Revision of Department of Justice Freedom of Information Act Regulations, 725-729 [2016-31508]
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Country
Federal
Register
citation
License
review policy
Entity
License requirement
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Main
Intelligence
Directorate,
a.k.a.,
the
following
three
aliases:
—Glavnoe
Razvedyvatel’noe
Upravlenie;
—GRU; and
—Main Intelligence Department
Khoroshevskoye
Shosse
76,
Khodinka, Moscow, Russia; and
Ministry of Defence of the Russian Federation, Frunzenskaya
nab., 22/2, Moscow 119160,
Russia
*
For all items subject to
the EAR. (See
§ 744.11 of the EAR)
*
Presumption of denial
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82 FR [INSERT FR
PAGE NUMBER
AND 1/4/2017]
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Special Technology Center, a.k.a.,
the following one alias:
—STC, Ltd
Gzhatskaya 21 k2, St. Petersburg,
Russia; and 21–2 Gzhatskaya
Street, St. Petersburg, Russia.
*
For all items subject to
the EAR. (See
§ 744.11 of the EAR)
*
Presumption of denial
*
82 FR [INSERT FR
PAGE NUMBER
AND 1/4/2017]
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Zorsecurity Center (f.k.a., Esage
Lab), a.k.a., the following one
alias:
—TSOR Security
Luzhnetskaya Embankment 2⁄4,
Building 17, Office 444, Moscow
119270, Russia
*
For all items subject to
the EAR. (See
§ 744.11 of the EAR)
*
Presumption of denial
*
82 FR [INSERT FR
PAGE NUMBER
AND 1/4/2017]
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Dated: December 29, 2016.
Eric L. Hirschhorn,
Under Secretary of Commerce for Industry
and Security.
DEPARTMENT OF JUSTICE
28 CFR Part 16
[Docket No. OAG 155]
RIN 1105–AB51; A.G. Order No. 3803–2016
Revision of Department of Justice
Freedom of Information Act
Regulations
Department of Justice.
Interim final rule with request
for comments.
AGENCY:
ACTION:
This rule amends the
Department of Justice’s regulations
under the Freedom of Information Act
(FOIA) to incorporate certain changes
made to the FOIA by the FOIA
Improvement Act of 2016. In addition,
this rule amends certain provisions in
the fee section to reflect developments
in the case law and to streamline the
description of the factors to be
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Effective Date: This rule is
effective February 3, 2017.
Comment Date: Public comments
must be submitted by March 6, 2017.
Comments submitted by mail will be
accepted as timely if they are
postmarked on or before that date.
Electronic comments may be submitted
via www.regulations.gov prior to
midnight Eastern Time at the end of that
day.
ADDRESSES: You may submit written
comments, identified by RIN 1105–
AB51 or Docket No. OAG 155, by one
of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Lindsay Roberts, AttorneyAdvisor, Office of Information Policy,
1425 New York Avenue NW., Room
11050, Washington, DC 20530.
Instructions: All submissions received
must include the agency name and
docket number for this rulemaking. For
additional details on submitting
comments, see the ‘‘Public
Participation’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
DATES:
BILLING CODE 3510–33–P
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considered when making fee waiver
determinations.
[FR Doc. 2016–31969 Filed 12–30–16; 4:15 pm]
SUMMARY:
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FOR FURTHER INFORMATION CONTACT:
Lindsay Roberts, Attorney-Advisor,
Office of Information Policy, (202) 514–
3642.
SUPPLEMENTARY INFORMATION:
This rule amends the Department’s
regulations under the Freedom of
Information Act to incorporate certain
changes made to the FOIA, 5 U.S.C. 552,
by the FOIA Improvement Act of 2016,
Public Law 114–185, 130 Stat. 538 (June
30, 2016). The FOIA Improvement Act
of 2016 provides that agencies must
allow a minimum of 90 days for
requesters to file an administrative
appeal. The Act also requires that
agencies notify requesters of the
availability of dispute resolution
services at various times throughout the
FOIA process. Finally, the Act codifies
the Department of Justice’s ‘‘foreseeable
harm’’ standard. This rule updates the
Department’s regulations in 28 CFR part
16, subpart A, to reflect those statutory
changes.
In addition, as explained below, this
rule amends provisions in § 16.10 (Fees)
to incorporate the new statutory
restrictions on charging fees in certain
circumstances, to reflect developments
in the case law, and to streamline the
description of the factors to be
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considered when making fee waiver
determinations.
Section 16.1 (General provisions) is
revised to delete the reference to the
Department’s policy regarding
discretionary release of information
whenever disclosure would not
foreseeably harm an interest protected
by a FOIA exemption, because that
foreseeable harm standard is now part of
the FOIA statute itself as a result of the
FOIA Improvement Act of 2016.
Section 16.2 (Proactive disclosure of
Department records) is revised to more
clearly reflect the FOIA Improvement
Act of 2016’s requirement that records
the FOIA requires agencies to make
available for public inspection must be
in an electronic format, rather than
simply made available for public
inspection and copying.
Section 16.4 (Responsibility for
responding to requests) is revised to
remove the reference to discretionary
release of information when another
component or agency is better able to
make the determination because the
foreseeable harm standard is now part of
the FOIA statute itself as a result of the
FOIA Improvement Act of 2016.
Section 16.5 (Timing of responses to
requests) is revised to include a
requirement that components notify
requesters of the availability of
assistance from the Office of
Government Information Services
(OGIS) at the National Archives and
Records Administration when the
component gives notice to requesters
that the request involves unusual
circumstances. This notification is
required by the FOIA Improvement Act
of 2016.
