NARA Records Subject to FOIA, 56500-56513 [2014-22186]

Download as PDF 56500 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations and labeling requirements in accordance with § 160.064–3(a). At a minimum, all labels must include— (1) Size information, as appropriate; (2) The Coast Guard approval number; (3) Manufacturer’s contact information; (4) Model name/number; (5) Lot number, manufacturer date; and (6) Any limitations or restrictions on approval or special instructions for use. (b) Durability of marking. Marking must be of a type which will be durable and legible for the expected life of the device. ■ 20. Amend § 160.076–5 as follows: ■ a. Remove the parenthecial ‘‘(I, II, or III)’’ from the definition of ‘‘Performance type’’; ■ b. Remove the definition of ‘‘PFD Approval Type’’; and ■ c. Revise the definitions of ‘‘Conditional approval’’ to read as follows: § 160.076–5 Definitions. * * * * * Conditional approval means a PFD approval which has condition(s) with which the user must comply in order for the PFD to be counted toward meeting the carriage requirements for the vessel on which it is being used. * * * * * § 160.076–7 [Removed and Reserved] 21. Remove and reserve § 160.076–7. 22. Amend § 160.076–9 as follows: a. In paragraph (a), remove the words ‘‘is categorized as a Type V PFD and’’; and ■ b. Revise paragraph (b) to read as follows: ■ ■ ■ § 160.076–9 Conditional approval. * * * * * (b) PFDs not meeting the performance specifications in UL 1180 (incorporated by reference, see § 160.076–11) may be conditionally approved when the Commandant determines that the performance or design characteristics of the PFD make such classification appropriate. asabaliauskas on DSK5VPTVN1PROD with RULES § 160.076–13 [Amended] 23. Amend § 160.076–13 as follows: a. Remove paragraph (c)(3); and b. Redesignate paragraphs (c)(4), (5), (6), (7), (8), and (9) as paragraphs (c)(3), (4), (5), (6), (7), and (8), respectively. ■ ■ ■ § 160.076–23 [Amended] 24. Amend § 160.076–23(a)(1) by removing the words ‘‘applicable to the PFD performance type for which approval is sought’’. ■ VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 § 160.076–25 [Amended] 25. Amend § 160.076–25(b) by removing the words ‘‘that are applicable to the PFD performance type for which approval is sought’’. ■ 26. Revise § 160.076–39 to read as follows: ■ § 160.076–39 Marking. approved under subpart 160.064 of this chapter if the vessel carries exposure suits or exposure PFDs, in accordance with § 169.551. Dated: September 15, 2014. J. G. Lantz, Director of Commercial Regulations and Standards, U.S. Coast Guard. Each inflatable PFD must be marked as specified in UL 1180 (incorporated by reference, see § 160.076–11). At a minimum, all labels must include— (a) Size information, as appropriate; (b) The Coast Guard approval number; (c) Manufacturer’s contact information; (d) Model name/number; (e) Lot number, manufacturer date; and (f) Any limitations or restrictions on approval or special instructions for use. [FR Doc. 2014–22373 Filed 9–19–14; 8:45 am] § 160.077–31 AGENCY: [Amended] 27. Amend § 160.077–31 as follows: a. In paragraph (c), remove the words ‘‘Type [II, III, or V, as applicable] PFD’’; and ■ b. In paragraph (d), remove the words ‘‘Type [‘‘I’’, ‘‘V’’, or ‘‘V Work Vest Only’’, as applicable] PFD’’. ■ ■ § 160.176–23 [Amended] 28. Amend § 160.176–23 as follows: a. In paragraph (c), remove the words ‘‘Type V PFD-’’ and ‘‘in lieu of (see paragraph (f) of this section for exact text to be used here)’’; and ■ b. Remove paragraph (f). ■ ■ PART 169—SAILING SCHOOL VESSELS 29. The authority citation for part 169 continues to read as follows: ■ Authority: 33 U.S.C. 1321(j); 46 U.S.C. 3306, 6101; Pub. L. 103–206, 107 Stat. 2439; E.O. 11735, 38 FR 21243, 3 CFR, 1971–1975 Comp., p. 793; Department of Homeland Security Delegation No. 0170.1; § 169.117 also issued under the authority of 44 U.S.C. 3507. 30. Amend § 169.539 as follows: a. In the introductory text, remove the word ‘‘either’’; ■ b. In paragraph (a), remove the words ‘‘A Type I approved’’ and add, in their place, the word ‘‘Approved’’, and remove the second use of the word ‘‘or’’; ■ c. In paragraph (b), remove the words ‘‘a Type V approved’’ and add, in their place, the word ‘‘Approved’’; and ■ d. Revise paragraph (c) to read as follows: ■ ■ § 169.539 Type required. * * * * * (c) Approved under subparts 160.047, 160.052, or 160.060 of this chapter or PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 BILLING CODE 9110–04–P NATIONAL ARCHIVES AND RECORDS ADMINISTRATION 36 CFR Part 1250 [FDMS No. NARA–14–0003; Agency No. NARA–2014–057] RIN 3095–AB73 NARA Records Subject to FOIA National Archives and Records Administration. ACTION: Final rule. NARA has revised our regulations governing Freedom of Information Act (FOIA) access to NARA’s archival holdings and NARA’s own operational records. The revisions include clarification as to which records are subject to the FOIA, NARA’s authority to grant access, and adjustments to our FOIA procedures to incorporate changes resulting from the OPEN FOIA Act of 2009, the OPEN Government Act of 2007, and the Electronic Freedom of Information Act Amendments of 1996 (E–FOIA). The rule affects individuals and organizations that file FOIA requests for access to NARA operational records and archival holdings. DATES: This rule is effective October 22, 2014. FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, by telephone at 301–837–3151, by email at regulations_ comments@nara.gov, or by mail at Kimberly Keravuori, Regulations Program Manager; Strategy Division (SP), Suite 4100; National Archives and Records Administration; 8601 Adelphi Road; College Park, MD 20740–6001. SUPPLEMENTARY INFORMATION: On August 4, 2013, NARA published a proposed rule in the Federal Register (78 FR 47245) for a 60-day comment period. This proposed rule clarified which records are subject to the FOIA and NARA’s authority to grant access, and made adjustments to our FOIA procedures to incorporate changes resulting from the OPEN FOIA Act of 2009, the OPEN Government Act of 2007, and the Electronic Freedom of SUMMARY: E:\FR\FM\22SER1.SGM 22SER1 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations Information Act Amendments of 1996 (EFOIA). The public comment period closed on October 4, 2013. We received four sets of comments on the proposed rule; three from individuals and one from the Center for Effective Government. We appreciate the thoughtfulness and detail reflected in the comments it received. We have reviewed all of the submitted comments, considered carefully the suggestions for revision, and made certain changes on the basis of these comments. The comments are also addressed in narrative form below. In the course of reviewing the proposed rule and addressing those comments, we also proposed to make additional substantive revisions beyond those addressed in the comments, to further clarify definitions and timing. Therefore, we published those new substantive revisions in the Federal Register (79 FR 35127) on June 19, 2014, for a second round of public comment. The comment period ended on July 21, 2014, and we received no new comments during this round. The revisions from both rounds, and the comments received, have been compiled and addressed together in this final regulation. Presumption of Openness (§ 1250.2) One comment suggested that NARA’s presumption of openness must be backed by processes that are realistic and operable. We thank the commenter for this statement. We take it to heart and believe that NARA’s core mission of providing access truly backs up the presumption of openness. However, we have re-titled and re-worded this provision to more directly reflect this. asabaliauskas on DSK5VPTVN1PROD with RULES Original Classification Authority (§ 1250.3) A commenter had several questions regarding the definition of original classification authority, including whether contractors are included, who the designated subordinates are, and what occurs if the director of ISOO position is not filled. NARA’s FOIA program follows the Executive order and the ISOO regulations at 32 CFR 2001 to define original classification authority. It is outside the scope of the FOIA program and FOIA regulations to define the term differently here, or to address any issues with that definition. We have added a reference to the ISOO regulations so that readers may understand where the definition comes from and seek any additional detail that may be contained there. VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 Mandatory Declassification Review (MDR) Versus FOIA (Originally § 1250.8(d); Now (§ 1250.10(d)) NARA’s proposed regulations included the option for requesters to consider using the Mandatory Declassification Review (MDR) process instead of FOIA if they are requesting access to national security classified information. One comment suggested that NARA should add an explanation of why a requester might choose the MDR. Although the subject is too detailed to set out in this regulation, we added a reference to our FOIA Guide, which thoroughly explains the pros and cons of each process and the differences between the two. Access to Executive Branch Records at the National Personnel Record Center (NPRC) (Originally § 1250.10(b); Now § 1250.8(b)) One commenter suggested that NARA should inform requesters where they can find information about the provisions under which the NPRC processes FOIA requests. We have added citations to the NPRC section of NARA’s Web site where information on how we process requests can be found, and a citation to the Department of Defense’s FOIA regulations for more information on its requirements. Another comment correctly pointed out that the proposed regulations at § 1250.10(b) (now (§ 1250.8(b)) erroneously referred to ‘‘§ 1250.208’’ of NARA’s regulations. However, that section does not exist. We have corrected the reference, which was § 1250.20 in our submitted draft, but seems to have inadvertently been changed when posting online. Available Records (§ 1250.12) Four comments concerned § 1250.12, ‘‘What types of records are available in NARA’s FOIA library?’’ The comments recommended that NARA add specific language to state that NARA would establish categories of records to disclose and post regularly, proactively identify and disclose additional records, release copies of records previously released under FOIA, regularly post logs describing the requests we have received and processed, and that NARA provide a subscription service (such as RSS or email) to notify individuals when new records are posted. NARA’s FOIA Library is for operational records. We have already established and disclose categories of records not only through the FOIA Library, but also through our other products. For example, we post records schedules for the Federal Government PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 56501 on our Web site and have published finding aids to our archival records in our Online Public Access (OPA) database, through which members of the public can also access some archival records. We believe more detailed language in the regulation would be confusing to researchers and requesters because NARA’s archival holdings (as opposed to operational records) are open and available, but are not all available online. We also believe the categories set forth in § 1250.12(b) (with the additions below) are sufficient to cover the records we release specifically as FOIA Library items that are not already elsewhere on NARA’s Web site. Based on the comments and suggestions, we have added language to §§ 1250.12(b)(4) and (6) to add categories of operational records that have been requested three or more times, that are likely to become the subject of subsequent FOIA requests, and NARA’s FOIA logs. In addition, we added to the presumption of openness section (§ 1250.2) a new title and a stronger statement that we proactively identify and disclose additional records whenever possible. We are not able to provide a subscription service due to insufficient manpower and resources. What To Include in FOIA Requests (§ 1250.20(c)) One commenter suggested that NARA revise this section to read ‘‘Mark both your letter and envelope, or the subject line of your email, with the words ‘FOIA Request.’ ’’ (Emphasis in original.) We have made this revision. Where To Submit (§ 1250.22) Two comments were received about § 1250.22, ‘‘Where do I send my FOIA request?’’ One comment suggested that NARA revise the proposed language to emphasize promptly rerouting requests to appropriate agency offices, to read, ‘‘Your request will be considered received when it reaches the proper office’s FOIA staff, but in any event not later than ten days after the request is first received.’’ The second comment suggested that NARA include a telephone number to call and ask for mailing addresses of NARA’s FOIA customer service centers. We have made these revisions, although with slightly different language than that proposed. In addition, to make finding the correct contact information easier, we have restructured the information into a table. How Requests Are Processed (§ 1250.26) NARA received ten comments on § 1250.26, ‘‘How will NARA process my E:\FR\FM\22SER1.SGM 22SER1 asabaliauskas on DSK5VPTVN1PROD with RULES 56502 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations FOIA request?’’ (now titled, ‘‘How does NARA process my FOIA request?’’). When addressing all of the comments related to § 1250.26, it became evident that there was a lot of confusion with regard to this section due to NARA’s multi-track processing. So we have substantially reorganized and modified the section to address both the apparent overall concerns as well as the specific comments submitted. This included breaking down the original paragraph (a) into several paragraphs; re-ordering the original paragraphs with headings so the multi-track processing is clearer; and changing some of the wording to increase clarity. One comment suggested that NARA adopt a policy to communicate with requesters by email where appropriate, and adjust the regulation accordingly. A second comment suggested revising the section to state, ‘‘NARA will acknowledge all FOIA requests as soon as possible,’’ and providing an automated acknowledgment when possible. We declined the recommendation that we respond by email unless a requester asks that we not do so. NARA receives many requests from individuals without regular email access, such as prisoners. We think it would be a burden on requesters to have to state that they do not want to correspond by email. However, we have added language to indicate that we will respond by email if a requester submits requests by email or indicates a preference for that form of communication. We also declined to revise the regulation to state we would process requests as soon as possible; instead, we retain the statutory period of 20 working days. Although we do respond as soon as possible, merely indicating ‘‘as soon as possible’’ would leave the end date open. Because of NARA’s decentralized FOIA processing, it is not feasible for us to provide an automated acknowledgment of requests at this time. Two comments suggested adding provisions to the section. One suggested adding, ‘‘Within 10 days of receiving a request, NARA will reroute requests received by any NARA FOIA office to the appropriate NARA FOIA office for the records requested. NARA will notify the requester of the office to which it rerouted the request and provide contact information for that office. If NARA reroutes a request, the time period for processing the request begins when the appropriate FOIA office receives the request, or 10 days after any NARA FOIA office first received the request, whichever is earlier.’’ The other suggested adding a description of NARA’s multi-track processing system VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 to distinguish between simple and complex tracks and to provide a requester with an opportunity to limit the scope of their request to qualify for faster processing. In response to the first comment, we added similar language to the suggested language, but placed it in § 1250.22 instead of § 1250.26. Section 1250.22 addresses where to send FOIA requests, including the office that would forward any misrouted requests to other offices, so the recommended language was more appropriate there. We did not add suggested language to include notifying the requester of the office to which a request has been forwarded. We have tried implementing this workflow in the past. However, we found that this process impeded the ability to process the request in a timely fashion. We also revised the regulation at § 1250.26 to better describe our multi-track processing, including making substantial revisions to the organization and wording of the part. Two additional comments recommended adding to the section to address clarification and contact processes before denying requests. One suggested adding, ‘‘If NARA has any uncertainty regarding an aspect of the request, NARA will attempt to communicate with the requester to clarify the scope of his or her FOIA request.’’ The second comment proposed, ‘‘Requests must reasonably describe the records sought. If NARA determines that a request does not reasonably describe the records sought, NARA will contact the requester to seek clarification. NARA may toll the time limits for processing in order to make one such request, in which case the time limits resume upon NARA’s receipt of a response from the requester. NARA will provide at least 30 days for the requester to respond to a request for clarification. If the request has not been clarified after 30 days, NARA will deny the request for not reasonably describing the records sought and will provide the requester with the opportunity to appeal under the procedures in Subpart D.’’ An additional comment also suggested that NARA should rigorously attempt to contact requesters through different methods of communication to confirm that any requests should be administratively closed prior to doing so. We added the following language to address the first comment and the first part of the second comment, at § 1250.26(b): ‘‘Requests must reasonably describe the records sought. If we determine that a request does not reasonably describe the records sought, or if we are uncertain about another aspect of the request, we contact you to PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 ask for clarification.’’ At § 1250.26(d), we added language about tolling and the time period in which a requester must respond to a clarification request. However, we provided the requester with 60 calendar days in which to respond instead of the recommended 30 calendar days. This has been NARA’s practice and we believe the additional time helps to ensure that requesters have sufficient time to respond. This longer period is also in line with five other cabinet-level departments. NARA does rigorously attempt to contact requesters, using different methods when possible. We feel the 60 days provides more opportunity to contact requesters who don’t initially respond. In addition, NARA’s Office of Government Information Services (OGIS) has observed some issues with appeal timeliness at agencies that have 30-day appeal windows. Another comment recommended that we revise the section to prevent the destruction of requested records by adding, ‘‘NARA will maintain copies of records that are the subject of a pending request, appeal, or lawsuit under the FOIA. NARA will also preserve all correspondence pertaining to FOIA requests until disposition is authorized under the National Archives and Records Administration’s General Records Schedule 14.’’ We agree with this proposal and have included a new section, § 1250.14, to reflect this request. One comment suggested that NARA revise a sentence in § 1250.26(b)(1) (now § 1250.26(g)(1)) to state that unusual circumstances include the need to ‘‘search for and collect the records from field facilities, other than the facility to which the requester originally sent the request.’’ (Emphasis in original) We declined to adopt this suggestion because it does not accurately reflect the situation in which collection from field facilities would occur. Instead, we revised the provision to apply unusual circumstances to requests involving one or more field facilities. The last two comments involved suggestions regarding the Presidential Records Act, one suggesting that NARA include a citation to the implementing Executive order, and the other asking questions about the length of time for the Presidential notification period. We have chosen not to include the citation to the Executive order, or to state in the regulation the length of the notification period (which is currently 30 days). Because the Executive order can change with Presidential administrations, adding a citation (which may be incorrect in the next administration) or time period here would not provide additional clarity in the long term. E:\FR\FM\22SER1.SGM 22SER1 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations Instead, we let requesters know the current notification period in our acknowledgment letter. Requesters can also look up the appropriate notification period in the applicable Executive order at the time of their request. Expedited Processing (§ 1250.28) One comment suggested that NARA should revise the proposed regulations at the second sentence of § 1250.28(a) to state, ‘‘We will grant expedited processing if a requester can show: . . . .’’ (Emphasis in original) In response, we have changed the provision to read: ‘‘NARA processes requests and appeals on an expedited basis whenever we determine that one or more of the following criteria exist: . . . .’’ Responding to Requests (§ 1250.30) Five comments recommended revisions to § 1250.30, ‘‘How will NARA respond to my request?’’ (now titled, ‘‘How does NARA respond to my request?’’). One suggested adding a statement that NARA will use plain language in its communications. Another suggested releasing records on a rolling basis if the request involves voluminous material or multiple locations. And the third comment suggested language that NARA would, whenever possible, include the quantity of withheld information, and the exemption involved, on any record in which information is deleted or redacted. The fourth comment suggested striking the word ‘‘may’’ from § 1250.30(b) to state that NARA denial letters will explain which exemptions apply. NARA adopted all of these suggestions. The last comment suggested that NARA include in the final rule a reference to the legal obligation to release segregable releasable portions of otherwise exempt records. NARA has done so in § 1250.30(c). asabaliauskas on DSK5VPTVN1PROD with RULES Copy Format (§ 1250.38) One commenter suggested that NARA should explain why it proposes to delete § 1250.38 of the regulations. NARA did not intend to delete this section and has added it back in. Fees and Fee Waivers (§§ 1250.50, 1250.52, 1250.54, 1250.56) The nature of the comments received on Subpart C (fees) and other sections demonstrated confusion between archival and operational records, which is an issue unique to NARA in the FOIA realm. As a result, we have restructured this subpart to further emphasize the difference between archival and operational records. We also revised the table of contents to reflect this change. VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 In addition, the definitions at §§ 1250.3(a) and (l) have been amended to further emphasize the difference between the two. We have also made revisions based on specific comments. Four comments involved fees, addressing §§ 1250.50, 1250.52, and 1250.54. One comment suggested that NARA not charge any fees if the total costs for processing the request are $50 or less. We have considered the suggestion, but decline to raise the no-fee threshold to $50. We feel this is excessive, particularly in a time period in which Federal budgets are being cut and taxpayers are concerned about the use of their money. We feel it would be fiscally irresponsible to allow free copies to this extent. However, we agree that the previous $15 threshold is out of date, and have thus raised the limit to $25. This amount is also in line with requesters’ authorized 100 free pages of copies. The second and third comments both suggested that NARA reduce its duplication fees to $0.10 per page. We also decline to adopt this suggestion. NARA self-serve copiers are all set to charge the standard $0.25 per copy, and the machines charge this rate for selfserve copies, whether the copies are part of a FOIA request or not. (See 36 CFR 1258.6 for information about how these rates are set.) NARA cannot alter that fee for FOIA self-serve copies. Because a person can make self-serve copies for $0.25, it is unreasonable to charge the same or less for copies when NARA staff makes the copies. As a result, NARA charges $0.05 for the convenience of having a staff member make copies instead, raising the cost to $0.30 when we make copies. The fourth comment suggested that NARA not charge a processing fee if it takes longer than the time limit in 5 U.S.C. 552(a)(6) to process that request. We revised the regulation to include this provision. Three additional comments addressed fee waivers in § 1250.56. Two comments suggested that NARA revise the proposed language to state that, in addition to determining substantial public interest in release of the documents, it will determine if the request ‘‘primarily’’ furthers the requester’s commercial interests before denying a fee waiver. The third comment suggested adding language to provide NARA with discretion to waive fees in additional circumstances. We revised these provisions as suggested. Appeals (§ 1250.72) Three comments were submitted on § 1250.72, ‘‘How do I file an appeal.’’ One comment suggested stating that all appeals must be received within 60 days PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 56503 of receipt of NARA’s denial letter. We have agreed to make this change despite the fact that we have encountered no problems with people being able to meet the current 35-day time period for appeals. The second comment suggested adding, ‘‘For appeals submitted via mail, you should mark both your letter and envelope with the words ‘FOIA Appeal.’ If possible, include the tracking number for your request or a copy of your initial request and NARA’s denial.’’ We have made this revision, except for the words ‘‘if possible.’’ If appellants do not submit a tracking number or copy of the original request, we will not be able to determine which request they are appealing. One or the other of these items must be included for identification. The final comment suggested that NARA change the appeal time from calendar days to working days because the appeal would not be able to be received if we were not working. We decline to make the change. This provision sets out the timeframe within which a requester must submit an appeal. If we are not working on the date it arrives, it will still be postmarked, or have an email or fax date recorded, and thus be deemed to have been submitted on time. Appeal Processing (§ 1250.74) One commenter stated that ‘‘appropriate designated appeal official’’ was not clear enough to determine which official is intended. We have modified the section to state: ‘‘We respond to your appeal within 20 working days after the appeal official designated in 36 CFR 1250.72(a)(1)(i) and (ii) receives it.’’ That section of the regulation includes a list of specific appeal officials. An additional commenter stated that they do not believe it is legal under 5 CFR § 214.402(c)(1) for NARA’s Deputy Archivist to be delegated the authority to make FOIA appellate adjudications under 36 CFR 1250.72(a)(1)(ii) and 36 CFR 1250.74(a)(1) when the Deputy Archivist ‘‘most certainly has responsibility for or substantial involvement in the determination or public advocacy of major controversial FOIA polices of the NARA.’’ Based on regulations and the Open Government Act of 2007, NARA’s Chief FOIA Officer is responsible for the FOIA program and policies, not the Deputy Archivist. The Chief FOIA Officer for NARA is the General Counsel. Therefore, it is appropriate for the Deputy Archivist to handle appellate adjudications. E:\FR\FM\22SER1.SGM 22SER1 asabaliauskas on DSK5VPTVN1PROD with RULES 56504 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations Special Situations and Confidential Commercial Information (Subpart E) (§§ 1250.80–1250.82) Six comments were received regarding Subpart E—Special Situations. One suggested re-titling the subpart ‘‘Confidential Commercial Information’’ because the sections all involve such information. We have changed the title as suggested. One comment suggested revising the proposed language in § 1250.80 to require submitters to proactively designate claimed confidential business information within 30 days, that such designations are not binding on NARA, and that blanket designations by page will not be considered a good faith effort. We have made revisions to the provisions to address these concerns and additional comments about the clarity of the language. It now reads: ‘‘At the time of submission, a submitter of business information is expected to designate, by appropriate markings, any portions of its submission that it considers to be protected from disclosure under FOIA Exemption 4. Although these portions may be designated, this does not preclude NARA from conducting a full FOIA review of such documents if we receive a FOIA request for those records. These designations will expire 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period, or NARA extends the designation period at its discretion.’’ A second comment suggested revising § 1250.82 to require substantiation for claims of confidential business information in the form of a detailed written statement specifying grounds for withholding and showing why that information should not be released. We have added language to require justification but have declined to use the detailed language suggested. We believe the review process described in § 1250.82(a) (now split into subparagraphs (a) and (b) for clarity) addresses these portions of the comment and that § 1250.82(e) already indicates that submitters must justify objections, by stating that they must submit the basis for the objection. However, we have added additional language: ‘‘We provide the submitter with 20 working days from the date of NARA’s notice to object to the release and to explain a basis for the objection, including justification and support for the claim.’’ Another comment asked if NARA would let requesters know when a longer designation period would expire. NARA will not do this because we do not track these expiration dates. These VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 dates are assessed at the time a request for the records is made, based on the original submission date or extension date. The commenter also stated that the language ‘‘a reasonable time thereafter’’ was too vague. We have removed this language. And this commenter asked if the NARA FOIA Officer is a filled and funded position. Although this question is outside the scope of this regulation, NARA’s FOIA officer is a filled and funded position. The final comment suggested adding a new section, § 1250.83, to streamline notice of requests to submitters, to read, ‘‘NARA will not notify a submitter under § 1250.82 (emphasis in original) if it determines that: (a) The information must be withheld under FOIA’s exemptions; (b) The information lawfully has been published or made available to the public; (c) Disclosure of the information is required by statute (other than FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600; or (d) The designation made by the submitter appears obviously frivolous— except that, in such a case, the agency will, no fewer than five working days prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.’’ We have revised the regulation essentially as suggested with respect to paragraphs (a), (b), and (c), but placed it under § 1250.82(a) instead. However, we have not accepted the proposed paragraph (d) because it would still require notification to the submitter. Regulatory Review Information This rule is not a significant regulatory action for the purposes of E.O. 12866 and has been reviewed by the Office of Management and Budget (OMB). It is also not a major rule as defined in 5 U.S.C. Chapter 8, Congressional Review of Agency Rulemaking. As required by the Regulatory Flexibility Act, we certify that this rule will not have a significant impact on a substantial number of small entities. It makes only clarifications to the already-existing processes by which individuals or entities request access to NARA records, and updates them to reflect changes in Federal requirements to make access easier. List of Subjects in 36 CFR Part 1250 Administrative practice and procedure, Archives and records, Confidential business information, Freedom of information, Information, Records, Reporting and recordkeeping requirements. PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 For the reasons stated in the preamble, the National Archives and Records Administration revises part 1250 to read as follows: PART 1250—NARA RECORDS SUBJECT TO FOIA Subpart A—General Information About Freedom of Information Act (FOIA) Requests Sec. 1250.1 Scope of this part. 1250.2 Presumption of Openness and Proactive Disclosures. 1250.3 Definitions. 1250.4 Who can file a FOIA request? 1250.6 Does FOIA apply to all of the records at NARA? 1250.8 Does NARA provide access under FOIA to all the executive branch records housed at NARA facilities? 1250.10 Do I need to use FOIA to gain access to records at NARA? 1250.12 What types of records are available in NARA’s FOIA library? 1250.14 Preservation of FOIA-related materials. Subpart B—How To Request Records Under FOIA 1250.20 What do I include in my FOIA request? 1250.22 Where do I send my FOIA request? 1250.24 Does NARA accept electronic FOIA requests? 1250.26 How does NARA process my FOIA request? 1250.27 How does NARA determine estimated completion dates for FOIA requests? 1250.28 How do I request expedited processing? 1250.30 How does NARA respond to my request? 1250.32 How may I request assistance with the FOIA process? 1250.38 In what format does NARA provide copies? Subpart C—Fees 1250.50 General information on fees for all FOIA requests. 1250.51 What fee policies apply to archival records? 1250.52 What fee policies apply to operational records? 1250.53 What is the FOIA fee schedule for operational records? 1250.54 How does NARA calculate FOIA fees for operational records? 1250.56 How may I request a fee waiver for operational records? Subpart D—Appeals 1250.70 When may I appeal NARA’s FOIA determination? 1250.72 How do I file an appeal? 1250.74 How does NARA process appeals? Subpart E—Confidential Commercial Information 1250.80 How does a submitter identify records containing confidential commercial information? E:\FR\FM\22SER1.SGM 22SER1 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations 1250.82 How does NARA process FOIA requests for confidential commercial information? Authority: 44 U.S.C. 2104(a) and 2204(3)(c)(1); 5 U.S.C. 552; E.O. 13526; E.O. 12600; 52 FR 23781; 3 CFR, 1987 Comp., p. 235. Subpart A—General Information About Freedom of Information Act (FOIA) Requests § 1250.1 Scope of this part. This part implements the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, for NARA operational records and archival records that are subject to FOIA. This part contains the rules that we follow to process FOIA requests, such as the amount of time we have to make a determination regarding the release of records and what fees we may charge. Other NARA regulations in 36 CFR parts 1254 through 1275 provide detailed guidance for conducting research at NARA. § 1250.2 Presumption of Openness and Proactive Disclosures. NARA, consistent with its core mission, has always been committed to providing public access to as many of our records as possible. We therefore continue to affirmatively release and post records, or descriptions of such records, on our Web site at www.archives.gov in the absence of any FOIA request. We proactively identify and make discretionary disclosures of additional records of interest to the public whenever possible. asabaliauskas on DSK5VPTVN1PROD with RULES § 1250.3 Definitions. The following definitions apply to this part: (a) Archival records means permanently valuable records of the United States Government that have been transferred to the legal custody of the Archivist of the United States. These are historical documents and do not include NARA operational records as defined in paragraph (l) of this section. (b) Commercial use request means a request that asks for information for a use or purpose that furthers a commercial, trade, or profit interest of the requester or the person or entity on whose behalf the request is made. (c) Confidential commercial information means records provided by a submitter that may contain trade secrets or confidential business or financial information that is exempt from release under the FOIA because disclosure could reasonably be expected to cause the submitter substantial competitive harm. VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 (d) Educational institution request means a request made by a school, university, or other educational institution that operates a program of scholarly research. To qualify for this category, a requester must show that the request is authorized by, and is made under the auspices of, a qualifying institution and that the records are sought to further scholarly research, not for a commercial use. (e) Expedited processing means the process set forth in the FOIA that allows requesters to ask for faster processing of their FOIA request if they can demonstrate a specific compelling need. (f) Fee category means one of the four categories set forth in the FOIA to determine whether a requester will be charged fees for search, review, and duplication. The categories are: Commercial requesters; non-commercial scientific or educational institutions; news media requesters; and all other requesters. (g) Fee waiver means the waiver or reduction of fees if a requester is able to demonstrate that certain standards set forth in the FOIA are satisfied, including that the information is in the public interest and is not requested for a commercial interest. (h) FOIA Public Liaison means an agency official who is responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes. (i) FOIA request means a written request, that cites the Freedom of Information Act, for access to NARA operational records, records of the executive branch of the Federal Government held by NARA, or Presidential or Vice Presidential records in NARA’s custody that were created after January 19, 1981. (j) Freedom of Information Act (FOIA) means the law codified at 5 U.S.C. 552 that provides the public with the right to request Government records from Federal executive branch agencies. (k) Non-commercial scientific institution request means a request submitted by an institution that is not operated on a basis that furthers the commercial, trade, or profit interests of any person or organization, and which is operated solely for the purpose of conducting scientific research. (l) Operational records means records that NARA creates or receives in carrying out our mission and responsibilities as an executive branch agency. This does not include archival records as defined in paragraph (a) of this section. (m) Original Classification Authority means the authority to classify PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 56505 information as National Security Information at creation, as granted by the President of the United States in Executive Order 13526, section 1.3, and defined in 32 CFR part 2001. (n) Other request means a request submitted by any individual whose request does not qualify as a commercial-use request, representative of the news media request (including a request made by a freelance journalist), or an educational or non-commercial scientific institution request. (o) Presidential records means the official Presidential and Vice Presidential records created or received by the President, the Vice President, or the White House staff since January 20, 1981, and covered under the Presidential Records Act, 44 U.S.C. 2201–2207. Presidential Executive orders also apply to these records. (p) Presidential Records Act (PRA) means the law that, in part, governs access to Presidential and Vice Presidential records and is codified at 44 U.S.C. 2201–2207 and Part 1270 of these regulations. The PRA contains six restrictions that authorize NARA to withhold information, which apply for 12 years after a President leaves office. Four of the PRA restrictions are identical to FOIA Exemptions 1, 3, 4, and 6. Two relate to appointments to Federal office and confidential communications requesting or submitting advice between the President and his advisers, or between and among such advisers. The PRA also excludes application of FOIA Exemption 5. (q) Representative of the news media means a person or entity that is organized and operated to publish or broadcast news to the public, and that actively gathers information of potential interest to a segment of the public, uses its editorial skills to turn raw materials into a distinct work, and distributes that work to an audience. The term ‘‘news’’ means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast news to the public at large and publishers of periodicals, including print and online publications that disseminate news and make their products available through a variety of means to the general public. We consider requests for records that support the news-dissemination function of the requester to be a noncommercial use. We consider ‘‘freelance’’ journalists who demonstrate a solid basis for expecting publication through a news media entity as working for that entity. A publishing contract provides the clearest evidence that a journalist expects publication; however, E:\FR\FM\22SER1.SGM 22SER1 56506 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations we also consider a requester’s past publication record. We decide whether to grant a requester media status on a case-by-case basis, based on the requester’s intended use. (r) Review means examining documents responsive to a request to determine whether any portions of them are exempt from disclosure. Review time includes processing any record for disclosure (i.e., doing all that is necessary to prepare the record for disclosure), including redacting the record and marking the appropriate FOIA exemptions. (s) Search means the process of looking for and retrieving records or information responsive to a request. It also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. (t) Submitter means any person or entity providing potentially confidential commercial information to an agency, which information may be subject to a FOIA request. The term submitter includes, but is not limited to, individuals, corporations, state governments, and foreign governments. § 1250.4 Who can file a FOIA request? Any individual, partnership, corporation, association, or public or private organization other than a Federal agency, regardless of nationality, may file a FOIA request with NARA. The Administrative Procedure Act, 5 U.S.C. 551(2), excludes Federal agencies from filing FOIA requests. However, state and local governments may file FOIA requests. § 1250.6 Does the FOIA apply to all of the records at NARA? No, the FOIA applies only to the records of the executive branch of the Federal Government and certain Presidential and Vice Presidential records: If you want access to . . . Then access is governed by . . . (a) Records of executive branch agencies ........................ This CFR part and parts 1254 through 1260 of this chapter. FOIA applies to these records. Parts 1254 through 1260 of this chapter. FOIA does not apply to these records. (b) Records of the Federal courts and judicial branch agencies. (c) Records of Congress and legislative branch agencies (d) Presidential records (created by Presidents and Vice Presidents holding office since 1981). (e) Documents created by Presidents holding office before 1981 and housed in a NARA Presidential library. (f) Nixon Presidential materials .......................................... asabaliauskas on DSK5VPTVN1PROD with RULES § 1250.8 Does NARA provide access under FOIA to all the executive branch records housed at NARA facilities? (a) NARA provides access under FOIA to the records NARA creates (operational records) and records originating in the executive branch that have been transferred to the legal custody of the Archivist of the United States (archival records). (b) NARA’s National Personnel Records Center (NPRC), located in St. Louis, Missouri, is the repository for twentieth-century personnel and medical records of former members of the military and personnel records of former civilian employees of the Federal Government. (1) Those official personnel and medical files that have been transferred to NARA’s legal custody, which occurs 62 years after the date of an employee’s or veteran’s separation from Federal service, are processed by NARA according to this part, at §§ 1250.20 through 1250.32. (2) Those personnel and medical records that remain in the legal custody of the agencies that created them are governed by the FOIA and other access regulations of the originating agencies, which the NPRC processes under authority delegated by the originating agencies, not under the provisions of this part. Because of the intricacies of other agencies’ FOIA regulations, further explanation here is not feasible. More information about the NPRC VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 Parts 1254 through 1260 of this chapter. FOIA does not apply to these records. This part and parts 1254 through 1270 of this chapter. FOIA applies to these records five years after the President and Vice President leave office. The deed of gift under which they were given to NARA. These documents are not agency records and FOIA does not apply to these materials. Part 1275 of this chapter. FOIA does not apply to these materials. processes, including access to NPRC records, is available on NARA’s Web site at https://www.archives.gov/st-louis/ military-personnel/ and at https:// www.archives.gov/st-louis/civilianpersonnel. (c) NARA’s Federal records centers store records that agencies no longer need for day-to-day business. These records remain in the legal custody of the agencies that created them. Requests for access to another agency’s records in a NARA Federal records center should be made directly to the originating agency. We do not process FOIA requests for these records. (d) If your FOIA request includes a record in the legal custody of an originating agency, we forward that request to the originating agency for processing. We also provide you with notification that we have done so and with contact information for the originating agency. (See 36 CFR 1256.2 for more information about how to access records that are stored in Federal records centers.) § 1250.10 Do I need to use FOIA to gain access to records at NARA? (a) Most archival records held by NARA have no restrictions to access and are available to the public for research without filing a FOIA request. You may either visit a NARA facility as a researcher to view and copy records or you may write to request copies of specific records. (See subpart B of 36 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 CFR part 1256 for more information about how to access archival records). (b) If you are seeking access to archival records that are not yet available to the public, you need to file a FOIA request. (See 36 CFR 1256.22 for information on how to request access to restricted archival records. See paragraph (d) of this section, and part 1260, for additional procedures on access to classified records.) (c) You must also file a FOIA request when you request access to NARA operational records (records NARA creates) that are not already available to the public. (d) If you are requesting records that you know are classified to protect national security interests, you may wish to use the Mandatory Declassification Review process, which is set forth at 36 CFR 1260.70. (Please see NARA’s FOIA Guide, available online at https://www.archives.gov/foia/ foia-guide.html, for the differences between the FOIA and Mandatory Declassification Review access processes.) § 1250.12 What types of records are available in NARA’s FOIA library? (a) We make available certain materials (listed in the FOIA) for public inspection and copying in both our physical FOIA Library as well as on NARA’s Web site, available at https:// www.archives.gov/foia/electronicreading-room.html. E:\FR\FM\22SER1.SGM 22SER1 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations (b) The materials provided through NARA’s FOIA Library include: (1) Final NARA orders; (2) Written statements of NARA policy which are not published in the Federal Register; (3) Operational staff manuals and instructions to staff that affect members of the public; (4) At our discretion, copies of operational records requested three or more times under FOIA and other records that have been, or are likely to become, the subject of subsequent FOIA requests for substantially the same records; (5) An index, updated quarterly, to these materials; and (6) FOIA logs including opening and closing date, requester’s and organization’s name, description of the records, and final disposition. (c) You may inspect and copy these materials during normal working hours at the NARA facility where the records are located. See 36 CFR part 1253 and NARA’s Web site at https:// www.archives.gov/ for locations and research room procedures. (d) You may also access much of these materials on the NARA Web site. Any of these materials created after October 31, 1996, are on NARA’s Web site at https://www.archives.gov/foia/electronicreading-room.html. (e) For a paper copy of the index to these online materials, write to: NARA FOIA Officer (NGC); Room 3110; National Archives and Records Administration; 8601 Adelphi Road; College Park, MD 20740–6001. § 1250.14 records. Preservation of FOIA-related Each NARA component preserves all correspondence pertaining to the requests that it receives under this part, as well as copies of all requested records, until Title 44 of the United States Code or NARA’s General Records Schedule 14 authorizes disposition or destruction. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA. Subpart B—How To Request Records Under FOIA § 1250.20 request? What do I include in my FOIA In your FOIA request: (a) Describe the records you seek in sufficient detail to enable NARA staff to locate them with a reasonable amount of effort. The more information you provide, the better possibility NARA has of finding the records you are seeking. Information that will help NARA find the records includes: (1) The agencies, offices, or individuals involved; (2) The approximate date(s) when the records were created; (3) The subject, title, or description of the records sought; and (4) Author, recipient, case number, file designation, or reference number. (b) Include your name and full mailing address as well as phone number and email address. This information allows us to reach you faster if we have any questions about your request. It is your responsibility to keep your current mailing address up to date with the office where you have filed the FOIA request. (c) If you request records about yourself, you must do so in accordance with the Privacy Act and our implementing regulations at 36 CFR part 1202. This includes requirements to 56507 verify your identity (see 36 CFR 1202.40). If you request records about someone other than yourself, you may receive greater access if you submit either a notarized document signed by the other person that certifies their identity and gives their permission for you to have access, or proof that the other person is deceased (e.g., a copy of a death certificate or an obituary). NARA may, at its discretion, require you to supply additional information if necessary to verify that a particular individual has consented to disclosure of records about them. (d) Mark both your letter and envelope, or the subject line of your email, with the words ‘‘FOIA Request.’’ (e) Before filing your request, you may find it helpful to consult NARA’s ‘‘Freedom of Information Act Reference Guide’’—which is available electronically at https:// www.archives.gov/foia/foia-guide.html, and in paper form. For a paper copy of NARA’s FOIA Guide, write to: NARA FOIA Officer (NGC); Room 3110; National Archives and Records Administration; 8601 Adelphi Road; College Park, MD 20740–6001. For additional information about the FOIA, you may refer directly to the statute at 5 U.S.C. 552 or visit https:// www.foia.gov. § 1250.22 request? Where do I send my FOIA (a) NARA has several FOIA Customer Service Centers that process FOIA requests. You should send your FOIA request to the appropriate FOIA Customer Service Center that you believe would have the records you seek: For: Mail/submit request to or call: (1) Archival records located in the Washington, DC, area . . . Chief, Special Access and FOIA Staff (RD–F), Room 5500, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740–6001 OR by e-mail to Specialaccess_foia@nara.gov. . . . the director of the facility in which the records are located. You can find locations and contact information for NARA facilities at https://www.archives.gov/locations/ or 36 CFR 1253.5. . . . the director of the Presidential library in which the records are located. You can find locations and contact information for NARA’s Presidential libraries at https:// www.archives.gov/locations/ or 36 CFR 1253.3. NARA FOIA Officer (NGC), Room 3110, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740–6001 OR by email to FOIA@nara.gov OR online at https://foiaonline.regulations.gov. Office of the Inspector General (OIG), FOIA Request, Room 1300, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740–6001. NARA FOIA Officer (NGC), Room 3110, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740–6001 OR call (301) 837–FOIA (3642) ** Within 10 working days of receiving a request, this office will forward your request to the office(s) that is likely to have the records you are seeking. (2) Archival records maintained in other parts of the country . . . (3) Presidential records subject to FOIA . . . ................... asabaliauskas on DSK5VPTVN1PROD with RULES (4) Operational records of any NARA unit except the Office of the Inspector General . . . (5) Operational records of the Office of the Inspector General . . . (6) Any other records, or if you are unable to determine where to send your request or if you do not have access to the internet for a list of NARA’s FOIA (7) Public Liaisons and Customer Service Centers . . . VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\22SER1.SGM 22SER1 56508 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations (b) NARA officially receives your request when it reaches the proper office’s FOIA staff, but no later than 10 working days after the request first arrives at one of the offices in the table above. Receipt by the appropriate office initiates the time period for responding to your request (see 36 CFR 1250.26). (c) If you have questions concerning the processing of your FOIA request, you may contact the designated FOIA Customer Service Center for the facility processing your request. If that initial contact does not resolve your concerns, you may wish to contact the designated FOIA Public Liaison for the facility processing your request. You can find a list of NARA’s FOIA Customer Service Centers and Public Liaisons at https:// www.archives.gov/foia/contacts.html. § 1250.24 Does NARA accept electronic FOIA requests? Yes. You may submit and track requests for NARA operational records through the FOIAonline program, accessible at https:// foiaonline.regulations.gov, or by sending an email to FOIA@nara.gov. The body of the message must contain all of the information listed in 36 CFR 1250.20. You may also file a FOIA request by emailing your request to the offices listed in the table at 36 CFR 1250.22. asabaliauskas on DSK5VPTVN1PROD with RULES § 1250.26 How does NARA process my FOIA request? (a) Acknowledgement. NARA acknowledges all FOIA requests in writing within 20 working days after receipt by the appropriate office (see 36 CFR 1250.22). The acknowledgement letter or email informs you of your request tracking number, and any complexity in processing that may lengthen the time NARA requires to reach a final decision on the release of the records. The acknowledgement letter or email may also seek additional information to clarify your request or to ask you to narrow the scope of a very large or broad request. (b) Clarification of requests. Requests must reasonably describe the records sought. If we determine that a request does not reasonably describe the records sought, or if we are uncertain about another aspect of the request, we contact you to ask for clarification. (c) Search cut-off date. As the end or cut-off date for a records search, NARA uses the date on which we first begin our search for documents responsive to your request, unless you specify an earlier cut-off date. This includes those cases when you request records ‘‘through the present,’’ ‘‘through today,’’ or similar language. If NARA uses any VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 other search end date, we inform you of that date. (d) Stops in processing time, clarification requests, and administrative closure. NARA may stop the clock for processing a request one time in order to seek your clarification. In such a case, the processing time resumes upon our receipt of your response. We provide at least 60 calendar days for you to respond to a request for clarification. If you do not clarify the request within 60 calendar days, we deny the request for not reasonably describing the records sought and provide you with the opportunity to appeal under the procedures in Subpart D. Should you not answer any correspondence, or should the correspondence be returned as undeliverable, NARA reserves the right to administratively close the FOIA request 60 calendar days after the date of the last correspondence we send. (e) Confidential commercial information. If you have requested records containing confidential commercial information, refer to 36 CFR 1250.82 for information on how we process that request. (f) Processing queues. NARA places FOIA requests in simple or complex processing queues to be processed in the order received, on a first-in, first-out basis. In most cases, we make a determination about release of the records you requested within 20 working days from when the appropriate office receives your request (simple queue processing). However, if complexity or unusual circumstances prevent NARA from making a decision within 20 working days, we place your request into a complex processing queue. This way, such cases do not hold up the processing of other requests that do not include such time-consuming factors. We notify you of complicating factors in our acknowledgement letter or email, and you may choose to limit the scope of your request to convert the complex processing queue request to a simple processing queue request. For more detailed information on NARA’s multi-track processing queues, see our FOIA Guide at https://www.archives.gov/ foia-guide.html (for a paper copy, see 36 CFR 1250.20(d)). (g) Complex processing queue factors. We place into a complex processing queue any request that cannot be completed within 20 working days due to complexity, volume, because it contains national security information, because it involves Presidential or Vice Presidential records, or involves unusual circumstances. Unusual circumstances include the need to: PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 (1) Search for and collect the records from one or more field facilities; (2) Search for, collect, and review a voluminous amount of records that are part of a single request; (3) Consult with another Federal agency before releasing records; or (4) Refer records to another Federal agency for declassification. (h) Complex processing schedule. If NARA needs to extend the deadline for more than an additional 10 working days due to the complexity of a request or as a result of unusual circumstances, we ask if you wish to modify your request so that we can answer the request sooner. If you do not wish to modify your request, we work with you to arrange an alternative schedule for review and release. (i) Complex processing: National security declassification and release. NARA does not have the authority to declassify and release records containing national security information without the approval of the agencies that have Original Classification Authority for the information contained in the records. We send copies of the documents to the appropriate originating Federal agencies for declassification review. We also send you an initial response to your FOIA request within 20 working days, informing you of this consultation with, or referral to, another Federal agency, except to the extent that the association with the other agency may itself be classified. Upon your request, we provide you an estimated date of completion. (j) Complex processing: Presidential or Vice Presidential records. If you request Presidential or Vice Presidential records and we determine that the records are not subject to any applicable FOIA or Presidential Records Act (PRA) exemption (and can therefore be released), we must notify the current and former President(s) or Vice President(s) of our intention to disclose information from those records. After receiving the notice, the current and former President(s) and Vice President(s) have a period of time (as set out in the applicable Executive order on implementation of the PRA) in which to choose whether to invoke Executive Privilege to deny access to the requested information. Although we send you an initial status response to your FOIA request within 20 working days in these cases, the final response to your FOIA request will take longer. We can provide the final response only at the end of the Presidential notification period set forth in the Executive order. E:\FR\FM\22SER1.SGM 22SER1 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations § 1250.27 How does NARA determine estimated completion dates for FOIA requests? (a) When you ask for an estimated completion date for records that do not require consultation with another agency, we estimate the completion date on the basis of our reasonable judgment at that point as to how long it will take to complete the request. Given the uncertainty inherent in establishing any estimate, the estimated completion date may be subject to change at any time. (b) When you ask for an estimated completion date for records that must be reviewed by another agency, our estimate is also based on information from the other agency: (1) When we send documents for consultation to another agency, we ask the agency to provide an estimated completion date for its portion of the processing. (2) We keep the consulting agency’s estimated completion date for its portion of the processing in the request file and use it in addition to our own processing time estimate to provide you with an overall estimated completion date. (3) If the consulted agency or agencies do not provide us with an estimated completion date, we provide you with an estimate based on our general experience working with the agency or agencies and the types and volumes of records at issue. § 1250.28 How do I request expedited processing? (a) NARA processes requests and appeals on an expedited basis whenever we determine that one or more of the following criteria exist: (1) A reasonable expectation of an imminent threat to an individual’s life or physical safety; (2) A reasonable expectation of an imminent loss of a substantial due process right; (3) An urgent need to inform the public about an actual or alleged Federal Government activity (this criterion applies only to those requests made by a person primarily engaged in disseminating information to the public); or (4) A matter of widespread and exceptional media interest in which there exist possible questions that affect public confidence in the Government’s integrity. (b) NARA can expedite requests, or segments of requests, only for records over which we have control. If NARA must refer a request to another agency, we will inform you and suggest that you seek expedited review from that agency. NARA cannot expedite the review of classified records nor can we shorten the Presidential notification period described in 36 CFR 1250.26(j). (c) To request expedited processing, you must submit a statement, certified to be true and correct, explaining the basis for your need for expedited processing. You must send the request to the appropriate official at the address listed in § 1250.22 of this subpart. You may request expedited processing when you first request records or at any time during NARA’s processing of your request or appeal. (d) We will respond to your request for expedited processing within 10 calendar days of our receipt of your request to expedite. If we grant your request, the NARA office responsible for the review of the requested records will process your request as a priority, and it will be processed as soon as practicable. We will inform you if we deny your request for expedited processing. If you decide to appeal that denial, we will expedite our review of your appeal. § 1250.30 request? 56509 How does NARA respond to my (a) NARA sends you a response informing you of our release determination, including whether any responsive records were located, how much responsive material was located, whether the records have been released in full or withheld in full or in part, where you may review the records, and any fees you must pay for the request. We will use plain language in all written communications with requesters. (b) If we deny any part of your request, our response will explain the reasons for the denial, which FOIA exemptions apply to withhold records, and your right to appeal that determination. (c) NARA may withhold records in full or in part if any of the nine FOIA exemptions apply. NARA withholds information only where disclosure is prohibited by law (such as information that remains classified, or information that is specifically exempt by statute) or where we reasonably foresee that disclosure would cause harm to an interest protected by one of the FOIA exemptions. If we must withhold part of a record, we provide access to the rest of the information in the record. On the released portion of the record, we indicate the amount of information we redacted and the exemption(s) we applied, unless including that indication would harm an interest the exemption protects. NARA may also determine that a request does not reasonably describe the records sought; the information requested is not a record subject to FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format you sought. Information that may be exempt from disclosure under the FOIA is: Section of the FOIA: Reason for exemption: 5 U.S.C. 552(b)(1) .............. ‘‘(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.’’ ‘‘related solely to the internal personnel rules and practices of an agency.’’ ‘‘specifically exempted from disclosure by statute (other than § 552(b) of this title), provided that the statute: (A) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (B) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;’’ ‘‘trade secrets and commercial or financial information obtained from a person that are privileged or confidential;’’ ‘‘inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;’’ ‘‘personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;’’ asabaliauskas on DSK5VPTVN1PROD with RULES 5 U.S.C. 552(b)(2) .............. 5 U.S.C. 552(b)(3) .............. 5 U.S.C. 552(b)(4) .............. 5 U.S.C. 552(b)(5) .............. 5 U.S.C. 552(b)(6) .............. VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\22SER1.SGM 22SER1 56510 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations Section of the FOIA: Reason for exemption: 5 U.S.C. 552(b)(7) .............. ‘‘records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information: (A) could reasonably be expected to interfere with enforcement proceedings; (B) would deprive a person of a right to a fair trial or an impartial adjudication; (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy; (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting lawful national security intelligence investigation, information furnished by a confidential source; (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or (F) could reasonably be expected to endanger the life or physical safety of any individual;’’ ‘‘contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;’’ or ‘‘geological and geophysical information and data, including maps, concerning wells.’’ 5 U.S.C. 552(b)(8) .............. 