Revision of the Department of Energy's Freedom of Information Act (FOIA) Regulations, 94915-94922 [2016-31337]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Rules and Regulations]
[Pages 94915-94922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31337]



[[Page 94915]]

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DEPARTMENT OF ENERGY

10 CFR Part 1004

RIN 1901-AB41


Revision of the Department of Energy's Freedom of Information Act 
(FOIA) Regulations

AGENCY: FOIA Program, Office of Public Information, Department of 
Energy.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (DOE) issues a final rule 
amending its regulations that prescribe the procedures by which the 
public may request records pursuant to the Freedom of Information Act 
(FOIA) from DOE offices, excluding the Federal Energy Regulatory 
Commission (FERC). This final rule makes changes to DOE's regulations 
to reflect statutory amendments made to the FOIA by the FOIA 
Improvement Act of 2016, and to make minor grammatical and other 
editorial changes throughout the regulations. The editorial changes 
clarify various defined terms, update the internal procedures for 
processing records requested under FOIA, and reflect minor changes to 
DOE's internal organizational structure.

DATES: This rule is effective December 27, 2016.

FOR FURTHER INFORMATION CONTACT: Mr. Alexander Morris, FOIA Officer, 
U.S. Department of Energy, Office of Public Information, Mail Stop MA-
46, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 
20585-0121. Telephone: (202) 586-5955. Email: 
Alexander.Morris@hq.doe.gov.
    Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the 
General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 
20585-0121. Telephone: (202) 586-7796. Email: 
Elizabeth.Kohl@hq.doe.gov.

SUPPLEMENTARY INFORMATION: 10 CFR part 1004 contains DOE's regulations 
that implement the FOIA, 5 U.S.C. 552. The regulations provide 
information concerning the procedures by which the public may request 
records from DOE offices, and the policies and procedures by which DOE 
provides such records to members of the public. DOE previously amended 
its regulations in 1988 (53 FR 15660, May 3, 1988) and 2014 (79 FR 
22855, Apr. 25, 2014). DOE is now updating its regulations to implement 
the requirements of the FOIA Improvement Act of 2016, Public Law 114-
185 (June 30, 2016) (Act). The Act requires that Federal agencies 
review and update their FOIA regulations in accordance with its 
provisions. The Act addresses a range of procedural issues, including a 
requirement that agencies make available for public inspection in an 
electronic format records that have become or are likely to become the 
subject of subsequent requests for substantially the same records, or 
records that have been requested three or more times. The Act also 
requires that agencies provide a minimum of 90 days for requesters to 
file an administrative appeal following an adverse determination, and 
that they provide dispute resolution services at various times 
throughout the FOIA process. The Act also codifies the U.S. Department 
of Justice's ``foreseeable harm'' standard, specifying that an agency 
shall withhold information only if the agency reasonably foresees that 
disclosure would harm an interest protected by an exemption described 
in 5 U.S.C. 552(b) or if disclosure is prohibited by law. This 
provision also requires that agencies consider whether partial 
disclosure is possible if full disclosure is not possible, and that 
agencies take reasonable steps to segregate and release nonexempt 
information. The Act also amends Exemption 5 to specify that the 
deliberative process privilege does not apply to records created 25 
years or more before the date of the request; creates a new ``FOIA 
Council'' charged with, among other things, developing recommendations 
for increased agency compliance and efficiency; and adds two new 
elements to agency Annual FOIA Reports (i.e., the number of times an 
agency has denied a request for records under 5 U.S.C. 552(c) and the 
number of records made available for public inspection under 5 U.S.C. 
552(a)(2)).
    DOE also makes additional revisions to update, clarify, and 
streamline the language in several procedural provisions, as described 
in Section I.

I. Section by Section Analysis

    In the paragraphs that follow, DOE describes the changes to each 
section of 10 CFR part 1004 that it is promulgating in this final rule.
    In Sec.  1004.1, DOE adds a citation to the FOIA Improvement Act of 
2016, which was enacted on June 30, 2016. The citation is to Public Law 
114-185, 130 Stat. 538.
    In Sec.  1004.2(b), DOE clarifies the definition of ``Authorizing 
or Denying Official''; clarifies that term in reference to DOE's 
National Nuclear Security Administration (NNSA); and corrects several 
typographical errors.
    In Sec.  1004.2(h)(1), DOE updates the address of the Bonneville 
Power Administration.
    In Sec.  1004.2(h)(5), DOE updates the address of the Golden Field 
Office.
    In Sec.  1004.2(h)(6), DOE updates its Headquarters address.
    In Sec.  1004.2(h)(8), DOE updates the address of the National 
Nuclear Security Administration.
    In Sec.  1004.2(h)(9), DOE updates the address of the National 
Energy Technology Laboratory.
    In Sec.  1004.2(h)(13), DOE updates the address of the Office of 
Scientific and Technical Information.
    In Sec.  1004.2(i), DOE revises the reference to the DOE 
Organization Act, Public Law 95-91, and clarifies the definition of 
``General Counsel'' in reference to the NNSA General Counsel, as 
defined by the National Nuclear Security Administration Act, Public Law 
106-65.
    In Sec.  1004.2(m), DOE updates the definition of ``Representative 
of the news media'' to mirror the term as defined in the FOIA, 5 U.S.C. 
552(a)(4)(A)(ii)(III).
    In Sec.  1004.2(n), DOE corrects a typographical error.
    In Sec.  1004.2(p), DOE corrects typographical errors.
    In Sec.  1004.3, DOE revises the language to conform to the 
requirements of the FOIA Improvement Act of 2016, which amended 5 
U.S.C. 552(a)(2) to require that agencies maintain, for public 
inspection in an electronic format, the materials required by FOIA to 
be made available for public inspection and copying. The Act also 
requires that agencies make available for public inspection in an 
electronic format records that have become or are likely to become the 
subject of frequent requests for substantially the same records or that 
have been requested three or more times. DOE will implement this 
section consistent with FOIA, as amended by the Act.
    DOE deletes paragraphs (b) through (d) of Sec.  1004.3 and 
renumbers Sec.  1004.3(e) as Sec.  1004.3(b). Paragraphs (b) and (c) 
pertained to reading rooms at DOE field offices, and paragraph (d) was 
reserved.
    In renumbered Sec.  1004.3(b), DOE revises the reference to 5 
U.S.C. 552(b)(2) by deleting ``(2)'' to make this section consistent 
with the Supreme Court decision in Milner v. Dep't of the Navy, 131 S. 
Ct. 1259 (2011), wherein the Court clarified that FOIA Exemption 2, 5 
U.S.C. 552(b)(2), prevents disclosure only of material that relates 
solely to the internal personnel rules and practices of an agency. 
DOE's revision is also consistent with the intent of FOIA, which 
promotes a policy of disclosure unless disclosure is prohibited by law 
or by any of the

