Freedom of Information Act Regulations, 61820-61829 [2019-23783]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Solicitor

[Federal Register Volume 84, Number 220 (Thursday, November 14, 2019)]
[Rules and Regulations]
[Pages 61820-61829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23783]



[[Page 61820]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of the Solicitor

43 CFR Part 2

[Docket No. DOI-2018-0017]
RIN 1093-AA26


Freedom of Information Act Regulations

AGENCY: Office of the Solicitor, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule revises the regulations applicable to all of the 
components, bureaus and offices of the Department of the Interior 
(Department) that process requests for records under the Freedom of 
Information Act. The revisions clarify and update procedures for 
requesting records from the Department and procedures that the 
Department follows in responding to requests from the public.

DATES: This rule is effective on December 16, 2019.

FOR FURTHER INFORMATION CONTACT: Cindy Cafaro, Departmental FOIA 
Office, Office of the Solicitor, Department of the Interior: 202-208-
5342.

SUPPLEMENTARY INFORMATION: 

I. Why We Are Publishing This Rule and What it Does

    The Department's Freedom of Information Act (FOIA) offices have 
been overwhelmed by an exponential increase in the volume and 
complexity of incoming FOIA requests. Between Fiscal Year (FY) 2016 and 
FY 2018, the number of FOIA requests received by the Department's 
bureaus and offices increased 30 percent overall while the number of 
requests received by the Office of the Secretary FOIA office (OS FOIA) 
increased 210 percent. During that time, the number of particularly 
time-consuming complex requests also increased by 55 percent for the 
Department overall and 355 percent for OS FOIA. The Department's effort 
to respond in a timely and effective manner to the increased number of 
requests has been further hindered by a significant increase in FOIA 
lawsuits, primarily brought by requesters that have not received timely 
responses to their requests. At the close of FY 2018, the Department 
was defending 129 FOIA cases compared to just 6 cases at the close of 
FY 2015 and 30 cases at the close of FY 2016. The lawsuits further 
impair the ability of the FOIA processors to do their work in an 
orderly and equitable manner because they impose extra duties on the 
FOIA processors and the litigated requests typically jump the 
processing queue ahead of the non-litigated requests.
    To address this challenge, the Department has begun a comprehensive 
effort to improve the quality and capacity of the work performed by its 
FOIA offices that includes better organization and governance, 
training, technology, and staffing as set out in Secretary's Order No. 
3371. This rule is part of that larger effort. It amends the 
Department's FOIA regulations to increase the capacity of the 
Department's FOIA offices to respond to FOIA requests in an effective, 
transparent, and timely manner by making the procedures for processing 
FOIA requests more efficient and focused on meeting the Department's 
statutory obligations under the FOIA.
    The Final Rule also amends section 2.31(a) of the Department's 
regulations to conform with the decision issued by the United States 
Supreme Court, in Food Marketing Institute v. Argus Leader Media, 588 
U.S. __(2019) on June 24, 2019 (slip opinion) (``Argus Leader''). The 
amendment strikes the criteria expressly rejected by the Supreme Court 
in Argus Leader and replaces it with the criteria articulated by the 
Supreme Court in that case. With respect to this one amendment, the 
Department is invoking the ``good cause'' exemption of the 
Administrative Procedure Act that provides ``when an agency finds that 
for good cause that public notice and comment procedures are 
impractical, unnecessary, or contrary to the public interest, the 
agency may issue a rule without providing notice and an opportunity for 
public comment.'' See 5 U.S.C. 553(b) (3)(B). The Department has 
determined that notice and comment is unnecessary with respect to this 
one amendment because the Department has no discretion to apply 
criteria other than that articulated by the Supreme Court in Argus 
Leader.

II. Comments to the Proposed Rule

    On December 28, 2018, the Department published a proposed rule in 
the Federal Register (83 FR 67175) requesting comments over a 30-day 
period ending on January 29, 2019. Due to a technical problem with 
www.regulations.gov that occurred in mid-January, we extended the 
comment period an additional day to ensure interested parties had the 
full 30 days to submit their responses. The Department received over 
65,000 submittals from industry organizations, non-governmental 
organizations, representatives of state governments, and private 
citizens that addressed virtually every change in the proposed rule. 
Some entities submitted comments multiple times. More than 55,000 of 
the comments were variations on form letters and contained similar 
comments. Other comments were substantive and detailed. The comments 
are posted at the Federal eRulemaking portal: https://www.regulations.gov and may be accessed at that website by entering 
DOI-2018-0017 in the search box. The Department also received comments 
from the Office of Government Information Services at the National 
Archives and Records Administration, the Office of Information Policy 
at the Department of Justice, and Members of Congress. After careful 
consideration of these comments, the Department modified the proposed 
changes to sections 2.3, 2.4, 2.5, 2.12, 2.13, 2.15, 2.19, 2.20, 2.24, 
2.29, 2.37, 2.45, 2.48, 2.54, 2.66, and 2.70 and withdrew the proposed 
changes to sections 2.16, 2.17, 2.18, 2.28, 2.51, 2.57, 2.58, 2.59, and 
2.62. The comments and the Department's responses are summarized below.

1. General Opposition to the Proposed Rule

    A large majority of the comments submitted by non-governmental 
organizations, members of the public, and academia expressed general 
opposition to the proposed rule and many of its major proposals.

2. General Support of the Proposed Rule

    Some comments generally supported the proposed rule or components 
of it.

3. More Time To Comment

    Some comments requested additional time to comment. The Department 
received a large number of comments, many of which were substantive and 
detailed. As a result, the Department is confident that it has had the 
benefit of sufficient public input. We declined to extend the comment 
period further because the public as well as the Department will 
benefit from implementing the regulations as soon as possible.

4. Executive Orders and Statutory Requirements

    Some comments questioned whether the rule constitutes a major 
federal action significantly affecting the quality of the human 
environment that requires a detailed statement under the National 
Environmental Policy Act of 1969 (NEPA). It does not. The rule amends 
the administrative process by which the Department receives and 
processes requests under the FOIA. The rule does not have a 
``reasonably close causal