5 U.S.C. 552(b)(9) .............. (d) If a request involves a voluminous amount of material or searches in multiple locations, we provide you with interim responses, releasing the records on a rolling basis. (e) NARA may not withhold Presidential records subject to FOIA under 5 U.S.C. 552(b)(5) as defined in the table in paragraph (c) of this section. However, NARA may withhold Presidential records under the remaining FOIA exemptions. In addition, Presidential records may be withheld under the six PRA restrictions for a period of 12 years from when a President leaves office, in accordance with 44 U.S.C. 2204 and 36 CFR part 1270. Representatives of the current and former Presidents may also review Presidential records, and may assert constitutionally-based privileges that would prevent NARA from releasing some or all or the information requested. asabaliauskas on DSK5VPTVN1PROD with RULES § 1250.32 How may I request assistance with the FOIA process? (a) For assistance at any point in the FOIA process, you may contact the NARA FOIA Public Liaison. That individual is responsible for assisting you to reduce delays, increase transparency and understanding of the status of requests, and resolve any FOIA disputes. You can find a list of our FOIA Customer Service Centers and Public Liaisons at https://www.archives.gov/ foia/contacts.html. (b) The Office of Government Information Services (OGIS), part of NARA, serves as the Federal FOIA Ombudsman and assists requesters and agencies to prevent and resolve FOIA disputes. OGIS also reviews agencies’ FOIA policies, procedures, and compliance. You may contact OGIS using the information provided below in 36 CFR 1250.74(c). VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 § 1250.38 In what format does NARA provide copies? After all applicable fees are paid, we provide you copies of records in the format you request if the records already exist in that format, or if they are readily reproducible in the format you request. Subpart C—Fees § 1250.50 General information on fees for all FOIA requests. (a) If you have failed to pay FOIA fees in the past, we will require you to pay your past-due bill and we may also require that you pay the anticipated fee before we begin processing your current request. If we estimate that your fees may be greater than $250, we may also require advance payment or a deposit before we begin processing your request. If you fail to make an advance payment within 60 calendar days after the date of NARA’s fee letter, we will close the request. (b) If we determine that you (acting either alone or with other requesters) are breaking down a single request into a series of requests in order to avoid or reduce fees, we may aggregate all of these requests when calculating the fees. In aggregating requests, we may consider the subject matter of the requests and whether the requests were filed close in time to one another. (c) If, in the course of negotiating fees, you do not respond to a NARA component within 60 calendar days, we reserve the right to administratively close the FOIA request after 60 calendar days have passed from the date of our last correspondence to you. § 1250.51 What fee policies apply to archival records? (a) NARA is specifically authorized to charge fees for copying archival records under a separate fee statute, 44 U.S.C. 2116(c). As a result, archival records are exempt from the FOIA fee waiver PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 provisions, per 5 U.S.C. 552(a)(4)(A)(vi), and we do not grant fee waivers for archival records requested under the FOIA. However, we make most of our archival records available for examination at the NARA facility where the records are located. Whenever this is possible, you may review the records in a NARA research room at that facility free of charge and may also use your own equipment to make copies. (b) We do not charge search fees for FOIA requests for archival records, but we do limit the search to two hours. (c) If you would like us to make copies of archival records, we typically require you to pay all applicable fees (in accordance with the fee schedule) before we provide the copies. (d) You can find our Fee Schedule for archival records at: www.archives.gov/ research/order/fees.html. § 1250.52 What fee policies apply to operational records? (a) For operational records, we may charge search fees even if the records are not releasable or we do not find any responsive records during our search. (b) If you are a noncommercial FOIA requester entitled to receive 100 free pages, but the records cannot be copied onto standard-sized (8.5″ by 11″) photocopy paper, we copy them on larger paper and reduce the copy fee by the normal charge for 100 standardsized photocopies. If the records are not on textual media (e.g., they are photographs or electronic files), we provide the equivalent of 100 pages of standard-sized paper copies for free. (c) We do not charge you any fee if the total cost for processing your request is $25 or less. (d) If estimated search or review fees exceed $50, we will contact you. If you have specified a different limit that you are willing to spend, we will contact E:\FR\FM\22SER1.SGM 22SER1 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations relatively straightforward and a clerical or administrative employee can perform it, the rate is $16 per hour (or fraction § 1250.53 What is the FOIA fee schedule thereof). When the request is more for operational records? complicated and a NARA professional In responding to FOIA requests for employee must do it, the rate is $33 per operational records, NARA charges the hour (or fraction thereof). following fees, where applicable, unless (4) Copying other media. This is the we have given you a reduction or waiver direct cost to NARA of the reproduction. of fees under § 1250.56. We provide specific rates on a case-by(a) Search fees—(1) Manual searching. case basis. When the search is relatively straightforward and can be performed § 1250.54 How does NARA calculate FOIA fees for operational records? by a clerical or administrative employee, the search rate is $16 per (a) If you are a commercial use hour (or fraction thereof). When the requester, NARA charges you fees for request is more complicated and must searching, reviewing, and copying be done by a NARA professional responsive records. employee, the rate is $33 per hour (or (b) If you are an educational or fraction thereof). scientific institution requester, or a (2) Computer searching. NARA bases member of the news media, you are the fees for computer searches on the entitled to search time, review time, and actual cost to NARA of operating the up to 100 pages of copying without computer and the salary of the operator. charge. NARA charges copying fees only When the search is relatively beyond the first 100 pages. straightforward and a clerical or (c) If you do not fall into either of the administrative employee can conduct it, categories in paragraphs (a) and (b) of the search rate is $16 per hour (or this section, and are an ‘‘other fraction thereof). When the request is requester,’’ you are entitled to two hours more complicated and a NARA of search and review time, and up to professional employee must perform it, 100 pages of copying without charge. the rate is $33 per hour (or fraction NARA may charge for search time thereof). beyond the first two hours and for (b) Review fees. (1) NARA charges copying beyond the first 100 pages. review fees for time we spend (d) NARA does not charge a fee for examining documents that are processing a FOIA request if it exceeds responsive to a request to determine any time limit under 5 U.S.C. 552(a)(6) whether we must apply any FOIA in processing that request, unless exemptions to withhold information. unusual or exceptional circumstances NARA charges review fees even if we (defined under the FOIA statute) are ultimately are unable to disclose a relevant. record. § 1250.56 How may I request a fee waiver (2) The review fee is $33 per hour (or for operational records? fraction thereof). (a) We waive or reduce your fees for (3) NARA does not charge review fees NARA operational records only if your for time we spend resolving general request meets both of the following legal or policy issues regarding the criteria: application of exemptions. However, (1) The request is in the public NARA does charge review fees for time we spend obtaining and considering any interest (i.e., the information is likely to contribute significantly to public formal objection to disclosure made by understanding of the operations or a confidential commercial information activities of the Government); and submitter. (2) The request is not primarily in (c) Reproduction fees—(1) Self-service your commercial interest. photocopying. At NARA facilities with (b) To be eligible for a fee waiver or self-service photocopiers, you may make reproductions of released paper records reduction you must explain: (1) How the records you are for $0.25 per page. requesting pertain to the operations and (2) Photocopying standard-sized activities of the Federal Government. pages. When we make the photocopies There must be a clear connection for operational records, the charge is between the identifiable operations or $0.30 per page. (3) Reproductions of electronic activities of the Federal Government records. NARA charges you for our and the subject of your request; direct costs for staff time for (2) How the release will reveal programming, computer operations, and meaningful information that the public printouts or electromagnetic media to does not already know about Federal reproduce the requested electronic Government activities. Disclosing information. When the work is information that is already in the public asabaliauskas on DSK5VPTVN1PROD with RULES you only if we estimate the fees will exceed that specified amount. VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 56511 domain, in either the same or a substantially-identical form, does not add anything new to the public’s understanding of Government activities; (3) How disclosure to you will advance public understanding of the issue; (4) Your expertise or understanding of the requested records as well as your ability and intention to effectively convey information to the public. NARA ordinarily presumes that a representative of the news media satisfies this consideration; (5) How you intend to disseminate the requested information to a broad spectrum of the public; and (6) How disclosure will lead to a significantly greater understanding of the Government by the public. (c) After reviewing your request and determining that there is a substantial public interest in release, we also determine if the request primarily furthers your commercial interests. If it does, you are not eligible for a fee waiver. (d) You should ask for waiver or reduction of fees when you first submit your request to NARA, and should address the criteria referenced above. You may also ask for a fee waiver at a later time while the underlying record request is still pending or during an administrative appeal. (e) We may also waive (either partially or in full) or reduce fees for operational records in additional circumstances as a matter of administrative discretion. Subpart D—Appeals § 1250.70 When may I appeal NARA’s FOIA determination? You may appeal when there is any adverse determination, including: (a) Refusal to release a record, either in whole or in part; (b) Determination that a record does not exist or cannot be found; (c) Determination that the record you sought was not subject to the FOIA; (d) Denial of a request for expedited processing; (e) Denial of a fee waiver request; or (f) Fee category determination. § 1250.72 How do I file an appeal? (a) You may submit your appeal via mail or electronically. All appeals must be in writing and received by NARA within 60 calendar days from the date of our determination letter. (1) For appeals submitted via mail, you should mark both your letter and envelope with the words ‘‘FOIA Appeal,’’ and include either your tracking number or a copy of your initial request and our determination letter. E:\FR\FM\22SER1.SGM 22SER1 56512 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations (i) If NARA’s Inspector General denied your request, send your appeal to the Archivist of the United States; (ATTN: FOIA Appeal Staff); Room 4200, National Archives and Records Administration; 8601 Adelphi Road; College Park, Maryland 20740–6001. (ii) Send all other appeals for denial of access to Federal records to the Deputy Archivist of the United States; (ATTN: FOIA Appeal Staff); Room 4200; National Archives and Records Administration; 8601 Adelphi Road; College Park, Maryland 20740–6001. (iii) For Presidential records, send appeals to the appropriate Presidential library director at the address listed in 36 CFR 1253.3. (2) For all appeals submitted electronically, except those regarding Presidential records, send an email to FOIA@nara.gov. For Presidential records, electronic appeals must contain all the information listed in § 1250.72 and be sent to the email address of the appropriate Presidential library. These email addresses are listed in 36 CFR 1253.3. The subject line of the email should read ‘‘PRA/FOIA appeal.’’ (b) In your appeal letter, you may include as much or as little related information as you wish, as long as it clearly identifies NARA’s initial determination letter (including the assigned request number, if known) from which you are appealing, and why we should release the records, grant your fee waiver request, or expedite the processing of your request. If we were not able to find the records you wanted, explain why you believe NARA’s search was inadequate. If we denied you access to records and told you that those records were not subject to FOIA, please explain why you believe the records are subject to FOIA. asabaliauskas on DSK5VPTVN1PROD with RULES § 1250.74 appeals? How does NARA process (a) We respond to your appeal within 20 working days after the appeal official designated in 36 CFR 1250.72(a)(1)(i) and (ii) receives it. If we reverse or modify the initial decision, we inform you in writing and, if applicable, reprocess your request. For Presidential records, if we release any additional information, we must follow the notification procedures outlined in 36 CFR 1250.26(j). If we do not change our initial decision, we respond in writing to you, explain the reasons for the decision, and set out any FOIA exemptions that apply. (1) An adverse determination by the Archivist or Deputy Archivist will be the final action by NARA; and VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 (2) NARA will cease processing an appeal if a requester files a FOIA lawsuit. (b) We notify you of your right to seek judicial review of an adverse determination as set forth in the FOIA at 5 U.S.C. 552(a)(4)(B). If you wish to seek judicial review of any adverse determination, you must first appeal it administratively under this section. (c) We also inform you that the Office of Government Information Services (OGIS) offers mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. You may contact OGIS in any of the following ways: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road—OGIS, College Park, MD 20740, ogis.archives.gov, Email: ogis@nara.gov, Telephone: 202–741– 5770, Facsimile: 202–741–5769, Tollfree: 1–877–684–6448. Subpart E—Confidential Commercial Information § 1250.80 How does a submitter identify records containing confidential commercial information? At the time of submission, a submitter of business information is expected to designate, by appropriate markings, any portions of its submission that it considers to be protected from disclosure under FOIA Exemption 4. Although these portions may be designated, this does not preclude NARA from conducting a full FOIA review of all such documents if a FOIA request for those records has been received. These designations will expire 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period, or NARA extends the designation period at its discretion. § 1250.82 How does NARA process FOIA requests for confidential commercial information? If NARA receives a FOIA request for records containing confidential commercial information or for records that we believe may contain confidential commercial information, we follow these procedures: (a) If the records are less than 10 years old or are still covered under an extended FOIA Exemption 4 designation period, we review the records in response to a FOIA request. If we then believe that we should release the records under FOIA, we make reasonable efforts to inform the submitter. The notice to the submitter describes the business information PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 requested or includes copies of the requested records. NARA does not notify the submitter when we determine that: (1) We must withhold the information under FOIA’s exemptions; (2) The information has been lawfully published or made available to the public; or (3) We are required by a statute (other than the FOIA), or by a regulation issued in accordance with the requirements of Executive Order 12600, to disclose the information. (b) If the records are 10 or more years old, we review the records in response to a FOIA request as we would any other records, and at our discretion, inform the submitter. NARA releases the records if we determine that neither Exemption 4 nor any other exemption applies. (c) When the request is for information from a single or small number of submitters, we send a notice via registered mail to the submitter’s last known address. NARA’s notice to the submitter includes a copy of the FOIA request and tells the submitter the time limits and procedures for objecting to the release of the requested material. (d) When the request involves information from a voluminous number of submitters, we may post or publish the notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending letters. (e) We provide the submitter with 20 working days from the date of NARA’s notice to object to the release and to explain a basis for the objection, including justification and support for the claim. The NARA FOIA Officer may extend this period as appropriate. (f) We review and consider all objections to release that we receive within the time limit. Any information provided by a submitter under this provision may itself be subject to disclosure under FOIA. NARA considers a submitter who fails to respond within the time period specified in the notice to have no objection to disclosure of the information. If we decide to release the records, we inform the submitter in writing, along with NARA’s reasons for the decision to release. We include with the notice copies of the records as we intend to release them. We also inform the submitter that we intend to release the records within a reasonable time after the date of the notice unless a U.S. District Court forbids disclosure. NARA will not consider any information we receive after the date of a disclosure decision. E:\FR\FM\22SER1.SGM 22SER1 Federal Register / Vol. 79, No. 183 / Monday, September 22, 2014 / Rules and Regulations (g) If the requester files a lawsuit under the FOIA for access to any withheld records, we promptly notify the submitter. (h) NARA notifies the requester in three circumstances: (1) When we notify the submitter of the opportunity to object to disclosure, or to extend the time for objecting; (2) When we notify the submitter of our intent to disclose the requested information; and (3) When a submitter files a lawsuit to prevent the disclosure of the information. Dated: September 10, 2014. David S. Ferriero, Archivist of the United States. [FR Doc. 2014–22186 Filed 9–19–14; 8:45 am] BILLING CODE 7515–01–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2014–0596; FRL–9916–82– Region 3] Approval and Promulgation of Air Quality Implementation Plans; West Virginia; 2014 Amendments to West Virginia’s Ambient Air Quality Standards Environmental Protection Agency (EPA). ACTION: Direct final rule. AGENCY: The Environmental Protection Agency (EPA) is taking direct final action to approve a revision to the West Virginia State Implementation Plan (SIP). The revision pertains to amendments of West Virginia’s Legislative Rule on Ambient Air Quality Standards which change the effective date of the incorporation by reference of the National Ambient Air Quality Standards (NAAQS) as well as their monitoring reference and equivalent methods. EPA is approving these revisions in accordance with the requirements of the Clean Air Act (CAA). DATES: This rule is effective on November 21, 2014 without further notice, unless EPA receives adverse written comment by October 22, 2014. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number EPA– R03–OAR–2014–0596 by one of the following methods: asabaliauskas on DSK5VPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 16:51 Sep 19, 2014 Jkt 232001 A. www.regulations.gov. Follow the on-line instructions for submitting comments. B. Email: fernandez.cristina@epa.gov. C. Mail: EPA–R03–OAR–2014–0596, Cristina Fernandez, Associate Director, Office of Air Program Planning, Air Protection Division, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. Hand Delivery: At the previouslylisted EPA Region III address. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA–R03–OAR–2014– 0596. EPA’s policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 56513 electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the West Virginia Department of Environmental Protection, Division of Air Quality, 601 57th Street SE., Charleston, West Virginia 25304. FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814–5787, or by email at schmitt.ellen@epa.gov. SUPPLEMENTARY INFORMATION: I. Background On July 1, 2014, the West Virginia Department of Environmental Protection (WVDEP) submitted a formal revision to its SIP pertaining to amendments of Legislative Rule, 45 CSR 8—Ambient Air Quality Standards. The SIP revision consists of revising the effective date of the incorporation by reference of the NAAQS and the associated monitoring reference and equivalent methods. This rulemaking action is required because on January 15, 2013, EPA revised the NAAQS for fine particulate matter (PM2.5). See 78 FR 3086. The annual arithmetic mean concentration was set at 12 micrograms per cubic meter (mg/ m3), and the standard for the 24-hour concentration was retained at 35 mg/m3, (collectively, the 2013 PM2.5 NAAQS). II. Summary of SIP Revision This SIP revision is required by WVDEP in order to update the State’s incorporation by reference of the primary and secondary NAAQS and the ambient air monitoring reference and equivalent methods, found in 40 CFR parts 50 and 53, respectively. Currently, 45 CSR 8 incorporates by reference 40 CFR parts 50 and 53 as effective on June 1, 2011. Since that date, EPA revised the standards for PM2.5; this SIP revision updates 45 CSR 8 to include the 2013 PM2.5 NAAQS. The amendments to the legislative rule include the following changes: To section 45–8–1 (General), the filing and effective dates are changed to reflect the update of the legislative rule; to section 45–8–3 (Adoption of Standards), the effective dates for the incorporation by reference of the primary and secondary NAAQS and the ambient air monitoring reference and equivalent methods are changed. The filing and effective dates of the legislative rule were updated to April 4, 2014 and June 1, 2014 respectively. The effective date of the incorporation by reference of 40 CFR Parts 50 and 53 changed from June 1, 2011 to June 1, 2013. E:\FR\FM\22SER1.SGM 22SER1

