Freedom of Information Act Regulations, 56592-56605 [2012-22391]

Download as PDF 56592 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules no further activity is contemplated in relation to this action. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed action. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the rules section of this Federal Register. Dated: August 29, 2012. Mark J. Hague, Acting Regional Administrator, Region 7. [FR Doc. 2012–22470 Filed 9–12–12; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF THE INTERIOR Office of the Secretary 43 CFR Part 2 RIN 1093–AA15 Freedom of Information Act Regulations Office of the Secretary, Interior. Proposed rule. AGENCY: mstockstill on DSK4VPTVN1PROD with PROPOSALS ACTION: This rule would revise the regulations that 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: Comments must be submitted on or before November 13, 2012. ADDRESSES: You may submit comments on the rulemaking by either of the methods listed below. Please use Regulation Identifier Number 1093– AA15 in your message. 1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 instructions on the Web site for submitting comments. 2. U.S. mail, courier, or hand delivery: Executive Secretariat—FOIA regulations, Department of the Interior, 1849 C Street NW., Washington, DC 20240. FOR FURTHER INFORMATION CONTACT: Cindy Cafaro, Office of Executive Secretariat and Regulatory Affairs, 202– 208–5342. SUPPLEMENTARY INFORMATION: I. Why We’re Publishing This Rule and What It Does 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 § 2.15. Partial fee waivers will expressly be permitted under § 2.45. Proposed revisions of the Department’s fee schedule can be found at § 2.42, § 2.49(a)(1), and Appendix A. The duplication charge for physical records or scanning records will increase from thirteen to fifteen cents a page. The amount at or below which the Department will not charge a fee will increase from $30.00 to $50.00. 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, PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 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 proposed 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 proposed 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 proposed rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The proposed 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, the 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, the proposed 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 E:\FR\FM\13SEP1.SGM 13SEP1 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules determined that this proposed 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 proposed rule and determined that it has no potential effects on federally recognized Indian tribes. This proposed 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 proposed 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.’’ mstockstill on DSK4VPTVN1PROD with PROPOSALS 10. Effects on the Energy Supply (E.O. 13211) This proposed rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required. This proposed rule will not have a significant effect on the nation’s energy supply, distribution, or use. 11. Clarity of This Regulation We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (a) Be logically organized; (b) Use the active voice to address readers directly; (c) Use clear language rather than jargon; (d) Be divided into short sections and sentences; and VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 (e) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. 12. Public Availability of Comments Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. 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 proposes to amend 43 CFR subtitle A as follows: PART 2—FREEDOM OF INFORMATION ACT; RECORDS AND TESTIMONY 56593 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 expedited processing? 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? 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 requests? 2.24 How will the bureau deny requests? 2.25 What if the requested records contain both exempt and nonexempt material? 1. The authority citation for Part 2 is revised to read as follows: Subpart A—Introduction Authority: 5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43 U.S.C. 1460, 1461. § 2.1 2. The heading of part 2 is revised to read as set forth above. 3. Subpart F (consisting of § 2.41), subpart G (consisting of §§ 2.45 through 2.79), and subpart H (consisting of §§ 2.80 through 2.90) are redesignated as subpart J (consisting of § 2.141), subpart K (consisting of §§ 2.145 through 2.179), and subpart L(consisting of §§ 2.180 through 2.190). 4. Subparts A through E of Part 2 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? PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 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’’). (b) Definitions of terms used in Subparts A through I of this part are found at § 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. E:\FR\FM\13SEP1.SGM 13SEP1 56594 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules (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. § 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 § 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 § 2.66. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 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. VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 (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. § 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). 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. (c) 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 § 2.66). If the bureau does not hear from you within 20 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 workdays after asking for additional information, it will presume that you are no longer interested in the records and will close the file on the request. § 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, the bureau will notify you that it: (1) Needs either an assurance that you will pay the anticipated fees or an advance payment (see § 2.50); and (2) Will not be able to fully comply with your FOIA request unless you provide the assurance or advance payment requested. (c) If the bureau does not hear 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 § 2.45, § 2.48 and § 2.56). 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 (see § 2.46 for the fee waiver criteria). 