01-17491. Revision of the Freedom of Information Act Regulations and Implementation of the Electronic Freedom of Information Act Amendments of 1996

AGENCY:

Department of the Interior.

ACTION:

Proposed rule.

SUMMARY:

The Department of the Interior (DOI or Agency) proposes to revise its regulations implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552. The FOIA regulations have been completely rewritten in plain language, question and answer format. The regulations also contain new provisions implementing the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA). Additionally, the regulations have been updated to reflect changes in the Department's policies and procedures, developments in case law, cost figures for calculating and charging fees, and organizational changes within DOI. As a result, the public will have a clearer understanding of DOI's policies and procedures implementing the FOIA.

DATES:

We will accept comments from all interested parties until September 14, 2001.

ADDRESSES:

Submit your comments to Alexandra Mallus, Office of Information Resources Management (OIRM), Department of the Interior, 1849 C Street, NW., MS-5312-MIB, Washington, DC 20240. Submit electronic comments to alexandra_mallus@os.doi.gov. See Supplementary Information for file format and other information regarding electronic filing. Hand deliver comments to OIRM/DOI, 1849 C Street, NW., Room 5312-MIB, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT:

Alexandra Mallus by telephone at (202) 208-5342, by fax at (202) 501-2360, or by e-mail at alexandra_mallus@os.doi.gov.

SUPPLEMENTARY INFORMATION:

The revision of part 2, subparts A and B, incorporates changes to the language and structure of the regulations and adds new provisions to implement the E-FOIA (Pub. L. 104-231). New provisions implementing the amendments are found at § 2.4(c) (electronic reading rooms), § 2.9 (format of disclosure), § 2.12 (timing of responses), § 2.14 (expedited processing), § 2.21(a) (electronic searches), § 2.21(c) (marking deletions), § 2.21(d)(3) (volume estimation), and § 2.25 (multitrack processing).

Subpart B now describes information that is routinely available to the public through the agency reading rooms and the Internet. Requesters are encouraged to use these resources first before filing a FOIA request. Subpart E is added to include information on DOI's FOIA annual report.

Requesters now have 30 workdays, instead of 20 workdays, to file an appeal after the date of DOI's response or receipt of any records provided (§ 2.28(a)).

New sections have been added, such as: (1) § 2.24 concerning submitter designations; and (2) § 2.26 to clarify the difference between a FOIA request and a Privacy Act request.

The Department's fee schedule has been revised; proposed revisions may be found in Appendix C. The duplication charge will remain the same, at thirteen cents per page. Document search and review charges will increase to reflect the average hourly labor costs of employees in the following three categories: clerical, professional, and managerial (this is a new category designed to cover employees at the GS-13 level and above), respectively. Also, the criteria for determining fee waivers have been clarified to make it clear that DOI decides fee waiver requests on a case-by-case basis and to ensure that requesters know that they must provide sufficient justification to support their fee waiver requests (§ 2.19 and Appendix D).

The DOI does not charge a requester if the fee to process the FOIA request is $15 or less (§ 2.16(b)(2)). We are reviewing the true administrative costs associated with processing a FOIA request. This review may result in an increase of the dollar amount below which we will not bill a requester. If the review warrants, the increase will be reflected in the final rule. We specifically request your comments regarding this issue.

Due to the fact that the FOIA regulations have been completely rewritten and reorganized, subparts C through E of the old regulations will be redesignated as subparts F through H in the proposed rule. While the proposed rule redesignates these three subparts, it does not revise them.

If you submit electronic comments, you should provide them as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: (RIN 1090-AA61)” and your name and return address in your Internet message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly at (202) 208-5342.

Our practice is to make comments, including names and home addresses of respondents available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comments along with the reason(s) for your request. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Public comments will be available for inspection by appointment (call (202) 208-5342) during normal business hours at the above address. A reasonable fee may be charged for copying.

Regulatory Planning and Review (E.O. 12866)

DOI has determined that this proposed rule is not a “significant regulatory action” under the terms of Executive Order 12866 and therefore is not subject to OMB review because it is not likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments, or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients; or

(4) Raise novel legal or policy issues.

Regulatory Flexibility Act

DOI certifies that this regulation will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 606(b)). Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters. Thus, fees assessed by DOI are nominal.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule will not result in an annual effect on the economy of more than $100 million per year; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based companies to compete with foreign-based enterprises. It deals strictly with implementation of the FOIA within DOI.

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. The rule does not have a significant or unique effect on State, local, or tribal governments, or the private sector. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.)Start Printed Page 36968

Takings (E.O. 12630)

In accordance with Executive Order 12630, this rule does not have any takings implications. It deals strictly with implementation of the FOIA within DOI. Therefore, a takings assessment is not required.

Federalism (E.O. 13132)

In accordance with Executive Order 13132, This rule does not have Federalism implications as it deals strictly with implementation of the FOIA within DOI. Therefore, a Federalism assessment is not required.

Civil Justice Reform (E.O. 12988)

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

Paperwork Reduction Act

This rule does not contain any information collection requirements for which OMB approval under the Paperwork Reduction Act (44 U.S.C. 3501-3520) is required.

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(42 U.S.C. 4321-4347) of 1969 is not required.

Executive Order 13211

On May 18, 2001, the President issued an Executive Order (E. O. 13211) on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As this rule is not expected to significantly affect energy supplies, distribution, or use, this action is not a significant energy action and no Statement of Energy Effects is required.

Clarity of This Regulation

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to such questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example, § 2.7 What do I need to know before filing a FOIA request?) (5) Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the proposed rule? What else could we do to make the rule easier to understand?

Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, 1849 C Street, NW., MS-7229-MIB, Washington, DC 20240. You also may e-mail the comments to this address: Exsec@ios.doi.gov.

List of Subjects in 43 CFR Part 2

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

Dated: June 21, 2001.

Robert J. Lamb,

Deputy Assistant Secretary, Budget and Finance.

Proposed Regulation Promulgation

For the reasons given in the preamble, we propose to amend part 2 of title 43 of the Code of Federal Regulations, as set forth below:

PART 2—RECORDS AND TESTIMONY: FREEDOM OF INFORMATION ACT

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

Authority: 5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701; and 43 U.S.C. 1460.

2. Subparts C through E are redesignated as subparts F through H and the heading of newly redesignated subpart H is revised to read as follows:

Subpart H—Compulsory Process and Testimony of Employees

3. Subparts A and B are revised in their entirety and redesignated as subparts A through E to read as follows:

2.1: What do the regulations cover?
2.2: What is DOI's policy regarding release of records under the FOIA?
2.3: What terms do I need to know?
2.4: How do I obtain information routinely available to the public?
2.5: Does DOI maintain an index of its reading room materials?
2.6: Will the Department accept written requests, including fax, e-mail, or telephone requests, for routinely available information?
2.7: What do I need to know before filing a FOIA request?
2.8: What information must I include in my request?
2.9: May I specify the form or format of disclosure?
2.10: Where do I send my request?
2.11: Why is it important to send my request to the right office?
2.12: When can I expect the response?
2.13: When may the bureau take a time extension to respond to my request?
2.14: When can I get expedited processing?
2.15: Will I be charged fees?
2.16: How are fees determined?
2.17: How will my requester category affect the fees that I am charged?
2.18: How are fees assessed and collected?
2.19: When will bureaus waive fees?
2.20: When will bureaus grant discretionary fee waivers?
2.21: How will the bureau respond to my request?
2.22: What happens if a bureau receives a request for records it does not have or did not create?
2.23: How will a bureau handle a request for confidential commercial or financial information that it has obtained from a person or entity outside the Federal Government?
2.24: Is a submitter required to designate information that is commercially or financially sensitive?
2.25: Does the bureau provide multitrack processing of FOIA requests?
2.26: What is the difference between a FOIA request and a Privacy Act request?
2.27: Which FOIA decisions may I appeal?
2.28: How long do I have to file an appeal?
2.29: How do I file an appeal?
2.30: How will DOI respond to my appeal?
2.31: How long does DOI have to respond to my appeal?
2.32: Where can I get a copy of DOI's FOIA annual report?

