]]

administrative tool that components would use to organize incoming 
requests and to provide the requester with pertinent information should 
he or she wish to contact VA for information.
    Proposed Sec.  1.557(b) would implement the provisions of section 
552(a)(3)(B) through (C) to the extent that the proposed rule would 
require a component properly in receipt of a request to conduct a 
reasonable search for records, including records in electronic form or 
format, and to provide those records in the form or format requested by 
the individual, if readily reproducible in that form or format. In this 
regard, proposed Sec.  1.557(b) would essentially restate the FOIA 
provisions. In addition, proposed Sec.  1.557(b) would clarify that any 
responsive records would be those in the component's possession and 
control as of the date the search for responsive records begins and 
would provide for notification to the requester if a fee is due under 
proposed Sec.  1.561. Adding this interpretation of the search date and 
initial fee assessment requirements would eliminate any ambiguity with 
regard to the time frame of the search and any resulting fee.
    Proposed Sec.  1.557(b) also would implement section 552(b), which 
requires deletion of certain exempt portions of records and 
identification of the FOIA exemption under which the deletion is made. 
This proposed revision would also restate, in part, current Sec.  
1.554(a), which prescribes that records will be provided after deletion 
of material exempt under the FOIA, as discussed in current Sec.  
1.554(a).
    Proposed Sec.  1.557(c) would restate section 552(a)(6)(A) and 
replace current Sec.  1.553a(b). The proposed rule would prescribe a 
20-day deadline in which a VA component will act upon a request and a 
10-day limit for referring a request to another component.
    Proposed Sec.  1.557(d) would implement section 552(a)(6)(F), which 
requires agencies to provide requesters a statement regarding the 
amount of information withheld and the FOIA exemption under which 
information is withheld, unless providing such a statement would harm 
an interest protected by the applicable exemption, and would replace 
current Sec.  1.557(a). The proposed rule would provide specific 
examples of the types of determinations that are adverse to requesters, 
restate the requirement to include the name of the individual 
responsible for the denial, and prescribe a statement of the reasons 
for the denial and notice regarding the right to appeal under proposed 
Sec.  1.559. Placing the information that will be included in an 
adverse determination in one provision will clarify the FOIA process 
and benefit all parties involved. Our intent in proposing this 
provision is to provide VA components clear and consistent direction 
regarding the requirements for adverse determinations and to ensure 
that requesters receive notice concerning the reasons for the 
determination and their appeal options.

1.558 Business Information

    Section 552(b)(4) exempts from release matters that are trade 
secrets and commercial or financial information obtained from a person 
that is privileged and confidential. Executive Order 12,600 establishes 
the procedures to be followed when the agency believes that responsive 
records include such information. Ordinarily, these provisions apply 
when a request is received for information submitted by an individual 
doing business with VA who has provided to VA its business information, 
or information that he or she considers commercial or confidential; 
this individual is referred to as the ``submitter'' of the information. 
The ``submitter'' typically designates the information as protected, as 
discussed further below.
    Proposed Sec.  1.558 would replace current Sec.  1.554a in 
addressing the issues raised by business information; it would replace 
the term ``confidential commercial'' information used in current Sec.  
1.554a with ``business'' information. This revision would provide 
individuals specific information at the outset concerning whether their 
request would involve such information. Proposed Sec.  1.558(a) would 
replace current Sec.  1.554a(a) and provide an introductory statement 
regarding the consideration of business information pursuant to 
proposed Sec.  1.558. Proposed Sec.  1.558(b) essentially would replace 
current Sec.  1.554a(d), which outlines the requirements for a 
submitter to designate records as business information. Proposed Sec.  
1.558(b) varies from current Sec.  1.554a(d) in that it would allow for 
the business information designation to take place within a reasonable 
time after submission of the information to VA. Current Sec.  1.554a(d) 
contains the same language but qualifies the ``reasonable time'' as not 
later than 60 days after receipt of the information by VA. In addition, 
proposed Sec.  1.558(b) would add a provision stating that the 
designation will be considered by the VA component processing the 
request, but will not control the FOIA Officer's determination. Based 
on VA's experience in administering current FOIA provisions, VA 
believes that these revisions would allow flexibility with regard to 
the submitter's designation and would clarify the role of the 
designation for the submitter, i.e., the submitter should understand at 
the outset that while records may be designated as business 
information, the designation itself does not necessarily determine the 
outcome of the VA component's decision, which will be made in 
compliance with applicable laws.
    Proposed Sec.  1.558(c)(1) would replace current Sec.  1.554a(c) 
and prescribe the requirements for notice to a submitter of business 
information whenever a request for that information is being processed 
under the FOIA. Proposed Sec.  1.558(c)(1) would differ from current 
Sec.  1.554a(c) by requiring the submitter to provide objections to the 
disclosure within the ``time period specified'' in the notice, as 
opposed to within 10 working days, as prescribed in current Sec.  
1.554a(c). This revision is repeated in proposed Sec.  1.558(d). This 
revision would allow VA the flexibility to meet statutory time limits 
and/or change the number of days in which a response is required as a 
policy matter without requiring a change in its regulations. Proposed 
Sec.  1.558(c)(1) also would delete the current requirement for the 
notice to be mailed by certified mail, return receipt requested. Our 
experience is that certified mail may unnecessarily delay the 
notification process when there are other suitable alternatives. 
Proposed Sec.  1.558(c)(1) would add a provision allowing the FOIA 
Officer to post the notification in a place reasonably likely to 
accomplish the required notice when the notice concerns a large number 
of submitters. This proposed provision would allow the FOIA Officer 
greater flexibility and expedite notice by allowing electronic or other 
public notification of multiple submitters simultaneously.
    Proposed Sec.  1.558(d) would replace current Sec.  1.554a(f) and 
eliminate ``or designee'' when referring to the submitter. We intend 
that this change will bring VA's FOIA regulations into compliance with 
Executive Order 12600, which established Federal policy regarding 
agency communication only with the submitter of information.
    Proposed Sec.  1.558(d) would require that the submitter's 
objections be contained in a single written response and that oral or 
multiple subsequent written responses ordinarily would not be 
considered. Based on our experience administering the FOIA with regard 
to business information, we believe that this revision would create a 
more efficient process by requiring a cohesive statement from the 
submitter rather than allowing continued or successive