Section 16.6 (Responses to requests) is
revised to include requirements that
components notify requesters of the
availability of assistance from a FOIA
Public Liaison and OGIS when
providing requesters with responses to
their requests. These notifications are
required by the FOIA Improvement Act
of 2016.
Section 16.8 (Administrative appeals)
is revised to extend the time to file an
administrative appeal to 90 days, in
conformity with the 90-day minimum
time period established by the FOIA
Improvement Act of 2016. This section
is also revised to include a new
paragraph regarding engaging in dispute
resolution services provided by OGIS.
Paragraph (b) of § 16.10 (Fees) is
revised to conform to recent decisions of
the D.C. Circuit Court of Appeals
addressing two FOIA fee categories:
‘‘representative of the news media’’ and
‘‘educational institution.’’ See Cause of
Action v. FTC, 799 F.3d 1108 (D.C. Cir.
2015); Sack v. DOD, 823 F.3d 687 (D.C.
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15:22 Jan 03, 2017
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Cir. 2016). The Department’s existing
FOIA regulations state that a
representative of the news media is
‘‘any person or entity that is organized
and operated to publish or broadcast
news to the public that actively 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.’’ In Cause of Action, 799
F.3d at 1125, the court held that a
representative of the news media need
not work for an entity that is ‘‘organized
and operated’’ to publish or broadcast
news. Therefore, the definition of
‘‘representative of the news media’’ is
revised to remove the ‘‘organized and
operated’’ requirement. The definition
of ‘‘educational institution’’ is revised to
reflect the holding in Sack, 823 F.3d at
688, that students who make FOIA
requests in furtherance of their
coursework or other school-sponsored
activities may qualify under this
requester category.
Paragraph (d)(2) of § 16.10, which
addresses restrictions on charging fees
when the FOIA’s time limits are not
met, is revised to reflect changes made
to those restrictions by the FOIA
Improvement Act of 2016. Specifically,
these changes reflect that agencies may
not charge search fees (or duplication
fees for representatives of the news
media and educational/non-commercial
scientific institution requesters) when
the agency fails to comply with the
FOIA’s time limits. The restriction on
charging fees is excused and the agency
may charge fees as usual when it
satisfies one of three exceptions detailed
at 5 U.S.C. 552(a)(4)(A)(viii)(II).
Lastly, this rule revises paragraph (k)
of § 16.10, which addresses the
requirements for a waiver or reduction
of fees, to specify that requesters may
seek a waiver of fees and to streamline
and simplify the description of the
factors to be considered by components
when making fee waiver
determinations. These updates do not
substantively change the analysis, but
instead present the factors in a way that
is clearer to both components and
requesters. Rather than six factors, the
amended section provides for three
overall factors. Specifically, a requester
should be granted a fee waiver if the
requested information (1) sheds light on
the activities and operations of the
government; (2) is likely to contribute
significantly to public understanding of
those operations and activities; and (3)
is not primarily in the commercial
interest of the requester. This
streamlined description facilitates easier
understanding and application of the
statutory standard.
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Public Participation
The Department is issuing an interim
rule to make these revisions in the
Department’s FOIA regulations, because
these changes merely bring the
regulations into alignment with the
provisions contained in the FOIA
Improvement Act of 2016 and with
current case law and clarify the
procedure the Department uses for
making fee waiver determinations. This
approach allows these regulatory
changes to take effect sooner than would
otherwise be possible with the
publication of a Notice of Proposed
Rulemaking in advance. Nevertheless,
the Department welcomes public
comments from any interested person
on any aspect of the changes made by
this interim final rule. Please refer to the
ADDRESSES section above. The
Department will carefully consider all
public comments in the drafting of the
final rule.
Please note that all comments
received are considered part of the
public record and are made available for
public inspection online at https://
www.regulations.gov. The information
made available includes personal
identifying information (such as name
and address) voluntarily submitted by
the commenter.
If you want to submit personal
identifying information (such as your
name and address) as part of your
comment, but do not want it to be
posted online, you must include the
phrase ‘‘PERSONAL IDENTIFYING
INFORMATION’’ in the first paragraph
of your comment. You also must locate
all the personal identifying information
you do not want posted online in the
first paragraph of your comment and
identify what information you want
redacted. If you want to submit
confidential business information as
part of your comment, but do not want
it to be posted online, you must include
the phrase ‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You also must
prominently identify any confidential
business information to be redacted
within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, all or part of that comment
may not be posted on https://
www.regulations.gov.
Personal identifying information and
confidential business information
identified and located as set forth above
will be placed in the agency’s public
docket file, but not posted online. If you
wish to inspect the agency’s public
docket file in person, please see the FOR
FURTHER INFORMATION CONTACT
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paragraph above to schedule an
appointment.
Regulatory Certifications
Administrative Procedure Act
The Department’s implementation of
this rule as an interim final rule, with
provision for post-promulgation public
comment, is based on section 553(b) of
the Administrative Procedure Act. 5
U.S.C. 553(b). Under section 553(b), an
agency may issue a rule without notice
of proposed rulemaking and the prepromulgation opportunity for public
comment, with regard to ‘‘interpretative
rules, general statements of policy, or
rules of agency organization, procedure,
or practice.’’ The Department has
determined that many of the revisions
being made are interpretive rules issued
by the Department, as they merely
advise the public of the Department’s
construction of the new statute and
clarify the application of the substantive
law. Moreover, the Department has
determined that the remaining revisions
are rules of agency procedure or
practice, as they do not change the
substantive standards the agency
applies in implementing the FOIA. The
Department has also concluded that
there is good cause to find that a prepublication public comment period is
unnecessary. These revisions to the
existing regulations in 28 CFR part 16
merely implement the statutory
changes, align the Department’s
regulations with controlling judicial
decisions, and clarify agency
procedures.