Subpart A—General Information

§ 2.1

What do the regulations cover?

(a) The regulations implement the Freedom of Information Act (FOIA), 5 U.S.C. 552, and contain the procedures by which the public may inspect and obtain copies of Department of the Interior (DOI or Department) records through the FOIA or by other means.

(b) They apply to all agency records as defined in § 2.3(c).

(d) Nothing in the regulations will entitle you to any service or any record that is not required to be provided under the FOIA.Start Printed Page 36969

(e) These regulations do not apply to records that fall under the law enforcement exclusions in Appendix E to this part.

§ 2.2

What is DOI's policy regarding release of records under the FOIA?

It is our policy to make records of the Department available to the public to the greatest extent possible, in keeping with the spirit of the FOIA.

§ 2.3

What terms do I need to know?

For the purposes of this part, the following definitions apply:

(a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as amended.

(b) Agency means any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Federal Government, or any independent regulatory agency.

(c) Agency record means any documentary material which is either created or obtained by an agency in the transaction of agency business and under agency control at the time the FOIA request is received.

(1) Agency records include:

(i) Books, papers, maps, charts, plats, plans, architectural drawings, photographs, and microfilm;

(ii) Machine-readable materials such as magnetic tape and disks;

(iii) Electronic records (including e-mail messages);

(iv) Audiovisual material such as still pictures, sound and video recordings; and

(v) All other documentary materials, regardless of physical form, format or characteristics.

(2) This definition generally does not cover records of an individual which are:

(i) Created and maintained primarily for an individual's convenience;

(ii) Not subject to agency creation or retention requirements; and

(iii) Not distributed to other agency employees for their official use.

(d) Bureau means any major component of the Department administering its own FOIA program. A list of these components is contained in Appendix A to this part.

(e) Commercial-use request means a request from or on behalf of a person who seeks information for a use or purpose that furthers the commercial, trade or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester falls into this category, the bureau will consider the identity of the requester and intended use of the records in addition to any other available information about the requester.

(f) Direct costs means those expenses that a bureau actually incurs in searching for and duplicating (and in the case of commercial-use requests, reviewing) records to respond to a FOIA request. Direct costs include, for example, the salary and benefits of the employee performing the work and the cost of operating duplicating equipment. Not included in direct costs are overhead expenses such as the costs of space and heating or lighting of the facility in which the records are kept.

(g) Duplication means making a copy of a record, or the information contained in it, to respond to a FOIA request. Copies can take the form of paper, microform, photographs, audiovisual materials, or electronic records (for example, magnetic tape or disk), among others.

(h) Educational institution means a preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education, that operates a program of scholarly research. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scholarly research.

(i) Expedited processing means giving a FOIA request priority and processing it ahead of other requests pending before the bureau because a requester has shown an exceptional need or urgency for the records (See § 2.14).

(j) FOIA request means a written request (this includes facsimile (fax) and electronic mail (e-mail)) made by any member of the public for Federal agency records.

(k) Free-lance journalist means a representative of the news media who is able to demonstrate a solid basis for expecting publication through a news organization, even though not actually employed by it. A publication contract or past record of publication, or evidence of a specific free-lance assignment from a news organization may indicate a solid basis for expecting publication.

(l) Multitrack processing means placing simple requests, requiring relatively minimal review, in one processing track and more voluminous and complex requests in one or more other tracks. Requests in each track are processed on a first-in/first-out basis.

(m) Noncommercial scientific institution means an institution that is not operated for commerce, trade or profit, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scientific research.

(n) Privacy Act request means a written request (paper copy with an original signature) made by an individual for information about himself or herself that is contained in a Privacy Act system of records. The Privacy Act applies only to U.S. citizens and aliens lawfully admitted for permanent residence. Therefore, only those individuals may make Privacy Act requests.

(o) Reading room materials mean records (paper or electronic) that are required to be made available to the public under 5 U.S.C. 552(a)(2), as well as other records that a bureau, at its discretion, makes available to the public for inspection and copying without requiring the filing of a FOIA request.

(p) Representative of the news media means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term “news” means information that is about current events or that is (or would be) of current interest to the public. Examples of news media entities include, but are not limited to, television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. To be in this category, a requester must not be seeking the requested records for a commercial use. Further, a bureau normally will not consider requests for records involving news dissemination to be commercial-use requests.

(q) Review means the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. It also includes the deletion of exempt material or other processing necessary to prepare the record(s) for disclosure, including routine consultation among bureau staff and attorneys regarding the applicability of exemptions.

(r) Search means the process of looking for and retrieving agency records and information responsive to a Start Printed Page 36970request (manually or by automated means).

(s) Submitter means any person or entity outside the Federal Government from whom the Department directly or indirectly obtains commercial or financial information. The term includes, but is not limited to individuals, corporations, and state, local, tribal, and foreign governments.

(t) Workday means a regular Federal workday. It does not include Saturdays, Sundays, or Federal legal public holidays.

Subpart B—Information Routinely Available to the Public without Filing a FOIA Request

§ 2.4

How do I obtain information routinely available to the public?

A great deal of information is available to the public without filing a FOIA request. Examples are Departmental policies, procedures, and organizational descriptions. The following guidance will help you obtain this information. (Note: For copies of records that are not routinely available, you must submit a FOIA request to the DOI office where the records are located. Procedures for requesting records under the FOIA are provided in subpart C of this part.)

(a) General. (1) General information about DOI or one of its bureaus may be obtained by visiting DOI's home page (see Appendix B to this part for a list of Internet addresses) or by contacting the Office of Public Affairs/Communications for the appropriate bureau (see Appendix A to this part for a list of DOI contacts). Many documents are made available to the public through DOI's reading rooms. Some documents also may be available in DOI's electronic reading rooms on the Internet.

(2) Information on DOI's FOIA Program and a Reference Guide to assist you in obtaining various types of information are available in DOI's reading rooms, through the FOIA home page, or by contacting the Departmental FOIA Officer.

(3) To obtain information about specific records in DOI, you also may refer to:

(i) The index of documents frequently requested under the FOIA which is available in DOI's reading rooms, through the FOIA home page, or by contacting one of the bureau FOIA Officers; and

(ii) The index and description of DOI's major information and record locator systems, which are available in DOI's reading rooms, through the FOIA home page, or by contacting one of the bureau FOIA Officers.

(4) Another source of information is DOI's Library which contains over one million holdings dealing with a broad range of matters pertaining to the Department's mission. You may wish to visit the Library, which is located at the C Street entrance of the Main Interior Building, 1849 C Street, NW., Washington, DC. 20240 (see Appendix A to ths part). The Library is open to the public for on-site reference use from 7:45 a.m.-5:00 p.m., Monday-Friday (excluding holidays). Additional information regarding the Library's holdings and services may be obtained by visiting its home page (see Appendix B to this part).

(b) Published information and rules. Under 5 U.S.C. 552(a)(1), bureaus are required to publish certain information in the Federal Register for the guidance of the public, such as descriptions of their central and field organizations, functions, procedures, substantive rules, and statements of general policy.

(c) Reading room materials. (1) Under 5 U.S.C. 552(a)(2), each bureau is responsible for making the following information available for public inspection and copying unless the materials are promptly published and copies offered for sale. Bureaus must make any such records created on or after November 1, 1996, available by the Internet or by other computer telecommunication methods or electronic means as quickly as practicable.

(i) Final opinions rendered in the adjudication of cases.

(ii) Policy statements and interpretations which have been adopted by DOI and are not published in the Federal Register.

(iii) Administrative staff manuals and instructions affecting the public.

(iv) Copies of records frequently requested under the FOIA and an index of those documents.

(v) A subject-matter index of its reading room records.

(2) Bureaus may, at their discretion, make other records available for inspection and copying in reading rooms or via their home pages.

(d) Inspection and copying. (1) Reading room materials are available for inspection and copying at the locations listed in Appendix A to this part and, in some cases, through the Internet; however, not all records may be available in all locations. If you need assistance in determining the location and availability of the records you are seeking, contact the appropriate reading room or FOIA Contact listed in Appendix A to this part.