[[Page 61821]]

connection'' to effects on natural or cultural resources in the 
environment, as required for NEPA analysis.
    A comment also recommended the Department correct the citation to 
43 CFR 46.210(i) for the list of categorical exclusions and 
extraordinary circumstances in the NEPA compliance section and the 
Department has done so. The rule is also subject, in part, to the 
exclusion at 43 CFR 46.210(b) for the category of actions, ``Internal 
organizational changes and facility and bureau reductions and 
closings,'' as it restructures the Department's FOIA program by 
reassigning roles among different personnel. The Department has 
reviewed this rule against the Department's list of extraordinary 
circumstances at 43 CFR 46.215, as required by 43 CFR 46.205, and has 
determined (as documented below) that none apply.
    Comments also questioned whether this rule would increase burdens 
and reduce flexibility and freedom of choice for the public under 
Executive Order (E.O.) 13563. It will not. The rule streamlines 
existing regulations to increase the Department's capacity to process 
requests under the FOIA and provide more records to more requesters in 
a timely manner. Comments also noted that E.O. 13563 encourages 
agencies to provide comment periods of at least 60 days. This is true, 
but it is a suggestion, not a requirement and the 30-day comment period 
utilized for this rule is legally sufficient. Additionally, as 
discussed above, the Department received a large number of comments, 
many of which are substantive and detailed, indicating that the comment 
period was adequate. Comments questioned whether the rule violates the 
FOIA. The Office of the Solicitor carefully reviewed the final rule and 
we are confident the rule is consistent with the provisions of FOIA. 
Comments also questioned whether our consultation with American Indian 
Tribes under E.O. 13175 was sufficient. This rule does not have tribal 
implications that impose substantial direct compliance costs on Indian 
Tribal governments under the criteria in E.O. 13175. Although it not 
required, the Department nevertheless sought consultation with the 
Indian Tribe that requested it and have added a more specific 
discussion of our compliance with E.O. 13175 below. Other comments 
asked us to note that the rule does not affect our trust responsibility 
to tribes. We agree that it does not.

5. Federal Vacancies Reform Act and Appointments Clause

    Some comments expressed concern that the proposed rule was signed 
by the Department's Principal Deputy Solicitor, Exercising the 
Authority of the Solicitor. They asserted that the Principal Deputy 
Solicitor does not have the authority to sign a proposed or final rule. 
They also asserted that he was the Acting Solicitor for an unlawfully 
long period of time and/or if he had not been the Acting Solicitor, he 
did not have authority to sign the proposed rule. The Department's 
Principal Deputy Solicitor, Exercising the Authority of the Solicitor 
is not the Acting Solicitor. Instead, he is a non-principal officer 
exercising a valid, non-expired delegation of the non-exclusive 
functions and duties of the Solicitor. As such, no timeline was 
exceeded and the Federal Vacancies Reform Act and Appointments Clause 
have not been violated. Additionally, the Principal Deputy Solicitor 
has the full authority to sign proposed and final rules.

6. Specific Comments on Provisions of the Proposed Rule

    The following is a discussion of the substantive comments on 
specific provisions of the proposed rule and the Department's 
responses:
    Section 2.2. In this section of the proposed rule, the Department 
updated who would provide prior approval for law enforcement 
exclusions, when necessary, transferring this responsibility from the 
Office of the Solicitor generally to the Deputy Chief FOIA Officer 
(DCFO) specifically. Comments expressed concern that this change would 
politicize access to information. This reflects a misunderstanding of 
the position and role of the DCFO. The DCFO is a recently created 
position in the Office of the Solicitor filled by a career Senior 
Executive Service employee to evaluate, improve, and oversee the 
Department's FOIA program. The rule, therefore, has not been changed 
based on these comments.
    Sections 2.3(d), 2.5(c), 2.19(b)(2), 2.21(a), 2.37(i), 2.49(e), and 
2.66. In these sections of the proposed rule, the Department updated 
provisions pertaining to Public Liaison functions and/or FOIA Requester 
Centers. These changes were driven by the 2018 Department of Justice 
guidance entitled The Importance of Quality Requester Services: Roles 
and Responsibilities of FOIA Requester Service Centers and FOIA Public 
Liaisons and reflect the changing structure of the Department's FOIA 
program. Comments expressed concern that the intention of the changes 
was to make it more complex/difficult for requesters to obtain 
assistance from the Department in making FOIA requests and/or to 
politicize the FOIA process. This is neither the intention nor the 
effect of the changes. The changes are intended to improve the 
Department's assistance to FOIA requesters by providing one level of 
support for routine matters (FOIA Requester Centers) and a centralized, 
higher level of support for matters requiring more assistance (the 
Public Liaison). In addition, the FOIA Requester Center and Public 
Liaison functions will continue to be performed by career employees. 
The rule, therefore, was not changed based on these comments. Some 
comments sought more detail in these sections, particularly section 
2.66. We agree that providing additional detail and clarification in 
section 2.66 would be helpful and have modified the rule accordingly.
    Section 2.3. In this section of the proposed rule, the Department 
amended paragraph (b) to require that electronic submissions of FOIA 
requests be made via the electronic portals listed on the Department's 
FOIA website rather than by email and remove the option to submit 
requests via facsimile. The Department also deleted the previous 
paragraph (c), which alerted requesters to a FOIA website that is now 
discussed in the amended paragraph (b). The change to paragraph (b) 
will enable the Department to modernize its FOIA request tracking 
system. The Department expects this will reduce the amount of time the 
bureau FOIA offices spend on data entry, reduce the number of 
inadvertent errors made by retyping data from one format to another, 
and enable staff to apply more of their time to processing requests. 
Comments expressed concern that this change was intended to prohibit 
the electronic submission of FOIA requests or hinder the submission of 
FOIA requests. This reflects a misunderstanding of FOIA portals as well 
as the intent of the Department. Requesters will still be able to 
submit their requests electronically and, because requesters will be 
required to fill in certain data fields in the portals, will be less 
likely to omit necessary information that must be clarified before the 
request can be processed. Other comments expressed concern that rural 
and tribal communities with limited internet access should be able to 
submit requests via facsimile. In response to the comments, we have 
modified paragraph (b) to permit all requesters to continue

[[Page 61822]]