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Regulatory Flexibility Act
This rule amends the Department of
Justice’s regulations under the FOIA to
incorporate certain changes made by the
FOIA Improvement Act of 2016, and to
reflect developments in the case law
and to streamline the description of the
factors to be considered when making
fee waiver determinations. Because the
Department is not required to publish a
notice of proposed rulemaking for this
rule, a Regulatory Flexibility analysis is
not required. 5 U.S.C. 603(a).
Executive Orders 12866 and 13563—
Regulatory Review
This regulation has been drafted and
reviewed in accordance with Executive
Order 12866, ‘‘Regulatory Planning and
Review,’’ section 1(b), Principles of
Regulation, and in accordance with
Executive Order 13563 ‘‘Improving
Regulation and Regulatory Review,’’
section 1(b), General Principles of
Regulation. The Department of Justice
has determined that this rule is not a
‘‘significant regulatory action’’ under
Executive Order 12866, section 3(f),
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Regulatory Planning and Review, and
accordingly this rule has not been
reviewed by the Office of Management
and Budget. Further, both Executive
Orders 12866 and 13563 direct agencies
to assess all costs and benefits of
available regulatory alternatives and, if
regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety effects, distributive impacts,
and equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. The
Department has assessed the costs and
benefits of this regulation and believes
that the regulatory approach selected
maximizes net benefits.
Executive Order 13132—Federalism
This regulation will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with Executive Order 13132,
the Attorney General has determined
that this rule does not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement.
Executive Order 12988—Civil Justice
Reform
This regulation meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in 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, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
Small Business Regulatory Enforcement
Fairness Act of 1996
This rule is not a major rule as
defined by section 251 of the Small
Business Regulatory Enforcement
Fairness Act of 1996. See 5 U.S.C. 804.
This rule will not result in an annual
effect on the economy of $100 million
or more; a major increase in costs or
prices; or significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign-
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based enterprises in domestic and
export markets.
List of Subjects in 28 CFR Part 16
Administrative practice and
procedure, Freedom of information,
Privacy.
Accordingly, for the reasons stated in
the preamble, 28 CFR Chapter 1, part 16
is amended as follows:
PART 16—DISCLOSURE OR
PRODUCTION OF MATERIAL OR
INFORMATION
1. Revise the authority citation for part
16 to read as follows:
■
Authority: 5 U.S.C. 301, 552, 552a, 553; 28
U.S.C. 509, 510, 534; 31 U.S.C. 3717.
§ 16.1
[Amended]
2. In § 16.1, remove the last sentence
of paragraph (a).
■ 3. In § 16.2, revise the first sentence,
to read as follows:
■
§ 16.2 Proactive disclosure of Department
records.
Records that are required by the FOIA
to be made available for public
inspection in an electronic format may
be accessed through the Department’s
Web site at https://justice.gov/oip/04_
2.html. * * *
■ 4. In § 16.4, revise the first sentence of
paragraph (d) introductory text, to read
as follows:
§ 16.4 Responsibility for responding to
requests.
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(d) * * * When reviewing records
located by a component in response to
a request, the component shall
determine whether another component
or another agency of the Federal
Government is better able to determine
whether the record is exempt from
disclosure under the FOIA. * * *
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■ 5. In § 16.5, add a sentence at the end
of paragraph (c), to read as follows:
§ 16.5
Timing of responses to requests.
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(c) * * * The component must also
alert requesters to the availability of the
Office of Government Information
Services to provide dispute resolution
services.
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■ 6. In § 16.6, add a sentence at the end
of paragraph (c), and add paragraph
(e)(5), to read as follows:
§ 16.6
Responses to requests.
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(c) * * *. The component must
inform the requester of the availability
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of the FOIA Public Liaison to offer
assistance.
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(e) * * *
(5) A statement notifying the requester
of the assistance available from the
component’s FOIA Public Liaison and
the dispute resolution services offered
by the Office of Government
Information Services.
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■ 7. In § 16.8:
■ a. Remove the term ‘‘60 calendar
days’’ in paragraph (a) and add in its
place ‘‘90 calendar days’’;
■ b. Redesignate paragraph (d) as
paragraph (e); and
■ c. Add a new paragraph (d), to read as
follows:
§ 16.8
Administrative appeals.
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(d) Engaging in dispute resolution
services provided by OGIS. Mediation is
a voluntary process. If a component
agrees to participate in the mediation
services provided by the Office of
Government Information Services, it
will actively engage as a partner to the
process in an attempt to resolve the
dispute.
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■ 6. In § 16.10:
■ a. Revise paragraph (b)(4) and
Example 3 to paragraph (b)(4);
■ b. Revise the first sentence of
paragraph (b)(6); and
■ c. Revise paragraph (d)(2) and
paragraph (k), to read as follows:
§ 16.10
Fees.