[[Page 94916]]

enumerated exemptions in 5 U.S.C. 552(b), not solely the exemption 
found at Sec.  552(b)(2).
    In renumbered Sec.  1004.3(b)(2), DOE revises references to 
paragraphs Sec.  1004.3(e)(1) and (e)(4) to refer to renumbered 
paragraphs Sec.  1004.3(b)(1) and (b)(4), respectively.
    In renumbered Sec.  1004.3(b)(4), DOE revises the reference to 
paragraph Sec.  1004.3(e)(2) to refer to renumbered paragraph Sec.  
1004.3(b)(2).
    In Sec.  1004.4(a), DOE revises the language to conform to the 
requirements of the FOIA Improvement Act of 2016, which requires that 
agencies maintain, for public inspection in an electronic format, the 
materials required by FOIA to be made available for public inspection 
and copying. 5 U.S.C. 552(a)(2). DOE further revises Sec.  1004.4(a) by 
clarifying that requests can be submitted via facsimile or 
electronically on an appropriate agency Web site. DOE also corrects a 
typographical error.
    In Sec.  1004.4(c)(2), DOE corrects a typographical error.
    In Sec.  1004.5(b), DOE revises the procedure for processing 
requests for records to conform to the requirements of the FOIA 
Improvement Act of 2016, which requires that a written response to the 
requester shall notify the requester of the right to seek dispute 
resolution services from the DOE FOIA Public Liaison or the Office of 
Government Information Services. 5 U.S.C. 552(a)(6)(A)(i).
    In Sec.  1004.5(c), DOE corrects grammatical errors in the 
procedure for processing requests for records in the custody of one or 
more Authorizing Officials. No change to current practice is intended.
    In Sec.  1004.5(d), DOE clarifies the definition of ``days'' with 
respect to the time limit for processing requests, to eliminate any 
confusion with existing Sec.  1004.12 on computation of time. No change 
in the time limit is intended. DOE also amends the reference to when a 
request is ``received'' for purposes of the time limits prescribed in 
Sec.  1004.4(a).
    In Sec.  1004.5(d)(iii), DOE clarifies the extension of time that 
can be granted before a decision on a request can be reached, 
consistent with existing Sec.  1004.12. No change in the length of an 
extension is intended. DOE also revises this section to conform to the 
requirements of the FOIA Improvement Act of 2016, which provides that 
in unusual circumstances, the agency shall notify the requester of the 
right to seek dispute resolution services from the DOE FOIA Public 
Liaison or the Office of Government Information Services. 5 U.S.C. 
552(a)(6)(B)(i).
    In Sec.  1004.5(d)(4), DOE corrects a typographical error.
    In Sec.  1004.5(d)(7), DOE extends the time period during which a 
requester can appeal a denial of expedited processing to 90 days, as 
required by the FOIA Improvement Act of 2016, which prescribes the time 
period in which adverse determinations may be appealed. 5 U.S.C. 
552(a)(6)(A)(i)(III)(aa). DOE also corrects a typographical error.
    In Sec.  1004.7(b), DOE corrects a typographical error.
    In Sec.  1004.7(b)(4), DOE extends the period during which 
requesters may challenge the adequacy of search to 90 days, as required 
by the FOIA Improvement Act of 2016. 5 U.S.C. 552(a)(6)(A)(i)(III)(aa).
    In Sec.  1004.7(b)(5), DOE extends the period during which 
requesters may appeal a determination to deny records to 90 days, as 
required by the FOIA Improvement Act of 2016. 5 U.S.C. 
552(a)(6)(A)(i)(III)(aa).
    In Sec.  1004.8(a), DOE revises the time limit for an appeal of an 
initial denial of a request for records to 90 days, as required by the 
FOIA Improvement Act of 2016. 5 U.S.C. 552(a)(6)(A)(i)(III)(aa). DOE 
also corrects typographical errors in this section.
    In Sec.  1004.8(b), DOE revises the methods by which an appeal may 
be delivered to the Office of Hearings and Appeals and corrects 
typographical errors.
    In Sec.  1004.8(c), DOE corrects typographical errors.
    In Sec.  1004.8(d), DOE clarifies the definition of ``days'' with 
respect to the Appeal Authority's time limit for acting upon an appeal, 
consistent with existing Sec.  1004.12. No change in the time limit is 
intended.
    In Sec.  1004.8(d)(2), DOE clarifies the means by which DOE 
notifies requesters of an extension of the time to make an appeal 
decision.
    In Sec.  1004.9(a), DOE updates the reference to the Government 
Printing Office to the Government Publishing Office. DOE also corrects 
a grammatical error.
    In Sec.  1004.9(a)(2), DOE revises the language regarding computer 
searches for records and removes the reference to the central 
processing unit (CPU), consistent with current practice.
    In Sec.  1004.9(a)(6)(i), DOE clarifies the definition of ``search 
time'' and clarifies how fees for search time are calculated, 
consistent with current practices.
    DOE adds paragraphs (a)(6)(iii) through (iv)(cc) in Sec.  1004.9 
consistent with the FOIA Improvement Act of 2016. 5 U.S.C. 
552(a)(4)(A)(vii). The amendments in the Act enumerate exceptions to 
DOE's ability to assess search fees for certain categories of 
requesters when DOE has not complied with the time limits described in 
Sec.  1004.5(d). The Act also specifies that DOE may assess search fees 
when it has determined that unusual circumstances apply; more than 
5,000 pages are necessary to respond to the request; DOE has provided 
the requester with a timely written notice; and DOE has made no fewer 
than three good-faith attempts to contact the requester to discuss how 
the requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii).
    In Sec.  1004.9(a)(8)(i), DOE corrects typographical errors.
    In Sec.  1004.9(a)(8)(ii), DOE corrects typographical errors.
    In Sec.  1004.9(b), DOE corrects a typographical error.
    In Sec.  1004.9(b)(1), DOE corrects a typographical error.
    In Sec.  1004.9(b)(5), DOE clarifies when it will begin assessing 
interest charges on the amount billed to requesters who fail to pay 
fees. This change is consistent with existing Sec.  1004.12, and no 
change in the administrative time limits is intended.
    In Sec.  1004.9(b)(6), DOE clarifies that it is not required to 
assess charges for search time even if the search fails to identify 
responsive records or if the records located are exempt from 
disclosure.
    In Sec.  1004.9(b)(8)(ii), DOE clarifies the definition of ``days'' 
for purposes of determining when a requester has failed to pay a fee in 
a timely fashion for purposes of exemption from making an advance 
payment, by deleting the word ``working'' as superfluous. This section 
also clarifies the definition of ``days'' for purposes of 
administrative time limits for certain actions when DOE receives 
advance fee payments. This change is consistent with existing Sec.  
1004.12, and no change in the administrative time limits is intended.
    In Sec.  1004.10(b)(5), DOE revises the definition of exemption 
(b)(5) to conform to the requirements of the FOIA Improvement Act of 
2016, which states that the deliberative process privilege shall not 
apply to records created 25 years or more before the date on which the 
records were requested. 5 U.S.C. 552(b)(5).
    In Sec.  1004.10(c), DOE revises its obligations to reasonably 
segregate nonexempt portions of records as required by the FOIA 
Improvement Act of 2016, which states that an agency shall withhold 
information under 5 U.S.C. 552 only if the agency reasonably foresees 
that disclosure would harm an