faxing in requests. Other comments raised concerns about the 
functionality of the portals, for example, whether they provide 
confirmation receipts and allow requesters to upload documents. We do 
not believe it is appropriate to include such technical specifications 
in the regulations, but we are in the process of upgrading our portal 
system and will keep this concern in mind. We will also keep in mind 
the importance of informing requesters of, and redirecting them to, the 
portals. One comment suggested adding a reference to the Department of 
Justice portal at FOIA.gov to the regulations. Accordingly, we have 
added this portal to our FOIA website.
    Section 2.4. In this section of the proposed rule, we amended 
paragraph (a) and deleted paragraphs (e) and (f) to provide that we 
would not forward requests submitted to a particular bureau or bureau 
component to another bureau or component. These changes were intended 
to help the FOIA offices focus on meeting the Department's statutory 
obligations under the FOIA. Comments expressed concern that these 
changes would be unduly limiting and inappropriate under the FOIA. 
After considering those comments, we have further amended paragraph (a) 
to make it clear that when a bureau receives a request that is clearly 
intended for another bureau, the bureau will forward the request. This 
is consistent with 2008 Department of Justice guidance entitled New 
Requirement to Route Misdirected FOIA Requests. Additionally, the 
section has been amended to advise requesters that they may seek help 
from the appropriate FOIA contact, as discussed in section 2.3 of the 
regulations, or FOIA Requester Center to assist them in determining 
where to direct their requests. Comments also requested that we 
consider continuing to forward requests that are not clearly 
misdirected to provide requesters with excellent customer service. 
While we wish to provide excellent customer service to requesters, this 
change would thwart our goal of focusing the efforts of the 
Department's FOIA offices on meeting our statutory obligations to 
provide timely and accurate responses to FOIA requesters. We, 
therefore, decline to require forwarding unless a request has clearly 
been misdirected, but believe the addition of a reminder of the 
services offered by FOIA contacts and FOIA Requester Centers will help 
requesters obtain needed assistance in directing their requests.
    Section 2.5. This section of the rule concerns how requesters 
describe the records they are seeking. We proposed adding language to 
paragraph (a) requiring requesters to identify the discrete, 
identifiable agency activity, operation, or program in which they are 
interested. The purpose of this change was to assist requesters in 
formulating proper requests for records reflecting the activities and 
functions of the Department. Comments expressed concern that this 
change was unclear and could unreasonably burden requesters. Upon 
consideration of the comments, we have withdrawn this proposed change. 
Paragraph (d) was also amended to notify requesters that we would not 
honor a request that ``requires the bureau to locate, review, redact, 
or arrange for inspection of a vast quantity of material.'' The purpose 
of this change was to encourage requesters to formulate better-targeted 
requests. Comments expressed concern that these changes were too 
inflexible, created a new standard for the description of records, 
might confuse FOIA processors, and were impermissible under the FOIA. 
We recognize that our proposed language created confusion. We have 
therefore withdrawn the proposed change. Also in this section, we added 
paragraph (e) to clarify how the Department will address requests that 
do not reasonably describe the records sought. Some comments stated 
changes to the original paragraph (d) were unnecessary. Others stated 
that the changes were vague, too broad, or confusing. We therefore have 
withdrawn this new paragraph. A comment suggested that requesters 
should have 60 workdays to respond when asked by the bureau FOIA 
offices to clarify their requests. The 20 workday standard is unchanged 
from our current regulations. It provides sufficient time for 
requesters to respond to such requests and allows the Department to 
close requests that requesters are not interested in clarifying within 
a reasonable amount of time. The rule therefore has not been changed 
based on this comment.
    Section 2.6. In this section of the proposed rule, we amended 
paragraph (f) to provide refunds to requesters that overpaid fees 
because the bureau placed their request in the wrong fee category. A 
comment expressed concern that this change was arbitrary and capricious 
or could price requesters ``out of the market.'' As this change 
increases the ability of requesters to obtain refunds for incorrectly 
charged fees, it was not been changed based on this comment.
    Section 2.12. In this section of the proposed rule, we amended 
paragraph (d) to clarify when the Department will engage in 
consultations and/or referrals as described in the proposed changes to 
section 2.13. The purpose of this change was to make the language of 
section 2.12 consistent with section 2.13. Comments expressed concern 
that the purpose of this change was unclear and it may prevent the 
Department from working with other agencies that are the ``repositories 
of records.'' This comment appears to misunderstand the consultation 
and referral process, suggesting that it is a means to collect records 
from entities outside the Department. As this is not the case, we did 
not change the rule based on this comment.
    Section 2.13. In this section of the proposed rule, we amended each 
paragraph to clarify and simplify when and how the Department will 
engage in consultations and referrals. The purpose of this change was 
to eliminate unnecessary consultations and referrals that may delay the 
production of records to requesters. Comments expressed concern that we 
were eliminating ``common-sense requirements'' to work with other 
agencies to answer requests or creating exemptions to referrals and the 
changes may prevent the Department from working with other agencies 
that are the repositories of records. These comments misapprehend the 
purpose and impact of the change. We are not eliminating requirements 
to work with other agencies; rather, we are clarifying when we will 
engage in referrals and consultations. Additionally, as noted above, 
consultations and referrals are not a means to collect records from 
other agencies. The rule therefore was not been changed based on these 
comments. We did, however, clarify paragraph (b)(2) concerning records 
that are classified or may be appropriate for classification. Another 
comment suggested that this section include a protocol for exchanging 
information with state governments without making the records subject 
to disclosure under the FOIA. We do not believe records provided to the 
Department by state governments may be protected from disclosure under 
the FOIA absent statutory authority to do so and, therefore, the rule 
has not been changed based on this comment. Another comment suggested 
that when notifying a requester of a referral, we explicitly note 
whether the referral is for all or part of the request. We have updated 
and clarified paragraph (b)(3) in accordance with this comment. Another 
comment expressed concern about the discussion in paragraph (b)(4) 
concerning when a referral would be inappropriate, stating that it 
would allow the Department ``not to respond to citizen inquiries.'' 
This reflects a misunderstanding of the provision.

[[Page 61823]]