Agencies

National Archives and Records Administration

[Federal Register Volume 79, Number 183 (Monday, September 22, 2014)]
[Rules and Regulations]
[Pages 56500-56513]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22186]

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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1250

[FDMS No. NARA-14-0003; Agency No. NARA-2014-057]
RIN 3095-AB73

NARA Records Subject to FOIA

AGENCY: National Archives and Records Administration.

ACTION: Final rule.

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SUMMARY: NARA has revised our regulations governing Freedom of
Information Act (FOIA) access to NARA's archival holdings and NARA's
own operational records. The revisions include clarification as to
which records are subject to the FOIA, NARA's authority to grant
access, and adjustments to our FOIA procedures to incorporate changes
resulting from the OPEN FOIA Act of 2009, the OPEN Government Act of
2007, and the Electronic Freedom of Information Act Amendments of 1996
(E-FOIA). The rule affects individuals and organizations that file FOIA
requests for access to NARA operational records and archival holdings.

DATES: This rule is effective October 22, 2014.

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

SUPPLEMENTARY INFORMATION: On August 4, 2013, NARA published a proposed
rule in the Federal Register (78 FR 47245) for a 60-day comment period.
This proposed rule clarified which records are subject to the FOIA and
NARA's authority to grant access, and made adjustments to our FOIA
procedures to incorporate changes resulting from the OPEN FOIA Act of
2009, the OPEN Government Act of 2007, and the Electronic Freedom of

[[Page 56501]]

Information Act Amendments of 1996 (EFOIA). The public comment period
closed on October 4, 2013. We received four sets of comments on the
proposed rule; three from individuals and one from the Center for
Effective Government. We appreciate the thoughtfulness and detail
reflected in the comments it received. We have reviewed all of the
submitted comments, considered carefully the suggestions for revision,
and made certain changes on the basis of these comments. The comments
are also addressed in narrative form below. In the course of reviewing
the proposed rule and addressing those comments, we also proposed to
make additional substantive revisions beyond those addressed in the
comments, to further clarify definitions and timing. Therefore, we
published those new substantive revisions in the Federal Register (79
FR 35127) on June 19, 2014, for a second round of public comment. The
comment period ended on July 21, 2014, and we received no new comments
during this round. The revisions from both rounds, and the comments
received, have been compiled and addressed together in this final
regulation.

Presumption of Openness (Sec. 1250.2)

One comment suggested that NARA's presumption of openness must be
backed by processes that are realistic and operable. We thank the
commenter for this statement. We take it to heart and believe that
NARA's core mission of providing access truly backs up the presumption
of openness. However, we have re-titled and re-worded this provision to
more directly reflect this.

Original Classification Authority (Sec. 1250.3)

A commenter had several questions regarding the definition of
original classification authority, including whether contractors are
included, who the designated subordinates are, and what occurs if the
director of ISOO position is not filled. NARA's FOIA program follows
the Executive order and the ISOO regulations at 32 CFR 2001 to define
original classification authority. It is outside the scope of the FOIA
program and FOIA regulations to define the term differently here, or to
address any issues with that definition. We have added a reference to
the ISOO regulations so that readers may understand where the
definition comes from and seek any additional detail that may be
contained there.

Mandatory Declassification Review (MDR) Versus FOIA (Originally Sec.
1250.8(d); Now (Sec. 1250.10(d))

NARA's proposed regulations included the option for requesters to
consider using the Mandatory Declassification Review (MDR) process
instead of FOIA if they are requesting access to national security
classified information. One comment suggested that NARA should add an
explanation of why a requester might choose the MDR. Although the
subject is too detailed to set out in this regulation, we added a
reference to our FOIA Guide, which thoroughly explains the pros and
cons of each process and the differences between the two.

Access to Executive Branch Records at the National Personnel Record
Center (NPRC) (Originally Sec. 1250.10(b); Now Sec. 1250.8(b))

One commenter suggested that NARA should inform requesters where
they can find information about the provisions under which the NPRC
processes FOIA requests. We have added citations to the NPRC section of
NARA's Web site where information on how we process requests can be
found, and a citation to the Department of Defense's FOIA regulations
for more information on its requirements. Another comment correctly
pointed out that the proposed regulations at Sec. 1250.10(b) (now
(Sec. 1250.8(b)) erroneously referred to ``Sec. 1250.208'' of NARA's
regulations. However, that section does not exist. We have corrected
the reference, which was Sec. 1250.20 in our submitted draft, but
seems to have inadvertently been changed when posting online.

Available Records (Sec. 1250.12)

Four comments concerned Sec. 1250.12, ``What types of records are
available in NARA's FOIA library?'' The comments recommended that NARA
add specific language to state that NARA would establish categories of
records to disclose and post regularly, proactively identify and
disclose additional records, release copies of records previously
released under FOIA, regularly post logs describing the requests we
have received and processed, and that NARA provide a subscription
service (such as RSS or email) to notify individuals when new records
are posted.
NARA's FOIA Library is for operational records. We have already
established and disclose categories of records not only through the
FOIA Library, but also through our other products. For example, we post
records schedules for the Federal Government on our Web site and have
published finding aids to our archival records in our Online Public
Access (OPA) database, through which members of the public can also
access some archival records. We believe more detailed language in the
regulation would be confusing to researchers and requesters because
NARA's archival holdings (as opposed to operational records) are open
and available, but are not all available online. We also believe the
categories set forth in Sec. 1250.12(b) (with the additions below) are
sufficient to cover the records we release specifically as FOIA Library
items that are not already elsewhere on NARA's Web site. Based on the
comments and suggestions, we have added language to Sec. Sec.
1250.12(b)(4) and (6) to add categories of operational records that
have been requested three or more times, that are likely to become the
subject of subsequent FOIA requests, and NARA's FOIA logs. In addition,
we added to the presumption of openness section (Sec. 1250.2) a new
title and a stronger statement that we proactively identify and
disclose additional records whenever possible. We are not able to
provide a subscription service due to insufficient manpower and
resources.

What To Include in FOIA Requests (Sec. 1250.20(c))

One commenter suggested that NARA revise this section to read
``Mark both your letter and envelope, or the subject line of your
email, with the words `FOIA Request.' '' (Emphasis in original.) We
have made this revision.

Where To Submit (Sec. 1250.22)

Two comments were received about Sec. 1250.22, ``Where do I send
my FOIA request?'' One comment suggested that NARA revise the proposed
language to emphasize promptly rerouting requests to appropriate agency
offices, to read, ``Your request will be considered received when it
reaches the proper office's FOIA staff, but in any event not later than
ten days after the request is first received.'' The second comment
suggested that NARA include a telephone number to call and ask for
mailing addresses of NARA's FOIA customer service centers. We have made
these revisions, although with slightly different language than that
proposed. In addition, to make finding the correct contact information
easier, we have restructured the information into a table.

How Requests Are Processed (Sec. 1250.26)

NARA received ten comments on Sec. 1250.26, ``How will NARA
process my

[[Page 56502]]

FOIA request?'' (now titled, ``How does NARA process my FOIA
request?''). When addressing all of the comments related to Sec.
1250.26, it became evident that there was a lot of confusion with
regard to this section due to NARA's multi-track processing. So we have
substantially reorganized and modified the section to address both the
apparent overall concerns as well as the specific comments submitted.
This included breaking down the original paragraph (a) into several
paragraphs; re-ordering the original paragraphs with headings so the
multi-track processing is clearer; and changing some of the wording to
increase clarity.
One comment suggested that NARA adopt a policy to communicate with
requesters by email where appropriate, and adjust the regulation
accordingly. A second comment suggested revising the section to state,
``NARA will acknowledge all FOIA requests as soon as possible,'' and
providing an automated acknowledgment when possible. We declined the
recommendation that we respond by email unless a requester asks that we
not do so. NARA receives many requests from individuals without regular
email access, such as prisoners. We think it would be a burden on
requesters to have to state that they do not want to correspond by
email. However, we have added language to indicate that we will respond
by email if a requester submits requests by email or indicates a
preference for that form of communication. We also declined to revise
the regulation to state we would process requests as soon as possible;
instead, we retain the statutory period of 20 working days. Although we
do respond as soon as possible, merely indicating ``as soon as
possible'' would leave the end date open. Because of NARA's
decentralized FOIA processing, it is not feasible for us to provide an
automated acknowledgment of requests at this time.
Two comments suggested adding provisions to the section. One
suggested adding, ``Within 10 days of receiving a request, NARA will
reroute requests received by any NARA FOIA office to the appropriate
NARA FOIA office for the records requested. NARA will notify the
requester of the office to which it rerouted the request and provide
contact information for that office. If NARA reroutes a request, the
time period for processing the request begins when the appropriate FOIA
office receives the request, or 10 days after any NARA FOIA office
first received the request, whichever is earlier.'' The other suggested
adding a description of NARA's multi-track processing system to
distinguish between simple and complex tracks and to provide a
requester with an opportunity to limit the scope of their request to
qualify for faster processing.
In response to the first comment, we added similar language to the
suggested language, but placed it in Sec. 1250.22 instead of Sec.
1250.26. Section 1250.22 addresses where to send FOIA requests,
including the office that would forward any misrouted requests to other
offices, so the recommended language was more appropriate there. We did
not add suggested language to include notifying the requester of the
office to which a request has been forwarded. We have tried
implementing this workflow in the past. However, we found that this
process impeded the ability to process the request in a timely fashion.
We also revised the regulation at Sec. 1250.26 to better describe our
multi-track processing, including making substantial revisions to the
organization and wording of the part. Two additional comments
recommended adding to the section to address clarification and contact
processes before denying requests. One suggested adding, ``If NARA has
any uncertainty regarding an aspect of the request, NARA will attempt
to communicate with the requester to clarify the scope of his or her
FOIA request.'' The second comment proposed, ``Requests must reasonably
describe the records sought. If NARA determines that a request does not
reasonably describe the records sought, NARA will contact the requester
to seek clarification. NARA may toll the time limits for processing in
order to make one such request, in which case the time limits resume
upon NARA's receipt of a response from the requester. NARA will provide
at least 30 days for the requester to respond to a request for
clarification. If the request has not been clarified after 30 days,
NARA will deny the request for not reasonably describing the records
sought and will provide the requester with the opportunity to appeal
under the procedures in Subpart D.'' An additional comment also
suggested that NARA should rigorously attempt to contact requesters
through different methods of communication to confirm that any requests
should be administratively closed prior to doing so.
We added the following language to address the first comment and
the first part of the second comment, at Sec. 1250.26(b): ``Requests
must reasonably describe the records sought. If we determine that a
request does not reasonably describe the records sought, or if we are
uncertain about another aspect of the request, we contact you to ask
for clarification.'' At Sec. 1250.26(d), we added language about
tolling and the time period in which a requester must respond to a
clarification request. However, we provided the requester with 60
calendar days in which to respond instead of the recommended 30
calendar days. This has been NARA's practice and we believe the
additional time helps to ensure that requesters have sufficient time to
respond. This longer period is also in line with five other cabinet-
level departments. NARA does rigorously attempt to contact requesters,
using different methods when possible. We feel the 60 days provides
more opportunity to contact requesters who don't initially respond. In
addition, NARA's Office of Government Information Services (OGIS) has
observed some issues with appeal timeliness at agencies that have 30-
day appeal windows.
Another comment recommended that we revise the section to prevent
the destruction of requested records by adding, ``NARA will maintain
copies of records that are the subject of a pending request, appeal, or
lawsuit under the FOIA. NARA will also preserve all correspondence
pertaining to FOIA requests until disposition is authorized under the
National Archives and Records Administration's General Records Schedule
14.'' We agree with this proposal and have included a new section,
Sec. 1250.14, to reflect this request.
One comment suggested that NARA revise a sentence in Sec.
1250.26(b)(1) (now Sec. 1250.26(g)(1)) to state that unusual
circumstances include the need to ``search for and collect the records
from field facilities, other than the facility to which the requester
originally sent the request.'' (Emphasis in original) We declined to
adopt this suggestion because it does not accurately reflect the
situation in which collection from field facilities would occur.
Instead, we revised the provision to apply unusual circumstances to
requests involving one or more field facilities.
The last two comments involved suggestions regarding the
Presidential Records Act, one suggesting that NARA include a citation
to the implementing Executive order, and the other asking questions
about the length of time for the Presidential notification period. We
have chosen not to include the citation to the Executive order, or to
state in the regulation the length of the notification period (which is
currently 30 days). Because the Executive order can change with
Presidential administrations, adding a citation (which may be incorrect
in the next administration) or time period here would not provide
additional clarity in the long term.

[[Page 56503]]

Instead, we let requesters know the current notification period in our
acknowledgment letter. Requesters can also look up the appropriate
notification period in the applicable Executive order at the time of
their request.

Expedited Processing (Sec. 1250.28)

One comment suggested that NARA should revise the proposed
regulations at the second sentence of Sec. 1250.28(a) to state, ``We
will grant expedited processing if a requester can show: . . . .''
(Emphasis in original) In response, we have changed the provision to
read: ``NARA processes requests and appeals on an expedited basis
whenever we determine that one or more of the following criteria exist:
. . . .''

Responding to Requests (Sec. 1250.30)

Five comments recommended revisions to Sec. 1250.30, ``How will
NARA respond to my request?'' (now titled, ``How does NARA respond to
my request?''). One suggested adding a statement that NARA will use
plain language in its communications. Another suggested releasing
records on a rolling basis if the request involves voluminous material
or multiple locations. And the third comment suggested language that
NARA would, whenever possible, include the quantity of withheld
information, and the exemption involved, on any record in which
information is deleted or redacted. The fourth comment suggested
striking the word ``may'' from Sec. 1250.30(b) to state that NARA
denial letters will explain which exemptions apply. NARA adopted all of
these suggestions. The last comment suggested that NARA include in the
final rule a reference to the legal obligation to release segregable
releasable portions of otherwise exempt records. NARA has done so in
Sec. 1250.30(c).

Copy Format (Sec. 1250.38)

One commenter suggested that NARA should explain why it proposes to
delete Sec. 1250.38 of the regulations. NARA did not intend to delete
this section and has added it back in.