[[Page 63125]]

submissions. Additionally, eliminating oral responses would better 
develop the administrative record for all parties.
    Proposed Sec.  1.558(d) would also provide that if the submitter 
does not respond to VA's notification within the specified time limit, 
the submitter will be considered to have no objection to the 
disclosure. This provision would impose a duty to respond within the 
time limit in order to ensure that the submitter's objections, if any, 
can be properly considered in an efficient and timely manner. This 
proposed provision would also eliminate the requirement that the 
submitter provide objections within 10 days after receipt by the 
submitter of notification of a request for the submitter's information. 
Instead, the proposed rule would allow the FOIA Officer to set forth a 
``specified time limit'' within which to respond.
    Proposed Sec.  1.558(d) would eliminate the language in current 
Sec.  1.554a(f), which prescribes that information provided by the 
submitter would itself be subject to the FOIA. Our experience is that 
the existing notice in current Sec.  1.554a(f) has a chilling effect on 
submitters detailing their objections to disclosure and discussing the 
likelihood of disclosure causing substantial competitive harms. 
Additionally, any submission of information to the government may be 
subject to the FOIA, thus making that language superfluous.
    Proposed Sec.  1.558(e) would replace current Sec.  1.554a(f)(3) 
regarding the FOIA Officer's consideration of the submitter's 
objections in making a determination whether to release information. 
While current Sec.  1.554a(f)(3), for example, states that VA will 
consider a submitter's comments if received within a 10-day time limit, 
proposed Sec.  1.558(e) states that information provided by the 
submitter after the ``specified time limit'' will not be considered. 
While a specific time frame is not expressly stated in the proposed 
regulation, the regulation does provide for consideration of comments 
within a time frame specified by the FOIA Officer.
    Proposed Sec.  1.558(e) also would replace current Sec.  
1.554a(f)(3) with regard to the information contained in the written 
notice to the submitter. The proposed regulation makes no substantive 
changes to this provision.
    Proposed Sec.  1.558(f) would replace current Sec.  1.554a(i)(1) 
through (3), identifying when the pre-disclosure notification 
requirements need not be followed. It would add to the provisions in 
current Sec.  1.554a(i)(3) that pre-disclosure notification is not 
required if the disclosure is required by regulation issued in 
accordance with Executive Order 12600 or any other Executive Order. In 
this regard, the proposed rule would ensure that Executive Orders are 
included, as appropriate, as a basis for the disclosure of information. 
Proposed Sec.  1.558(f) would delete references to current Sec.  
1.554a(i)(4) through (6) because VA's experience is that these 
provisions have not been utilized, and the revised provisions would, if 
necessary, cover the instances referred to in the referenced sections.
    Proposed Sec.  1.558(g) would replace current Sec.  1.554a(g)(1) 
and would make no change to that provision. Current Sec.  1.554a(g)(2) 
regarding notice to a requester when a submitter is given an 
opportunity to provide comments about the disclosure would be deleted 
because under the proposed rule requesters would be on notice regarding 
VA's contacts with submitters. Proposed Sec.  1.558(g) would prescribe 
notice to a requester that the request is being processed under Sec.  
1.558, including the provisions in Sec.  1.558(c) and (e) prescribing 
notice to submitters regarding opportunity to comment. Current Sec.  
1.554a(g)(3) regarding notice to a submitter and requester of a final 
decision on disclosure of business information would also be deleted as 
unnecessary. Submitters would instead be given notice of an impending 
agency decision on disclosure of business information under proposed 
Sec.  1.558(e). The requester would be notified when a final agency 
decision is issued pursuant to proposed Sec.  1.557.