[[Page 94917]]

interest protected by an exemption described in subsection (b) of 5 
U.S.C. 552, or disclosure is prohibited by law. 5 U.S.C. 552(a)(8)(A)-
(B). The section is also revised to reflect the requirement in the Act 
that agencies consider whether partial disclosure of information is 
possible whenever the agency determines that a full disclosure of a 
requested record is not possible and take reasonable steps necessary to 
segregate and release nonexempt information.
    In Sec.  1004.11(g), DOE clarifies the definition of ``days'' for 
purposes of the time limit for informing submitters of DOE's intended 
discretionary release prior to public disclosure of the information to 
a requester. This change is consistent with the existing Sec.  
1004.11(c), (d), and (e), and no change in the administrative time 
limits is intended.

II. Procedural Issues and Regulatory Review

A. Review Under the Administrative Procedure Act

    DOE has determined that notice and comment is not required pursuant 
to 5 U.S.C. 553(b)(B), which requires notice and an opportunity for 
comment unless an agency finds good cause that notice and public 
procedures are impracticable, unnecessary or contrary to the public 
interest. In this rulemaking, DOE is implementing changes required by 
the FOIA Improvement Act of 2016, Public Law 114-185 (June 30, 2016). 
DOE is exercising no discretion in implementing these statutory 
changes. DOE is also correcting minor typographical errors and making 
other minor changes to, for example, reflect the current DOE 
organizational structure. As a result, seeking public comment on these 
changes is unnecessary. For these same reasons DOE finds good cause to 
waive the 30-day delay in effective date provided for in 5 U.S.C. 
553(d).

B. Review Under Executive Orders 12866 and 13563

    This rule has been determined to be not significant for purposes of 
Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR 51735 
(Oct. 4, 1993). As a result, the Office of Information and Regulatory 
Affairs within the Office of Management and Budget did not review this 
rule.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of a final regulatory flexibility analysis (FRFA) for any 
final rule where the agency was first required by law to publish a 
proposed rule for public comment. As required by Executive Order 13272, 
``Proper Consideration of Small Entities in Agency Rulemaking,'' 67 FR 
53461 (Aug. 16, 2002), DOE published procedures and policies on 
February 19, 2003, to ensure that the potential impacts of its rules on 
small entities are properly considered during the rulemaking process. 
68 FR 7990. DOE has made its procedures and policies available on the 
Office of the General Counsel's Web site (https://energy.gov/gc/office-general-counsel). Because there was no requirement to first publish 
this regulation for comment, as discussed in section II.A., no analysis 
is required for purposes of the Regulatory Flexibility Act.

D. Review Under the Paperwork Reduction Act

    This rule does not contain a collection-of-information requirement 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

E. Review Under the National Environmental Policy Act of 1969

    DOE has reviewed this final rule under 10 CFR part 1021, DOE's 
National Environmental Policy Act Implementing Procedures. DOE has 
determined that the final rule fits within categorical exclusion A.5 
listed in Appendix A to 10 CFR part 1021, subpart D: Rulemaking that 
interprets or amends an existing rule or regulation and that does not 
change the environmental effect of the rule or regulation being 
amended. Accordingly, neither an environmental assessment nor an 
environmental impact statement is required. DOE's CX determination for 
this rule is available at https://energy.gov/nepa/categorical-exclusion-cx-determinations-cx.

F. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism.'' 64 FR 43255 (Aug. 10, 1999) 
imposes certain requirements on Federal agencies formulating and 
implementing policies or regulations that preempt State law or that 
have Federalism implications. The Executive Order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive Order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications. 
On March 14, 2000, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in the 
development of such regulations. 65 FR 13735. DOE has examined this 
rule, which would update DOE's FOIA regulations for consistency with 
the FOIA Improvement Act of 2016, and has determined that it would not 
have a substantial direct effect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, no further action is required by Executive Order 13132.

G. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' imposes on Federal agencies the general duty 
to adhere to the following requirements: (1) eliminate drafting errors 
and ambiguity; (2) write regulations to minimize litigation; (3) 
provide a clear legal standard for affected conduct rather than a 
general standard; and (4) promote simplification and burden reduction. 
61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 
3(a), section 3(b) of Executive Order 12988 specifically requires that 
Executive agencies make every reasonable effort to ensure that the 
regulation: (1) clearly specifies the preemptive effect, if any; (2) 
clearly specifies any effect on existing Federal law or regulation; (3) 
provides a clear legal standard for affected conduct while promoting 
simplification and burden reduction; (4) specifies the retroactive 
effect, if any; (5) adequately defines key terms; and (6) addresses 
other important issues affecting clarity and general draftsmanship 
under any guidelines issued by the Attorney General. Section 3(c) of 
Executive Order 12988 requires Executive agencies to review regulations 
in light of applicable standards in section 3(a) and section 3(b) to 
determine whether they are met or it is unreasonable to meet one or 
more of them. DOE has completed the required review and determined 
that, to

[[Page 94918]]

the extent permitted by law, this final rule meets the relevant 
standards of Executive Order 12988.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). 
For a regulatory action likely to result in a rule that may cause the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year 
(adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and Tribal governments on a ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. 62 FR 12820. DOE's policy statement is also available at 
https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
    DOE has concluded that this final rule will not result in the 
expenditure by States, tribal, or local governments, in the aggregate, 
or by the private sector, of $100 million in any one year. As a result, 
no assessment or analysis is required under the Unfunded Mandates 
Reform Act of 1995.

I. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Public Law 105-277) requires Federal agencies to issue a 
Family Policymaking Assessment for any rule that may affect family 
well-being. This rule would not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

J. Review Under Executive Order 12630

    Pursuant to Executive Order 12630, ``Governmental Actions and 
Interference with Constitutionally Protected Property Rights'' 53 FR 
8859 (March 18, 1988), DOE has determined that this rule would not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

K. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to 
review most disseminations of information to the public under 
information quality guidelines established by each agency pursuant to 
general guidelines issued by OMB. OMB's guidelines were published at 67 
FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 
62446 (Oct. 7, 2002). DOE has reviewed this final rule under the OMB 
and DOE guidelines and has concluded that it is consistent with 
applicable policies in those guidelines.

L. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA 
at OMB, a Statement of Energy Effects for any significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgates or is expected to lead to promulgation of a 
final rule, and that: (1) is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any significant energy action, the 
agency must give a detailed statement of any adverse effects on energy 
supply, distribution, or use should the proposal be implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.
    DOE has concluded that this regulatory action, which sets forth 
amended procedures by which the public may request records from DOE 
offices under the FOIA, and the policies and procedures by which DOE 
will provide such records to members of the public, is not a 
significant energy action because the final rule is not a significant 
regulatory action under Executive Order 12866 and is not likely to have 
a significant adverse effect on the supply, distribution, or use of 
energy, nor has it been designated as such by the Administrator at 
OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects 
on this final rule.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects in 10 CFR Part 1004

    Freedom of Information.

    Issued in Washington, DC, on December 21, 2016.
Ingrid Kolb,
Director, Office of Management.
    For the reasons set forth in the preamble, amend part 1004 of Title 
10 of the Code of Federal Regulations as set forth below:

PART 1004--FREEDOM OF INFORMATION ACT (FOIA)

0
1. The authority citation for part 1004 continues to read as follows:

    Authority: 5 U.S.C. 552.

0
2. Section 1004.1 is revised to read as follows:


Sec.  1004.1  Purpose and scope.

    This part contains the regulations of the Department of Energy 
(DOE) that implement Freedom of Information (FOIA) 5 U.S.C. 552, Public 
Law 89-487, as amended by Public Law 93-502, 88 Stat. 1561, by Public 
Law 94-409, 90 Stat. 1241, by Public Law 99-570, 100 Stat. 3207-49, by 
Public Law 104-231, 110 Stat. 3048, by Public Law 110-175, 121 Stat. 
2524, Public Law 111-83 Sec.  564, 123 Stat. 2142, 2184, and by Public 
Law 114-185, 130 Stat. 538. The regulations of this part provide 
information concerning the procedures by which records may be requested 
from all DOE offices, excluding the Federal Energy Regulatory 
Commission (FERC). Records of DOE made available pursuant to the 
requirements of 5 U.S.C. 552 shall be furnished to members of the 
public as prescribed by this part. Persons seeking information or 
records of DOE may find it helpful to consult with a DOE FOIA Officer 
before invoking the formal procedures set out below. To the extent 
permitted by other laws, DOE will make records available which it is 
authorized to withhold under 5 U.S.C. 552 whenever it determines that 
such disclosure is in the public interest.

[[Page 94919]]


0
3. Section 1004.2 is amended by revising paragraphs (b), (h)(1), 
(h)(5), (h)(6), (h)(8), (h)(9), (h)(13), (i), (m) and (n) to read as 
follows:


Sec.  1004.2  Definitions.