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. § 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 under the criteria in § 2.38 and § 2.39). (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 fee category will be determined 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 § 2.51). E:\FR\FM\13SEP1.SGM 13SEP1 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules § 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. § 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. § 2.10 May you ask for expedited processing? You may include a request for expedited processing, which the bureau will evaluate under the criteria outlined in § 2.20. § 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 mstockstill on DSK4VPTVN1PROD with PROPOSALS § 2.12 What should you know about how bureaus process requests? (a) Except as described in § 2.4 and § 2.13, 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. VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 (d) If a bureau receives a request for records in its possession that it did not create or that another bureau or Federal agency is substantially concerned with, it may undertake consultations and/or referrals as described in § 2.13. § 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. (2) Paragraphs (d) through (h) of this section address consultations and referrals that occur 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, along with the name of a contact in the other bureau(s) to which the referral was made. (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 referral and maintain a copy of the records that it refers; notify you of the referral in writing, unless that identification will itself disclose a sensitive, exempt fact; and provide the name of a contact at the other agency. You may treat such a response as a denial of records and file an appeal, in accordance with the procedures in § 2.59. (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 regulations or directives, or in response to a Departmental request); (2) The Department is in a better position than the originating agency to PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 56595 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 another Federal agency, the bureau will return the request to you, advise you to submit it directly to the other agency, notify you that the bureau cannot comply with the request, and close the request. You may treat such a response as a denial of records and file an appeal, in accordance with the procedures in § 2.59. Subpart D—Timing of Responses to Requests § 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. § 2.15 What is multitrack processing and how does it affect your request? (a) The bureaus of the Department 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 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 § 2.20. (e) Bureaus must advise you of the track into which your request falls and, E:\FR\FM\13SEP1.SGM 13SEP1 56596 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules 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. when appropriate, will offer you an opportunity to narrow your request so that it can be placed in a different processing track. § 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 grant or deny a FOIA request. (b) A consultation or referral under § 2.13 does not restart the statutory time limit for responding to a request. § 2.17 When does the basic time limit begin for misdirected FOIA requests? The basic time limit for a misdirected FOIA request begins no later than ten workdays after the date the request is first received by any component of the Department that is designated to receive FOIA requests. § 2.18 When can the bureau suspend the basic time limit? (a) The basic time limit in § 2.16 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 § 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 § 2.51). mstockstill on DSK4VPTVN1PROD with PROPOSALS § 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 § 2.66) 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 that time period, you may consider the request denied and file an appeal under subpart H of this part. (d) Your refusal to reasonably modify the scope of a request or arrange an VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 § 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 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. Requests must be submitted to 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. PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 (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 § 2.59) 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 § 2.57(a)(8)). Subpart E—Responses to Requests § 2.21 How will the bureau respond to requests? (a) The bureau will grant, partially grant, or deny the request (in writing) in accordance with the deadlines in subpart D of this part. (b) If the bureau determines that a request will take longer than 10 workdays to process, it immediately will send you a written acknowledgment that includes the request’s individualized tracking number. § 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. (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. § 2.23 When will the bureau deny requests? (a) A bureau denies a request when it makes a decision that: (1) The requested record is exempt, in whole or in part; (2) The request does not reasonably describe the records sought; (3) The requested record does not exist or cannot be located; (4) The requested record is not readily reproducible in the form or format you seek; (5) A fee waiver, or another fee-related request, will not be granted; or (6) Expedited processing will not be provided. (b) The bureau must consult with the Office of the Solicitor before it denies a E:\FR\FM\13SEP1.SGM 13SEP1 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules 2.28 fee waiver request or withholds all or part of a requested record. § 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 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 § 2.23(b). 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 how much information was deleted, unless doing so would harm an interest protected by the FOIA exemption used to withhold the information; and (c) Indicating where the deletion is made, if technically feasible, and the FOIA exemption used to withhold the information. 5. Subparts F through I are added to Part 2 to read as follows: Subpart F—Handling Confidential Information 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? VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 What information will the bureau include when it notifies a submitter of a request for their possibly confidential information? 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 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? PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 56597 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 § 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 § 2.27 and § 2.28; and (2) Provide the submitter an opportunity to object to a decision to disclose the information under § 2.30 and § 2.31. § 2.27 When will the bureau notify a submitter of a request for their possibly confidential information? (a) Except as outlined in § 2.29, 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; 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. § 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 E:\FR\FM\13SEP1.SGM 13SEP1 56598 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules 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 § 2.30 and § 2.31; (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 § 2.27(b))—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 § 2.28(d) will create a presumption that the submitter has no objection to the disclosure of the information in question. § 2.29 When will the bureau not notify a submitter of a request for their possibly confidential information? The notice requirements of § 2.28 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. that good cause exists to accept the late response. § 2.34 Will a submitter be notified of a FOIA lawsuit? § 2.31 What must a submitter include in a detailed