Eliminating unnecessary referrals will reduce unnecessary delay and 
enable the Department to respond more quickly to requests. 
Nevertheless, to address any confusion on this point, the Department 
has clarified this provision by replacing the word ``consult'' with 
``coordinate.''
    Section 2.14. In this section of the proposed rule, we added a 
sentence expressly providing that the bureau may modify the ordinary 
practice of processing requests within a given processing track on a 
first-in, first-out basis by imposing monthly processing limits in 
order to treat FOIA requesters equitably by responding to a greater 
number of FOIA requests each month. The proposed language was intended 
to allow the bureau to utilize an approach similar to that of the 
Federal Bureau of Investigation that was favorably acknowledged by the 
United States Court of Appeals for the D.C. Circuit in National 
Security Counselors v. United States Department of Justice, 848 F.3d 
467, 471-72 (D.C. Cir. 2017). Comments expressed concern this change 
would limit the number of FOIA requests a requester may submit in a 
given month, monthly processing limits are not authorized by the FOIA, 
and the approach is unprecedented. Although we do not believe the 
proposed change would have limited the number of requests that may be 
submitted in a given month or that it is not authorized under the FOIA, 
we recognize that the proposed language created confusion and have 
therefore withdrawn it.
    Section 2.15. In this section of the proposed rule, we amended 
paragraph (c) to clarify the Department's multitrack processing 
provisions. The purpose of these changes was to clarify how multitrack 
processing works in the Department and to re-name the ``Exceptional/
Voluminous'' track as that name was two words long and had created some 
confusion. Some comments objected to the premise of multitrack 
processing, stating the amendments attempted to the change the 
statutory timelines of the FOIA. Some comments questioned wording 
choices and/or sought clarification. As multitrack processing is 
expressly authorized by the FOIA (5 U.S.C. 552(a)(6)(D)(i)), the 
comments challenging the premise of multitrack processing did not 
result in a change to the rule. However, based on the comments, we 
added an introductory phrase to provide additional clarity and 
transparency as to how we assign particular requests to particular 
tracks. The additional language clarifies we place requests in 
processing tracks based on how long it would generally take to process 
them, not based on how long it will actually take to process them due 
to other factors, such as existing backlogs.
    Sections 2.16, 2.18, 2.19, 2.28, 2.37, 2.51, 2.57, 2.58, 2.59, and 
2.62. In these sections of the proposed rule, we proposed changing the 
phrase ``time limit'' to ``time frame.'' The purpose of this change was 
to address concerns that this language confused requesters about timing 
issues. Comments suggested the change would create more confusion about 
timing issues and was perceived as inconsistent with the language of 
the FOIA (for example, 5 U.S.C. 552(a)(4)(A)(viii)(II)(aa)). Upon 
consideration of the comments, we found the changes were not consistent 
with our purpose and have withdrawn them.
    Section 2.17. In the proposed rule, we removed this section to be 
consistent with proposed changes to section 2.4. Upon consideration of 
the comments and in light of the final changes to section 2.4, 
(discussed above), this change is no longer required and we have 
withdrawn it.
    Section 2.20. In this section of the proposed rule, we amended 
paragraphs (a), (b), and (c) to clarify when and how the Department 
will grant expedited processing consistent with the statutory 
requirements in the FOIA. Comments raised concerns that the changes 
would harm the FOIA requester community by improperly raising the bar 
for expedited processing. These comments misapprehend the purpose or 
effect of the proposed changes. The changes underscore the legal 
standard for expedited processing established by the United States 
Court of Appeals for the D.C. Circuit in Al-Fayed v. Central 
Intelligence Agency., 254 F.3d 300 (D.C. Cir. 2001) to assist the FOIA 
requester community to craft appropriate expedited processing requests. 
The changes will also help ensure requesters do not receive processing 
ahead of all other non-expedited requesters unless they qualify under 
the legal standard. We therefore have not changed the rule based on 
these comments. However, we further revised paragraph (c) to address 
what happens when only a portion of a request qualifies for expedited 
processing. Comments also raised concerns that the change to paragraph 
(a)(2)(iii), removing a phrase concerning breaking news, would harm 
transparency, lead to attempts to limit media requests, and was 
contrary to the public interest. Upon consideration of the comments, we 
are revising rather than removing this phrase to clarify that we will 
process expedited processing requests in accordance with the caselaw 
noted above and the legislative history of the FOIA. Comments also 
raised concerns about the requirement to consult with the Office of the 
Solicitor on grants of expedited processing, suggesting that it will 
allow political interference. This concern is misguided. Attorneys in 
the Office of the Solicitor are in the best position to apply the legal 
standard for expedited processing based on their legal expertise. 
Accordingly, this section was not been changed based on these comments.
    Section 2.23. In this section of the proposed rule, we added a 
phrase to paragraph (c) to allow bureaus to make certain routine 
withholdings without consulting the Office of the Solicitor. Comments 
raised concerns this was an attempt at political interference and that 
this provision could prevent the FOIA offices from seeking attorney 
guidance on non-routine matters. We believe this reflects a 
misunderstanding of both the role of the Office of the Solicitor and 
the purpose of the proposed change. Currently, the Office of the 
Solicitor must approve all withholdings to ensure that they are legally 
justified. The amendments would permit the Office of the Solicitor to 
pre-approve routine withholdings such as the redaction of social 
security numbers pursuant to Exemption 6, rather than requiring legal 
review of those withholdings. This change will enable the FOIA 
processors and the Department's attorneys to use their time more 
efficiently and process records that contain routine withholdings more 
quickly. The rule therefore has not been changed based on these 
comments. One comment suggested that we issue preapprovals in the form 
of memoranda that are readily available to the public and cited in 
response letters. While we decline to include this suggested process in 
the regulations, we are considering how best to make information 
concerning the preapproval of routine withholdings available to the 
public.
    Section 2.24. In this section of the proposed rule, we added a 
phrase to paragraph (b)(4) noting that a bureau will not provide an 
estimate of the volume of records withheld when it does not have or 
could not locate any responsive records. The purpose of this change is 
to acknowledge that we cannot provide an estimate of volume when we do 
not locate responsive records. Comments suggested this change was 
awkward and/or unnecessary. Although it may seem obvious that the 
bureaus cannot provide an estimate of volume when they do not have or 
cannot locate responsive records, confusion has arisen on this point in 
the past. The rule therefore has not been changed based on these

[[Page 61824]]

comments. We also added a phrase to paragraph (b)(5) stating that the 
name and title of the attorney consulted would not be included in a 
denial notification when the withholding was made pursuant to a 
preapproval authorized in section 2.23(c). Comments expressed concern 
that this change favored secrecy over transparency. Upon consideration 
of the comments, we have withdrawn this proposed change as inconsistent 
with our purpose for the rule.
    Section 2.27. In this section of the proposed rule, we added the 
term ``due diligence'' to paragraph (a), to provide that bureaus must 
exercise due diligence to promptly notify submitters when we receive a 
FOIA request for submitter information that may be confidential. This 
change is necessary because it is not always possible to notify the 
submitter. For example, an individual submitter may have died or a 
business submitter may have closed since submitting the records. The 
Department's current regulations require without exception that the 
Department notify submitters. Inserting a due diligence standard 
permits the Department to discontinue its efforts to notify submitters 
when such efforts are futile. We believe the FOIA community will 
benefit from this change because it will allow the Department to move 
forward with processing requests after it has exercised due diligence 
in seeking to contact submitters. A comment asked for a definition of 
due diligence in this context. What constitutes due diligence will vary 
based on the circumstances. The rule therefore was not been changed 
based on this comment. Another comment recommended amending the 
provision to permit the Office of the Solicitor to preapprove the 
withholding of certain categories of information under Exemption 4 
without consulting with the submitter of the information. Another 
comment requested we communicate with submitters only through email 
(particularly when we must contact a voluminous number of submitters). 
These comments concern parts of the section and rule that we are not 
proposing to amend. The rule therefore was not changed based on these 
comments.
    Section 2.29. In this section of the proposed rule, we added a new 
paragraph (c) to provide that a bureau will not notify a submitter of a 
request for their possibly confidential information when the bureau has 
exercised due diligence to do so, but was unsuccessful. One comment 
suggested we add language to the section providing that we will not 
notify the submitter under specific circumstances (for example, when 
the submitter has provided ``false contact information''). We believe 
our existing language is sufficiently broad and it is unnecessary to 
list specific circumstances, as recommend by this comment.
    Section 2.45. In this section of the proposed rule, we replaced a 
phrase in paragraph (a) and removed paragraph (f) to clarify and 
streamline the factors we consider when evaluating fee waiver requests. 
Comments raised concerns that the changes were ``pointlessly 
specific,'' arbitrary, disadvantageous to requesters, could price 
requesters ``out of the market,'' were contrary to the FOIA, and/or 
were unduly restrictive. Upon consideration of the comments, we have 
concluded that the change concerning verification in paragraph (a) was 
not helpful and have withdrawn it. We have also concluded that removing 
paragraph (f) would lead to confusion rather than useful streamlining 
and have withdrawn that proposed change. The remaining change in 
paragraph (a) clarifies the factors we consider when evaluating fee 
waiver requests. As this information will assist requesters to 
formulate better fee waiver justifications, we are not changing this 
aspect of the rule.
    Section 2.48. In this section of the proposed rule, we amended and/
or redesignated a number of paragraphs in an effort to clarify how we 
evaluate fee waiver requests. Comments raised concerns that the changes 
reflected an attempt to create increased requirements for eligibility, 
an undue burden, unduly restrict the granting of fee waivers to 
requesters, and/or could price requesters ``out of the market.'' The 
purpose of this change was to clarify when the Department will grant 
fee waivers consistent with the statutory requirement in the FOIA. This 
clarification will help the FOIA requester community by helping them 
effectively prepare fee waiver requests. The rule therefore was not 
been changed based on these comments. Comments raised concerns that the 
addition of the word ``significantly'' to paragraph (a)(2) was 
unreasonably burdensome. This change mirrors the language of the FOIA 
(5 U.S.C. 552(a)(4)(A)(iii)) and, therefore, the rule has not been 
changed based on these comments. Comments raised concerns that changes 
to paragraph (a)(2)(i) were inaccurate, arbitrary, and imposed an 
unlawful burden upon requesters. Some of these comments raised 
particular concerns about the phrase ``public domain,'' stating it was 
unclear and unhelpful. Based on these comments, we have removed this 
phrase and amended the paragraph to clearly state the factors we 
consider when deciding whether the content of a record is meaningfully 
informative. A comment raised concerns that changes to paragraph 
(a)(2)(iv) might only allow subject matter experts to be eligible for a 
fee waiver. While subject matter expertise is a longstanding factor in 
receiving a fee waiver, it is not dispositive. The rule therefore has 
not been changed based on this comment. Comments expressed concern that 
the changes to paragraph (b) allow the Department to speculate about 
the commercial interest or activities of a requester rather than 
focusing on the intended use of the information. Comments also 
suggested this paragraph is confusing. After considering these 
comments, we revised the proposed language to make it clear that the 
bureaus consider the intended use of the information. A comment to 
paragraph (b)(5)(ii) recommended that the Department expand the 
circumstances in which a requester must demonstrate the intended use of 
the information to make various decisions and notifications required by 
Exemption 4 of the FOIA. As we do not generally use the fee waiver 
information discussed in this section to inform our Exemption 4 
decisions and notifications, the rule was not changed based on this 
comment.
    Section 2.49. In this section of the proposed rule, we added a new 
paragraph (a)(3). The purpose of this change was to clarify that 
requesters will not receive fee estimates until their requests are 
perfected. A comment stated this change would allow the Department to 
forgo providing notice to requesters of anticipated fees. We believe 
this comment reflects a misapprehension of the proposed change. 
Paragraph (a) simply clarifies that the bureaus will not provide fee 
notices to requesters until the requests are perfected. Another comment 
stated that the amendment could potentially price requesters ``out of 
the market.'' As the change will not impact fees or other costs 
incurred by requesters, the rule has not been changed based on this 
comment. Another comment asked if the current (a)(3) would be replaced 
with the new (a)(3). It will not, the old (a)(3) is becoming the new 
(a)(4).
    Section 2.54. In this section of the proposed rule, we modified 
language in paragraph (a) to streamline and clarify our aggregation 
procedures. Comments expressed concerns that the changes were 
confusing, arbitrary, could price requesters ``out of the market,'' 
would permit the Department to make value judgments, and/or could 
conflict with existing fee guidelines on aggregation