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(b) * * *
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(4) Educational institution is any
school that operates a program of
scholarly research. A requester in this
fee category must show that the request
is made in connection with the
requester’s role at the educational
institution. Components may seek
assurance from the requester that the
request is in furtherance of scholarly
research and will advise requesters of
their placement in this category.
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Example 3. A student who makes a request
in furtherance of the student’s coursework or
other school-sponsored activities and
provides a copy of a course syllabus or other
reasonable documentation to indicate the
research purpose for the request, would
qualify as part of this fee category.
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(6) Representative of the news media
is any person or entity that actively
gathers information of potential interest
to a segment of the public, uses its
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editorial skills to turn the raw materials
into a distinct work, and distributes that
work to an audience. * * *
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(d) * * *
(2) If a component fails to comply
with the FOIA’s time limits in which to
respond to a request, it may not charge
search fees, or, in the instances of
requests from requesters described in
paragraph (d)(1) of this section, may not
charge duplication fees, except as
described in paragraphs (d)(2)(i) through
(iii) of this section.
(i) If a component has determined that
unusual circumstances as defined by the
FOIA apply and the agency provided
timely written notice to the requester in
accordance with the FOIA, a failure to
comply with the time limit shall be
excused for an additional 10 days.
(ii) If a component has determined
that unusual circumstances as defined
by the FOIA apply, and more than 5,000
pages are necessary to respond to the
request, the component may charge
search fees, or, in the case of requesters
described in paragraph (d)(1) of this
section, may charge duplication fees if
the following steps are taken. The
component must have provided timely
written notice of unusual circumstances
to the requester in accordance with the
FOIA and the component must have
discussed with the requester via written
mail, email, 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). If this exception is
satisfied, the component may charge all
applicable fees incurred in the
processing of the request.
(iii) If a court has determined that
exceptional circumstances exist as
defined by the FOIA, a failure to comply
with the time limits shall be excused for
the length of time provided by the court
order.
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(k) Requirements for waiver or
reduction of fees. (1) Requesters may
seek a waiver of fees by submitting a
written application demonstrating how
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 and is
not primarily in the commercial interest
of the requester.
(2) A component must furnish records
responsive to a request without charge
or at a reduced rate when it determines,
based on all available information, that
disclosure of the requested information
is in the public interest because it is
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likely to contribute significantly to
public understanding of the operations
or activities of the government and is
not primarily in the commercial interest
of the requester. In deciding whether
this standard is satisfied the component
must consider the factors described in
paragraphs (k)(2)(i) through (iii) of this
section:
(i) Disclosure of the requested
information would shed light on the
operations or activities of the
government. The subject of the request
must concern identifiable operations or
activities of the Federal Government
with a connection that is direct and
clear, not remote or attenuated.
(ii) Disclosure of the requested
information would be likely to
contribute significantly to public
understanding of those operations or
activities. This factor is satisfied when
the following criteria are met:
(A) Disclosure of the requested
records must be meaningfully
informative about government
operations or activities. The disclosure
of information that already is in the
public domain, in either the same or a
substantially identical form, would not
be meaningfully informative if nothing
new would be added to the public’s
understanding.
(B) The disclosure must contribute to
the understanding of a reasonably broad
audience of persons interested in the
subject, as opposed to the individual
understanding of the requester. A
requester’s expertise in the subject area
as well as the requester’s ability and
intention to effectively convey
information to the public must be
considered. Components will presume
that a representative of the news media
will satisfy this consideration.
(iii) The disclosure must not be
primarily in the commercial interest of
the requester. To determine whether
disclosure of the requested information
is primarily in the commercial interest
of the requester, components will
consider the following criteria:
(A) Components must identify
whether the requester has any
commercial interest that would be
furthered by the requested disclosure. A
commercial interest includes any
commercial, trade, or profit interest.
Requesters must be given an
opportunity to provide explanatory
information regarding this
consideration.
(B) If there is an identified
commercial interest, the component
must determine whether that is the
primary interest furthered by the
request. A waiver or reduction of fees is
justified when the requirements of
paragraphs (k)(2)(i) and (ii) of this
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section are satisfied and any commercial
interest is not the primary interest
furthered by the request. Components
ordinarily will presume that when a
news media requester has satisfied the
requirements of paragraphs (k)(2)(i) and
(ii) of this section, the request is not
primarily in the commercial interest of
the requester. Disclosure to data brokers
or others who merely compile and
market government information for
direct economic return will not be
presumed to primarily serve the public
interest.
(3) Where only some of the records to
be released satisfy the requirements for
a waiver of fees, a waiver shall be
granted for those records.
(4) Requests for a waiver or reduction
of fees should be made when the request
is first submitted to the component and
should address the criteria referenced
above. A requester may submit a fee
waiver request at a later time so long as
the underlying record request is
pending or on administrative appeal.
When a requester who has committed to
pay fees subsequently asks for a waiver
of those fees and that waiver is denied,
the requester shall be required to pay
any costs incurred up to the date the fee
waiver request was received.