Exemption 4 objection statement? If you file a lawsuit seeking to compel the disclosure of confidential information, the bureau must promptly notify the submitter. (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: (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). § 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 2.30 How and when may a submitter object to the disclosure of confidential information? § 2.33 What if the bureau determines it will disclose information over the submitter’s objections? (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 § 2.31 for further discussion of Exemption 4 objection statements). (b) A submitter who does not respond within the time period specified under § 2.28(d) 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, If the bureau decides to disclose information over the objection of a submitter, the bureau must notify the submitter by certified 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. VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 § 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. § 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 § 2.37 fees? What general principles govern (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, the bureau cannot assess search fees for your FOIA request, unless unusual or exceptional circumstances apply. E:\FR\FM\13SEP1.SGM 13SEP1 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules § 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 56599 bureau may ask you to provide additional information (see § 2.51). (c) See § 2.70 for the definitions of each of these fee categories. § 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 Commercial use requester .. Educational and non-commercial scientific institutions. Representative of news media requester. All other requesters ............. Yes .................................... No ...................................... Yes .................................... No ...................................... Yes. Yes (first 100 pages, or equivalent volume, free). No ...................................... No ...................................... Yes (first 100 pages, or equivalent volume, free). Yes (first 2 hours free) ...... No ...................................... Yes (first 100 pages, or equivalent volume, free). (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. § 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 § 2.39 or has been granted under § 2.45 or § 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 2.41 pay? What search fees will you have to (a) The bureau will charge search fees for all requests, subject to the restrictions of § 2.39 and § 2.40(a). 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); VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 Duplication fees (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 in subsection (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. § 2.42 What duplication fees will you have to pay? (a) The bureau will charge duplication fees, subject to the restrictions of § 2.39 and § 2.40(a). (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 § 2.41(b). (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 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 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 same as those charged for a search under § 2.41(b). § 2.43 pay? What review fees will you have to (a) The bureau will charge review fees if you make a commercial-use request, subject to the restrictions of § 2.39 and § 2.40(a). (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 § 2.41(b). (e) The bureau can charge review fees even if the record(s) reviewed ultimately is not disclosed. § 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, obtaining research data under § 2.69, 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 E:\FR\FM\13SEP1.SGM 13SEP1 56600 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules § 2.47 How will the bureau notify you if it denies your fee waiver request? advance payment before proceeding. See § 2.49 and § 2.50. § 2.45 When will the bureau waive fees? mstockstill on DSK4VPTVN1PROD with PROPOSALS (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 § 2.48) 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 § 2.51). (d) The burden is on you to justify entitlement to a fee waiver. Requests for fee waivers are decided on a case-bycase basis. 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. Your fee waiver request must address the criteria referenced in this section. (e) Discretionary fee waivers are addressed in § 2.56. (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. § 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 § 2.6). (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. VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 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 § 2.48. (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 § 2.57, within 30 workdays after the date of the fee waiver denial letter. § 2.48 How will the bureau evaluate your fee waiver request? (a) In deciding whether your fee waiver request meets the requirements of § 2.45(a)(1), 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; PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 (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 unlikely 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 § 2.45(a)(2), 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. § 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 § 2.54). E:\FR\FM\13SEP1.SGM 13SEP1 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules (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; (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. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 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: (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 § 2.53), 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. VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 (d) A bureau request for payment before copies of documents are sent to you is not an advance payment. (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. § 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 § 2.16). (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 hear from you within 20 workdays, it will presume that you are no longer interested and will close the file on the request. § 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. § 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. PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 56601 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. § 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. (b) The bureau may presume that multiple requests of this type made within a 30-day period have been made to avoid fees. (c) The bureau will 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. (d) The bureau will not aggregate multiple requests involving unrelated matters. § 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 statutorilybased fee schedule, the bureau will inform you whom to contact to obtain the records. § 2.56 May the bureau waive your fees at its discretion? (a) The bureau may waive 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 E:\FR\FM\13SEP1.SGM 13SEP1 56602 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules 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. Subpart H—Administrative Appeals mstockstill on DSK4VPTVN1PROD with PROPOSALS § 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 § 2.16 or, if applicable, § 2.18; or (8) The bureau denied, or was late in responding to a request for expedited processing filed under the procedures in § 2.20. (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 § 2.63). (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 VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 must be received by the FOIA Appeals Officer within the time limits in § 2.58 or they will not be processed. § 2.58 How long do you have to file an appeal? (a) Appeals covered by § 2.57(a)(1), (2), (3), (4), and (5) must be received by the FOIA Appeals Officer no later than 30 workdays from the date of the final response. (b) Appeals covered by § 2.57(a)(6) 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 § 2.57(a)(7) may be filed any time after the time limit for responding to the request has passed. (d) Appeals covered by § 2.57(a)(8) 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. § 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 § 2.20 or § 2.45 and § 2.48 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. PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 § 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 all 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. § 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. § 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 § 2.59. (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. § 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 § 2.20 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 and process it ahead of other pending appeals. E:\FR\FM\13SEP1.SGM 13SEP1 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules § 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. 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. Subpart I—General Information § 2.69 How will a bureau handle a request for federally-funded research data? § 2.65 (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. 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. § 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. § 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 before filing a FOIA request. The material you seek may be immediately available electronically at no cost. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 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 VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 § 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. PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 56603 Your status as profitmaking or nonprofitmaking 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 § 2.38 and § 2.39, that agencies place you in for the E:\FR\FM\13SEP1.SGM 13SEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 56604 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules 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 § 2.69 only, when: (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 § 2.69 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 nonprofit organizations. The term may include commercial organizations, foreign or international organizations (such as agencies of the United Nations) which are recipients, subrecipients, or VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 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 § 2.69 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 PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 (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-bypage 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. 6. Appendices A through E to Part 2 are removed. 7. Appendix C is redesignated as Appendix A and revised to read as follows. E:\FR\FM\13SEP1.SGM 13SEP1 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Proposed Rules 56605 Appendix A to Part 2—Fee Schedule Types of records Fee (1) Physical records: Pages no larger than 8.5 × 14 inches, when reproduced by standard office copying machines or scanned into an electronic format Color copies of pages no larger than 8.5 × 11 inches Pages larger than 8.5 × 14 inches Color copies of pages no larger than 11 × 17 inches Photographs and records requiring special handling (for example, because of age, size, or format) (2) Electronic records: Charges for services related to processing requests for electronic records (3) Certification ................................................................................................................................................... Each certificate of verification attached to authenticate copies of records (4) Postage: Charges that exceed the cost of first class postage, such as express mail or overnight delivery (5) Other Services: Cost of special services or materials, other than those provided for by this fee schedule, when requester is notified of such costs in advance and agrees to pay them 8. Appendix F to Part 2 is redesignated as Appendix B to Part 2. [FR Doc. 2012–22391 Filed 9–12–12; 8:45 am] BILLING CODE 4310–10–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 90 [WT Docket Nos. 12–64 and 11–110; Report No. 2959] Petition for Reconsideration of Action in Rulemaking Proceeding; Correction Federal Communications Commission. ACTION: Petition for reconsideration; correction. AGENCY: The Federal Communications Commission published a summary in mstockstill on DSK4VPTVN1PROD with PROPOSALS SUMMARY: VerDate Mar<15>2010 17:53 Sep 12, 2012 Jkt 226001 the Federal Register of August 31, 2012, regarding a Petition for Reconsideration filed in a rulemaking proceeding. The summary included the incorrect deadline for filing replies to an opposition to the Petition. This document revises the deadline for replies to an opposition to the Petition. DATES: Oppositions to the Petition must be filed on or before September 17, 2012. Replies to an opposition must be filed on or before September 27, 2012. FOR FURTHER INFORMATION CONTACT: Brian Regan, Mobility Division, Wireless Telecommunications Bureau, brian.regan@fcc.gov <mailto:brian.regan@fcc.gov>, (202) 418–2849. SUPPLEMENTARY INFORMATION: The Federal Communications Commission (FCC) published a summary of a Petition for Reconsideration of a rulemaking PO 00000 Frm 00041 Fmt 4702 Sfmt 9990 $.15 per page ($.30 for doublesided copying). $.90 per page. Direct cost to DOI. $1.50 per page. Direct cost to DOI. Direct cost to DOI. Fee. $.25. Postage or delivery charge. Direct cost to DOI. proceeding in the Federal Register at 77 FR 53163, August 31, 2012. The deadlines for filing oppositions to the Petition and replies to oppositions to the Petition were listed in the summary. The deadline in the summary for replies to an opposition is incorrect. In the summary published in 77 FR 53163 on August 31, 2012, in FR Doc. No. 2012–21478, make the following correction. On page 53163, in the third column, correct the second sentence in the DATES section to read: Replies to an opposition must be filed on or before September 27, 2012. Federal Communications Commission. Gloria J. Miles, Federal Register Liaison, Office of the Secretary, Office of Managing Director. [FR Doc. 2012–22562 Filed 9–12–12; 8:45 am] BILLING CODE 6712–01–P E:\FR\FM\13SEP1.SGM 13SEP1