[[Page 61825]]

issued by the Office of Management and Budget (OMB) in 1987. Based upon 
these comments, we revised the changes to paragraph (a) and added a new 
paragraph (c) to make it clear when we will aggregate requests for 
administrative purposes (such as placement in processing tracks) versus 
when we will do so for fee purposes in accordance with the OMB Fee 
Guidelines.
    Section 2.70. In this section of the proposed rule, we modified the 
definition of ``Educational Institution'' to allow more requesters to 
qualify for this advantaged fee category consistent with Sack v. 
Department of Defense, 823 F.3d 687 (D.C. Cir. 2016). A comment 
expressed concern that this change was arbitrary and capricious or 
could price requesters ``out of the market.'' This comment reflects a 
misunderstanding of the change as it will enable additional requesters 
to qualify for this advantaged fee category. Additionally, this 
classification is just one of many elements of our determination to 
charge fees to a particular requester for a particular request. The 
rule therefore has not been changed based on this comment. We also 
added a phrase to the definition of ``Multitrack Processing,'' to 
provide more information to requesters about how the multitrack process 
works. A comment stated the change ``appears to codify Interior's 
problematic practice of delaying responses to FOIA requests until a 
requester files a complaint in court.'' This reflects a 
misunderstanding of the proposed change as well as the concept of 
multitrack processing. Multitrack processing is expressly authorized by 
the FOIA (5 U.S.C. 552(a)(6)(D)(i)) and is not a means of delaying 
responses to FOIA requests until litigation is filed. This comment 
therefore did not result in a change to the rule. We also proposed 
modifying the definition of ``Record'' to track recent Federal court 
decisions and the 2017 Department of Justice guidance entitled Defining 
a ``Record'' under the FOIA. The change was intended to enable the 
Department to target the records requesters are seeking and avoid 
unnecessary processing of non-responsive material. Comments suggested 
the new wording was unclear or circular, was contrary to the FOIA, 
could hinder requesters from obtaining information sought, and/or 
mirrored Privacy Act language. The purpose of the change was to inform 
the public that the Department would apply the Department of Justice 
guidance as well as pertinent case law, but we have withdrawn the 
language as it was unnecessary and created confusion. We also modified 
the definition of ``Representative of the News Media,'' by adding a 
sentence to clarify when employing editorial skills will be a 
requirement. Comments expressed concern that this change was unduly 
narrowing, noting that legitimate news outlets often disseminate raw 
data as part of larger editorial projects. Based upon these comments, 
we have modified the definition to address that circumstance. A comment 
expressed concern that this change was arbitrary and capricious or 
could price requesters ``out of the market.'' This comment is 
misguided, as the change in the definition simply clarifies a 
preexisting legal requirement. Accordingly, the rule was not changed 
based on this comment.

7. Comments Outside the Scope of This Rulemaking

    Some comments concerned sections of the regulations or issues that 
we did not raise in the proposed rule. Those comments did not lead to 
changes to the rule with the exception of one comment discussed in the 
Technical and Procedural Comments section below.
C. Technical and Procedural Comments
    Sections 2.6(b), 2.12(d), 2.13(c), 2.17, and 2.29(c) have received 
minor technical amendments to fix typographical errors and/or make 
clarifications.

III. Compliance With Laws and Executive Orders

1. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    E.O. 12866 provides that the Office of Information and Regulatory 
Affairs will review all significant rules. The Office of Information 
and Regulatory Affairs has waived its review of the final rule and 
therefore has not made a significance determination.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The Executive Order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

2. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

3. Small Business Regulatory Enforcement Fairness Act

    This is not a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

4. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. This rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

5. Takings (E.O. 12630)

    In accordance with E.O. 12630, this rule does not have significant 
takings implications. A takings implication assessment is not required.

6. Federalism (E.O. 13132)

    In accordance with E.O. 13132, this rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement. It would not substantially and directly 
affect the relationship between the Federal and state governments. A 
federalism summary impact statement is not required.

7. Civil Justice Reform (E.O. 12988)

    In accordance with E.O. 12988, the Office of the Solicitor has 
determined that this rule does not unduly burden the judicial system 
and meets the requirements of sections 3(a) and 3(b)(2) of the 
Executive Order.