1.559 Appeals

    Section 552(a)(6)(A) provides that when an agency component 
responds to an initial request for records, it shall provide the 
requester with the right to appeal any adverse determination to the 
head of the agency.
    Proposed Sec.  1.559 would replace current Sec.  1.557(b). Current 
Sec.  1.557(b) states only that the final agency decisions in appeals 
will be made by the VA General Counsel or Deputy General Counsel. 
Proposed Sec.  1.559(a) would allow for an informal resolution of the 
request prior to an appeal in appropriate cases. We believe that in 
appropriate cases, requesters may benefit from contact with the FOIA 
Officer or VA component addressing the request and an attempt to 
resolve outstanding issues with regard to the request. The requester 
may seek informal resolution, for example, when he or she has not 
received a response to the request. Direct communication between the 
FOIA Officer and the requester could resolve the issue and therefore 
make an appeal unnecessary.
    Proposed Sec.  1.559(b) would establish authority for the VA Office 
of Inspector General (OIG) to handle appeals related to OIG records. 
This would allow the OIG to establish its independence regarding its 
own records.
    Proposed Sec.  1.559(b) through (c) would provide details regarding 
how to file an appeal and the form that an appeal may take and a 
reference to additional information available online.
    Proposed Sec.  1.559(d) would establish a 60-day time limit from 
the date of any adverse determination concerning the FOIA request for 
the requester to file an appeal. Current regulations do not address the 
timeliness of an appeal. Based upon our experience, we believe that 
prescribing a period within which an appeal may be filed provides an 
effective tool for establishing workload and allocating resources. We 
have determined that a 60-day time limit would be reasonable given the 
convenient means by which an individual may quickly file an appeal. We 
note that the proposed 60-day appeal period would be the same as the 
appeal period established by the Department of Justice for its FOIA 
appeals. We also believe that the requester should have the 
responsibility to follow through with the appeal if he or she wishes 
the request to be addressed and that the 60-day appeal period would 
provide ample time to exercise that responsibility. Further, the appeal 
process would be more seamless and effective if requesters included 
necessary information in their appeal notices, such as the information 
listed in proposed Sec.  1.559(d). Based on our experience, we believe 
that encouraging requesters to initially provide as much information as 
possible would ease the administrative burdens of gathering relevant 
information and processing the appeal. Proposed Sec.  1.559(d) would 
also provide that an appeal is not perfected until either the 
information requested is received or VA determines that the appeal is 
otherwise sufficiently defined. In our experience, appeals occasionally 
are so lacking in detail that it requires an excessive amount of time 
to identify the issues or records involved. Requesters would provide 
more clarity and therefore would require less labor-intensive inquiries 
by VA if they initially provided the information that is necessary to 
process the appeal. Proposed Sec.  1.559(d) would also delegate 
authority to decide appeals to the VA Assistant General Counsel who has 
jurisdiction over FOIA matters. This amendment would add the Assistant 
General Counsel that has jurisdiction over records disclosure matters 
to the list of individuals authorized to make

[[Page 63126]]

such final agency determinations thus streamlining the appeal process 
while continuing to provide the thorough legal analyses currently 
afforded FOIA appeals.
    Proposed Sec.  1.559(e) would prescribe the content of a decision 
on appeal. Prescribing these requirements would facilitate consistency 
in decision-making and fully inform requesters regarding their right to 
a complete appellate decision from the agency.
    Proposed Sec.  1.559(f) would require a requester to file an appeal 
prior to seeking court review. This provision would provide the 
opportunity for resolution of the requester's concerns prior to 
initiating litigation and ensure that the matter is ready for judicial 
review.