Fees and Fee Waivers (Sec. Sec. 1250.50, 1250.52, 1250.54, 1250.56)

The nature of the comments received on Subpart C (fees) and other
sections demonstrated confusion between archival and operational
records, which is an issue unique to NARA in the FOIA realm. As a
result, we have restructured this subpart to further emphasize the
difference between archival and operational records. We also revised
the table of contents to reflect this change. In addition, the
definitions at Sec. Sec. 1250.3(a) and (l) have been amended to
further emphasize the difference between the two.
We have also made revisions based on specific comments. Four
comments involved fees, addressing Sec. Sec. 1250.50, 1250.52, and
1250.54. One comment suggested that NARA not charge any fees if the
total costs for processing the request are $50 or less. We have
considered the suggestion, but decline to raise the no-fee threshold to
$50. We feel this is excessive, particularly in a time period in which
Federal budgets are being cut and taxpayers are concerned about the use
of their money. We feel it would be fiscally irresponsible to allow
free copies to this extent. However, we agree that the previous $15
threshold is out of date, and have thus raised the limit to $25. This
amount is also in line with requesters' authorized 100 free pages of
copies. The second and third comments both suggested that NARA reduce
its duplication fees to $0.10 per page. We also decline to adopt this
suggestion. NARA self-serve copiers are all set to charge the standard
$0.25 per copy, and the machines charge this rate for self-serve
copies, whether the copies are part of a FOIA request or not. (See 36
CFR 1258.6 for information about how these rates are set.) NARA cannot
alter that fee for FOIA self-serve copies. Because a person can make
self-serve copies for $0.25, it is unreasonable to charge the same or
less for copies when NARA staff makes the copies. As a result, NARA
charges $0.05 for the convenience of having a staff member make copies
instead, raising the cost to $0.30 when we make copies. The fourth
comment suggested that NARA not charge a processing fee if it takes
longer than the time limit in 5 U.S.C. 552(a)(6) to process that
request. We revised the regulation to include this provision.
Three additional comments addressed fee waivers in Sec. 1250.56.
Two comments suggested that NARA revise the proposed language to state
that, in addition to determining substantial public interest in release
of the documents, it will determine if the request ``primarily''
furthers the requester's commercial interests before denying a fee
waiver. The third comment suggested adding language to provide NARA
with discretion to waive fees in additional circumstances. We revised
these provisions as suggested.

Appeals (Sec. 1250.72)

Three comments were submitted on Sec. 1250.72, ``How do I file an
appeal.'' One comment suggested stating that all appeals must be
received within 60 days of receipt of NARA's denial letter. We have
agreed to make this change despite the fact that we have encountered no
problems with people being able to meet the current 35-day time period
for appeals. The second comment suggested adding, ``For appeals
submitted via mail, you should mark both your letter and envelope with
the words `FOIA Appeal.' If possible, include the tracking number for
your request or a copy of your initial request and NARA's denial.'' We
have made this revision, except for the words ``if possible.'' If
appellants do not submit a tracking number or copy of the original
request, we will not be able to determine which request they are
appealing. One or the other of these items must be included for
identification. The final comment suggested that NARA change the appeal
time from calendar days to working days because the appeal would not be
able to be received if we were not working. We decline to make the
change. This provision sets out the timeframe within which a requester
must submit an appeal. If we are not working on the date it arrives, it
will still be postmarked, or have an email or fax date recorded, and
thus be deemed to have been submitted on time.

Appeal Processing (Sec. 1250.74)

One commenter stated that ``appropriate designated appeal
official'' was not clear enough to determine which official is
intended. We have modified the section to state: ``We respond to your
appeal within 20 working days after the appeal official designated in
36 CFR 1250.72(a)(1)(i) and (ii) receives it.'' That section of the
regulation includes a list of specific appeal officials.
An additional commenter stated that they do not believe it is legal
under 5 CFR Sec. 214.402(c)(1) for NARA's Deputy Archivist to be
delegated the authority to make FOIA appellate adjudications under 36
CFR 1250.72(a)(1)(ii) and 36 CFR 1250.74(a)(1) when the Deputy
Archivist ``most certainly has responsibility for or substantial
involvement in the determination or public advocacy of major
controversial FOIA polices of the NARA.'' Based on regulations and the
Open Government Act of 2007, NARA's Chief FOIA Officer is responsible
for the FOIA program and policies, not the Deputy Archivist. The Chief
FOIA Officer for NARA is the General Counsel. Therefore, it is
appropriate for the Deputy Archivist to handle appellate adjudications.

[[Page 56504]]

Special Situations and Confidential Commercial Information (Subpart E)
(Sec. Sec. 1250.80-1250.82)

Six comments were received regarding Subpart E--Special Situations.
One suggested re-titling the subpart ``Confidential Commercial
Information'' because the sections all involve such information. We
have changed the title as suggested. One comment suggested revising the
proposed language in Sec. 1250.80 to require submitters to proactively
designate claimed confidential business information within 30 days,
that such designations are not binding on NARA, and that blanket
designations by page will not be considered a good faith effort. We
have made revisions to the provisions to address these concerns and
additional comments about the clarity of the language. It now reads:
``At the time of submission, a submitter of business information is
expected to designate, by appropriate markings, any portions of its
submission that it considers to be protected from disclosure under FOIA
Exemption 4. Although these portions may be designated, this does not
preclude NARA from conducting a full FOIA review of such documents if
we receive a FOIA request for those records. These designations will
expire 10 years after the date of the submission unless the submitter
requests, and provides justification for, a longer designation period,
or NARA extends the designation period at its discretion.'' A second
comment suggested revising Sec. 1250.82 to require substantiation for
claims of confidential business information in the form of a detailed
written statement specifying grounds for withholding and showing why
that information should not be released. We have added language to
require justification but have declined to use the detailed language
suggested. We believe the review process described in Sec. 1250.82(a)
(now split into subparagraphs (a) and (b) for clarity) addresses these
portions of the comment and that Sec. 1250.82(e) already indicates
that submitters must justify objections, by stating that they must
submit the basis for the objection. However, we have added additional
language: ``We provide the submitter with 20 working days from the date
of NARA's notice to object to the release and to explain a basis for
the objection, including justification and support for the claim.''
Another comment asked if NARA would let requesters know when a
longer designation period would expire. NARA will not do this because
we do not track these expiration dates. These dates are assessed at the
time a request for the records is made, based on the original
submission date or extension date. The commenter also stated that the
language ``a reasonable time thereafter'' was too vague. We have
removed this language. And this commenter asked if the NARA FOIA
Officer is a filled and funded position. Although this question is
outside the scope of this regulation, NARA's FOIA officer is a filled
and funded position.
The final comment suggested adding a new section, Sec. 1250.83, to
streamline notice of requests to submitters, to read, ``NARA will not
notify a submitter under Sec. 1250.82 (emphasis in original) if it
determines that:
(a) The information must be withheld under FOIA's exemptions;
(b) The information lawfully has been published or made available
to the public;
(c) Disclosure of the information is required by statute (other
than FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12600; or
(d) The designation made by the submitter appears obviously
frivolous--except that, in such a case, the agency will, no fewer than
five working days prior to a specified disclosure date, give the
submitter written notice of any final decision to disclose the
information.''
We have revised the regulation essentially as suggested with
respect to paragraphs (a), (b), and (c), but placed it under Sec.
1250.82(a) instead. However, we have not accepted the proposed
paragraph (d) because it would still require notification to the
submitter.

Regulatory Review Information

This rule is not a significant regulatory action for the purposes
of E.O. 12866 and has been reviewed by the Office of Management and
Budget (OMB). It is also not a major rule as defined in 5 U.S.C.
Chapter 8, Congressional Review of Agency Rulemaking. As required by
the Regulatory Flexibility Act, we certify that this rule will not have
a significant impact on a substantial number of small entities. It
makes only clarifications to the already-existing processes by which
individuals or entities request access to NARA records, and updates
them to reflect changes in Federal requirements to make access easier.

List of Subjects in 36 CFR Part 1250

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

For the reasons stated in the preamble, the National Archives and
Records Administration revises part 1250 to read as follows:

PART 1250--NARA RECORDS SUBJECT TO FOIA

Subpart A--General Information About Freedom of Information Act (FOIA)
Requests
Sec.
1250.1 Scope of this part.
1250.2 Presumption of Openness and Proactive Disclosures.
1250.3 Definitions.
1250.4 Who can file a FOIA request?
1250.6 Does FOIA apply to all of the records at NARA?
1250.8 Does NARA provide access under FOIA to all the executive
branch records housed at NARA facilities?
1250.10 Do I need to use FOIA to gain access to records at NARA?
1250.12 What types of records are available in NARA's FOIA library?
1250.14 Preservation of FOIA-related materials.
Subpart B--How To Request Records Under FOIA
1250.20 What do I include in my FOIA request?
1250.22 Where do I send my FOIA request?
1250.24 Does NARA accept electronic FOIA requests?
1250.26 How does NARA process my FOIA request?
1250.27 How does NARA determine estimated completion dates for FOIA
requests?
1250.28 How do I request expedited processing?
1250.30 How does NARA respond to my request?
1250.32 How may I request assistance with the FOIA process?
1250.38 In what format does NARA provide copies?
Subpart C--Fees
1250.50 General information on fees for all FOIA requests.
1250.51 What fee policies apply to archival records?
1250.52 What fee policies apply to operational records?
1250.53 What is the FOIA fee schedule for operational records?
1250.54 How does NARA calculate FOIA fees for operational records?
1250.56 How may I request a fee waiver for operational records?
Subpart D--Appeals
1250.70 When may I appeal NARA's FOIA determination?
1250.72 How do I file an appeal?
1250.74 How does NARA process appeals?
Subpart E--Confidential Commercial Information
1250.80 How does a submitter identify records containing
confidential commercial information?

[[Page 56505]]

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

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

Subpart A--General Information About Freedom of Information Act
(FOIA) Requests

Sec. 1250.1 Scope of this part.

This part implements the provisions of the Freedom of Information
Act (FOIA), 5 U.S.C. 552, as amended, for NARA operational records and
archival records that are subject to FOIA. This part contains the rules
that we follow to process FOIA requests, such as the amount of time we
have to make a determination regarding the release of records and what
fees we may charge. Other NARA regulations in 36 CFR parts 1254 through
1275 provide detailed guidance for conducting research at NARA.

Sec. 1250.2 Presumption of Openness and Proactive Disclosures.

NARA, consistent with its core mission, has always been committed
to providing public access to as many of our records as possible. We
therefore continue to affirmatively release and post records, or
descriptions of such records, on our Web site at www.archives.gov in
the absence of any FOIA request. We proactively identify and make
discretionary disclosures of additional records of interest to the
public whenever possible.

Sec. 1250.3 Definitions.

The following definitions apply to this part:
(a) Archival records means permanently valuable records of the
United States Government that have been transferred to the legal
custody of the Archivist of the United States. These are historical
documents and do not include NARA operational records as defined in
paragraph (l) of this section.
(b) Commercial use request means a request that asks for
information for a use or purpose that furthers a commercial, trade, or
profit interest of the requester or the person or entity on whose
behalf the request is made.
(c) Confidential commercial information means records provided by a
submitter that may contain trade secrets or confidential business or
financial information that is exempt from release under the FOIA
because disclosure could reasonably be expected to cause the submitter
substantial competitive harm.
(d) Educational institution request means a request made by a
school, university, or other educational institution that operates a
program of scholarly research. To qualify for this category, a
requester must show that the request is authorized by, and is made
under the auspices of, a qualifying institution and that the records
are sought to further scholarly research, not for a commercial use.
(e) Expedited processing means the process set forth in the FOIA
that allows requesters to ask for faster processing of their FOIA
request if they can demonstrate a specific compelling need.
(f) Fee category means one of the four categories set forth in the
FOIA to determine whether a requester will be charged fees for search,
review, and duplication. The categories are: Commercial requesters;
non-commercial scientific or educational institutions; news media
requesters; and all other requesters.
(g) Fee waiver means the waiver or reduction of fees if a requester
is able to demonstrate that certain standards set forth in the FOIA are
satisfied, including that the information is in the public interest and
is not requested for a commercial interest.
(h) FOIA Public Liaison means an agency official who is responsible
for assisting in reducing delays, increasing transparency and
understanding of the status of requests, and assisting in the
resolution of disputes.
(i) FOIA request means a written request, that cites the Freedom of
Information Act, for access to NARA operational records, records of the
executive branch of the Federal Government held by NARA, or
Presidential or Vice Presidential records in NARA's custody that were
created after January 19, 1981.
(j) Freedom of Information Act (FOIA) means the law codified at 5
U.S.C. 552 that provides the public with the right to request
Government records from Federal executive branch agencies.
(k) Non-commercial scientific institution request means a request
submitted by an institution that is not operated on a basis that
furthers the commercial, trade, or profit interests of any person or
organization, and which is operated solely for the purpose of
conducting scientific research.
(l) Operational records means records that NARA creates or receives
in carrying out our mission and responsibilities as an executive branch
agency. This does not include archival records as defined in paragraph
(a) of this section.
(m) Original Classification Authority means the authority to
classify information as National Security Information at creation, as
granted by the President of the United States in Executive Order 13526,
section 1.3, and defined in 32 CFR part 2001.
(n) Other request means a request submitted by any individual whose
request does not qualify as a commercial-use request, representative of
the news media request (including a request made by a freelance
journalist), or an educational or non-commercial scientific institution
request.
(o) Presidential records means the official Presidential and Vice
Presidential records created or received by the President, the Vice
President, or the White House staff since January 20, 1981, and covered
under the Presidential Records Act, 44 U.S.C. 2201-2207. Presidential
Executive orders also apply to these records.
(p) Presidential Records Act (PRA) means the law that, in part,
governs access to Presidential and Vice Presidential records and is
codified at 44 U.S.C. 2201-2207 and Part 1270 of these regulations. The
PRA contains six restrictions that authorize NARA to withhold
information, which apply for 12 years after a President leaves office.
Four of the PRA restrictions are identical to FOIA Exemptions 1, 3, 4,
and 6. Two relate to appointments to Federal office and confidential
communications requesting or submitting advice between the President
and his advisers, or between and among such advisers. The PRA also
excludes application of FOIA Exemption 5.
(q) Representative of the news media means a person or entity that
is organized and operated to publish or broadcast news to the public,
and that actively gathers information of potential interest to a
segment of the public, uses its editorial skills to turn raw materials
into a distinct work, and distributes that work to an audience. The
term ``news'' means information that is about current events or that
would be of current interest to the public. Examples of news media
entities include television or radio stations that broadcast news to
the public at large and publishers of periodicals, including print and
online publications that disseminate news and make their products
available through a variety of means to the general public. We consider
requests for records that support the news-dissemination function of
the requester to be a non-commercial use. We consider ``freelance''
journalists who demonstrate a solid basis for expecting publication
through a news media entity as working for that entity. A publishing
contract provides the clearest evidence that a journalist expects
publication; however,

[[Page 56506]]

we also consider a requester's past publication record. We decide
whether to grant a requester media status on a case-by-case basis,
based on the requester's intended use.
(r) Review means examining documents responsive to a request to
determine whether any portions of them are exempt from disclosure.
Review time includes processing any record for disclosure (i.e., doing
all that is necessary to prepare the record for disclosure), including
redacting the record and marking the appropriate FOIA exemptions.
(s) Search means the process of looking for and retrieving records
or information responsive to a request. It also includes reasonable
efforts to locate and retrieve information from records maintained in
electronic form or format.
(t) Submitter means any person or entity providing potentially
confidential commercial information to an agency, which information may
be subject to a FOIA request. The term submitter includes, but is not
limited to, individuals, corporations, state governments, and foreign
governments.

Sec. 1250.4 Who can file a FOIA request?

Any individual, partnership, corporation, association, or public or
private organization other than a Federal agency, regardless of
nationality, may file a FOIA request with NARA. The Administrative
Procedure Act, 5 U.S.C. 551(2), excludes Federal agencies from filing
FOIA requests. However, state and local governments may file FOIA
requests.

Sec. 1250.6 Does the FOIA apply to all of the records at NARA?

No, the FOIA applies only to the records of the executive branch of
the Federal Government and certain Presidential and Vice Presidential
records:

------------------------------------------------------------------------
If you want access to . . . Then access is governed by . . .
------------------------------------------------------------------------
(a) Records of executive branch This CFR part and parts 1254 through
agencies. 1260 of this chapter. FOIA applies
to these records.
(b) Records of the Federal courts Parts 1254 through 1260 of this
and judicial branch agencies. chapter. FOIA does not apply to
these records.
(c) Records of Congress and Parts 1254 through 1260 of this
legislative branch agencies. chapter. FOIA does not apply to
these records.
(d) Presidential records (created This part and parts 1254 through
by Presidents and Vice Presidents 1270 of this chapter. FOIA applies
holding office since 1981). to these records five years after
the President and Vice President
leave office.
(e) Documents created by The deed of gift under which they
Presidents holding office before were given to NARA. These documents
1981 and housed in a NARA are not agency records and FOIA
Presidential library. does not apply to these materials.
(f) Nixon Presidential materials.. Part 1275 of this chapter. FOIA does
not apply to these materials.
------------------------------------------------------------------------

Sec. 1250.8 Does NARA provide access under FOIA to all the executive
branch records housed at NARA facilities?

(a) NARA provides access under FOIA to the records NARA creates
(operational records) and records originating in the executive branch
that have been transferred to the legal custody of the Archivist of the
United States (archival records).
(b) NARA's National Personnel Records Center (NPRC), located in St.
Louis, Missouri, is the repository for twentieth-century personnel and
medical records of former members of the military and personnel records
of former civilian employees of the Federal Government.
(1) Those official personnel and medical files that have been
transferred to NARA's legal custody, which occurs 62 years after the
date of an employee's or veteran's separation from Federal service, are
processed by NARA according to this part, at Sec. Sec. 1250.20 through
1250.32.
(2) Those personnel and medical records that remain in the legal
custody of the agencies that created them are governed by the FOIA and
other access regulations of the originating agencies, which the NPRC
processes under authority delegated by the originating agencies, not
under the provisions of this part. Because of the intricacies of other
agencies' FOIA regulations, further explanation here is not feasible.
More information about the NPRC processes, including access to NPRC
records, is available on NARA's Web site at https://www.archives.gov/st-louis/military-personnel/ and at https://www.archives.gov/st-louis/civilian-personnel.
(c) NARA's Federal records centers store records that agencies no
longer need for day-to-day business. These records remain in the legal
custody of the agencies that created them. Requests for access to
another agency's records in a NARA Federal records center should be
made directly to the originating agency. We do not process FOIA
requests for these records.
(d) If your FOIA request includes a record in the legal custody of
an originating agency, we forward that request to the originating
agency for processing. We also provide you with notification that we
have done so and with contact information for the originating agency.
(See 36 CFR 1256.2 for more information about how to access records
that are stored in Federal records centers.)