[[Page 61826]]

8. Consultation With Indian Tribes (E.O. 13175)

    Under the criteria in E.O. 13175, we have evaluated this rule and 
determined that it would not have substantial direct effects on one or 
more Indian tribes, the relationship between the Federal government and 
Indian Tribes or the distribution of power and responsibilities between 
the Federal government and Indian Tribes (Executive Order 13175, 65 FR 
67429, 67429 (Nov. 6, 2000)). While the rule would simplify the 
rulemaking process, we do not foresee that it will create any obstacles 
to Tribes that wish to comment on future Department rulemakings.

9. Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget under the Paperwork 
Reduction Act is not required.

10. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required. Pursuant to Department Manual 516 DM 2.3A(2), Section 1.10 of 
516 DM 2, Appendix 1 excludes from documentation in an environmental 
assessment or impact statement ``policies, directives, regulations and 
guidelines of an administrative, financial, legal, technical or 
procedural nature; or the environmental effects of which are too broad, 
speculative or conjectural to lend themselves to meaningful analysis 
and will be subject late to the NEPA process, either collectively or 
case-by-case.''

11. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211. A Statement of Energy Effects is not required. This rule 
will not have a significant effect on the nation's energy supply, 
distribution, or use.

12. Clarity of This Regulation

    We are required by E.O.s 12866 and 12988 and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.

List of Subjects in 43 CFR Part 2

    Administrative practice and procedure, Classified information, 
Courts, Freedom of information Government employees; Privacy.

    For the reasons stated in the preamble, the Department of the 
Interior amends part 2 of title 43 of the Code of Federal Regulations 
as follows:

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

0
1. The authority citation for part 2 continues to read as follows:

    Authority:  5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43 
U.S.C. 1460, 1461.

Subpart A--Introduction


Sec.  2.2  [Amended]

0
2. In Sec.  2.2, remove the words ``Office of the Solicitor'' and add 
in their place ``Deputy Chief FOIA Officer''.

Subpart B--How To Make a Request

0
3. Amend Sec.  2.3 by:
0
a. Revising paragraph (b) to read as set out below.
0
b. Removing paragraph (c).
0
c. Redesignating paragraph (d) as paragraph (c).
0
d. In newly redesignated paragraph (c), removing the words ``FOIA 
Public Liaison'' and adding in its place ``FOIA Requester Center''.
    The revision reads as follows:


Sec.  2.3   Where should you send a FOIA request?

* * * * *
    (b) To make a request for Department records, you must write 
directly to the bureau that you believe maintains those records by 
utilizing the written forms of submission listed on the Department's 
FOIA website, https://www.doi.gov/foia, or utilizing physical or 
facsimile addresses of an appropriate FOIA contact, located at https://www.doi.gov/foia/contacts.
* * * * *

0
4. Amend Sec.  2.4 by:
0
a. Revising paragraph (a) t, and
0
b. Removing paragraphs (e) and (f).
    The revision reads as follows:


Sec.  2.4  Does where you send your request affect its processing?

    (a) A request to a particular bureau or a bureau component (for 
example, a request addressed to a regional or field office) will be 
presumed to seek only records from that particular bureau or component. 
A request will not be forwarded to another bureau or component unless 
it is clear on the face of your request that it was misdirected. For 
example, if you address your request to an appropriate FOIA contact in 
the National Park Service and ask for records concerning a specific 
park, but your request is delivered to the Fish and Wildlife Service, 
your request was clearly misdirected. In such a case, a FOIA contact in 
the receiving bureau or component will route the request to a FOIA 
contact in the proper bureau or component. If you need assistance 
determining where to send a request, you may seek assistance from the 
bureau's designated FOIA contact or FOIA Requester Center (see Sec.  
2.66 of this part).
* * * * *


Sec.  2.5  [Amended]

0
5. In Sec.  2.5 (c), remove the words ``FOIA Public Liaison'' and add 
in its place the words ``FOIA Requester Center''.

0
6. Amend Sec.  2.6 by:
0
a. Revising (b) introductory text, and
0
b. In paragraph (f) add the words ``or placement in a different fee 
category'' after ``partial fee waiver''.
    The revision reads as follows:


Sec.  2.6   How will fee information affect the processing of your 
request?

* * * * *
    (b) If, after taking into consideration your fee category 
entitlements (see Sec.  2.39 of this part), the bureau anticipates 
processing costs will exceed $50.00 (see Sec.  2.37(g) of this part) 
and these processing costs exceed the amount you have agreed to pay or 
you did not agree in writing to pay processing fees or request a fee 
waiver, the bureau will notify you:
* * * * *

Subpart C--Processing Requests


Sec.  2.12  [Amended]

0
 7. In paragraph (d), remove the words ``it did not create or that 
another bureau or a Federal agency is substantially concerned with'' 
and add in their place ``primarily concern another bureau or Federal 
Government agency that is subject to FOIA''.

0
8. Revise Sec.  2.13 to read as follows:


Sec.  2.13   How do consultations and referrals work?

    (a) When a bureau (other than the Office of Inspector General) 
locates responsive records that primarily concern another bureau or 
Federal Government agency that is subject to FOIA, the bureau will 
determine

[[Page 61827]]

whether that bureau or agency would be better able to determine whether 
the record is exempt from disclosure.
    (b) If the bureau processing the request believes that another 
bureau or agency would be better able to determine whether the record 
is exempt from disclosure, the bureau will contact that bureau or 
agency to determine whether it should refer the record to that bureau 
or agency or consult with that bureau or agency.
    (1) If the bureau processing the request refers a record to another 
bureau or agency, that other bureau or agency will respond to you 
directly about that record. If the bureau processing the request 
consults with another bureau or agency, the bureau processing the 
request will respond to you directly.
    (2) If the bureau receives a request for records that another 
agency has classified under any applicable executive order concerning 
record classification, or that the bureau believes may be appropriate 
for classification by another agency, it will refer the request for 
those records to that agency for response.
    (3) Whenever a bureau refers any part of the responsibility for 
responding to a request to another bureau or agency, it will:
    (i) Document the referral;
    (ii) Maintain a copy of the referred record; and
    (iii) Notify you in writing of the referral, including whether all 
or part of your request has been referred, the name of the bureau or 
agency to which the record was referred, and that bureau or agency's 
FOIA contact information.
    (4) If disclosure of the identity of the agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemption that protects ongoing law 
enforcement investigations, a referral would be inappropriate and the 
bureau will coordinate with the agency instead.
    (c) When a bureau receives a referral, the bureau will assign the 
referral to the appropriate processing track as described in Sec.  2.15 
of this part and process it according to the date that the consulting 
or referring bureau or agency received your request as described in 
Sec.  2.14 of this part.
    (d) Bureaus may establish written agreements with other bureaus or 
agencies to eliminate the need for consultations or referrals for 
particular types of records.