Agencies

[Federal Register Volume 77, Number 178 (Thursday, September 13, 2012)]
[Proposed Rules]
[Pages 56592-56605]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22391]


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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: Proposed rule.

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    This rule would revise the regulations that 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: Comments must be submitted on or before November 13, 2012.

ADDRESSES: You may submit comments on the rulemaking by either of the 
methods listed below. Please use Regulation Identifier Number 1093-AA15 
in your message.
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions on the Web site for submitting comments.
    2. U.S. mail, courier, or hand delivery: Executive Secretariat--
FOIA regulations, Department of the Interior, 1849 C Street NW., 
Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Cindy Cafaro, Office of Executive 
Secretariat and Regulatory Affairs, 202-208-5342.

SUPPLEMENTARY INFORMATION: 

I. Why We're Publishing This Rule and What It Does

    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 will expressly be permitted under Sec.  
2.45. Proposed revisions of the Department's fee schedule can be found 
at Sec.  2.42, Sec.  2.49(a)(1), and Appendix A. The duplication charge 
for physical records or scanning records will increase from thirteen to 
fifteen cents a page. The amount at or below which the Department will 
not charge a fee will increase from $30.00 to $50.00.

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 proposed 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 proposed 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 proposed rule does not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year. The proposed 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, the 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, the proposed 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

[[Page 56593]]

determined that this proposed 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 
proposed rule and determined that it has no potential effects on 
federally recognized Indian tribes. This proposed 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 proposed 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 proposed rule is not a significant energy action under the 
definition in Executive Order 13211. A Statement of Energy Effects is 
not required. This proposed rule will not have a significant effect on 
the nation's energy supply, distribution, or use.

11. Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 
etc.

12. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

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 proposes to amend 43 CFR subtitle A as follows:

PART 2--FREEDOM OF INFORMATION ACT; RECORDS AND TESTIMONY

    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.

    2. The heading of part 2 is revised to read as set forth above.
    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 (consisting of Sec.  
2.141), subpart K (consisting of Sec. Sec.  2.145 through 2.179), and 
subpart L(consisting of Sec. Sec.  2.180 through 2.190).
    4. Subparts A through E of Part 2 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 expedited processing?
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?
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 requests?
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'').
    (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.

[[Page 56594]]

    (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.


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). 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.
    (c) 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). If the bureau does not hear from you within 
20 workdays after asking for 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, the bureau will 
notify you that it:
    (1) Needs either an assurance that you will pay the anticipated 
fees or an advance payment (see Sec.  2.50); and
    (2) Will not be able to fully comply with your FOIA request unless 
you provide the assurance or advance payment requested.
    (c) If the bureau does not hear 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.  2.45, Sec.  2.48 
and Sec.  2.56). 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 (see Sec.  2.46 for the fee waiver criteria). 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 under the 
criteria in Sec.  2.38 and Sec.  2.39).
    (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 fee category will be determined 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).

[[Page 56595]]

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.


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 expedited processing?

    You may include a request for expedited processing, which the 
bureau will evaluate under 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.  2.4 and Sec.  2.13, 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 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.
    (2) Paragraphs (d) through (h) of this section address 
consultations and referrals that occur 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, along with the name of a contact in the 
other bureau(s) to which the referral was made.
    (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 referral and maintain a copy of the records that it 
refers; notify you of the referral in writing, unless that 
identification will itself disclose a sensitive, exempt fact; and 
provide the name of a contact at 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.
    (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 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 
another Federal agency, the bureau will return the request to you, 
advise you to submit it directly to the other agency, notify you that 
the bureau cannot comply with the request, and close the request. You 
may treat such a response as a denial of records and file an appeal, in 
accordance with the procedures in Sec.  2.59.

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) The bureaus of the Department 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 
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.
    (e) Bureaus must advise you of the track into which your request 
falls and,

[[Page 56596]]

when appropriate, will offer you an opportunity to narrow your request 
so that it can be placed in a different processing track.