(2) A bureau may delete exempt information from some records before making them available for inspection and copying. (See § 2.21(c)). If you would like access to the entire record, you must submit a FOIA request under the procedures in subpart C of this part. However, submission of a FOIA request does not guarantee that the entire record will be released.

(3) There is no charge to inspect reading room materials. Copying services will be provided at the fees specified in Appendix C to this part. However, other fees may apply where a bureau has a statute that specifically requires the bureau to set fees for particular types of records.

§ 2.5

Does DOI maintain an index of its reading room materials?

Each bureau will maintain and make available for public inspection and copying a current subject-matter index of its reading room materials (5 U.S.C. 552(a)(2)). The index will be available in the bureau's reading room(s) and in their electronic reading rooms on the Internet. Each index will be updated regularly.

§ 2.6

Will the Department accept written requests, including fax, e-mail, or telephone requests, for routinely available information?

Yes. Although a request for this type of information is not a FOIA request, the bureau will send you the requested information and charge you for the copies, according to the fee schedule in Appendix C to this part. While the bureau will attempt to respond to oral requests (those made by telephone or otherwise) for routinely available information, you should submit complex requests in writing to avoid any risk of misunderstanding.

Subpart C—Requests for Records Under the FOIA

§ 2.7

What do I need to know before filing a FOIA request?

(a) If the records you are seeking are not routinely available as described in Subpart B of this part, you must submit a FOIA request to the FOIA Contact at the bureau office where the records are maintained. FOIA requests must be submitted in writing—DOI does not accept oral FOIA requests. Before submitting a request, you may find it useful to contact the appropriate bureau FOIA Contact or the Departmental FOIA Officer for additional information concerning DOI's FOIA Program. You may find the Department's Reference Guide, which is available electronically through the FOIA home page and in paper form as well, helpful in making your request.Start Printed Page 36971

(b) The FOIA requires that we release records unless they are protected by one of nine exemptions or one of three special law enforcement exclusions (see Appendix E to this part).

(d) An agency record must exist at the time a FOIA request is received in order to be considered subject to the FOIA. There is no obligation for the bureau to create or compile a record to satisfy a FOIA request (for example, by combining or compiling selected items from manual files, preparing a new computer program, calculating proportions, percentages, frequency distributions, trends and comparisons, or creating maps). Normally if a bureau is extracting information from an existing computer database, this would not constitute the creation of a new record. However, a bureau has the option of creating a new record if—

(1) Doing so will provide a more useful response to the requester,

(2) It is less burdensome than providing the existing records, and

(3) The newly created record is fully responsive to the request.

(e) The fee in this case will not be more than the fee for the individual records. Fees will be charged consistent with the schedule in Appendix C to this part.

§ 2.8

What information must I include in my request?

(a) Description of records. (1) Describe the requested records in enough detail to enable an employee familiar with the subject area of the request to locate the record(s) with a reasonable amount of effort. Be as specific as possible in describing the records you are seeking. For example, whenever possible:

(i) Identify the date, title or name, author, recipient, and the subject of the record; the office that created it, the present custodian of the record and the geographical location (e.g., headquarters or a regional/field office); the timeframe for which you are seeking records, and any other information that will assist the bureau in locating the material.

(ii) If the request involves a matter in litigation, state the case name and docket number as well as the court in which the case was filed.

(2) The bureau will not begin processing your request until any issues regarding the scope or nature of your request are resolved. When a request is overly broad, unclear, involves an extremely voluminous amount of records, or a burdensome search, the bureau will contact you to identify and clarify the records you are seeking. It will work with you to define the subject matter, clarify terms that are used, or narrow the scope of your request.

(3) The time limit will not start until the bureau receives a request reasonably describing the records or clarifying the initial request. If the bureau asks you for additional clarification and does not hear from you within 20 workdays, it will assume that you are no longer interested in pursuing your request and will close the file on your request.

(b) Fee information. (1) Unless you request a fee waiver (see paragraph (b)(2) of this section), you should state that you are willing to pay all fees associated with processing your request or that you are willing to pay up to a specified amount. The bureau will not begin processing your request until this written assurance has been received. If the bureau anticipates that the fees for processing your request exceed the amount you have indicated you are willing to pay, the bureau will notify you that it needs your assurance of payment of fees as high as are anticipated, or an advance payment (see § 2.18(b) and (c)). If the bureau does not hear from you within 20 workdays, it will assume that you are no longer interested in pursuing your request and will close the file on your request.

(2) You may request a fee waiver. If you are seeking a fee waiver, you must provide sufficient justification to support your fee waiver request (see the criteria in § 2.19 and in Appendix D to this part). Failure to provide adequate justification will result in a denial of your fee waiver request. Remember if you are requesting a fee waiver, the burden is on you to demonstrate in your request that you are entitled to it. The bureau will not begin processing your request until the fee issues are resolved. As an option, at the same time you request a fee waiver you may state your willingness to pay regardless of whether a fee waiver is granted. This will permit the bureau to process your request for records at the same time it is considering the fee waiver request. If you are required to pay a fee, and it is later determined on appeal that you are entitled to a full or partial fee waiver, an appropriate refund will be made.

(3) You should indicate what fee category you are in, i.e., if you are a commercial use, news media, educational institution/noncommercial scientific institution, or other requester (See §§ 2.3 and 2.17(a)). If you submit a FOIA request on behalf of another person or organization—for example, if you are an attorney submitting a request on behalf of a client—it is the underlying requester's identity and intended use that determines the fee category. If your fee category is unclear to the bureau, the 20-workday statutory time limit for processing your request will not begin to run (see § 2.12(b)) until this matter has been resolved. If the bureau requests additional clarification and does not hear from you within 20 workdays, it will assume that you are no longer interested in pursuing the request and will close the file.

(d) The following information will assist the bureau in processing your request:

(1) The words “FOIA REQUEST” (prominently displayed) on the request letter and the envelope, or subject line of a request sent via e-mail or fax, or “PRIVACY ACT REQUEST” when requesting records pertaining to yourself, as well as citing the appropriate act in your letter;

(2) Your e-mail address (if applicable), telephone number (where you can be reached during normal business hours), and fax number, if available, in case the bureau needs additional information or clarification of your request. Your telephone number is especially important in case the bureau needs to contact you about your request.

(3) A list of all the bureau FOIA Contacts to which you are sending your request. For the quickest possible handling, you should address a separate copy of your request to each bureau FOIA Contact where you believe the records are maintained.

(4) When making a request for records about another individual that may be covered by the Privacy Act, a written authorization from that individual and any other information required by the Privacy Act system of records notice; or proof that the individual is deceased (for example, a copy of a death certificate or an obituary). The Privacy Act does not apply to a deceased individual.

§ 2.9

May I specify the form or format of disclosure?

Generally, you may choose the form or format of disclosure for records that you request under the FOIA (5 U.S.C. 552(a)(3)(B)). Bureaus must provide the record in the requested form/format if the office responding to the request can readily reproduce the record in that form/format with reasonable efforts. However, if the process of providing the information in the requested format would damage or destroy an original document, it may not be possible to honor your format request. Bureaus must make reasonable efforts to maintain their records in forms or Start Printed Page 36972formats that are reproducible. You may be charged the direct costs involved in converting information to the requested format if the bureau normally does not maintain the information in that format.

§ 2.10

Where do I send my request?

(a) DOI does not have a central location where you may submit your FOIA request nor does it maintain a central index or database of documents in its possession. DOI's files are decentralized and are maintained by various bureau offices throughout the country.

(b) Submit your request in writing to the FOIA Contact at the bureau office where you believe the records are maintained. If it is unclear where to send your request, contact the Departmental FOIA Officer. You may have to do a little research to find the proper office to handle your inquiry, but you will save time in the long run if you send your request directly to the FOIA Contact at the appropriate bureau office.

(1) A request to a bureau headquarters office may be presumed to seek only records from the headquarters office, unless the request specifies otherwise.

(2) A request to a regional/field office of a bureau may be presumed to seek only records at that office, unless the request specifies otherwise.

(3) If a request to a bureau office specifies that it seeks records located at other offices of the same bureau, the appropriate FOIA Contact will refer the request to the other office(s).