Subpart D--Timing of Responses to Requests


Sec.  2.15  [Amended]

0
10. Amend Sec.  2.15 by:
0
a. In paragraph (c), add the following words ``assigned according to 
the expected complexity of the collection/review/production process of 
each request and'' after the words ``tracks are'';
0
b. In paragraphs (c)(1), (2), (3), and (4) remove the word ``will'' and 
add in its place the words ``would generally''; and
0
c. In paragraph (c)(4), remove the words ``Exceptional/Voluminous'' and 
add in their place the word ``Extraordinary''.


Sec.  2.17   [Amended]

0
11. In Sec.  2.17, remove ``(e)'' and add in its place ``(a)''.


Sec.  2.19   [Amended]

0
12. In Sec.  2.19, amend paragraph (b)(2) by removing the words ``its 
FOIA Public Liaison'', and adding in their place the words ``the FOIA 
Public Liaison''.

0
13. Revise Sec.  2.20 to read as follows:


Sec.  2.20   When will expedited processing be provided and how will it 
affect your request?

    (a) The bureau will provide expedited processing upon request if 
you demonstrate to the satisfaction of the bureau that there is a 
compelling need for the records. The following circumstances 
demonstrate a compelling need:
    (1) Failure to expedite the request could reasonably be expected to 
pose an imminent threat to the life or physical safety of an 
individual; or
    (2) There is an urgency to inform the public about an actual or 
alleged Federal Government activity and the request is made by a person 
primarily engaged in disseminating information.
    (i) In most situations, a person primarily engaged in disseminating 
information will be a representative of the news media.
    (ii) If you are not a full time member of the news media, to 
qualify for expedited processing here, you must establish that your 
main professional activity or occupation is information dissemination, 
although it need not be your sole occupation.
    (iii) The requested information must be the type of information 
that has particular value that will be lost if not disseminated 
quickly; this ordinarily refers to a breaking news story that concerns 
a matter of public exigency.
    (iv) Information of historical interest only or information sought 
for litigation or commercial activities would not qualify, nor would a 
news media deadline unrelated to breaking news.
    (b) If you seek expedited processing, you must submit a statement 
that:
    (1) Explains in detail how all elements and subcomponents of your 
request meets each element of one or both of the criteria in paragraph 
(a) of this section; and
    (2) Certifies that your explanation is true and correct to the best 
of your knowledge and belief.
    (c) You may ask for expedited processing of your request by writing 
to the appropriate FOIA contact in the bureau that maintains the 
records requested any time before the bureau issues its final response 
to your request. Bureaus will consult with the Office of the Solicitor 
before granting expedited processing requests and responses to you will 
include the name and title of the Office of the Solicitor or Office of 
General Counsel attorney consulted. If only a portion of your request 
would qualify for expedited processing, we will:
    (1) Assign the portion of the request that qualifies for expedited 
processing a new processing number and place it in the expedited 
processing track as described in Sec.  2.15;
    (2) Place the remainder of the request that does not qualify for 
expedited processing into the appropriate processing track as described 
in Sec.  2.15; and
    (3) Inform you of the basis for the partial denial of expedited 
processing and your right to file an appeal as set forth in Sec.  
2.20(g) of this subpart.
    (d) When making a request for expedited processing of an 
administrative appeal, submit the request to the appropriate deciding 
official for FOIA appeals.
    (e) The bureau must notify you of its decision to grant or deny 
expedited processing within 10 calendar days of receiving an expedited 
processing request.
    (f) If expedited processing is granted, the request will be given 
priority, placed in the processing track for expedited requests, and be 
processed as soon as practicable.
    (g) If expedited processing is denied, the bureau will:
    (1) Inform you of the basis for the denial, including an 
explanation of why the expedited processing request does not meet the 
Department's expedited processing criteria under this section; and
    (2) Notify you of the right to appeal the decision on expedited 
processing in accordance with the procedures in subpart H of this part.
    (h) If you appeal the bureau's expedited processing decision, that 
portion of your appeal (if it is properly formatted under Sec.  2.59) 
will be processed before appeals that do not challenge expedited 
processing decisions.

[[Page 61828]]

    (i) If the bureau has not responded to the request for expedited 
processing within 10 calendar days, you may file an appeal (for 
nonresponse in accordance with Sec.  2.57(a)(8)).

Subpart E--Responses to Requests


Sec.  2.21   [Amended]

0
14. In Sec.  2.21(a), remove the words ``its FOIA Public Liaison'' and 
add in their place the words ``the FOIA Public Liaison''.


Sec.  2.23  [Amended]

0
15. In Sec.  2.23(c), remove the word ``record'' and add in its place 
the words ``record (unless the Office of the Solicitor has expressly 
preapproved such a withholding)''.


Sec.  2.24  [Amended]

0
16. In Sec.  2.24(b)(4), after the word ``unless'' add the words ``the 
bureau notes that it does not have or could not locate responsive 
records or that including''.

Subpart F--Handling Confidential Information


Sec.  2.27  [Amended]

0
17. In Sec.  2.27(a), add the words ``exercise due diligence to'' 
following the word ``must''.

0
18. Amend Sec.  2.29 by:
0
a. In paragraph (a), removing the word ``or'' after the ``;''.
0
b. In paragraph (b), adding the words ``or prohibited'' after the word 
``required'' and change the existing period to ``; or''.
0
c. Adding a new paragraph (c).
    The addition reads as follows:


Sec.  2.29   When will the bureau not notify a submitter of a request 
for their possibly confidential information?

* * * * *
    (c) The bureau has exercised due diligence to notify the submitter, 
but its efforts were unsuccessful.


Sec.  2.31  [Amended]

0
19. In Sec.  2.31, revise paragraph (a) to read as set out below.


Sec.  2.31   What must a submitter include in a detailed Exemption 4 
objection statement?

    (a) To rely on Exemption 4 as a basis for nondisclosure, the 
submitter must explain why the information is confidential information. 
To do this, the submitter must provide a detailed written statement 
that explains why the information is a trade secret or, if the 
information is not a trade secret, certification that the information 
is both customarily and actually treated as private by the owner of the 
information. The statement must also include any available background 
on whether the information was provided to the government under an 
assurance that the government would keep it private.
* * * * *

Subpart G--Fees


Sec.  2.37   [Amended]

0
20. In paragraph (i), remove the words ``FOIA Public Liaison'' and add 
in their place the words ``FOIA Requester Center''.


Sec.  2.45   [Amended]

0
21. In Sec.  2.45 paragraph (a), remove the words ``based on all 
available information'' and add in their place the words ``considering 
the information you have provided''.


Sec.  2.47  [Amended]

0
22. In Sec.  2.47 paragraph (d), remove the number ``30'' and add in 
its place the number ``90''.

0
23. Revise Sec.  2.48 to read as follows:


Sec.  2.48   How will the bureau evaluate your fee waiver request?