Dated: December 21, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016–31508 Filed 1–3–17; 8:45 am]
BILLING CODE 4410–BE–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2015–0067; FRL–9957–71–
Region 10]
Partial Approval and Partial
Disapproval of Attainment Plan for the
Idaho Portion of the Logan, Utah/Idaho
PM2.5 Nonattainment Area
The Environmental Protection
Agency (EPA) is taking final action on
portions of a state implementation plan
(SIP) submission from the State of
Idaho. The SIP submission addresses
attainment plan requirements for the
Idaho portion of the Logan, Utah-Idaho
nonattainment area (Logan UT–ID) for
the 2006 24-hour PM2.5 National
Ambient Air Quality Standards
(NAAQS). The Idaho Department of
Environmental Quality (IDEQ)
submitted the attainment plan to the
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VerDate Sep<11>2014
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Jkt 241001
Table of Contents
I. Background Information
II. Response to Comments
III. Final Action
IV. Consequences of a Disapproved SIP
V. Statutory and Executive Orders Review
I. Background Information
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY:
EPA on December 14, 2012 (2012 SIP
submission), and supplemented the
attainment plan on December 24, 2014
(2014 amendment). The EPA is
approving certain portions,
disapproving other portions, and
deferring action on the remaining
portions of the attainment plan.
DATES: This final rule is effective
February 3, 2017.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–R10–OAR–2015–0067. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information may not be publicly
available, i.e., Confidential Business
Information or other information the
disclosure of which is restricted by
statute. Certain other material, such as
copyrighted material, is not placed on
the Internet and is publicly available
only in hard copy form. Publicly
available docket materials are available
at https://www.regulations.gov or at EPA
Region 10, Office of Air and Waste, 1200
Sixth Avenue, Seattle, Washington
98101. The EPA requests that you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 to 4:30,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Jeff
Hunt, Air Planning Unit, Office of Air
and Waste (OAW–150), Environmental
Protection Agency, Region 10, 1200
Sixth Ave, Suite 900, Seattle, WA
98101; telephone number: (206) 553–
0256; email address: hunt.jeff@epa.gov.
SUPPLEMENTARY INFORMATION:
On October 27, 2016, the EPA
proposed to approve certain portions
and disapprove other portions of Idaho’s
2012 SIP submission and 2014
amendment (81 FR 74741). An
explanation of the CAA requirements, a
detailed analysis of the submittals, and
the EPA’s reasons for proposing partial
approval and partial disapproval were
provided in the notice of proposed
rulemaking, and will not be restated
here. In this action, the EPA is
approving Idaho’s determination of
which pollutants must be evaluated for
control in the Idaho portion of the
Logan, UT–ID nonattainment area for
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729
purposes of the Moderate area plan for
the 2006 24-hour PM2.5 NAAQS. The
EPA is also approving Idaho’s
evaluation of, and imposition of,
reasonably available control measure
and reasonably available control
technology (RACM/RACT) level
controls on appropriate sources in the
Idaho portion of the nonattainment area.
The EPA is disapproving the Idaho
attainment plan with respect to the
contingency measure requirement.
Finally, the EPA is deferring action on
the submissions with respect to the
attainment demonstration, reasonable
further progress, quantitative milestone,
and motor vehicle emission budget
requirements to a future date.
With respect to the deferred Moderate
area plan elements the EPA notes that
on December 16, 2016, the Agency
published a proposed determination,
based on complete, quality-assured air
quality and certified monitoring data,
that the Logan UT–ID nonattainment
area failed to attain the 24-hour PM2.5
NAAQS by the applicable attainment
date (81 FR 91088). If the EPA finalizes
the determination that Logan UT–ID did
not attain, then the nonattainment area
will be reclassified from ‘‘Moderate’’ to
‘‘Serious’’ and Idaho will be required to
submit a Serious area attainment plan to
meet additional statutory requirements.
The EPA anticipates that Idaho may
elect to reevaluate and address the
deferred elements of the Moderate area
plan, as well as the contingency
measure requirements, in the context of
developing the Serious area attainment
plan.
The EPA received three sets of
comments on the proposed action that
pertain to portions of the 2012 SIP
submission and 2014 amendment that
are relevant to this final action. The EPA
is responding to those comments in this
notice. Comments that pertain to the
attainment demonstration, reasonable
further progress, quantitative milestone,
and motor vehicle emissions budget
requirements will be addressed when
the EPA takes final action on these plan
elements.
II. Response to Comments
Commenter 1, comment 1: A citizen
observed, ‘‘As I have traveled north out
of Logan toward Idaho I have noticed
that the inversion gets lighter. The PM2.5
that hangs thick and cloudy over Logan
turns to spidery, wispy clouds that just
reach across the mountains. They reach
and then disappear completely. I don’t
think the emissions and PM2.5 are
coming from cars in Franklin County
Idaho. I think that they are coming from
Logan and traveling up the valley into
Franklin County, Idaho.’’
E:\FR\FM\04JAR1.SGM
04JAR1
Agencies
[Federal Register Volume 82, Number 2 (Wednesday, January 4, 2017)]
[Rules and Regulations]
[Pages 725-729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31508]
=======================================================================
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[Docket No. OAG 155]
RIN 1105-AB51; A.G. Order No. 3803-2016
Revision of Department of Justice Freedom of Information Act
Regulations
AGENCY: Department of Justice.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Department of Justice's regulations under
the Freedom of Information Act (FOIA) to incorporate certain changes
made to the FOIA by the FOIA Improvement Act of 2016. In addition, this
rule amends certain provisions in the fee section to reflect
developments in the case law and to streamline the description of the
factors to be considered when making fee waiver determinations.
DATES: Effective Date: This rule is effective February 3, 2017.
Comment Date: Public comments must be submitted by March 6, 2017.
Comments submitted by mail will be accepted as timely if they are
postmarked on or before that date. Electronic comments may be submitted
via www.regulations.gov prior to midnight Eastern Time at the end of
that day.