(4) If a request to a bureau specifies that it seeks records of another bureau, the bureau will refer the request to the appropriate bureau for response and notify the requester.

§ 2.11

Why is it important to send my request to the right office?

Failure to send your request to the FOIA Contact at the appropriate bureau office may delay processing, because the time limit for the bureau to respond will not begin to run until a request complying with §§ 2.8 and 2.10 is received by the bureau office where the records are maintained. The processing of your request may be delayed if you send it to the Secretary of the Interior (or other high-level officials), the Office of Public Affairs/Communications, the DOI FOIA Officer, or the Department/bureau's webmaster.

§ 2.12

When can I expect the response?

(a) Basic time limit. Ordinarily, a bureau has 20 workdays from the date of receipt to determine whether to grant or deny your FOIA request (see paragraph (b) of this section). The bureau will notify you immediately upon reaching its decision. If you have not received a response within 20 workdays, or 30 workdays if an extension has been taken (see § 2.13) (be sure to allow for mailing time), you may contact the bureau to ask about the delay (see Appendix A to this part). You also have the right to consider any nonresponse within these time limits as a denial of records and file a formal appeal (See § 2.27(a)(5)) or lawsuit. These time limits do not apply to requests for expedited processing (See § 2.14).

(b) Running of basic time limit. The 20 workday time limit begins to run when a request complying with the procedures in §§ 2.8 and 2.10 is received by the FOIA contact at the bureau office that has the records you are seeking. This also applies to electronic requests (the receipt date is the date the e-mail message is opened by the FOIA Contact at the bureau office responsible for the information). This means that all issues regarding fees and the scope of your request must be resolved before the bureau will begin processing your request.

§ 2.13

When may the bureau take a time extension to respond to my request?

(a) The bureau may extend the 20-workday time limit for 10 more workdays when it needs to:

(1) Search for and collect the requested records from multiple offices; or

(2) Search for, collect, and examine a voluminous amount of separate and distinct records sought in a single request; or

(3) Consult with another agency having a substantial interest in the determination of the request or with one or more bureaus of the Department having substantial subject-matter interest in the request.

(b) If the bureau intends to take an extension under this subsection, it will notify you in writing and provide the reason for the extension and the date it expects to make a determination on your request.

(c) If an extension is necessary and the bureau is unable to respond to your request within 30 workdays, it will notify you in writing when you may expect a final response and advise you of your appeal rights. If an extension is taken and you have not received a response in 30 workdays, you may consider the request denied and file an appeal or lawsuit in accordance with §§ 2.28(a)(5) and 2.32(c).

(d) A bureau may not take an extension of time to decide whether to grant a request for a fee waiver.

§ 2.14

When can I get expedited processing?

(a) When requested, a bureau will provide expedited processing if you demonstrate to the satisfaction of the bureau that the request involves:

(1) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

(2) An urgency to inform the public about an actual or alleged Federal Government activity if the request is made by a person primarily engaged in disseminating information, e.g., a representative of the news media. This refers to information which has particular value that will be lost if not disseminated quickly, and ordinarily refers to a breaking news story of general public interest. However, 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; or

(3) The loss of substantial due process rights.

(b) A request for expedited processing should be submitted with your FOIA request. For a prompt determination, you must submit a request complying with the requirements of § 2.8 to the FOIA contact at the bureau office that maintains the records you are seeking.

(c) If you are seeking expedited processing, you must submit a statement, certified to be true and correct to the best of your knowledge and belief, explaining in detail the basis for your request. For example, a requester within the category of paragraph (a)(2) of this section, if not a full time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his/her sole occupation.

(d) Within 10 calendar days after the date of the request, the bureau will notify you whether it will grant expedited processing. If expedited processing is granted, the bureau will give priority to that FOIA request and process the request as soon as practicable. If expedited processing is denied, the bureau will notify you of your right to appeal the decision on expedited processing. Appeals of denials of requests for expedited processing will be processed ahead of other appeals (see § 2.31(a)).

§ 2.15

Will I be charged fees?

Bureaus will charge fees consistent with the provisions in §§ 2.16 and 2.17. The fee schedule in Appendix C to this Start Printed Page 36973part applies to all bureaus of the Department.

§ 2.16

How are fees determined?

(a) Authority. Bureaus are authorized to charge fees to recover the direct costs of searching for, reviewing (commercial-use requesters only) and duplicating documents to respond to a FOIA request. However, nothing in this subsection will supersede any statutory authority which requires the bureau to charge specific fees for certain types of records.

(b) Policy. (1) Unless waived under the criteria in § 2.19 or § 2.20, bureaus will charge fees for responding to FOIA requests consistent with the provisions of this section and the fee schedule in Appendix C to this part.

(2) A bureau normally will not charge a fee where the fee would be $15 or less. However, if the bureau has a reasonable basis to conclude that a requester or group of requesters has divided a request into a series of requests on a single subject or related subjects to avoid fees, the requests may be aggregated and fees charged accordingly. Bureaus may presume that multiple requests of this type that are made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, bureaus will aggregate them only where there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.

(3) Where a bureau responds to a request on behalf of more than one bureau, the fees that would be chargeable by all bureaus involved will be considered in determining whether the fee is $15 or less. If a bureau is responding on behalf of more than one bureau, and you fall under one of the fee categories in § 2.17(a)(2) through (a)(4), you will be entitled to receive up to a total of 100 pages of duplication and two hours of search time free.

(c) Searches. Searches will be conducted in the most efficient and least expensive manner, so as to minimize costs for both you and the bureau. Except where provided in §§ 2.17(a)(2) and (a)(3), bureaus will charge for time spent in the following search activities:

(1) Time spent in trying to locate records which come within the scope of the request, whether documents responsive to the request are located or not, or the records located are exempt from disclosure; and

(2) Direct costs involving the use of computer time to locate requested records.

(d) Reviews (Commercial-use requests only). (1) Bureaus will charge commercial-use requesters (see § 2.17(a)(1)) for time spent by bureau staff and attorneys in reviewing requested records for releasability. (See § 2.3(e).)

(2) Review costs will be assessed even if a record ultimately is not disclosed.

(e) Duplication. Bureaus will charge duplication fees according to the fee schedule in Appendix C to this part.

(f) Categories of requesters. There are four categories of requesters for the purposes of determining fees—commercial-use, educational and noncommercial scientific institutions, news media, and all others. (See §§ 2.3 and 2.17.)

§ 2.17

How will my requester category affect the fees that I am charged?

(a) When you submit a FOIA request, you must specify your fee category. Based on the information you provide, the bureau office processing your request will decide your fee category and charge as follows:

(1) Commercial-use requesters are charged for document search, review, and duplication. They are not entitled to any free search or duplication costs.

(2) Educational/noncommercial scientific institutions are charged for document duplication, except that the first 100 pages of paper copies (or the equivalent cost thereof if the records are in some other form) will be provided without charge. The bureau will not charge such requesters for document search and review.

(3) News media requesters are charged for document duplication, except that the first 100 pages of paper copies (or the equivalent cost thereof if the records are in some other form) will be provided without charge. The bureau will not charge such requesters for document search and review.

(4) Requesters not covered by paragraphs (a)(1) through (a)(3) of this section—“other requesters” will be charged fees for document search and duplication, except that they are entitled to the first two hours of search time and the first 100 pages of paper copies without charge (or the equivalent cost thereof if the records are in some other form). The bureau will not charge such requesters for document review.

(b) Requests for clarification. If you do not provide sufficient information for the bureau to determine whether you are covered by paragraphs (a)(1) through (a)(4) of this section, the bureau may ask you to provide additional clarification to determine the fee category. This applies to all requesters. The bureau will notify you promptly when additional information is needed. In these circumstances, the 20-workday statutory time limit for responding to your request will not begin to run until you provide sufficient information. If the bureau requests additional clarification and does not hear from you within 20 workdays, it will assume that you are no longer interested in pursuing your request and will close the file.