1.560 Maintenance and Preservation of Records

    The Federal Records Act, 44 U.S.C. chapter 31, addresses record 
preservation and destruction by Federal agencies. Section 3102 of title 
44, U.S.C., requires that the head of an agency establish and maintain 
a records management system.
    Proposed Sec.  1.560(a) would require that VA components maintain 
FOIA requests and copies of pertinent records in accordance with NARA's 
General Records Schedule.
    Proposed Sec.  1.560(b) would require that the FOIA Officer 
maintain copies of records that are the subject of a pending request, 
appeal, or lawsuit under the FOIA. It would also prescribe that a copy 
of the records shall be provided to the Office of the General Counsel 
upon request.
    These provisions would underscore the importance of maintaining 
records as appropriate and prescribe consistent compliance within VA. 
They would emphasize that administrative record-keeping is an important 
function in the FOIA program and that in order for VA components to 
build an administrative record, if required, information must be 
preserved as appropriate.

1.561 Fees

    In accordance with section 552(a)(4)(A), an agency is required to 
promulgate regulations specifying the schedule of fees applicable to 
processing requests under the FOIA and establishing procedures and 
guidelines for determining when fees will be waived or reduced. In 
addition, agencies must implement the 1987 Fee Schedule and Guidelines 
published by the Office of Management and Budget (OMB). See The Freedom 
of Information Reform Act of 1986; Uniform FOIA Fee Schedule and 
Guidelines, 52 FR 59 (27 March 1987).
    Proposed Sec.  1.561 replaces current Sec.  1.555. In part, 
proposed Sec.  1.561(a) would replace current Sec.  1.555(b)(1) in 
providing a general introduction and rules regarding fees. Proposed 
Sec.  1.561(a) would add that the VA component would collect prescribed 
fees before releasing copies of the information to the requester and 
would include a provision regarding payment of fees. Lastly, proposed 
Sec.  1.561(a) would direct a requester's attention to other VA 
statutes that contain provisions related to access to records and the 
fees for such access. These amendments would provide introductory 
comments regarding VA's fee provisions and are intended to clarify and 
highlight VA's general framework for the assessment of fees.
    Proposed Sec.  1.561(b) would replace current Sec.  1.555(a) and 
would contain the definitions of terms used regarding FOIA fees. 
Proposed Sec.  1.561(b)(1) would restate that portion of current Sec.  
1.555(d)(4) that defines ``all other requesters'' as any requester that 
does not fit within any other category; the proposed inclusion of this 
definition in this section would ensure that all pertinent definitions 
are included.
    Proposed Sec.  1.561(b)(2) would replace current Sec.  1.555(a)(1) 
and would restate the definition of ``commercial use request.'' The 
proposed regulation would make no substantive change to current Sec.  
1.555(a)(1).
    Proposed Sec.  1.561(b)(3) would replace current Sec.  1.555(a)(2) 
and would restate the definition of ``direct costs.'' The proposed 
regulation would make no substantive change to current Sec.  
1.555(a)(2).
    Proposed Sec.  1.561(b)(4) would replace current Sec.  1.555(a)(3) 
and would restate the definition of ``duplication.'' The proposed 
regulation would make no substantive change to current Sec.  
1.555(a)(3).
    Proposed Sec.  1.561(b)(5) would replace current Sec.  1.555(a)(4) 
and would restate the definition of ``educational institution.'' The 
proposed regulation would make no substantive change to current Sec.  
1.555(a)(4).
    Proposed Sec.  1.561(b)(6) would replace current Sec.  1.555(a)(5) 
and in large part, restate the definition of ``non-commercial 
scientific institution.'' The proposed regulation would make no 
substantive change to the provisions of current Sec.  1.555(a)(5) with 
the exception of the addition that the requester must show that the 
request is authorized by and made under the auspices of a qualifying 
institution. This amendment would clarify the requirement for 
submitting such a request and would place responsibility on the 
requester to establish that it fits within this fee category. Our 
experience indicates that this requirement will assist in resolving the 
status of a fee requester at the outset and will clarify the 
requirements for such requesters.
    Proposed Sec.  1.561(b)(7) would replace current Sec.  1.555(a)(6). 
It would restate current Sec.  1.555(a)(6), but also implement the 
change in the definition of news media in section 552(a)(4)(A)(ii), 
which defines ``representative of the news media'' as described 
immediately below. The proposed rule would prescribe that a member of 
the news media is one who gathers information of potential interest to 
the public, uses his or her editorial skills to turn the raw material 
into a distinct work, and distributes that work to an audience. We 
propose to add language that alternative media sources may be 
considered news media if they otherwise meet the definition of news 
media. We believe this proposed language would underscore that the 
entity seeking classification as a news media must also meet the other 
criteria set forth in the definition of news media. Proposed Sec.  
1.561(b)(7) would also delete a reference to freelance journalists' 
option to seek a reduction or waiver of fees. We believe placing the 
reference here would be superfluous, as waiver or fee reduction is 
discussed in the introductory paragraph of proposed Sec.  1.561(b)(7). 
In accordance with section 552(a)(4)(A)(ii), proposed Sec.  1.561(b)(7) 
would add language that a representative of the news media must not be 
seeking records for a commercial use.
    Proposed Sec.  1.561(b)(8) would replace current Sec.  1.555(a)(7). 
The proposed rule would essentially restate current Sec.  1.555(a)(7) 
and would add examples of the types of records that are subject to 
review in a FOIA request. We believe that providing examples would 
provide more clarity for requesters concerning the potential assessment 
of fees.
    Proposed Sec.  1.561(b)(9) would replace the definition of search 
in current Sec.  1.555(a)(8). The proposed rule would make no 
substantive change to current Sec.  1.555(a)(8) with the exception of 
the deletion of the last sentence in current Sec.  1.555(a)(8) 
regarding excluding review time. We believe that this language is 
unnecessary, as we have previously defined the term search in the 
context of the FOIA.
    Proposed Sec.  1.561(c) would replace current Sec.  1.555(d) 
regarding categories of requesters and fees charged each category. The 
introductory language of proposed Sec.  1.561(c) and (c)(1) (commercial 
use requesters) restates the