* * * * *
    (b) Authorizing or Denying Official means that DOE officer having 
custody of or responsibility for records requested under 5 U.S.C. 552. 
In DOE Headquarters, the term refers to The Freedom of Information Act 
Officer and officials who report directly to either the Office of the 
Secretary or a Secretarial Officer as defined. In the field offices, 
the term refers to the head of a field location identified in paragraph 
(h) of this section and the heads of field offices to which they 
provide administrative support and have delegated this authority. In 
the National Nuclear Security Administration (NNSA), the term refers to 
the official appointed at such location as identified in paragraph 
(h)(8) of this section.
* * * * *
    (h) * * *
    (1) Bonneville Power Administration, P.O. Box 3621CHI-7, Portland, 
OR 97208-3621.
* * * * *
    (5) Golden Field Office, 15013 Denver West Parkway, Mail Stop RSF 
DOE Golden, CO 80401.
    (6) Headquarters, Department of Energy, 1000 Independence Avenue 
SW., Washington, DC 20585.
* * * * *
    (8) National Nuclear Security Administration Albuquerque Complex, 
P.O. Box 5400, Albuquerque, NM 87185.
    (9) National Energy Technology Laboratory, 626 Cochrans Mill Road, 
P.O. Box 10940, Pittsburgh, PA 15236-0940.
* * * * *
    (13) Office of Scientific and Technical Information, P.O. Box 62, 
Oak Ridge, TN 37830.
* * * * *
    (i) General Counsel means the General Counsel provided for in 
section 202(e) of the DOE Organization Act, or any DOE attorney 
designated by the General Counsel as having responsibility for 
counseling the Department on Freedom of Information Act matters. In the 
NNSA, the term refers to the NNSA General Counsel, or any attorney 
designated by the NNSA General Counsel for counseling the NNSA on 
Freedom of Information Act matters, as provided for in section 3217 of 
the National Nuclear Security Administration Act, 50 U.S.C. 2407, Pub. 
L. 106-65. The NNSA General Counsel is not a Secretarial Officer.
* * * * *
    (m) Representative of the news media refers to any person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. The term 
``news'' means information that is about current events or that would 
be of current interest to the public. Examples of news-media entities 
are television or radio stations broadcasting to the public at large 
and publishers of periodicals (but only if such entities qualify as 
disseminators of ``news'') who make their products available for 
purchase by or subscription by or free distribution to the general 
public. These examples are not all-inclusive. Moreover, as methods of 
news delivery evolve (for example, the adoption of the electronic 
dissemination of newspapers through telecommunications services), such 
alternative media shall be considered to be news-media entities. A 
freelance journalist shall be regarded as working for a news-media 
entity if the journalist can demonstrate a solid basis for expecting 
publication through that entity, whether or not the journalist is 
actually employed by the entity. A publication contract would present a 
solid basis for such an expectation; DOE may also consider the past 
publication record of the requester in making such a determination.
    (n) Review refers to the process of examining documents located in 
response to a commercial use request (see paragraph (c) of this 
section) to determine whether any portion of any document located is 
permitted to be withheld. It also includes processing any documents for 
disclosure, e.g., doing all that is necessary to excise them and 
otherwise prepare them for release. Review does not include time spent 
resolving general legal or policy issues regarding the application of 
exemptions.
* * * * *

0
4. Section 1004.3 is amended by:
0
a. Revising the section heading and paragraph (a);
0
b. Removing paragraphs (b) through (d);
0
c. Redesignating paragraph (e) as paragraph (b);
0
d. Revising newly designated paragraphs (b)(1), (b)(2), and (b)(4).
    The revisions read as follows:


Sec.  1004.3  Public inspection in an electronic format and policy on 
contractor records.

    (a) DOE will maintain, for public inspection in an electronic 
format, the materials which are required by 5 U.S.C. 552(a)(2) to be 
made available for public inspection and copying. An electronic public 
reading room can be accessed via www.energy.gov and nnsa.energy.gov.
    (b) Contractor records. (1) When a contract with DOE provides that 
any records acquired or generated by the contractor in its performance 
of the contract shall be the property of the Government, DOE will make 
available to the public such records that are in the possession of the 
Government or the contractor, unless the records are exempt from public 
disclosure under 5 U.S.C. 552(b).
    (2) Notwithstanding paragraph (b)(1) of this section, records owned 
by the Government under contract that contain information or technical 
data having commercial value as defined in paragraph (b)(4) of this 
section or information for which the contractor claims a privilege 
recognized under Federal or State law shall be made available only when 
they are in the possession of the Government and not otherwise exempt 
under 5 U.S.C. 552(b).
* * * * *
    (4) For purposes of paragraph (b)(2) of this section, ``technical 
data and information having commercial value'' means technical data and 
related commercial or financial information which is generated or 
acquired by a contractor and possessed by that contractor, and whose 
disclosure the contractor certifies to DOE would cause competitive harm 
to the commercial value or use of the information or data.

0
6. Section 1004.4 is amended by revising paragraphs (a) and (c)(2) to 
read as follows:


Sec.  1004.4  Elements of a request.

    (a) Addressed to the FOIA Officer. A request for a record of DOE 
which is not available for public inspection in an electronic format, 
as described in Sec.  1004.3, shall be: Addressed to the Headquarters 
or appropriate field FOIA Officer at DOE at a location listed in Sec.  
1004.2(h), and both the envelope and the letter shall be clearly marked 
``Freedom of Information Act Request;'' or submitted via facsimile or 
electronically, on an appropriate agency Web site. Except as provided 
in paragraph (e) of this section, a request will be considered to be 
received by DOE for purposes of 5 U.S.C. 552(a)(6) and the 20-day 
response period will start upon actual receipt by the appropriate FOIA 
Officer, or not later than ten days after receipt by a designated FOIA 
Officer at any location in Sec.  1004.2(h). Requests delivered after 
regular business hours are considered

[[Page 94920]]

received on the next regular business day.
* * * * *
    (c) * * *
    (2) Assistance in reformulating a non-conforming request. If a 
request does not reasonably describe the records sought, as specified 
in paragraph (c)(1) of this section, the DOE response will specify the 
reasons why the request failed to meet the requirements of paragraph 
(c)(1) of this section and will invite the requester to confer with 
knowledgeable DOE personnel in an attempt to restate the request or 
reduce the request to manageable proportions by reformulation or by 
agreeing on an orderly procedure for the production of the records. If 
DOE responds that additional information is needed from the requester 
to render records reasonably described, any reformulated request 
submitted by the requester will be treated as an initial request for 
purposes of calculating the time for DOE response.
* * * * *

0
7. Section 1004.5 is amended by:
0
a. Revising paragraphs (b) and (c);
0
b. Revising the introductory text of paragraph (d)(1), and revising 
paragraphs (d)(1)(iii), (d)(4), and(d)(7).
    The revisions read as follows:


Sec.  1004.5  Processing requests for records.