Category	Search fees	Review fees	Duplicaiton fees
(1) Commercial Use	Yes	Yes	Yes.
(2) Educational Institution	No	No	Yes (100 pages free).
(3) Non-Commercial Scientific Institution	No	No	Yes (100 pages free).
(4) News Media	No	No	Yes (100 pages free).
(5) All Other	Yes (2 hours free)	No	Yes (100 pages free).
Note: A bureau will not charge any fee if the applicable fee would be $15 or less. (See §§ 2.16(b)(2) and (2.18(a).)

§ 2.18

How are fees assessed and collected?

(a) No charge. Except in those situations covered by § 2.16(b)(2), the bureau will not charge you if the fee is $15 or less.

(b) Notice of anticipated fees. Unless you have been granted a fee waiver or have previously agreed to pay the fees associated with your request, or the anticipated fee is $15 or less, the bureau will:

(1) Promptly notify you of the estimated costs and ask you to provide written assurance of payment; and

(2) Give you an opportunity to modify your request at that time to reduce the fee.Start Printed Page 36974

(i) You have never made a FOIA request to DOI requiring fees; or

(ii) You did not pay a previous FOIA fee promptly.

(2) If you have previously failed to pay a fee within 30 calendar days of the date of billing, the bureau will require you to:

(i) Pay the full amount owed plus any applicable interest penalties (see paragraph (g) of this section) and to make an advance payment of the full amount of the estimated fee of the new request; or

(ii) Demonstrate that you have, in fact, paid the prior fee.

(3) At the same time the bureau notifies you that an advance payment is due, it will give you an opportunity to modify your request to reduce the fee.

(d) Resolving the fee issue. The bureau will not start processing your request until the fee issue has been resolved (see §§ 2.8(b) and 2.12(b)). If the bureau does not hear from you within 20 workdays, it will assume that you are no longer interested in pursuing the request and will close the file.

(e) Billing procedures. If you are required to pay a fee associated with your request, the bureau that processes your request will send you a bill for collection.

(f) Form of payment. You should submit a check or money order made payable to the “Department of the Interior” or the bureau furnishing the information. The term United States or the initials “U.S.” should not be included on the check or money order. Where appropriate, the official responsible for handling a request may require that payment by check be made in the form of a certified check. Some bureaus accept payment by credit card. Contact the bureau to determine what forms of payment it accepts.

(g) Failure to pay fees. The bill for collection or the response letter will include a statement that interest will be charged in accordance with the Debt Collection Act of 1982, as amended (31 U.S.C. 3717) and implementing regulations, if the fees are not paid within 30 calendar days of the date of the bill. This requirement does not apply if the requester is a state, local, or tribal government.

§ 2.19

When will bureaus waive fees?

(a) Fees for processing your request may be waived if you meet the criteria listed in paragraph (b) of this section and Appendix D to this part. In certain circumstances, a partial fee waiver may be appropriate. The burden is on you to justify entitlement to a fee waiver. Requests for fee waivers are decided on a case-by-case basis. The fact that you have received a fee waiver in the past does not mean you are automatically entitled to a fee waiver for every request you may submit, because the essential element of any fee waiver determination is whether the release of the particular documents sought in the request will contribute significantly to public understanding. The bureau will rely on the fee waiver justification you have submitted in your request letter. If you do not submit sufficient justification, your fee waiver request will be denied. The bureau may, at its discretion, communicate with you to request additional information if necessary. However the bureau must make a determination on the fee waiver request within the statutory time limit, even if the agency has not received such additional information.

(b) Bureaus will waive fees (in whole or part) if disclosure of all or part of the information is in the public interest because its release—

(1) Is likely to contribute significantly to public understanding of the operations or activities of the Government; and

(2) Is not primarily in the commercial interest of the requester.

(1) The basis for the denial, including a full explanation of why your fee waiver request did not meet DOI's fee waiver criteria (see paragraph (b) of this section and Appendix D to this part);

(2) The name(s) and title(s) or position(s) of each person responsible for the denial;

(3) The name and title of the Office of the Solicitor attorney consulted; and

(4) A statement that the denial may be appealed within 30 workdays after the date of the denial letter to the FOIA Appeals Officer (see Appendix A to this part) under the procedures in § 2.29.

§ 2.20

When will bureaus grant discretionary fee waivers?

(a) A bureau may waive fees at its discretion if a request involves:

(1) Furnishing a copy of a document that the bureau has reproduced for free distribution;

(2) Furnishing one copy of a personal document (e.g., a birth certificate) to a person who has been required to furnish it for retention by the Department;

(3) Furnishing one copy of the transcript of a hearing before a hearing officer in a grievance or similar proceeding to the employee for whom the hearing was held;

(4) Furnishing records to donors with respect to their gifts;

(5) Furnishing records to individuals or private nonprofit organizations having an official voluntary or cooperative relationship with the Department to assist the individual or organization in its work with the Department;

(6) Furnishing records to state, local, and foreign governments, public international organizations, and Indian tribes, when to do so without charge is an appropriate courtesy, or when the recipient is carrying on a function related to that of the Department and to do so will help to accomplish the work of the Department;

(7) Furnishing records when to do so is in conformance with generally established business custom (e.g., furnishing personal reference data to prospective employers of former Department employees); or

(8) Furnishing one copy of a single record in order to assist the requester in obtaining financial benefits to which he or she may be entitled (e.g., veterans or their dependents, employees with Government employee compensation claims).

(b) You cannot appeal the denial of a discretionary fee waiver.

§ 2.21

How will the bureau respond to my request?

(a) After all the criteria in §§ 2.8 and 2.10 have been met, the bureau will make a reasonable effort to search for records responsive to your request. This will include searching for records in an electronic form/format, except where it would interfere significantly with the bureau's automated information systems.

(b) In response to your request, the bureau will do one of two things:

(1) Include the requested records with the response letter or notify you of how, when, and where the records will be made available; or

(2) Deny part or all of your request. Your request will be denied or partially denied if one of the nine statutory exemptions or any of the law enforcement exclusions listed in Appendix E to this part applies to all or part of the records you have requested.

(c) Where a document contains both exempt and nonexempt material, the bureau will generally separate and release the nonexempt information. When disclosing a record in part, the bureau will indicate on the released portion of the record how much information was deleted, unless doing so would harm an interest protected by the exemption used to withhold the information. Further, if technically Start Printed Page 36975feasible, the amount of information deleted and the exemption used to withhold the information will be indicated where the deletion is made. If the nonexempt material is so intertwined with the exempt material that disclosure of it would leave only meaningless words and phrases, the entire portion may be withheld.

(d) If a bureau denies your request for records in whole or in part, the bureau's response will include:

(1) A reference to the specific exemption or exemptions authorizing the withholding;

(2) A brief statement of the reason(s) for the denial;

(3) An estimate of the volume of information being withheld. The bureau will make a reasonable effort to estimate the volume of any records denied, or portions of records (e.g., 100 pages, 4 Federal Record Center boxes, 1,000 kilobytes, etc.), unless such an estimate would harm an interest protected by the exemption used to withhold the information.

(4) The name(s) and title(s) of the person(s) responsible for the denial;

(5) The name and title of the Office of the Solicitor attorney consulted; and

(6) A statement that the denial may be appealed within 30 workdays of the date of the denial letter or 30 workdays after the records have been released, to the FOIA Appeals Officer (see Appendix A to this part) under the procedures in § 2.29.

(e) If records do not exist within DOI, cannot be located, are not reasonably described, or if a procedural issue remains unresolved (e.g., a fee issue), the bureau will respond to you in writing, including the following information, as applicable:

(1) An explanation of the basis of the decision;

(2) The name(s) and title(s) of the person(s) responsible for the decision; and

(3) A statement that the matter may be appealed within 30 workdays of the date of the response, to the FOIA Appeals Officer under the procedures in § 2.29.

(f) The bureau must consult with the Office of the Solicitor if it is considering withholding a requested record or denying a fee waiver.

(g) If any fees are due, the bureau will notify you in writing of the amount.

(h) All bureau responses will include the name and telephone number of a contact person in case you have questions concerning the response.

(i) Requests for information concerning coal under the Mineral Leasing Act are subject to special rules (see Appendix F to this part).

§ 2.22

What happens if a bureau receives a request for records it does not have or did not create?