[[Page 63127]]

introductory language of current Sec.  1.555(d) and(d)(1) (commercial 
use requesters), with the exception of adding language noting that the 
provisions apply unless a waiver or reduction of fees applies. We 
believe these proposed additions would clarify application of the fee 
provisions by directing the requester's attention to the exceptions 
that apply to the assessment of fees. In addition, proposed Sec.  
1.561(c)(1) would delete language from current Sec.  1.559(d)(1) that 
states that a requester must reasonably describe the record requested. 
We believe that this language is superfluous in light of the full 
discussion of reasonably described records in proposed Sec.  1.554(d).
    Proposed Sec.  1.561(c)(2) and (3) would replace current Sec.  
1.555(d)(2) and (3), respectively. Proposed Sec.  1.561(c)(2) and (3) 
would refer the requester to the potential waiver or reduction of fees 
and would reiterate the charges assessed to an educational institution 
and a representative of the news media. It would delete language in 
current Sec.  1.559(d)(2) and (3) regarding the requirements that must 
be met to be categorized as an educational and non-commercial 
scientific institution or a representative of the news media. The 
criteria for classification of these types of requesters would be 
clearly set forth in the definitions section.
    Proposed Sec.  1.561(c)(4) would replace current Sec.  1.555(d)(4). 
Proposed Sec.  1.561(c)(4) essentially restates the provisions of 
current Sec.  1.555(d)(4) as to the charges that are assessed for an 
all other requester and its reference to the waiver or reduction of 
fees. Proposed Sec.  1.561(c)(4) would delete language from current 
Sec.  1.555(d)(4) that refers to requests for records retrievable by 
personal identifiers and the treatment of such requests. In doing so, 
the proposed rule would more clearly distinguish between requests made 
under the FOIA and requests made under other authority. Based on our 
experience, we believe that such distinctions are helpful in that 
requesters can determine which procedures are applicable to their 
requests and will be able to more clearly identify the action that is 
required. In addition, proposed Sec.  1.550 provides information 
concerning the various disclosure statutes and the distinctions between 
those statutes. Including that information here would be superfluous.
    Proposed Sec.  1.561(d) would clarify the types of fees that VA may 
charge for processing requests. The introductory paragraph in proposed 
Sec.  1.561 would provide a general statement notifying requesters that 
the fees to be charged are defined in proposed Sec.  1.561. Proposed 
Sec.  1.561(d)(1)(i) would clarify how a search fee is assessed and 
would advise that fees are charged in quarter hour increments. This 
provision would better advise requesters concerning the potential for a 
fee assessment and how VA will assess the fee. This information may 
also be helpful to requesters seeking to identify more precisely the 
records that are the subject of their request.
    Proposed Sec.  1.561(d)(1)(ii), in part, would replace current 
Sec.  1.555(c)(2). It would reiterate how fees are assessed in cases 
requiring a computer search and make no substantive change in that 
regard. As an administrative matter, it would add a reference to the 
proposed-rule provisions that discuss when a fee would not be charged 
and when 2 hours of free search time would be granted.
    Proposed Sec.  1.561(d)(2) and (3) would add provisions clarifying 
when duplication and review fees, respectively, apply, and how such 
fees are calculated. These provisions would provide VA and requesters 
clear rules for determining the level of fees that may be assessed, 
depending upon the request submitted. Proposed Sec.  1.561(d)(3), for 
example, would prescribe in detail when a fee may be charged for 
consideration of an exemption and when it may not. We believe that this 