    (a) In deciding whether your fee waiver request meets the 
requirements of Sec.  2.45(a)(1) of this subpart, the bureau will 
consider the criteria listed in paragraphs (a)(1) through (a)(4) of 
this section. You must address and meet each of these criteria in order 
to demonstrate that you are entitled to a fee waiver.
    (1) How the records concern the operations or activities of the 
Federal government. The subject of the request must concern discrete, 
identifiable agency activities, operations, or programs with a 
connection that is direct and clear, not remote or attenuated.
    (2) How disclosure is likely to contribute significantly to public 
understanding of those operations or activities, including:
    (i) How the contents of the records are meaningfully informative. 
The disclosure of information that is already readily available to you 
from other sources or easily accessible to the public, 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 
and the bureau informs you of where the requested information is 
already available;
    (ii) What the logical connection is between the content of the 
records and the operations or activities of the Federal government;
    (iii) How disclosure will contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to your individual understanding;
    (iv) Your expertise in the subject area as well as your identity, 
vocation, qualifications, and your plan to disclose the information in 
a manner that will be informative to the understanding of a reasonably 
broad audience of persons interested in the subject, as opposed to 
furthering your individual understanding;
    (v) Your ability and intent to disseminate the information to a 
reasonably broad audience of persons interested in the subject (for 
example, how and to whom you intend to disseminate the information). If 
we have categorized you as a representative of the news media under 
Sec.  2.38, we will presume you have this ability and intent;
    (vi) Whether the records would confirm or clarify data that has 
been released previously; and
    (vii) How the public's understanding of the subject in question 
will be enhanced to a significant extent by the disclosure.
    (b) In deciding whether the fee waiver request meets the 
requirements in Sec.  2.45(a)(2) of this subpart, the bureau will 
consider any commercial interest of yours that would be furthered by 
the requested disclosure. To determine whether disclosure of the 
requested records is primarily in your commercial interest (based on 
your intended use of the information), the bureau will consider:
    (1) Whether the requested disclosure would further any commercial 
interest of yours.
    (2) If you have a commercial interest, the bureau must determine 
whether that is the primary interest furthered by the request by 
balancing the commercial interest against the public interest in 
disclosure of the records. When the requirements of paragraph (a) are 
satisfied and any commercial interest is not the primary interest 
furthered by the request, this balancing test shows a waiver or 
reduction of fees is justified. Bureaus ordinarily will presume that, 
when a news media requester has satisfied paragraph (a) above, the 
request is not primarily in the commercial interest of the requester.
    (3) You are encouraged to provide explanatory information regarding 
these considerations.
    (4) The bureau will not find that disclosing the requested records 
will be primarily in your commercial interest where the public interest 
is greater than any identified commercial interest in disclosure.

[[Page 61829]]

    (5) If you have a commercial interest that would be furthered by 
disclosure, explain how the public interest in disclosure would be 
greater than any commercial interest you may have in the documents.
    (i) Your identity, vocation, and intended use of the requested 
records are all factors to be considered in determining whether 
disclosure would be primarily in your commercial interest.
    (ii) If you are a representative of a news media organization 
seeking records as part of the news gathering process, we will 
ordinarily presume that the public interest outweighs your commercial 
interest. 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.
    (iii) If you represent a business/corporation/association or you 
are an attorney representing such an organization, we will presume that 
your commercial interest outweighs the public interest unless you 
demonstrate otherwise.

0
24. Amend Sec.  2.49 by:
0
a. Removing the word ``or'' from paragraph (a)(2);
0
b. Redesignating paragraph (a)(3) as (4);
0
c. Adding a new paragraph (a)(3);
0
d. In the newly redesignated paragraph (a)(4), removing the word 
``previously'' and adding in its place the word ``already''; and
0
e. In paragraph (e), removing the words ``FOIA Public Liaison'' and 
adding in their place the words ``FOIA Requester Center''.
    The addition reads as follows:


Sec.  2.49  When will you be notified of anticipated fees?

    (a) * * *
    (3)Your request does not reasonably describe the records sought 
and/or does not explicitly state that you will pay all fees associated 
with the processing of the request, that you will pay fees up to a 
specified amount, and/or that you are seeking a fee waiver; or
* * * * *

0
25. In Sec.  2.54, add paragraph (c) to read as set out below:


Sec.  2.54  When will the bureau combine or aggregate requests?

* * * * *
    (c) The bureau may administratively aggregate requests without 
charging fees accordingly when it reasonably believes you, or a group 
of requesters acting in concert with you, are dividing a single request 
into a series of requests on a single subject or related subjects.
    (1) The bureau may presume that multiple requests on a single 
subject or related subjects made within a 30-day period are dividing a 
single request into a series of requests.
    (2) The bureau may administratively aggregate requests separated by 
a longer period only where there is a reasonable basis for determining 
that aggregation is warranted in view of all the circumstances 
involved.

Subpart I--General Information

0
26. Revise Sec.  2.66 as follows:


Sec.  2.66  What are FOIA Requester Centers and the FOIA Public 
Liaison?

    (a) FOIA Requester Centers typically serve as your first point of 
contact for questions about how the FOIA works. Before and after you 
make a request, FOIA Requester Centers can assist you by:
    (1) Identifying information that is already posted and available;
    (2) Informing you about the types of records maintained by the 
bureau;
    (3) Providing guidance on formulating effective requests;
    (4) Describing the Department's various processing tracks and the 
average processing times for the various tracks;
    (5) Answering questions about expedited processing standards and 
the FOIA's fee provisions; and
    (6) Answering questions about the status of an existing request.
    (b) The FOIA Public Liaison is responsible for:
    (1) Assisting in reducing delays;
    (2) Increasing transparency and understanding of the status of 
requests; and
    (3) Assisting in the resolution of disputes between you and the 
agency.
    (c) If you need further information or assistance after contacting 
the applicable FOIA Requester Center and the FOIA Public Liaison, you 
may wish to seek dispute resolution services from the Office of 
Government Information Services.
    (d) Contact information for the FOIA Requester Centers and FOIA 
Public Liaison is available at https://www.doi.gov/foia/foiacenters.

0
27. Amend Sec.  2.70 by:
0
a. In the definition of ``Educational institution'', add a new sentence 
after the first sentence;
0
b. In the definition of ``Multitrack processing'', after the words 
``first-in/first-out basis'' add the words ``, but other factors, such 
as litigation, may affect the sequence and/or timing of processing''; 
and
0
c. In the definition of ``Representative of the news media'', add a new 
sentence after the first sentence.


Sec.  2.70  What definitions apply to subparts A through I of this 
part?

* * * * *
    Educational institution * * * Teachers (if they demonstrate how the 
requested records will further their teaching, scholarly research, or 
production of scholarly works) and students (if they demonstrate how 
the requested records will further their coursework or other school-
sponsored activities) may also qualify as an educational institution 
for the purposes of this definition. * * *
* * * * *
    Representative of the news media * * * Simply distributing copies 
of released records, electronically or otherwise, does not qualify as 
using editorial skills to turn the raw materials into a distinct work. 
* * *
* * * * *

    Dated: October 24, 2019.
Rachel Spector,
Deputy Chief Freedom of Information Act Officer.
[FR Doc. 2019-23783 Filed 11-13-19; 8:45 am]
BILLING CODE 4310-10-P