(a) Consultations/referrals within DOI. (1) If a bureau receives a request for records not in its possession, but which are likely to be in the possession of another bureau within DOI, it will refer the request to that bureau(s) for response. It also will notify you of the referral in writing and provide the name of a contact in the other bureau(s) to which the referral was made. The time limit for responding to your request starts when the request reaches the bureau office that has the records.

(2) If a bureau (other than the Office of Inspector General) receives a request for records in its possession that another bureau created or is substantially concerned with, it will consult with the other bureau before deciding whether to release or withhold the records. As an alternative, the bureau may refer the request along with the records to that bureau for direct response. Such a referral does not restart the statutory time limit.

(b) Consultations/referrals with agencies outside DOI. (1) If a bureau receives a request for records not in its possession, but which the bureau believes may be in the possession of another Federal agency, the bureau will return your request and advise you to submit it directly to the other agency. If you still believe that the records exist within DOI, you should notify the bureau FOIA contact of any additional information which leads you to believe the records exist and where they might be found. Alternatively, you may treat such a response as a denial of records and file an appeal.

(2) If, in response to a request, a bureau locates documents that originated with another Federal agency, it will either consult with the originating agency to determine if the requested documents are releasable, or refer the request, along with any responsive document(s), to that agency for a direct response to you unless—

(i) The record is of primary interest to DOI (a record is of primary interest to DOI if it was developed or prepared according to DOI regulations, directives or request);

(ii) DOI is in a better position than the originating agency to assess whether the record is exempt from disclosure; or

(iii) the originating agency is not subject to the FOIA.

(3) If a bureau receives a request for records which have been classified by another agency under Executive Order 12958, Classified National Security Information, or superseding Executive order, it must refer the request to that agency for response.

§ 2.23

How will a bureau handle a request for confidential commercial or financial information that it has obtained from a person or entity outside the Federal Government?

(a) If a bureau receives a FOIA request for records containing confidential commercial or financial information submitted by a person or entity outside the Federal Government, under Executive Order 12600, Predisclosure Notification Procedures for Confidential Commercial Financial Information, or superseding Executive order, it must provide the submitter with prompt written notice of the request, except as provided in paragraph (i) of this section, whenever:

(1) The submitter has designated the information as confidential commercial information, or

(2) The bureau has reason to believe that the information may be protected under exemption (4).

(b) The letter to the submitter will—

(1) Include a copy of the FOIA request,

(2) Describe the information requested or include copies of the pertinent records,

(3) Advise the submitter of the procedures for objecting to the release of the requested material and specify the time limit for responding.

(4) Give the submitter a reasonable time from receipt of the bureau's notice to object to the release and to explain the basis for the objection, if any. A reasonable time for a submitter to respond to such a request is normally 10 workdays.

(c) Where a large number of submitters is involved, the bureau may publish or post a notice in a place reasonably accessible to the public (i.e., in a newspaper/newsletter or on a bulletin board).

(d) Whenever a bureau notifies a submitter that it may be required to disclose information in response to a FOIA request, it also will notify you that it is giving the submitter an opportunity to review and comment on the material.

(e) If the submitter has any objection to disclosure he/she must submit a detailed written statement including the following:

(1) The justification for withholding any portion of the information under any exemption of the FOIA and, in the case of exemption (4), a specific and detailed explanation of how substantial competitive or other business harm would result from disclosure; and

(2) A certification that the information is confidential, has not been disclosed Start Printed Page 36976to the public by the submitter, and is not routinely available to the public from other sources.

(f) The bureau will review and consider all objections to release that are received within the time specified in the notification letter. However, it is the bureau, rather than the submitter, that is responsible for deciding whether the information should be released or withheld. If a submitter fails to respond to the bureau within the time limits specified in the letter, the bureau will presume that the submitter has no objection to disclosure of the information. Information received after the time specified in the notification letter will not be considered.

(g) Information provided by the submitter under paragraph (e) of this section also may be subject to disclosure under the FOIA.

(h) If the bureau decides to release records over the submitter's objections, it will inform the submitter and you in writing. The letter to the submitter will include copies of the records proposed for release and the bureau's reasons for deciding to release them. The bureau also will inform the submitter that it intends to release the records 10 workdays after the date of this notice.

(i) The bureau will not consult with the submitter if:

(1) The bureau responsible for the decision determines that the information should not be disclosed;

(2) The information has been lawfully published or otherwise made available to the public;

(3) Disclosure of the information is required by statute (other than the FOIA) or regulation (other than this subpart);

(4) Disclosure of the information is prohibited by statute; or

(5) The designation of confidentiality made by the submitter appears obviously frivolous; however, the bureau will notify the submitter of any final decision to disclose the information a reasonable number of days (normally 10 workdays) prior to releasing it.

(j) The bureau will inform the submitter promptly if you file a lawsuit for access to any of the withheld records. Similarly, the bureau will notify you promptly if the submitter files a lawsuit to prohibit the bureau from disclosing the records.

(k) The procedures in this section will be followed when processing FOIA appeals as well.

§ 2.24

Is a submitter required to designate information that is commercially or financially sensitive?

(a) No, however, a submitter should designate either at the time of submission or a reasonable time thereafter, any records (or portions thereof) that it considers to be protected from disclosure under exemption (4).

(b) These designations will expire ten years after the date of the submission unless the submitter requests and provides justification for a longer period and the bureau grants the request.

§ 2.25

Does the bureau provide multitrack processing of FOIA requests?

(a) A bureau may use two or more processing tracks to distinguish between simple and complex requests based on the amount of work and/or time needed to process the request.

(b) If a bureau uses multitrack processing, a person making a request that does not qualify for processing on the fast track may be given an opportunity to limit the scope of his or her request in order to qualify for faster processing.

§ 2.26

What is the difference between a FOIA request and a Privacy Act request?

(a) When you request records pertaining to yourself that are covered by the Privacy Act, the request will be processed under both the FOIA and the Privacy Act. If you request records about yourself, you must submit certain identifying information, usually an original signature (see the appropriate Privacy Act system notice and subpart G of this part) before the bureau will process your request. If you request records pertaining to yourself that are not covered by the Privacy Act, the request will be treated as a FOIA request.

(b) Sometimes a request for Privacy Act records is submitted by an individual other than the person who is the subject of the Privacy Act records. If you request records about another individual, the material will not be disclosed without the prior written approval of the individual on whom the record is maintained unless the release is provided for under one of the Privacy Act conditions of disclosure (5 U.S.C. 552a(b)), or if the individual is deceased. See § 2.8(c)(4).

(c) The Privacy Act never prohibits disclosure of material that the FOIA requires to be released. Both a Privacy Act and a FOIA exemption must apply to withhold information from the subject of the Privacy Act records.

(d) In handling a request covered by paragraph (a) of this section, the fee provisions and time limits under the FOIA will apply, except that with regard to those records that are subject to the Privacy Act, the bureau will charge only for duplication and not for search and review time (see Appendix C to this part). There will be no charge if the fee for processing the request is $15 or less.

(e) See DOI's Privacy Act regulations (subpart G of this part) for additional information.

Subpart D—FOIA Appeals

§ 2.27

Which FOIA decisions may I appeal?

(a) You may file an appeal when:

(1) Records or parts of records have been withheld;

(2) A request has been denied for failure to adequately describe requested records, because the records do not exist, or because they cannot be located;

(3) You believe there is a procedural deficiency (e.g., fees are improperly calculated);

(4) A fee waiver has been denied;

(5) A determination has not been made on your request within the time limits provided in § 2.12; or

(6) A request for expedited processing has been denied. (Special procedures apply to this type of appeal (see §§ 2.14, 2.28(c), and 2.31(a)). An appeal of this type relates only to the request for expedited processing and does not constitute an appeal of your underlying request for records.

(b) Before filing an appeal, you may wish to communicate with the contact person listed in the FOIA response or the bureau's FOIA Officer to see if the issue can be resolved informally. Informal resolution of your concerns may be appropriate where the bureau has not responded to your request or where you believe the search conducted was not adequate. In this latter instance, you may be able to provide additional information that may assist the bureau in locating records. The receipt of poor copies or the miscalculation of a fee also would be appropriate for informal resolution. However, if you wish to file an appeal, it must be filed with the FOIA Appeals Officer within the time limits in § 2.28.