ADDRESSES: You may submit written comments, identified by RIN 1105-AB51
or Docket No. OAG 155, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Lindsay Roberts, Attorney-Advisor, Office of
Information Policy, 1425 New York Avenue NW., Room 11050, Washington,
DC 20530.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. For additional details on
submitting comments, see the ``Public Participation'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Lindsay Roberts, Attorney-Advisor,
Office of Information Policy, (202) 514-3642.
SUPPLEMENTARY INFORMATION:
This rule amends the Department's regulations under the Freedom of
Information Act to incorporate certain changes made to the FOIA, 5
U.S.C. 552, by the FOIA Improvement Act of 2016, Public Law 114-185,
130 Stat. 538 (June 30, 2016). The FOIA Improvement Act of 2016
provides that agencies must allow a minimum of 90 days for requesters
to file an administrative appeal. The Act also requires that agencies
notify requesters of the availability of dispute resolution services at
various times throughout the FOIA process. Finally, the Act codifies
the Department of Justice's ``foreseeable harm'' standard. This rule
updates the Department's regulations in 28 CFR part 16, subpart A, to
reflect those statutory changes.
In addition, as explained below, this rule amends provisions in
Sec. 16.10 (Fees) to incorporate the new statutory restrictions on
charging fees in certain circumstances, to reflect developments in the
case law, and to streamline the description of the factors to be
[[Page 726]]
considered when making fee waiver determinations.
Section 16.1 (General provisions) is revised to delete the
reference to the Department's policy regarding discretionary release of
information whenever disclosure would not foreseeably harm an interest
protected by a FOIA exemption, because that foreseeable harm standard
is now part of the FOIA statute itself as a result of the FOIA
Improvement Act of 2016.
Section 16.2 (Proactive disclosure of Department records) is
revised to more clearly reflect the FOIA Improvement Act of 2016's
requirement that records the FOIA requires agencies to make available
for public inspection must be in an electronic format, rather than
simply made available for public inspection and copying.
Section 16.4 (Responsibility for responding to requests) is revised
to remove the reference to discretionary release of information when
another component or agency is better able to make the determination
because the foreseeable harm standard is now part of the FOIA statute
itself as a result of the FOIA Improvement Act of 2016.
Section 16.5 (Timing of responses to requests) is revised to
include a requirement that components notify requesters of the
availability of assistance from the Office of Government Information
Services (OGIS) at the National Archives and Records Administration
when the component gives notice to requesters that the request involves
unusual circumstances. This notification is required by the FOIA
Improvement Act of 2016.
Section 16.6 (Responses to requests) is revised to include
requirements that components notify requesters of the availability of
assistance from a FOIA Public Liaison and OGIS when providing
requesters with responses to their requests. These notifications are
required by the FOIA Improvement Act of 2016.
Section 16.8 (Administrative appeals) is revised to extend the time
to file an administrative appeal to 90 days, in conformity with the 90-
day minimum time period established by the FOIA Improvement Act of
2016. This section is also revised to include a new paragraph regarding
engaging in dispute resolution services provided by OGIS.
Paragraph (b) of Sec. 16.10 (Fees) is revised to conform to recent
decisions of the D.C. Circuit Court of Appeals addressing two FOIA fee
categories: ``representative of the news media'' and ``educational
institution.'' See Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir.
2015); Sack v. DOD, 823 F.3d 687 (D.C. Cir. 2016). The Department's
existing FOIA regulations state that a representative of the news media
is ``any person or entity that is organized and operated to publish or
broadcast news to the public that actively 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.'' In Cause of Action, 799 F.3d at 1125, the
court held that a representative of the news media need not work for an
entity that is ``organized and operated'' to publish or broadcast news.
Therefore, the definition of ``representative of the news media'' is
revised to remove the ``organized and operated'' requirement. The
definition of ``educational institution'' is revised to reflect the
holding in Sack, 823 F.3d at 688, that students who make FOIA requests
in furtherance of their coursework or other school-sponsored activities
may qualify under this requester category.
Paragraph (d)(2) of Sec. 16.10, which addresses restrictions on
charging fees when the FOIA's time limits are not met, is revised to
reflect changes made to those restrictions by the FOIA Improvement Act
of 2016. Specifically, these changes reflect that agencies may not
charge search fees (or duplication fees for representatives of the news
media and educational/non-commercial scientific institution requesters)
when the agency fails to comply with the FOIA's time limits. The
restriction on charging fees is excused and the agency may charge fees
as usual when it satisfies one of three exceptions detailed at 5 U.S.C.
552(a)(4)(A)(viii)(II).
Lastly, this rule revises paragraph (k) of Sec. 16.10, which
addresses the requirements for a waiver or reduction of fees, to
specify that requesters may seek a waiver of fees and to streamline and
simplify the description of the factors to be considered by components
when making fee waiver determinations. These updates do not
substantively change the analysis, but instead present the factors in a
way that is clearer to both components and requesters. Rather than six
factors, the amended section provides for three overall factors.
Specifically, a requester should be granted a fee waiver if the
requested information (1) sheds light on the activities and operations
of the government; (2) is likely to contribute significantly to public
understanding of those operations and activities; and (3) is not
primarily in the commercial interest of the requester. This streamlined
description facilitates easier understanding and application of the
statutory standard.
Public Participation
The Department is issuing an interim rule to make these revisions
in the Department's FOIA regulations, because these changes merely
bring the regulations into alignment with the provisions contained in
the FOIA Improvement Act of 2016 and with current case law and clarify
the procedure the Department uses for making fee waiver determinations.