* * * * *
    (b) The Authorizing Official will promptly identify and review the 
records encompassed by the request. The Authorizing Official or FOIA 
Officer will prepare a written response--
    (1) Granting the request;
    (2) Denying the request;
    (3) Granting/denying it in part;
    (4) Replying with a response stating that the request has been 
referred to another agency under Sec.  1004.4(f) or Sec.  1004.6(e); or
    (5) Informing the requester that responsive records cannot be 
located or do not exist. The written response shall also notify the 
requester of the right to seek dispute resolution services from the DOE 
FOIA Public Liaison(s) or the Office of Government Information 
Services.
    (c) Where a request involves records that are in the custody of or 
are the concern of more than one Authorizing Official, the FOIA Officer 
will identify all concerned Authorizing Officials that can reasonably 
be expected to have custody of the requested records. Upon 
identification of the appropriate Authorizing Officials, the FOIA 
Officer will forward them a copy of the request and a request for 
action. The Authorizing Officials will prepare a DOE response to the 
requester consistent with paragraph (b) of this section. The response 
will identify the Authorizing Official having responsibility for the 
determination to release or deny records.
    (d) Time for processing requests. (1) Action pursuant to paragraph 
(b) of this section will be taken within 20 days of a request for DOE 
records being received (``received'' is defined in Sec.  1004.4(a)), 
except that,
* * * * *
    (iii) If unusual circumstances require an extension of time before 
a decision on a request can be reached and the person requesting 
records is promptly informed in writing by the Authorizing Official or 
FOIA Officer of the reasons for such extension and the date on which a 
determination is expected to be dispatched, then the Authorizing 
Official or FOIA Officer may take an extension not to exceed ten days. 
In cases where the Authorizing Official determines that unusual 
circumstances exist, the requester shall be notified in writing of the 
right to seek dispute resolution services from the DOE FOIA Public 
Liaison(s) or the Office of Government Information Services.
* * * * *
    (4) If no determination has been made at the end of the 20-day 
period, or the last extension thereof, the requester may deem his 
administrative remedies to have been exhausted, giving rise to a right 
of review in a district court of the United States as specified in 5 
U.S.C. 552(a)(4). When no determination can be made within the 
applicable time limit, the responsible Authorizing Official or FOIA 
Officer will nevertheless continue to process the request. If DOE is 
unable to provide a response within the statutory period, the 
Authorizing Official or FOIA Officer will inform the requester of the 
reason for the delay; the date on which a determination may be expected 
to be made; and the requester's right to seek remedy through the 
courts, but will ask the requester to forego such action until a 
determination is made.
* * * * *
    (7) A determination to grant or deny a request for expedited 
processing will be made by the appropriate FOIA Officer within ten days 
after receipt of the request. The requester will be notified of the 
determination and informed that any denial may be appealed within 90 
calendar days to the Office of Hearings and Appeals.

0
8. Section 1004.7 is amended by:
0
a. Revising the introductory text of paragraph (b);
0
b. Revising paragraphs (b)(4) and (b)(5).
    The revisions read as follows:


Sec.  1004.7  Responses by authorizing officials; Form and content.

* * * * *
    (b) Form of denial. A reply denying a request for a record will be 
in writing. It will be signed by a FOIA Officer or the Denying Official 
pursuant to Sec.  1004.5 (b) or (c) and will include:
* * * * *
    (4) Adequacy of search. Although a determination that no such 
record is known to exist is not a denial, the requester will be 
informed that a challenge may be made to the adequacy of the search by 
appealing within 90 calendar days to the Office of Hearings and 
Appeals.
    (5) Administrative appeal. A statement that the determination to 
deny documents made within the statutory time period may be appealed 
within 90 calendar days to the Office of Hearings and Appeals.

0
9. Section 1004.8 is amended by revising paragraphs (a), (b), (c), 
(d)(1), and (d)(2) to read as follows:


Sec.  1004.8  Appeal of initial denial.

    (a) Appeal to Office of Hearings and Appeals. When the Authorizing 
or Denying Official or FOIA Officer has denied a request for records in 
whole or in part or has responded that there are no documents 
responsive to the request consistent with Sec.  1004.4(d), or when the 
FOIA Officer has denied a request for expedited processing consistent 
with Sec.  1004.5(d) or for waiver of fees consistent with Sec.  
1004.9, the requester may, within 90 calendar days of its receipt, 
appeal the determination to the Office of Hearings and Appeals.
    (b) Elements of appeal. The appeal must be in writing, addressed to 
the Director, Office of Hearings and Appeals, Department of Energy, 
1000 Independence Avenue SW., Washington, DC 20585-1615 and both the 
envelope and letter must be clearly marked ``Freedom of Information Act 
Appeal.'' The appeal may be delivered by U.S Mail, commercial delivery 
service, or by electronic mail to OHA.Filings@hq.doe.gov. The appeal 
must contain a concise statement of the grounds upon which it is 
brought and a description of the relief sought. It should also include 
a discussion of all relevant authorities, including, but not limited 
to, DOE (and predecessor agencies) rulings, regulations, 
interpretations and decisions on appeals, and any judicial 
determinations being relied upon to support the appeal. A copy of the 
letter