§ 2.28

How long do I have to file an appeal?

(a) Appeals covered by §§ 2.27(a)(1) thru (4). Your appeal must be received by the FOIA Appeals Officer no later than 30 workdays after the date of the final response or 30 workdays after receipt of any records that are provided to you.

(b) Appeals covered by § 2.27(a)(5). You may file an appeal any time after the time limit for responding to your request has passed.

§ 2.29

How do I file an appeal?

(a) You must submit your appeal in writing, i.e., by mail, fax or e-mail, to the FOIA Appeals Officer, U.S. Department of the Interior (see Appendix A to this part for the address). For appeals that are submitted electronically, the receipt date is the date the e-mail message is opened by the FOIA Appeals Officer. Your appeal must include the information specified in paragraph (b) of this section. Failure to send your appeal directly to the FOIA Appeals Officer may result in a delay in processing.

(b) Your appeal must contain copies of all correspondence between the bureau and you, including your request and the bureau's response. DOI will not begin processing your appeal and the time limits for responding to your appeal will not begin to run until these documents are received.

(c) You also should include any reason(s) why you believe the bureau's response was in error. Include your name and daytime telephone number (or the name and telephone number of an appropriate contact) in case DOI needs additional information or clarification of your appeal.

(d) If you file an appeal concerning a fee waiver denial or a denial of expedited processing, you should, in addition to complying with paragraph (b) of this section, demonstrate fully how the criteria in §§ 2.19(b) (see Appendix D to this part) and 2.14(a) are met. You also should state why you believe the initial decision was incorrect.

(e) All communications concerning your appeal should be clearly marked with the words: “FREEDOM OF INFORMATION APPEAL.”

§ 2.30

How will DOI respond to my appeal?

(a) Appeals will be decided by the FOIA Appeals Officer. When necessary, the FOIA Appeals Officer will consult other appropriate offices, including the Office of the Solicitor (in the case of all denials of information and fee waivers, and other technical issues as necessary).

(b) The final determination on an appeal will be in writing and will state the basis for the determination.

(1) Decision to release or withhold records.

(i) If the determination is to release the withheld records or portions thereof, the FOIA Appeals Officer will make the records available or instruct the appropriate bureau to make them available as soon as possible.

(ii) If the determination upholds in whole or part the denial of a request for records, the FOIA Appeals Officer will advise you of your right to obtain judicial review, and will set forth the name(s) and title(s) or position(s) of each person responsible for the determination.

(2) Fee waiver denials. If the determination is to grant your request for a fee waiver, the FOIA Appeals Officer will advise the appropriate bureau of the Department's determination and instruct the bureau to proceed with processing the request or to refund any monies you have paid. If the determination is to deny the fee waiver request, the Department will advise you of your right to seek judicial review. You also should contact the bureau office to make further arrangements to process your request if you still wish to obtain the records.

(3) Non-possession of records. If the determination is that the requested records exist, the bureau that has the records will issue a response to you promptly and the FOIA Appeals Officer will close the file on your appeal. If the determination is that the requested records cannot be located or do not exist, the FOIA Appeals Officer will advise you of your right to treat the Department's response as a denial and seek judicial review.

(4) Non-response to a FOIA request. If an appropriate response has not been issued to your FOIA request within the 20-workday statutory time limit, the FOIA Appeals Officer will direct the bureau to issue a response directly to you as soon as possible, and provide you with the name and telephone number of a contact person. The FOIA Appeals Officer will close your FOIA appeal and advise you that you may treat the lack of a response by the bureau as a denial of your appeal and seek judicial review.

(c) If a requested record (or portion thereof) is being made available over the objections of a submitter, the FOIA Appeals Officer will notify the submitter following the same procedures described in § 2.23, prior to releasing the records to you.

(d) A determination to grant an appeal for expedited processing will instruct the bureau to process your request as soon as practicable. If your request for expedited processing is denied on appeal, you will be advised of your right to seek judicial review of the denial of expedited processing.

§ 2.31

How long does DOI have to respond to my appeal?

(a) The statutory time limit for responding to an appeal is 20 workdays after receipt of an appeal, meeting the requirements of § 2.29. The Department will give an appeal involving the denial of a request for expedited processing priority and process it ahead of other appeals pending before the agency due to the fact that you have shown an exceptional need or urgency for the records (see § 2.14).

(b) If you have not received a determination on your appeal within 20 workdays, you will be considered to have exhausted your administrative remedies (meaning you do not have to seek further resolution of your appeal from the Department). This gives you the right to seek review in a District Court of the United States (see 5 U.S.C. 552(a)(4) and (6)). In the event that the Department is unable to reach a determination within the given time limits, the FOIA Appeals Officer will notify you of the reason for the delay, the date when you can expect to receive the determination, and the right to seek judicial review.

Subpart E—FOIA Annual Report

§ 2.32

Where can I get a copy of DOI's annual report?

Under 5 U.S.C. 552(e), DOI is required to prepare an annual report regarding its FOIA activities. The report includes information about FOIA requests, appeals, and litigation against the Department. Copies of DOI's annual FOIA report may be obtained from the Departmental FOIA Officer or by contacting DOI's Library which is located at the C Street entrance of the Main Interior Building (MIB), 1849 C Street, NW., Washington, DC 20240 (see Appendix A to this part). You may access the annual reports electronically by visiting DOI's FOIA home page (see Appendix B to this part for the Internet address).

4. Appendices A through F to part 2 are revised to read as follows:

Appendix A to Part 2—Department of the Interior

Note:

For more information on FOIA, including the most current listing of FOIA Contacts, visit DOI's FOIA home page at http:// www.doi.gov/foia/.

Appendix B to Part 2—Internet Addresses

1. Department of the Interior (DOI) Home Page: http://www.doi.gov

2. DOI FOIA Home Page: http://www.doi.gov/foia/

3. DOI Reference Guide for Obtaining Information: http://www.doi.gov/foia/foitabl.htm

4. List of DOI Public Affairs Offices: http://www.doi.gov/foia/list.html

5. DOI FOIA Contacts: http://www.doi.gov/foia/contacts.html

6. DOI FOIA Regulations (43 CFR, part 2, subparts A and B): http://www.doi.gov/foia/policy.html

7. FOIA Policy and Guidance: http://www.doi.gov/foia/policy.html

8. Electronic Reading Room: http://www.doi.gov/foia/readroom.html

9. Index of Frequently Requested Documents: http://www.doi.gov/foia/frrindex.html

10. FOIA Annual Reports to Congress: http://www.doi.gov/foia/frrindex.html

11. DOI's Library: http://library.doi.gov

12. General Record Schedule 14, Information Services Records: http://ardor.nara.gov/grs/grs14.html

13. DOI Records Management Program: http://www.doi.gov/oirm/records/

14. DOI Privacy Act Program: http://www.doi.gov/oirm/privacy/

15. DOI Privacy Act Officers: http://www.doi.gov/oirm/privacyofficer.htm

16. DOI Privacy Act Regulations: http://www4.law.cornell.edu/uscode/5/552a.text.html

17. DOI Privacy Act Systems of Records Notices: http://www.doi.gov/foia/frrindex.html

18. FirstGov Portal: http://www.firstgov.gov.

Appendix C to Part 2—Fee Schedule

If you submit a FOIA request, the bureau will charge you to search for, review, and duplicate the requested records depending on your fee category (see §§ 2.16 and 2.17). In addition, the bureau will charge you for any special services performed in connection with processing your request and/or appeal under subparts C and D of this part. The following fees apply to all bureaus of the Department; these fees apply to services performed in making documents available for public inspection and copying under subpart B of this part as well. The duplicating fees also are applicable to records provided in response to requests made under the Privacy Act. Fees will not be charged under either the FOIA or the Privacy Act where the total amount of fees for processing the request is $15 or less (See § 2.16(b)(2)), where the requester has met the requirements for a statutory fee waiver, or where the bureau has granted a discretionary fee waiver (See §§ 2.19 and 2.20).