type of detail would be useful to requesters as a means of explaining 
why certain charges are made or not made and accordingly, would 
potentially assist in VA's administration of the FOIA.
    Proposed Sec.  1.561(e)(1) and (2) would implement administrative 
provisions regarding the assessment of fees. In accordance with 
proposed Sec.  1.561(e)(2), for example, more than half of a quarter-
hour period must be spent on search and review for the requester to be 
charged for that quarter-hour. This proposed provision represents VA's 
determination that it is administratively worthwhile only to collect a 
fee representing more than one half of a quarter-hour increment.
    Proposed Sec.  1.561(e)(3) would implement section 
552(a)(4)(A)(viii) by prescribing that certain fees may not be charged 
to various types of requesters if the agency fails to meet the time 
limits set forth in agency regulations. The proposed provision 
clarifies that duplication fees may still be charged to commercial use 
requesters and ``all other'' requesters.
    Proposed Sec.  1.561(e)(4), in part, would replace current Sec.  
1.555(c) and prescribe that the agency will provide the first 100 one-
sided pages and the first 2 hours of search time without charge. We do 
not intend any substantive change to this provision.
    Proposed Sec.  1.561(e)(5), in part, would replace current Sec.  
1.555(c), which provides that no fee will be charged if the cost of 
collecting the fee is equal to or greater than the fee itself. Proposed 
Sec.  1.561(e)(5) would clarify that if the total fee calculated is 
less than $25.00, no fee will be charged. Prescribing a dollar amount 
in this provision should clarify the regulation for requesters and 
remove any ambiguity that may exist in current regulations regarding 
permissible fees.
    Proposed Sec.  1.561(e)(6) would prescribe that VA may provide free 
copies of records or free services in response to requests from other 
government agencies or congressional offices when to do so would assist 
in providing medical care to a patient or to further VA's mission. This 
provision would allow the agency the flexibility to respond to certain 
requests promptly without addressing issues that may arise with regard 
to fees.
    Proposed Sec.  1.561(f) would add a chart that contains the 
categories of fee requesters and a summary of the types of fees that VA 
may charge. Proposed Sec.  1.561(f) would provide a convenient 
administrative tool for VA officials and requesters, which would 
summarize information previously set forth in the proposed regulations 
and would not make any substantive changes.
    Proposed Sec.  1.561(g) would replace current Sec.  1.555(e). 
Current Sec.  1.555(e) consists of a schedule of fees in chart form. 
Proposed Sec.  1.561(g) would add an introductory paragraph regarding 
the assessment of fees and would restate generally when the payment of 
fees is required. The proposed provision, for example, notes that VA 
would charge for special services used in responding to a FOIA request, 
that the fee schedule applies to requests under the Privacy Act as 
well, and that in cases in which the processing fee is less than 
$25.00, or in cases in which the requirements for a waiver have been 
met, the fee would be waived.
    Section 552(a)(4)(A)(i) requires agencies to promulgate regulations 
prescribing a schedule of fees applicable to processing FOIA requests. 
The fees must conform to OMB guidelines regarding a uniform schedule of 
fees for all agencies. Proposed Sec.  1.561(g)(1) would implement the 
OMB guidance and prescribe the criteria that VA would use to calculate 
search and review fees when such fees are based upon VA employees' 
salaries.
    Proposed Sec.  1.561(g)(2) would also provide a fee schedule in 
chart form that describes the type of activity for which the fee is 
being assessed and the composition of the fee being assessed.