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 grant or deny a FOIA request.
    (b) A consultation or referral under Sec.  2.13 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 begins no later 
than ten workdays after the date 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 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).


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) 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 that time period, you may consider the 
request denied and file an appeal under subpart H of this part.
    (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 
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. Requests must 
be submitted to 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) 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)).

Subpart E--Responses to Requests


Sec.  2.21  How will the bureau respond to requests?

    (a) The bureau will grant, partially grant, or deny the request (in 
writing) in accordance with the deadlines in subpart D of this part.
    (b) If the bureau determines that a request will take longer than 
10 workdays to process, it immediately will send you a written 
acknowledgment that includes the request's individualized tracking 
number.


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.
    (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 requests?

    (a) A bureau denies a request when it makes a decision that:
    (1) The requested record is exempt, in whole or in part;
    (2) The request does not reasonably describe the records sought;
    (3) The requested record does not exist or cannot be located;
    (4) The requested record is not readily reproducible in the form or 
format you seek;
    (5) A fee waiver, or another fee-related request, will not be 
granted; or
    (6) Expedited processing will not be provided.
    (b) The bureau must consult with the Office of the Solicitor before 
it denies a

[[Page 56597]]

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(b). 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 how much 
information was deleted, unless doing so would harm an interest 
protected by the FOIA exemption used to withhold the information; and
    (c) Indicating where the deletion is made, if technically feasible, 
and the FOIA exemption used to withhold the information.
    5. Subparts F through I are added to Part 2 to read as follows:
Subpart F--Handling Confidential Information
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?
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 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.  2.27 and Sec.  2.28; and
    (2) Provide the submitter an opportunity to object to a decision to 
disclose the information under Sec.  2.30 and Sec.  2.31.


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, 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; 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

[[Page 56598]]

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.  2.30 and Sec.  2.31;
    (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))--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) 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 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 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) 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.


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:
    (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, 
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, the bureau cannot assess search fees for your 
FOIA request, unless unusual or exceptional circumstances apply.

[[Page 56599]]

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).
    (c) See Sec.  2.70 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, or
 scientific institutions.                                                             equivalent volume, free).
Representative of news media         No....................  No....................  Yes (first 100 pages, or
 requester.                                                                           equivalent volume, free).
All other requesters...............  Yes (first 2 hours      No....................  Yes (first 100 pages, or
                                      free).                                          equivalent volume, free).
----------------------------------------------------------------------------------------------------------------

     (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 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.  2.39 and Sec.  2.40(a). 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 in subsection (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.  2.39 and Sec.  2.40(a).
    (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).
    (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 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).


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.  2.39 and Sec.  2.40(a).
    (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).
    (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, obtaining research data under Sec.  2.69, 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

[[Page 56600]]

advance payment before proceeding. See Sec.  2.49 and Sec.  2.50.


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) 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).
    (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. 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. 
Your fee waiver request must address the criteria referenced in this 
section.
    (e) Discretionary fee waivers are addressed in Sec.  2.56.
    (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.


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).
    (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.
    (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, 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), 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 unlikely 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), 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).

[[Page 56601]]

    (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;
    (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:
    (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), 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) A bureau request for payment before copies of documents are 
sent to you is not an advance payment.
    (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).
    (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 hear 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.
    (b) The bureau may presume that multiple requests of this type made 
within a 30-day period have been made to avoid fees.
    (c) The bureau will 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.
    (d) 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 your fees at its discretion?

    (a) The bureau may waive 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

[[Page 56602]]

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.

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 processing filed under the procedures in Sec.  2.20.
    (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).
    (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 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), (2), (3), (4), and (5) 
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) 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) 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) 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.  2.45 and Sec.  2.48 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 all 
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.
    (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 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 and process it 
ahead of other pending appeals.

[[Page 56603]]

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 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.  
2.38 and Sec.  2.39, that agencies place you in for the

[[Page 56604]]

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 only, when:
    (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 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 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.
    6. Appendices A through E to Part 2 are removed.
    7. Appendix C is redesignated as Appendix A and revised to read as 
follows.

[[Page 56605]]

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
     when reproduced by standard office       double-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
(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
------------------------------------------------------------------------

    8. Appendix F to Part 2 is redesignated as Appendix B to Part 2.
[FR Doc. 2012-22391 Filed 9-12-12; 8:45 am]
BILLING CODE 4310-10-P