This approach allows these regulatory changes to take effect sooner
than would otherwise be possible with the publication of a Notice of
Proposed Rulemaking in advance. Nevertheless, the Department welcomes
public comments from any interested person on any aspect of the changes
made by this interim final rule. Please refer to the ADDRESSES section
above. The Department will carefully consider all public comments in
the drafting of the final rule.
Please note that all comments received are considered part of the
public record and are made available for public inspection online at
https://www.regulations.gov. The information made available includes
personal identifying information (such as name and address) voluntarily
submitted by the commenter.
If you want to submit personal identifying information (such as
your name and address) as part of your comment, but do not want it to
be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You also must
locate all the personal identifying information you do not want posted
online in the first paragraph of your comment and identify what
information you want redacted. If you want to submit confidential
business information as part of your comment, but do not want it to be
posted online, you must include the phrase ``CONFIDENTIAL BUSINESS
INFORMATION'' in the first paragraph of your comment. You also must
prominently identify any confidential business information to be
redacted within the comment. If a comment has so much confidential
business information that it cannot be effectively redacted, all or
part of that comment may not be posted on https://www.regulations.gov.
Personal identifying information and confidential business
information identified and located as set forth above will be placed in
the agency's public docket file, but not posted online. If you wish to
inspect the agency's public docket file in person, please see the FOR
FURTHER INFORMATION CONTACT
[[Page 727]]
paragraph above to schedule an appointment.
Regulatory Certifications
Administrative Procedure Act
The Department's implementation of this rule as an interim final
rule, with provision for post-promulgation public comment, is based on
section 553(b) of the Administrative Procedure Act. 5 U.S.C. 553(b).
Under section 553(b), an agency may issue a rule without notice of
proposed rulemaking and the pre-promulgation opportunity for public
comment, with regard to ``interpretative rules, general statements of
policy, or rules of agency organization, procedure, or practice.'' The
Department has determined that many of the revisions being made are
interpretive rules issued by the Department, as they merely advise the
public of the Department's construction of the new statute and clarify
the application of the substantive law. Moreover, the Department has
determined that the remaining revisions are rules of agency procedure
or practice, as they do not change the substantive standards the agency
applies in implementing the FOIA. The Department has also concluded
that there is good cause to find that a pre-publication public comment
period is unnecessary. These revisions to the existing regulations in
28 CFR part 16 merely implement the statutory changes, align the
Department's regulations with controlling judicial decisions, and
clarify agency procedures.
Regulatory Flexibility Act
This rule amends the Department of Justice's regulations under the
FOIA to incorporate certain changes made by the FOIA Improvement Act of
2016, and to reflect developments in the case law and to streamline the
description of the factors to be considered when making fee waiver
determinations. Because the Department is not required to publish a
notice of proposed rulemaking for this rule, a Regulatory Flexibility
analysis is not required. 5 U.S.C. 603(a).
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation, and in accordance with Executive Order
13563 ``Improving Regulation and Regulatory Review,'' section 1(b),
General Principles of Regulation. The Department of Justice has
determined that this rule is not a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review, and accordingly this rule has not been reviewed by the Office
of Management and Budget. Further, both Executive Orders 12866 and
13563 direct agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). Executive Order 13563 emphasizes the importance
of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility. The Department has
assessed the costs and benefits of this regulation and believes that
the regulatory approach selected maximizes net benefits.
Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, the Attorney General has determined that this rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in 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, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996. See 5
U.S.C. 804. This rule will not result in an annual effect on the
economy of $100 million or more; a major increase in costs or prices;
or significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets.
List of Subjects in 28 CFR Part 16
Administrative practice and procedure, Freedom of information,
Privacy.
Accordingly, for the reasons stated in the preamble, 28 CFR Chapter
1, part 16 is amended as follows:
PART 16--DISCLOSURE OR PRODUCTION OF MATERIAL OR INFORMATION
0
1. Revise the authority citation for part 16 to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510,
534; 31 U.S.C. 3717.
Sec. 16.1 [Amended]
0
2. In Sec. 16.1, remove the last sentence of paragraph (a).
0
3. In Sec. 16.2, revise the first sentence, to read as follows:
Sec. 16.2 Proactive disclosure of Department records.
Records that are required by the FOIA to be made available for
public inspection in an electronic format may be accessed through the
Department's Web site at https://justice.gov/oip/04_2.html. * * *
0
4. In Sec. 16.4, revise the first sentence of paragraph (d)
introductory text, to read as follows:
Sec. 16.4 Responsibility for responding to requests.
* * * * *
(d) * * * When reviewing records located by a component in response
to a request, the component shall determine whether another component
or another agency of the Federal Government is better able to determine
whether the record is exempt from disclosure under the FOIA. * * *
* * * * *
0
5. In Sec. 16.5, add a sentence at the end of paragraph (c), to read
as follows:
Sec. 16.5 Timing of responses to requests.
* * * * *
(c) * * * The component must also alert requesters to the
availability of the Office of Government Information Services to
provide dispute resolution services.
* * * * *
0
6. In Sec. 16.6, add a sentence at the end of paragraph (c), and add
paragraph (e)(5), to read as follows:
Sec. 16.6 Responses to requests.
* * * * *
(c) * * *. The component must inform the requester of the
availability
[[Page 728]]
of the FOIA Public Liaison to offer assistance.