[[Page 94921]]

containing the determination which is being appealed must be submitted 
with the appeal. The appeal should also provide a telephone number, 
electronic mail address, or other means for communicating with the 
requester during business hours.
    (c) Receipt of appeal. An appeal will be considered to be received 
for purposes of 5 U.S.C. 552(a)(6) upon receipt by the Appeal 
Authority. Documents delivered after the regular business hours of the 
Office of Hearings and Appeals are considered received on the next 
regular business day.
    (d) Action within 20 days. (1) The Appeal Authority will act upon 
the appeal within 20 days of its receipt, except that if unusual 
circumstances (as defined in Sec.  1004.5(d)(2)) require an extension 
of time before a decision on a request can be reached, the Appeal 
Authority may extend the time for final action for an additional ten 
days less the number of days of any statutory extension which may have 
been taken by the Authorizing Official during the period of initial 
determination.
    (2) The requester must be promptly notified in writing of the 
extension, setting forth the reasons for the extension, and the date on 
which a determination is expected to be issued. Notification will be 
sent by electronic mail, when possible, or by letter.
* * * * *

0
10. Section 1004.9 is amended by revising paragraphs (a) introductory 
text, (a)(2), (a)(6), (a)(8) introductory text, (a)(8)(i) introductory 
text, (a)(8)(ii) introductory text, (b) introductory text, (b)(1), 
(b)(5), (b)(6) and (b)(8)(ii) to read as follows:


Sec.  1004.9  Fees for providing records.

    (a) Fees to be charged. DOE may charge fees that recoup the full 
allowable direct costs incurred. DOE will use the most efficient and 
least costly methods to comply with requests for documents made under 
FOIA. DOE may contract with private sector services to locate, 
reproduce and disseminate records in response to FOIA requests when 
that is the most efficient and least costly method. When doing so, 
however, DOE will ensure that the ultimate cost to the requester is no 
greater than it would be if DOE itself had performed these tasks. In no 
case will DOE contract out responsibilities which FOIA provides that 
only the agency may discharge, such as determining the applicability of 
an exemption, or determining whether to waive or reduce fees, which are 
determinations by Authorizing Officials or FOIA Officers. Where DOE can 
identify documents that are responsive to a request and are maintained 
for public distribution by other agencies such as the National 
Technical Information Service and the Government Publishing Office, the 
FOIA Officer will inform requesters of the procedures to obtain records 
from those sources.
* * * * *
    (2) Computer searches for records. DOE will charge at the actual 
direct cost of providing the service.
* * * * *
    (6) Restrictions on assessing fees. (i) With the exception of 
requesters seeking documents for a commercial use pursuant to 5 U.S.C. 
552(a)(4)(A)(iv), DOE will provide the first 100 pages of duplication 
and the first two hours of search time without charge. Moreover, DOE 
will not charge fees to any requester, including commercial use 
requesters, if the cost of collecting the fee would be equal to or 
greater than the fee itself. These provisions work together, so that 
except for commercial use requesters, DOE will not begin to assess fees 
until after the Department has provided the free search and 
reproduction. For example, if a request involves two hours and ten 
minutes of search time and results in 105 pages of documents, DOE will 
charge for only ten minutes of search time and only five pages of 
reproduction. If this cost is equal to or less than $15.00, the amount 
DOE incurs to process a fee collection, no charges would be assessed. 
For purposes of these restrictions on assessment of fees, the word 
``pages'' refers to paper copies of a standard agency size which will 
be normally be ``8\1/2\ x 11'' or ``11 x 14.'' Thus, requesters would 
not be entitled to 100 microfiche or 100 computer disks, for example. A 
microfiche containing the equivalent of 100 pages or 100 pages of 
computer printout, however, might meet the terms of the restriction. 
Similarly, the term ``search time'' is based on a manual or electronic 
search. To apply this term, DOE will calculate the hourly rates of the 
subject matter expert and/or FOIA analysts conducting the search plus 
16 percent.
    (ii) When unusual or exceptional circumstances do not apply and 
time limits specified in FOIA are not met, DOE will not charge any 
search fees, or duplication fees for educational and non-commercial 
scientific institution requesters and requesters who are 
representatives of the news media.
    (iii) Except as provided in paragraph (a)(6)(iv) of this section, 
DOE will not assess any search fees (or in the case of a requester who 
is an educational or noncommercial scientific institution, whose 
purpose is scholarly or scientific research; or a representative of the 
news media, duplication fees) under this paragraph (a)(6)(iii) if DOE 
has failed to comply with any time limit under Sec.  1004.5(d).
    (iv)(A) If DOE has determined that unusual circumstances apply (as 
the term is defined in Sec.  1004.5(d)(2)) and DOE provided a timely 
written notice to the requester in accordance with Sec.  
1004.5(d)(1)(iii), a failure described in paragraph (a)(6)(iii) of this 
section is excused for an additional 10 days. If DOE fails to comply 
with the extended time limit, DOE may not assess any search fees (or in 
the case of a requester described under paragraph (a)(6)(iii) of this 
section, duplication fees).
    (B) If DOE has determined that unusual circumstances (as that term 
is defined in Sec.  1004.5(d)(2)) apply and more than 5,000 pages are 
necessary to respond to the request, DOE may charge search fees (or in 
the case of a requester described under paragraph (a)(6)(iii) of this 
section, duplication fees) if DOE has provided a timely written notice 
to the requester in accordance with Sec.  1004.5(d)(1)(iii) and DOE has 
discussed with the requester via written mail, electronic mail, or 
telephone (or made not less than three good-faith attempts to do so) 
how the requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii).
    (C) If a court has determined that unusual circumstances exist (as 
that term is defined in Sec.  1004.5(d)(2)), a failure described in 
paragraph (a)(6)(iv) of this of this section shall be excused for the 
length of time provided by the court order.
* * * * *
    (8) Waiving or reducing fees. DOE will furnish documents without 
charge or at reduced charges if disclosure of the information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and disclosure is not primarily in the commercial interest of the 
requester. This fee waiver standard thus sets forth two basic 
requirements, both of which must be satisfied before fees will be 
waived or reduced. First it must be established that disclosure of the 
requested information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government. Second, it must be established that 
disclosure of the information is not primarily in the commercial 
interest of the requester.