Sec. 1250.10 Do I need to use FOIA to gain access to records at NARA?

(a) Most archival records held by NARA have no restrictions to
access and are available to the public for research without filing a
FOIA request. You may either visit a NARA facility as a researcher to
view and copy records or you may write to request copies of specific
records. (See subpart B of 36 CFR part 1256 for more information about
how to access archival records).
(b) If you are seeking access to archival records that are not yet
available to the public, you need to file a FOIA request. (See 36 CFR
1256.22 for information on how to request access to restricted archival
records. See paragraph (d) of this section, and part 1260, for
additional procedures on access to classified records.)
(c) You must also file a FOIA request when you request access to
NARA operational records (records NARA creates) that are not already
available to the public.
(d) If you are requesting records that you know are classified to
protect national security interests, you may wish to use the Mandatory
Declassification Review process, which is set forth at 36 CFR 1260.70.
(Please see NARA's FOIA Guide, available online at https://www.archives.gov/foia/foia-guide.html, for the differences between the
FOIA and Mandatory Declassification Review access processes.)

Sec. 1250.12 What types of records are available in NARA's FOIA
library?

(a) We make available certain materials (listed in the FOIA) for
public inspection and copying in both our physical FOIA Library as well
as on NARA's Web site, available at https://www.archives.gov/foia/electronic-reading-room.html.

[[Page 56507]]

(b) The materials provided through NARA's FOIA Library include:
(1) Final NARA orders;
(2) Written statements of NARA policy which are not published in
the Federal Register;
(3) Operational staff manuals and instructions to staff that affect
members of the public;
(4) At our discretion, copies of operational records requested
three or more times under FOIA and other records that have been, or are
likely to become, the subject of subsequent FOIA requests for
substantially the same records;
(5) An index, updated quarterly, to these materials; and
(6) FOIA logs including opening and closing date, requester's and
organization's name, description of the records, and final disposition.
(c) You may inspect and copy these materials during normal working
hours at the NARA facility where the records are located. See 36 CFR
part 1253 and NARA's Web site at https://www.archives.gov/ for locations
and research room procedures.
(d) You may also access much of these materials on the NARA Web
site. Any of these materials created after October 31, 1996, are on
NARA's Web site at https://www.archives.gov/foia/electronic-reading-room.html.
(e) For a paper copy of the index to these online materials, write
to: NARA FOIA Officer (NGC); Room 3110; National Archives and Records
Administration; 8601 Adelphi Road; College Park, MD 20740-6001.

Sec. 1250.14 Preservation of FOIA-related records.

Each NARA component preserves all correspondence pertaining to the
requests that it receives under this part, as well as copies of all
requested records, until Title 44 of the United States Code or NARA's
General Records Schedule 14 authorizes disposition or destruction.
Records will not be disposed of while they are the subject of a pending
request, appeal, or lawsuit under the FOIA.

Subpart B--How To Request Records Under FOIA

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

In your FOIA request:
(a) Describe the records you seek in sufficient detail to enable
NARA staff to locate them with a reasonable amount of effort. The more
information you provide, the better possibility NARA has of finding the
records you are seeking. Information that will help NARA find the
records includes:
(1) The agencies, offices, or individuals involved;
(2) The approximate date(s) when the records were created;
(3) The subject, title, or description of the records sought; and
(4) Author, recipient, case number, file designation, or reference
number.
(b) Include your name and full mailing address as well as phone
number and email address. This information allows us to reach you
faster if we have any questions about your request. It is your
responsibility to keep your current mailing address up to date with the
office where you have filed the FOIA request.
(c) If you request records about yourself, you must do so in
accordance with the Privacy Act and our implementing regulations at 36
CFR part 1202. This includes requirements to verify your identity (see
36 CFR 1202.40). If you request records about someone other than
yourself, you may receive greater access if you submit either a
notarized document signed by the other person that certifies their
identity and gives their permission for you to have access, or proof
that the other person is deceased (e.g., a copy of a death certificate
or an obituary). NARA may, at its discretion, require you to supply
additional information if necessary to verify that a particular
individual has consented to disclosure of records about them.
(d) Mark both your letter and envelope, or the subject line of your
email, with the words ``FOIA Request.''
(e) Before filing your request, you may find it helpful to consult
NARA's ``Freedom of Information Act Reference Guide''--which is
available electronically at https://www.archives.gov/foia/foia-guide.html, and in paper form. For a paper copy of NARA's FOIA Guide,
write to: NARA FOIA Officer (NGC); Room 3110; National Archives and
Records Administration; 8601 Adelphi Road; College Park, MD 20740-6001.
For additional information about the FOIA, you may refer directly to
the statute at 5 U.S.C. 552 or visit https://www.foia.gov.

Sec. 1250.22 Where do I send my FOIA request?

(a) NARA has several FOIA Customer Service Centers that process
FOIA requests. You should send your FOIA request to the appropriate
FOIA Customer Service Center that you believe would have the records
you seek:

------------------------------------------------------------------------
For: Mail/submit request to or call:
------------------------------------------------------------------------
(1) Archival records located in Chief, Special Access and FOIA Staff
the Washington, DC, area . .. (RD-F), Room 5500, National
Archives and Records
Administration, 8601 Adelphi Road,
College Park, MD 20740-6001 OR by e-
mail to Specialaccessfoia@nara.gov.
(2) Archival records maintained in . . . the director of the facility
other parts of the country . .. in which the records are located.
You can find locations and contact
information for NARA facilities at
https://www.archives.gov/locations/
or 36 CFR 1253.5.
(3) Presidential records subject . . . the director of the
to FOIA . . .. Presidential library in which the
records are located. You can find
locations and contact information
for NARA's Presidential libraries
at https://www.archives.gov/locations/ locations/ or 36 CFR 1253.3.
(4) Operational records of any NARA FOIA Officer (NGC), Room 3110,
NARA unit except the Office of National Archives and Records
the Inspector General . .. Administration, 8601 Adelphi Road,
College Park, MD 20740-6001 OR by
email to FOIA@nara.gov OR online at
https://foiaonline.regulations.gov.
(5) Operational records of the Office of the Inspector General
Office of the Inspector General . (OIG), FOIA Request, Room 1300,
.. National Archives and Records
Administration, 8601 Adelphi Road,
College Park, MD 20740-6001.
(6) Any other records, or if you NARA FOIA Officer (NGC), Room 3110,
are unable to determine where to National Archives and Records
send your request or if you do Administration, 8601 Adelphi Road,
not have access to the internet College Park, MD 20740-6001 OR call
for a list of NARA's FOIA (7) (301) 837-FOIA (3642) ** Within 10
Public Liaisons and Customer working days of receiving a
Service Centers . .. request, this office will forward
your request to the office(s) that
is likely to have the records you
are seeking.
------------------------------------------------------------------------

[[Page 56508]]

(b) NARA officially receives your request when it reaches the
proper office's FOIA staff, but no later than 10 working days after the
request first arrives at one of the offices in the table above. Receipt
by the appropriate office initiates the time period for responding to
your request (see 36 CFR 1250.26).
(c) If you have questions concerning the processing of your FOIA
request, you may contact the designated FOIA Customer Service Center
for the facility processing your request. If that initial contact does
not resolve your concerns, you may wish to contact the designated FOIA
Public Liaison for the facility processing your request. You can find a
list of NARA's FOIA Customer Service Centers and Public Liaisons at
https://www.archives.gov/foia/contacts.html.

Sec. 1250.24 Does NARA accept electronic FOIA requests?

Yes. You may submit and track requests for NARA operational records
through the FOIAonline program, accessible at https://foiaonline.regulations.gov, or by sending an email to FOIA@nara.gov.
The body of the message must contain all of the information listed in
36 CFR 1250.20. You may also file a FOIA request by emailing your
request to the offices listed in the table at 36 CFR 1250.22.

Sec. 1250.26 How does NARA process my FOIA request?

(a) Acknowledgement. NARA acknowledges all FOIA requests in writing
within 20 working days after receipt by the appropriate office (see 36
CFR 1250.22). The acknowledgement letter or email informs you of your
request tracking number, and any complexity in processing that may
lengthen the time NARA requires to reach a final decision on the
release of the records. The acknowledgement letter or email may also
seek additional information to clarify your request or to ask you to
narrow the scope of a very large or broad request.
(b) Clarification of requests. Requests must reasonably describe
the records sought. If we determine that a request does not reasonably
describe the records sought, or if we are uncertain about another
aspect of the request, we contact you to ask for clarification.
(c) Search cut-off date. As the end or cut-off date for a records
search, NARA uses the date on which we first begin our search for
documents responsive to your request, unless you specify an earlier
cut-off date. This includes those cases when you request records
``through the present,'' ``through today,'' or similar language. If
NARA uses any other search end date, we inform you of that date.
(d) Stops in processing time, clarification requests, and
administrative closure. NARA may stop the clock for processing a
request one time in order to seek your clarification. In such a case,
the processing time resumes upon our receipt of your response. We
provide at least 60 calendar days for you to respond to a request for
clarification. If you do not clarify the request within 60 calendar
days, we deny the request for not reasonably describing the records
sought and provide you with the opportunity to appeal under the
procedures in Subpart D. Should you not answer any correspondence, or
should the correspondence be returned as undeliverable, NARA reserves
the right to administratively close the FOIA request 60 calendar days
after the date of the last correspondence we send.
(e) Confidential commercial information. If you have requested
records containing confidential commercial information, refer to 36 CFR
1250.82 for information on how we process that request.
(f) Processing queues. NARA places FOIA requests in simple or
complex processing queues to be processed in the order received, on a
first-in, first-out basis. In most cases, we make a determination about
release of the records you requested within 20 working days from when
the appropriate office receives your request (simple queue processing).
However, if complexity or unusual circumstances prevent NARA from
making a decision within 20 working days, we place your request into a
complex processing queue. This way, such cases do not hold up the
processing of other requests that do not include such time-consuming
factors. We notify you of complicating factors in our acknowledgement
letter or email, and you may choose to limit the scope of your request
to convert the complex processing queue request to a simple processing
queue request. For more detailed information on NARA's multi-track
processing queues, see our FOIA Guide at https://www.archives.gov/foia-guide.html (for a paper copy, see 36 CFR 1250.20(d)).
(g) Complex processing queue factors. We place into a complex
processing queue any request that cannot be completed within 20 working
days due to complexity, volume, because it contains national security
information, because it involves Presidential or Vice Presidential
records, or involves unusual circumstances. Unusual circumstances
include the need to:
(1) Search for and collect the records from one or more field
facilities;
(2) Search for, collect, and review a voluminous amount of records
that are part of a single request;
(3) Consult with another Federal agency before releasing records;
or
(4) Refer records to another Federal agency for declassification.
(h) Complex processing schedule. If NARA needs to extend the
deadline for more than an additional 10 working days due to the
complexity of a request or as a result of unusual circumstances, we ask
if you wish to modify your request so that we can answer the request
sooner. If you do not wish to modify your request, we work with you to
arrange an alternative schedule for review and release.
(i) Complex processing: National security declassification and
release. NARA does not have the authority to declassify and release
records containing national security information without the approval
of the agencies that have Original Classification Authority for the
information contained in the records. We send copies of the documents
to the appropriate originating Federal agencies for declassification
review. We also send you an initial response to your FOIA request
within 20 working days, informing you of this consultation with, or
referral to, another Federal agency, except to the extent that the
association with the other agency may itself be classified. Upon your
request, we provide you an estimated date of completion.
(j) Complex processing: Presidential or Vice Presidential records.
If you request Presidential or Vice Presidential records and we
determine that the records are not subject to any applicable FOIA or
Presidential Records Act (PRA) exemption (and can therefore be
released), we must notify the current and former President(s) or Vice
President(s) of our intention to disclose information from those
records. After receiving the notice, the current and former
President(s) and Vice President(s) have a period of time (as set out in
the applicable Executive order on implementation of the PRA) in which
to choose whether to invoke Executive Privilege to deny access to the
requested information. Although we send you an initial status response
to your FOIA request within 20 working days in these cases, the final
response to your FOIA request will take longer. We can provide the
final response only at the end of the Presidential notification period
set forth in the Executive order.

[[Page 56509]]

Sec. 1250.27 How does NARA determine estimated completion dates for
FOIA requests?

(a) When you ask for an estimated completion date for records that
do not require consultation with another agency, we estimate the
completion date on the basis of our reasonable judgment at that point
as to how long it will take to complete the request. Given the
uncertainty inherent in establishing any estimate, the estimated
completion date may be subject to change at any time.
(b) When you ask for an estimated completion date for records that
must be reviewed by another agency, our estimate is also based on
information from the other agency:
(1) When we send documents for consultation to another agency, we
ask the agency to provide an estimated completion date for its portion
of the processing.
(2) We keep the consulting agency's estimated completion date for
its portion of the processing in the request file and use it in
addition to our own processing time estimate to provide you with an
overall estimated completion date.
(3) If the consulted agency or agencies do not provide us with an
estimated completion date, we provide you with an estimate based on our
general experience working with the agency or agencies and the types
and volumes of records at issue.

Sec. 1250.28 How do I request expedited processing?

(a) NARA processes requests and appeals on an expedited basis
whenever we determine that one or more of the following criteria exist:
(1) A reasonable expectation of an imminent threat to an
individual's life or physical safety;
(2) A reasonable expectation of an imminent loss of a substantial
due process right;
(3) An urgent need to inform the public about an actual or alleged
Federal Government activity (this criterion applies only to those
requests made by a person primarily engaged in disseminating
information to the public); or
(4) A matter of widespread and exceptional media interest in which
there exist possible questions that affect public confidence in the
Government's integrity.
(b) NARA can expedite requests, or segments of requests, only for
records over which we have control. If NARA must refer a request to
another agency, we will inform you and suggest that you seek expedited
review from that agency. NARA cannot expedite the review of classified
records nor can we shorten the Presidential notification period
described in 36 CFR 1250.26(j).
(c) To request expedited processing, you must submit a statement,
certified to be true and correct, explaining the basis for your need
for expedited processing. You must send the request to the appropriate
official at the address listed in Sec. 1250.22 of this subpart. You
may request expedited processing when you first request records or at
any time during NARA's processing of your request or appeal.
(d) We will respond to your request for expedited processing within
10 calendar days of our receipt of your request to expedite. If we
grant your request, the NARA office responsible for the review of the
requested records will process your request as a priority, and it will
be processed as soon as practicable. We will inform you if we deny your
request for expedited processing. If you decide to appeal that denial,
we will expedite our review of your appeal.

Sec. 1250.30 How does NARA respond to my request?