* * * * *
(e) * * *
(5) A statement notifying the requester of the assistance available
from the component's FOIA Public Liaison and the dispute resolution
services offered by the Office of Government Information Services.
* * * * *
0
7. In Sec. 16.8:
0
a. Remove the term ``60 calendar days'' in paragraph (a) and add in its
place ``90 calendar days'';
0
b. Redesignate paragraph (d) as paragraph (e); and
0
c. Add a new paragraph (d), to read as follows:
Sec. 16.8 Administrative appeals.
* * * * *
(d) Engaging in dispute resolution services provided by OGIS.
Mediation is a voluntary process. If a component agrees to participate
in the mediation services provided by the Office of Government
Information Services, it will actively engage as a partner to the
process in an attempt to resolve the dispute.
* * * * *
0
6. In Sec. 16.10:
0
a. Revise paragraph (b)(4) and Example 3 to paragraph (b)(4);
0
b. Revise the first sentence of paragraph (b)(6); and
0
c. Revise paragraph (d)(2) and paragraph (k), to read as follows:
Sec. 16.10 Fees.
* * * * *
(b) * * *
* * * * *
(4) Educational institution is any school that operates a program
of scholarly research. A requester in this fee category must show that
the request is made in connection with the requester's role at the
educational institution. Components may seek assurance from the
requester that the request is in furtherance of scholarly research and
will advise requesters of their placement in this category.
* * * * *
Example 3. A student who makes a request in furtherance of the
student's coursework or other school-sponsored activities and
provides a copy of a course syllabus or other reasonable
documentation to indicate the research purpose for the request,
would qualify as part of this fee category.
* * * * *
(6) Representative of the news media is any person or entity that
actively 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. * * *
* * * * *
(d) * * *
(2) If a component fails to comply with the FOIA's time limits in
which to respond to a request, it may not charge search fees, or, in
the instances of requests from requesters described in paragraph (d)(1)
of this section, may not charge duplication fees, except as described
in paragraphs (d)(2)(i) through (iii) of this section.
(i) If a component has determined that unusual circumstances as
defined by the FOIA apply and the agency provided timely written notice
to the requester in accordance with the FOIA, a failure to comply with
the time limit shall be excused for an additional 10 days.
(ii) If a component has determined that unusual circumstances as
defined by the FOIA apply, and more than 5,000 pages are necessary to
respond to the request, the component may charge search fees, or, in
the case of requesters described in paragraph (d)(1) of this section,
may charge duplication fees if the following steps are taken. The
component must have provided timely written notice of unusual
circumstances to the requester in accordance with the FOIA and the
component must have discussed with the requester via written mail,
email, 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). If this exception
is satisfied, the component may charge all applicable fees incurred in
the processing of the request.
(iii) If a court has determined that exceptional circumstances
exist as defined by the FOIA, a failure to comply with the time limits
shall be excused for the length of time provided by the court order.
* * * * *
(k) Requirements for waiver or reduction of fees. (1) Requesters
may seek a waiver of fees by submitting a written application
demonstrating how 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
and is not primarily in the commercial interest of the requester.
(2) A component must furnish records responsive to a request
without charge or at a reduced rate when it determines, based on all
available information, 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 and is not primarily in the commercial interest of the
requester. In deciding whether this standard is satisfied the component
must consider the factors described in paragraphs (k)(2)(i) through
(iii) of this section:
(i) Disclosure of the requested information would shed light on the
operations or activities of the government. The subject of the request
must concern identifiable operations or activities of the Federal
Government with a connection that is direct and clear, not remote or
attenuated.
(ii) Disclosure of the requested information would be likely to
contribute significantly to public understanding of those operations or
activities. This factor is satisfied when the following criteria are
met:
(A) Disclosure of the requested records must be meaningfully
informative about government operations or activities. The disclosure
of information that already is in the public domain, in either the same
or a substantially identical form, would not be meaningfully
informative if nothing new would be added to the public's
understanding.
(B) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's ability and
intention to effectively convey information to the public must be
considered. Components will presume that a representative of the news
media will satisfy this consideration.
(iii) The disclosure must not be primarily in the commercial
interest of the requester. To determine whether disclosure of the
requested information is primarily in the commercial interest of the
requester, components will consider the following criteria:
(A) Components must identify whether the requester has any
commercial interest that would be furthered by the requested
disclosure. A commercial interest includes any commercial, trade, or
profit interest. Requesters must be given an opportunity to provide
explanatory information regarding this consideration.
(B) If there is an identified commercial interest, the component
must determine whether that is the primary interest furthered by the
request. A waiver or reduction of fees is justified when the
requirements of paragraphs (k)(2)(i) and (ii) of this
[[Page 729]]
section are satisfied and any commercial interest is not the primary
interest furthered by the request. Components ordinarily will presume
that when a news media requester has satisfied the requirements of
paragraphs (k)(2)(i) and (ii) of this section, the request is not
primarily in the commercial interest of the requester. Disclosure to
data brokers or others who merely compile and market government
information for direct economic return will not be presumed to
primarily serve the public interest.
(3) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(4) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the component and should address the
criteria referenced above. A requester may submit a fee waiver request
at a later time so long as the underlying record request is pending or
on administrative appeal. When a requester who has committed to pay
fees subsequently asks for a waiver of those fees and that waiver is
denied, the requester shall be required to pay any costs incurred up to
the date the fee waiver request was received.
Dated: December 21, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-31508 Filed 1-3-17; 8:45 am]
BILLING CODE 4410-BE-P