[[Page 94922]]

When these requirements are satisfied, based upon information supplied 
by a requester or otherwise made known to DOE, the waiver or reduction 
of a FOIA fee will be granted. In determining when fees should be 
waived or reduced the appropriate FOIA Officer should address the 
following two criteria:
    (i) That disclosure of the information ``is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the government.'' 
Factors to be considered in applying this criteria include but are not 
limited to:
* * * * *
    (ii) If disclosure of the information ``is not primarily in the 
commercial interest of the requester.'' Factors to be considered in 
applying this criteria include but are not limited to:
* * * * *
    (b) Fees to be charged--categories of requesters. There are four 
categories of FOIA requesters: Commercial use requesters; educational 
and non-commercial scientific institutions; representatives of the news 
media; and all other requesters. The FOIA Officers will make 
determinations regarding categories of requesters as defined at Sec.  
1004.2. The Headquarters FOIA Officers will assist field FOIA Officers 
in categorizing requesters, and will resolve conflicting 
categorizations. FOIA prescribes specific levels of fees for each of 
these categories:
    (1) Commercial use requesters. When DOE receives a request for 
documents which appears to be for commercial use, charges will be 
assessed to recover the full direct costs of searching for, reviewing 
for release, and duplicating the records sought. Commercial use 
requesters are not entitled to two hours of free search time nor 100 
free pages of reproduction of documents. DOE will recover the cost of 
searching for and reviewing records even if there is ultimately no 
disclosure of records.
* * * * *
    (5) Charging interest--notice and rate. Interest will be charged to 
those requesters who fail to pay fees. DOE will begin to assess 
interest charges on the amount billed on the 31st calendar day 
following the day on which the billing was sent to the requester. 
Interest will be at the rate prescribed in section 3717 of Title 31 
U.S.C. and will accrue from the date of the billing.
    (6) Charges for unsuccessful search. DOE may assess charges for 
time spent searching even if the search fails to identify responsive 
records or if records located are determined to be exempt from 
disclosure. If DOE estimates that search charges are likely to exceed 
$25, it will notify the requester of the estimated amount of fees, 
unless the requester has indicated in advance his willingness to pay 
fees as high as those anticipated. Such a notice will offer the 
requester the opportunity to confer with agency personnel in order to 
reformulate the request to reduce the cost of the request.
* * * * *
    (8) * * *
    (ii)(A) A requester has previously failed to pay a fee in a timely 
fashion (i.e., within 30 calendar days of the date of the billing). DOE 
will require the requester to pay the full amount delinquent plus any 
applicable interest as provided in paragraph (b)(5) of this section, or 
demonstrate that he or she has, in fact, paid the delinquent fee; and 
to make an advance payment of the full amount of the estimated current 
fee before we begin to process a new request or a pending request from 
that requester.
    (B) When DOE acts under paragraphs (b)(8) (i) or (ii) of this 
section, the administrative time limits prescribed in section (a)(6) of 
FOIA (i.e., 20 days from receipt of initial requests and 20 days from 
receipt of appeals from initial denials, plus permissible extensions of 
these time limits) will begin only after DOE has received fee payments 
described.
* * * * *

0
11. Section 1004.10 is amended by revising paragraphs (b)(5) and (c) to 
read as follows:


Sec.  1004.10  Exemptions.

* * * * *
    (b) * * *
    (5) Inter-agency or intra-agency memoranda or letters that would 
not be available by law to a party other than an agency in litigation 
with the agency, provided that the deliberative process privilege shall 
not apply to records created 25 years or more before the date on which 
the records were requested;
* * * * *
    (c) DOE shall withhold information under this section only if--
    (1) The agency reasonably foresees that disclosure would harm an 
interest protected by an exemption described in paragraph (b) of this 
section; or
    (2) Disclosure is prohibited by law. DOE shall consider whether 
partial disclosure of information is possible whenever the agency 
determines that a full disclosure of a requested record is not possible 
and take reasonable steps necessary to segregate and release nonexempt 
information. Nothing in this paragraph requires disclosure of 
information that is otherwise prohibited from disclosure by law, or 
otherwise exempted from disclosure by paragraph (b)(3) of this section.

0
12. Section 1004.11 is amended by revising paragraphs (a) and (g) to 
read as follows:


Sec.  1004.11   Handling information of a private business, foreign 
government, or an international organization.

    (a) Whenever a document submitted to DOE contains information which 
may be exempt from public disclosure, it will be handled in accordance 
with the procedures in this section. While DOE is responsible for 
making the final determination with regard to the disclosure or 
nondisclosure of information contained in requested documents, DOE will 
consider the submitter's views (as that term is defined in this 
section) in making its determination. Nothing in this section will 
preclude the submission of a submitter's views at the time of the 
submission of the document to which the views relate, or at any other 
time.
* * * * *
    (g) When DOE, in the course of responding to a Freedom of 
Information Act request, determines that information exempt from the 
mandatory public disclosure requirements of the Freedom of Information 
Act is to be released in accordance with Sec.  1004.1, DOE will notify 
the submitter of the intended discretionary release no less than seven 
(7) calendar days prior to the intended public disclosure of the 
information in question.
* * * * *
[FR Doc. 2016-31337 Filed 12-23-16; 8:45 am]
 BILLING CODE 6450-01-P