(a) NARA sends you a response informing you of our release
determination, including whether any responsive records were located,
how much responsive material was located, whether the records have been
released in full or withheld in full or in part, where you may review
the records, and any fees you must pay for the request. We will use
plain language in all written communications with requesters.
(b) If we deny any part of your request, our response will explain
the reasons for the denial, which FOIA exemptions apply to withhold
records, and your right to appeal that determination.
(c) NARA may withhold records in full or in part if any of the nine
FOIA exemptions apply. NARA withholds information only where disclosure
is prohibited by law (such as information that remains classified, or
information that is specifically exempt by statute) or where we
reasonably foresee that disclosure would cause harm to an interest
protected by one of the FOIA exemptions. If we must withhold part of a
record, we provide access to the rest of the information in the record.
On the released portion of the record, we indicate the amount of
information we redacted and the exemption(s) we applied, unless
including that indication would harm an interest the exemption
protects. NARA may also determine that a request does not reasonably
describe the records sought; the information requested is not a record
subject to FOIA; the requested record does not exist, cannot be
located, or has been destroyed; or the requested record is not readily
reproducible in the form or format you sought. Information that may be
exempt from disclosure under the FOIA is:

------------------------------------------------------------------------
Section of the FOIA: Reason for exemption:
------------------------------------------------------------------------
5 U.S.C. 552(b)(1)........................ ``(A) specifically
authorized under criteria
established by an Executive
order to be kept secret in
the interest of national
defense or foreign policy
and (B) are in fact
properly classified
pursuant to such Executive
order.''
5 U.S.C. 552(b)(2)........................ ``related solely to the
internal personnel rules
and practices of an
agency.''
5 U.S.C. 552(b)(3)........................ ``specifically exempted from
disclosure by statute
(other than Sec. 552(b)
of this title), provided
that the statute:
(A) Requires that the
matters be withheld from
the public in such a manner
as to leave no discretion
on the issue; or
(B) Establishes particular
criteria for withholding or
refers to particular types
of matters to be
withheld;''
5 U.S.C. 552(b)(4)........................ ``trade secrets and
commercial or financial
information obtained from a
person that are privileged
or confidential;''
5 U.S.C. 552(b)(5)........................ ``inter-agency or intra-
agency memorandums or
letters which would not be
available by law to a party
other than an agency in
litigation with the
agency;''
5 U.S.C. 552(b)(6)........................ ``personnel and medical
files and similar files the
disclosure of which would
constitute a clearly
unwarranted invasion of
personal privacy;''

[[Page 56510]]

5 U.S.C. 552(b)(7)........................ ``records or information
compiled for law
enforcement purposes, but
only to the extent that the
production of such law
enforcement records or
information:
(A) could reasonably be
expected to interfere with
enforcement proceedings;
(B) would deprive a person
of a right to a fair trial
or an impartial
adjudication;
(C) could reasonably be
expected to constitute an
unwarranted invasion of
personal privacy;
(D) could reasonably be
expected to disclose the
identity of a confidential
source, including a State,
local, or foreign agency or
authority or any private
institution which furnished
information on a
confidential basis, and, in
the case of a record or
information compiled by a
criminal law enforcement
authority in the course of
a criminal investigation,
or by an agency conducting
lawful national security
intelligence investigation,
information furnished by a
confidential source;
(E) would disclose
techniques and procedures
for law enforcement
investigations or
prosecutions, or would
disclose guidelines for law
enforcement investigations
or prosecutions if such
disclosure could reasonably
be expected to risk
circumvention of the law;
or
(F) could reasonably be
expected to endanger the
life or physical safety of
any individual;''
5 U.S.C. 552(b)(8)........................ ``contained in or related to
examination, operating, or
condition reports prepared
by, on behalf of, or for
the use of an agency
responsible for the
regulation or supervision
of financial
institutions;'' or
5 U.S.C. 552(b)(9)........................ ``geological and geophysical
information and data,
including maps, concerning
wells.''
------------------------------------------------------------------------

(d) If a request involves a voluminous amount of material or
searches in multiple locations, we provide you with interim responses,
releasing the records on a rolling basis.
(e) NARA may not withhold Presidential records subject to FOIA
under 5 U.S.C. 552(b)(5) as defined in the table in paragraph (c) of
this section. However, NARA may withhold Presidential records under the
remaining FOIA exemptions. In addition, Presidential records may be
withheld under the six PRA restrictions for a period of 12 years from
when a President leaves office, in accordance with 44 U.S.C. 2204 and
36 CFR part 1270. Representatives of the current and former Presidents
may also review Presidential records, and may assert constitutionally-
based privileges that would prevent NARA from releasing some or all or
the information requested.

Sec. 1250.32 How may I request assistance with the FOIA process?

(a) For assistance at any point in the FOIA process, you may
contact the NARA FOIA Public Liaison. That individual is responsible
for assisting you to reduce delays, increase transparency and
understanding of the status of requests, and resolve any FOIA disputes.
You can find a list of our FOIA Customer Service Centers and Public
Liaisons at https://www.archives.gov/foia/contacts.html.
(b) The Office of Government Information Services (OGIS), part of
NARA, serves as the Federal FOIA Ombudsman and assists requesters and
agencies to prevent and resolve FOIA disputes. OGIS also reviews
agencies' FOIA policies, procedures, and compliance. You may contact
OGIS using the information provided below in 36 CFR 1250.74(c).

Sec. 1250.38 In what format does NARA provide copies?

After all applicable fees are paid, we provide you copies of
records in the format you request if the records already exist in that
format, or if they are readily reproducible in the format you request.

Subpart C--Fees

Sec. 1250.50 General information on fees for all FOIA requests.

(a) If you have failed to pay FOIA fees in the past, we will
require you to pay your past-due bill and we may also require that you
pay the anticipated fee before we begin processing your current
request. If we estimate that your fees may be greater than $250, we may
also require advance payment or a deposit before we begin processing
your request. If you fail to make an advance payment within 60 calendar
days after the date of NARA's fee letter, we will close the request.
(b) If we determine that you (acting either alone or with other
requesters) are breaking down a single request into a series of
requests in order to avoid or reduce fees, we may aggregate all of
these requests when calculating the fees. In aggregating requests, we
may consider the subject matter of the requests and whether the
requests were filed close in time to one another.
(c) If, in the course of negotiating fees, you do not respond to a
NARA component within 60 calendar days, we reserve the right to
administratively close the FOIA request after 60 calendar days have
passed from the date of our last correspondence to you.

Sec. 1250.51 What fee policies apply to archival records?

(a) NARA is specifically authorized to charge fees for copying
archival records under a separate fee statute, 44 U.S.C. 2116(c). As a
result, archival records are exempt from the FOIA fee waiver
provisions, per 5 U.S.C. 552(a)(4)(A)(vi), and we do not grant fee
waivers for archival records requested under the FOIA. However, we make
most of our archival records available for examination at the NARA
facility where the records are located. Whenever this is possible, you
may review the records in a NARA research room at that facility free of
charge and may also use your own equipment to make copies.
(b) We do not charge search fees for FOIA requests for archival
records, but we do limit the search to two hours.
(c) If you would like us to make copies of archival records, we
typically require you to pay all applicable fees (in accordance with
the fee schedule) before we provide the copies.
(d) You can find our Fee Schedule for archival records at:
www.archives.gov/research/order/fees.html.

Sec. 1250.52 What fee policies apply to operational records?

(a) For operational records, we may charge search fees even if the
records are not releasable or we do not find any responsive records
during our search.
(b) If you are a noncommercial FOIA requester entitled to receive
100 free pages, but the records cannot be copied onto standard-sized
(8.5'' by 11'') photocopy paper, we copy them on larger paper and
reduce the copy fee by the normal charge for 100 standard-sized
photocopies. If the records are not on textual media (e.g., they are
photographs or electronic files), we provide the equivalent of 100
pages of standard-sized paper copies for free.
(c) We do not charge you any fee if the total cost for processing
your request is $25 or less.
(d) If estimated search or review fees exceed $50, we will contact
you. If you have specified a different limit that you are willing to
spend, we will contact

[[Page 56511]]

you only if we estimate the fees will exceed that specified amount.

Sec. 1250.53 What is the FOIA fee schedule for operational records?

In responding to FOIA requests for operational records, NARA
charges the following fees, where applicable, unless we have given you
a reduction or waiver of fees under Sec. 1250.56.
(a) Search fees--(1) Manual searching. When the search is
relatively straightforward and can be performed by a clerical or
administrative employee, the search rate is $16 per hour (or fraction
thereof). When the request is more complicated and must be done by a
NARA professional employee, the rate is $33 per hour (or fraction
thereof).
(2) Computer searching. NARA bases the fees for computer searches
on the actual cost to NARA of operating the computer and the salary of
the operator. When the search is relatively straightforward and a
clerical or administrative employee can conduct it, the search rate is
$16 per hour (or fraction thereof). When the request is more
complicated and a NARA professional employee must perform it, the rate
is $33 per hour (or fraction thereof).
(b) Review fees. (1) NARA charges review fees for time we spend
examining documents that are responsive to a request to determine
whether we must apply any FOIA exemptions to withhold information. NARA
charges review fees even if we ultimately are unable to disclose a
record.
(2) The review fee is $33 per hour (or fraction thereof).
(3) NARA does not charge review fees for time we spend resolving
general legal or policy issues regarding the application of exemptions.
However, NARA does charge review fees for time we spend obtaining and
considering any formal objection to disclosure made by a confidential
commercial information submitter.
(c) Reproduction fees--(1) Self-service photocopying. At NARA
facilities with self-service photocopiers, you may make reproductions
of released paper records for $0.25 per page.
(2) Photocopying standard-sized pages. When we make the photocopies
for operational records, the charge is $0.30 per page.
(3) Reproductions of electronic records. NARA charges you for our
direct costs for staff time for programming, computer operations, and
printouts or electromagnetic media to reproduce the requested
electronic information. When the work is relatively straightforward and
a clerical or administrative employee can perform it, the rate is $16
per hour (or fraction thereof). When the request is more complicated
and a NARA professional employee must do it, the rate is $33 per hour
(or fraction thereof).
(4) Copying other media. This is the direct cost to NARA of the
reproduction. We provide specific rates on a case-by-case basis.

Sec. 1250.54 How does NARA calculate FOIA fees for operational
records?

(a) If you are a commercial use requester, NARA charges you fees
for searching, reviewing, and copying responsive records.
(b) If you are an educational or scientific institution requester,
or a member of the news media, you are entitled to search time, review
time, and up to 100 pages of copying without charge. NARA charges
copying fees only beyond the first 100 pages.
(c) If you do not fall into either of the categories in paragraphs
(a) and (b) of this section, and are an ``other requester,'' you are
entitled to two hours of search and review time, and up to 100 pages of
copying without charge. NARA may charge for search time beyond the
first two hours and for copying beyond the first 100 pages.
(d) NARA does not charge a fee for processing a FOIA request if it
exceeds any time limit under 5 U.S.C. 552(a)(6) in processing that
request, unless unusual or exceptional circumstances (defined under the
FOIA statute) are relevant.

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

(a) We waive or reduce your fees for NARA operational records only
if your request meets both of the following criteria:
(1) The request is in the public interest (i.e., the information is
likely to contribute significantly to public understanding of the
operations or activities of the Government); and
(2) The request is not primarily in your commercial interest.
(b) To be eligible for a fee waiver or reduction you must explain:
(1) How the records you are requesting pertain to the operations
and activities of the Federal Government. There must be a clear
connection between the identifiable operations or activities of the
Federal Government and the subject of your request;
(2) How the release will reveal meaningful information that the
public does not already know about Federal Government activities.
Disclosing information that is already in the public domain, in either
the same or a substantially-identical form, does not add anything new
to the public's understanding of Government activities;
(3) How disclosure to you will advance public understanding of the
issue;
(4) Your expertise or understanding of the requested records as
well as your ability and intention to effectively convey information to
the public. NARA ordinarily presumes that a representative of the news
media satisfies this consideration;
(5) How you intend to disseminate the requested information to a
broad spectrum of the public; and
(6) How disclosure will lead to a significantly greater
understanding of the Government by the public.
(c) After reviewing your request and determining that there is a
substantial public interest in release, we also determine if the
request primarily furthers your commercial interests. If it does, you
are not eligible for a fee waiver.
(d) You should ask for waiver or reduction of fees when you first
submit your request to NARA, and should address the criteria referenced
above. You may also ask for a fee waiver at a later time while the
underlying record request is still pending or during an administrative
appeal.
(e) We may also waive (either partially or in full) or reduce fees
for operational records in additional circumstances as a matter of
administrative discretion.

Subpart D--Appeals

Sec. 1250.70 When may I appeal NARA's FOIA determination?

You may appeal when there is any adverse determination, including:
(a) Refusal to release a record, either in whole or in part;
(b) Determination that a record does not exist or cannot be found;
(c) Determination that the record you sought was not subject to the
FOIA;
(d) Denial of a request for expedited processing;
(e) Denial of a fee waiver request; or
(f) Fee category determination.

Sec. 1250.72 How do I file an appeal?

(a) You may submit your appeal via mail or electronically. All
appeals must be in writing and received by NARA within 60 calendar days
from the date of our determination letter.
(1) For appeals submitted via mail, you should mark both your
letter and envelope with the words ``FOIA Appeal,'' and include either
your tracking number or a copy of your initial request and our
determination letter.

[[Page 56512]]

(i) If NARA's Inspector General denied your request, send your
appeal to the Archivist of the United States; (ATTN: FOIA Appeal
Staff); Room 4200, National Archives and Records Administration; 8601
Adelphi Road; College Park, Maryland 20740-6001.
(ii) Send all other appeals for denial of access to Federal records
to the Deputy Archivist of the United States; (ATTN: FOIA Appeal
Staff); Room 4200; National Archives and Records Administration; 8601
Adelphi Road; College Park, Maryland 20740-6001.
(iii) For Presidential records, send appeals to the appropriate
Presidential library director at the address listed in 36 CFR 1253.3.
(2) For all appeals submitted electronically, except those
regarding Presidential records, send an email to FOIA@nara.gov. For
Presidential records, electronic appeals must contain all the
information listed in Sec. 1250.72 and be sent to the email address of
the appropriate Presidential library. These email addresses are listed
in 36 CFR 1253.3. The subject line of the email should read ``PRA/FOIA
appeal.''
(b) In your appeal letter, you may include as much or as little
related information as you wish, as long as it clearly identifies
NARA's initial determination letter (including the assigned request
number, if known) from which you are appealing, and why we should
release the records, grant your fee waiver request, or expedite the
processing of your request. If we were not able to find the records you
wanted, explain why you believe NARA's search was inadequate. If we
denied you access to records and told you that those records were not
subject to FOIA, please explain why you believe the records are subject
to FOIA.

Sec. 1250.74 How does NARA process appeals?

(a) We respond to your appeal within 20 working days after the
appeal official designated in 36 CFR 1250.72(a)(1)(i) and (ii) receives
it. If we reverse or modify the initial decision, we inform you in
writing and, if applicable, reprocess your request. For Presidential
records, if we release any additional information, we must follow the
notification procedures outlined in 36 CFR 1250.26(j). If we do not
change our initial decision, we respond in writing to you, explain the
reasons for the decision, and set out any FOIA exemptions that apply.
(1) An adverse determination by the Archivist or Deputy Archivist
will be the final action by NARA; and
(2) NARA will cease processing an appeal if a requester files a
FOIA lawsuit.
(b) We notify you of your right to seek judicial review of an
adverse determination as set forth in the FOIA at 5 U.S.C.
552(a)(4)(B). If you wish to seek judicial review of any adverse
determination, you must first appeal it administratively under this
section.
(c) We also inform you that the Office of Government Information
Services (OGIS) offers mediation services to resolve disputes between
FOIA requesters and Federal agencies as a non-exclusive alternative to
litigation. You may contact OGIS in any of the following ways:
Office of Government Information Services, National Archives and
Records Administration, 8601 Adelphi Road--OGIS, College Park, MD
20740, ogis.archives.gov, Email: ogis@nara.gov, Telephone: 202-741-
5770, Facsimile: 202-741-5769, Toll-free: 1-877-684-6448.

Subpart E--Confidential Commercial Information

Sec. 1250.80 How does a submitter identify records containing
confidential commercial information?

At the time of submission, a submitter of business information is
expected to designate, by appropriate markings, any portions of its
submission that it considers to be protected from disclosure under FOIA
Exemption 4. Although these portions may be designated, this does not
preclude NARA from conducting a full FOIA review of all such documents
if a FOIA request for those records has been received. These
designations will expire 10 years after the date of the submission
unless the submitter requests, and provides justification for, a longer
designation period, or NARA extends the designation period at its
discretion.

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

If NARA receives a FOIA request for records containing confidential
commercial information or for records that we believe may contain
confidential commercial information, we follow these procedures:
(a) If the records are less than 10 years old or are still covered
under an extended FOIA Exemption 4 designation period, we review the
records in response to a FOIA request. If we then believe that we
should release the records under FOIA, we make reasonable efforts to
inform the submitter. The notice to the submitter describes the
business information requested or includes copies of the requested
records. NARA does not notify the submitter when we determine that:
(1) We must withhold the information under FOIA's exemptions;
(2) The information has been lawfully published or made available
to the public; or
(3) We are required by a statute (other than the FOIA), or by a
regulation issued in accordance with the requirements of Executive
Order 12600, to disclose the information.
(b) If the records are 10 or more years old, we review the records
in response to a FOIA request as we would any other records, and at our
discretion, inform the submitter. NARA releases the records if we
determine that neither Exemption 4 nor any other exemption applies.
(c) When the request is for information from a single or small
number of submitters, we send a notice via registered mail to the
submitter's last known address. NARA's notice to the submitter includes
a copy of the FOIA request and tells the submitter the time limits and
procedures for objecting to the release of the requested material.
(d) When the request involves information from a voluminous number
of submitters, we may post or publish the notice in a place or manner
reasonably likely to inform the submitters of the proposed disclosure,
instead of sending letters.
(e) We provide the submitter with 20 working days from the date of
NARA's notice to object to the release and to explain a basis for the
objection, including justification and support for the claim. The NARA
FOIA Officer may extend this period as appropriate.
(f) We review and consider all objections to release that we
receive within the time limit. Any information provided by a submitter
under this provision may itself be subject to disclosure under FOIA.
NARA considers a submitter who fails to respond within the time period
specified in the notice to have no objection to disclosure of the
information. If we decide to release the records, we inform the
submitter in writing, along with NARA's reasons for the decision to
release. We include with the notice copies of the records as we intend
to release them. We also inform the submitter that we intend to release
the records within a reasonable time after the date of the notice
unless a U.S. District Court forbids disclosure. NARA will not consider
any information we receive after the date of a disclosure decision.

[[Page 56513]]

(g) If the requester files a lawsuit under the FOIA for access to
any withheld records, we promptly notify the submitter.
(h) NARA notifies the requester in three circumstances:
(1) When we notify the submitter of the opportunity to object to
disclosure, or to extend the time for objecting;
(2) When we notify the submitter of our intent to disclose the
requested information; and
(3) When a submitter files a lawsuit to prevent the disclosure of
the information.

Dated: September 10, 2014.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2014-22186 Filed 9-19-14; 8:45 am]
BILLING CODE 7515-01-P

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