[[Page 63128]]

    Proposed Sec.  1.561(h), in part, would replace current Sec.  
1.555(b)(2) and would add that the requester will be notified of the 
assessment of a fee over $25.00 or the amount set by OMB fee 
guidelines, whichever is higher. This provision would allow VA 
flexibility with regard to notifying requesters of fee assessments 
should the limit be changed in the future. It would also advise 
requesters of the potential for such a change. Proposed Sec.  1.561(h) 
would add that any agreement made by the requester to pay a fee on a 
later date shall be in writing. Based on our experience, we believe 
that this requirement would help to avoid any ambiguity with regard to 
fee issues. Proposed Sec.  1.561(h) would also expand the language in 
current Sec.  1.555(b)(2) and authorize the FOIA Officer's contact with 
the requester regarding clarification of fee issues. Proposed Sec.  
1.561(h) would provide that the timeline for responding to the request 
shall be tolled until the fee issue is resolved. This proposed 
provision would implement section 552(a)(6)(A)(ii)(II), which 
authorizes tolling of the time limit if necessary to clarify issues 
regarding fee assessment. Proposed Sec.  1.561(h) would also provide 
that if VA does not receive a response regarding a request for 
clarification of the fee issue within 10 days, it will close the file 
on the records request. We believe that setting a clear limit on the 
response time will avoid delay that results when a requester's 
intentions are unclear. Such a limit will also prevent VA from having 
to maintain cases on its docket that the requester has no interest in 
pursuing. Thus, it would be reasonable to place responsibility on the 
requester to follow through with the request that he or she initiated 
if the records sought are still desired.
    Section 552 authorizes recovery of direct costs of search, 
duplication, and review in certain cases. Proposed Sec.  1.561(i) would 
add a provision that when the agency chooses to provide a special 
service sought by the requester, such as certifying records, the direct 
cost of that service will be charged to the requester. This provision 
would allow the agency the flexibility to work with the requester to 
grant special services of this nature if possible, but allows the 
agency to recoup the costs of those services. This proposed provision 
would be promulgated pursuant to 31 U.S.C. 9701, which permits agencies 
to prescribe regulations establishing a charge for things of value 
provided by the agency.
    Proposed Sec.  1.561(j) would restate the provisions of current 
Sec.  1.555(g) in all pertinent respects with regard to charging 
interest on an unpaid bill. It also would replace current Sec.  
1.555(g)(5) regarding application of the Debt Collection Act of 1982 
(Pub. L. 97-365). It would delete the requirement that the 
determination to charge interest will be made by a VA Central Office 
official or field facility head or designee. Based on our experience, 
we believe that this requirement does not make the process more 
efficient. By deleting the current delegation of authority provision, 
we intend to provide flexibility for other individuals to make the 
determination to charge interest but only according to the criteria 
prescribed in VA's regulations. The proposed rule would also delete 
references to VA procedures that ensure that a requester who has 
remitted payment is credited with the payment. We believe this 
provision to be superfluous, as any payment would ordinarily be 
credited as a matter of administrative regularity.
    Proposed Sec.  1.561(k) would restate the provisions of current 
Sec.  1.555(g)(3) in all pertinent respects with regard to aggregating 
requests. Proposed Sec.  1.561(k) would use the term ``component'' 
rather than ``responsible Central Office official or field facility 
head or designee.'' Based on our experience, we believe that this 
requirement would allow more flexibility in determining whether a 
request should be aggregated according to the criteria in VA's 
regulations. It also would allow those most familiar with the FOIA 
process to make the determination, which we believe would add more 
administrative regularity to the process.
    Proposed Sec.  1.561(l)(1) would restate the introductory language 
set forth in current Sec.  1.555(g)(4). Proposed Sec.  1.561(l)(1) 
would add that payment for work already completed is not an advance 
payment. This language is an administrative provision intended to 
clarify what constitutes an advance payment.
    Proposed Sec.  1.561(l)(2) would restate the provisions of current 
Sec.  1.555(g)(4)(i) in all pertinent respects with regard to advance 
payments. It would delete current provisions providing an option for 
the VA to notify t