(1) Search and review (review applies to commercial-use requesters only). Fees are based on: the average hourly salary (base salary plus DC locality payment), plus 16 percent for benefits, of employees in the following three categories. The average grade was established by surveying the bureaus to obtain the average grade of employees conducting FOIA searches and reviews. Fees will be increased annually consistent with Congressionally approved pay increases. Fees are charged in quarter hour increments.

(a) Clerical—Based on GS-7, Step 2, pay

(b) Professional—Based on GS-12, Step 2 pay

Note:

Fees for the current fiscal year are posted on DOI's FOIA home page (see appendix B to this part). If you do not have access to the Internet, please call the Departmental FOIA office (see appendix A to this part) for a copy of the fee schedule.

	Fee
(2) Duplication:
Pages no larger than 8.5 x 14 inches, when reproduced by standard office copying machines	$.13 per page ($ .26 for double-sided copying).
Color copies of pages no larger than 8.5 x 11 inches	$.90 per page.
Pages larger than 8.5 x 14 inches.	Direct cost to DOI.
Color copies of pages no larger than 11 x 17 inches	$1.40 per page.
Photographs and records requiring special handling (e.g., because of age, size, or format).	Direct cost to DOI.
(3) Electronic records:
Charges for services related to processing requests for electronic records	Direct cost to DOI.
(4) Certification:
Each certificate of verification attached to authenticate copies of records	$.25
(5) Postage/Mailing:
Charges that exceed the cost of first class postage. Examples of such charges are Express Mail or overnight delivery	Postage or Delivery charge.
(6) Other Services:
Cost of special services or materials, other than those provided for by this fee schedule, when requester is notified of such costs in advance and agrees to pay them	Direct cost to DOI.

Appendix D to Part 2—Fee Waiver Criteria

If you are seeking a fee waiver, it is your responsibility to provide detailed information to support your request. You must submit this information with your FOIA request. Each fee waiver request is judged on its own merit-we do not grant “blanket” fee waivers, i.e., obtaining a fee waiver once does not mean you will obtain a subsequent fee waiver. Please note that inability to pay is not sufficient to justify a fee waiver. The statutory requirement for granting a fee waiver is that release of the information must be in the public interest because it—

(1) Is likely to contribute significantly to public understanding of the operations and activities of the Government; and

(2) Is not primarily in your commercial interest.

(b) In deciding whether you are entitled to a fee waiver, the bureau will consider the criteria in paragraphs (a)(1) through (4). Your request for a fee waiver must address each of these criteria.

(1) How do the records concern the operations or activities of the Government?

(2) If the records concern the operations or activities of the Government, how will disclosure likely contribute to public understanding of these operations and activities?

(i) How are the contents of the records you are seeking meaningfully informative on the agency's operations and activities? Is there a logical connection between the content of the records and the operations or activities you are interested in?

(ii) Other than enhancing your knowledge, how will disclosure of the requested records contribute to the understanding of the public at large or a reasonably broad audience of persons interested in the subject?

(iii) Your identity, vocation, qualifications, and expertise regarding the requested information (whether you are affiliated with a newspaper, college or university, have previously published articles, books, etc.) may be relevant factors. However, merely stating that you are going to write a book, research a particular subject, or perform doctoral dissertation work, is insufficient, without demonstrating how you plan to disclose the information in a manner which will be informative to a reasonably broad audience of persons interested in the subject.

(iv) Do you have the ability and intention to disseminate the information to the general public?

(A) How and to whom do you intend to disseminate the information?

(B) How do you plan to use the information to contribute to public understanding of the Government's operations or activities?

(3) If there is likely to be a contribution to public understanding, will release of the requested records contribute significantly to public understanding?

(i) Is the information being disclosed new or does it confirm or clarify data which has been released previously?

(ii) How will disclosure increase the level of public understanding of the operations or activities of the Department or a bureau that existed prior to disclosure?

(iii) Is the information already publicly available? If the information you are seeking has previously been published or is routinely available to the public in a library, reading room, through the Internet, or as part of the administrative record for a particular issue (e.g., the listing of the spotted owl as an endangered species), it is less likely that there will be a significant contribution from release.

(4) Would disclosure be primarily in your commercial interest?

(i) Do you have a commercial interest that would be furthered by disclosure? A commercial interest is a commercial, trade, or profit interest as these terms are commonly understood. Your status as “profitmaking” or “non-profitmaking” is not the deciding factor. Not only profitmaking entities, but other organizations or individuals may have a commercial interest to be served by disclosure, depending on the circumstances involved.

(ii) If you do have a commercial interest that would be furthered by disclosure, would disclosure be primarily in that interest? Would the public interest in disclosure be greater than any commercial interest you or your organization may have in the documents? If so, how would it be greater?

(iii) Your identity, vocation, and the circumstances surrounding your request are all factors to be considered in determining whether disclosure would be primarily in your commercial interest. For example:

(A) If you are a representative of a news media organization seeking information as part of the news gathering process, we will presume that the public interest outweighs your commercial interest.

(B) 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.

(C) If the bureau cannot make a determination based on the information you have provided, it may ask you for additional justification regarding your request.

Appendix E to Part 2—FOIA Exemptions and Law Enforcement Exclusions

Under the FOIA (5 U.S.C. 552(b)), there are nine exemptions which may be used to protect information from disclosure. The exemptions are summarized as follows:

(1) National security information concerning national defense or foreign policy, provided that such information has been properly classified, in accordance with an Executive Order;

(2) Information related solely to the internal personnel rules and practices of an agency;

(3) Information specifically exempted from disclosure by statute (other than the Privacy Act or the Trade Secrets Act), provided that such statute:

(A) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or

(B) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(4) Trade secrets and commercial or financial information which is obtained from a person and is privileged or confidential;

(5) Inter-agency or intra-agency memoranda or letters, which would not be available by law to a party other than an agency in litigation with the agency;

(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;Start Printed Page 36989

(7) Records or information compiled for law enforcement purposes, the release of which:

(A) Could reasonably be expected to interfere with enforcement proceedings;

(B) Would deprive a person of a right to a fair or an impartial adjudication;

(D) Could reasonably be expected to disclose the identity of a confidential source;

(E) Would disclose techniques, procedures, or guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or

(F) Could reasonably be expected to endanger the life or physical safety of any individual.

(8) Information contained in or related to examination, operating, or condition reports, prepared by, or on behalf of, or for the use of an agency responsible for regulating or supervising financial institutions; and

(9) Geological and geophysical information and data, including maps, concerning wells.

In addition to the nine exemptions, there are three law enforcement exclusions under the FOIA (5 U.S.C. 552(c)). The procedures in subparts C and D of this part do not apply to the following information which is covered by the law enforcement exclusions:

(1) Records or information compiled for law enforcement purposes and covered by exemption (7)(A) of the FOIA, if—

(A) The investigation or proceeding involves a possible violation of criminal law; and

(B) There is reason to believe that—

(i) The subject of the investigation or proceeding is not aware that it is pending, and

(ii) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.

(2) Informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier if requested by a third party according to the informant's name or personal identifier, unless the informant's status as an informant has been officially confirmed.

(3) Records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in exemption (1) as long as the existence of the records remains classified information.

Appendix F to Part 2—Mineral Leasing Act—Special Rules

(a) Definitions. As used in the section:

(1) Exploration license means a license issued by the Secretary of the Interior to conduct coal exploration operations on land subject to the Mineral Leasing Act pursuant to the authority in 30 U.S.C. 201(b).

(2) Fair-market value of coal to be leased means the minimum amount of a bid the Secretary is willing to accept in leasing coal within leasing tracts offered in general lease sales or reserved and offered for lease to public bodies, including Federal agencies, rural electric cooperatives, or non-profit corporations, controlled by any of such entities pursuant to 30 U.S.C. 201(a)(1) .

(3) Information means data, statistics, samples and other facts, whether analyzed or processed or not, pertaining to Federal coal resources.

(b) Applicability. This section applies to the following categories of information:

(1) Category A. Information provided to or obtained by a bureau under 30 U.S.C. 201(b)(3) from the holder of an exploration license;

(2) Category B. Information acquired from commercial or other sources under service contract with United States Geological Survey (USGS) pursuant to 30 U.S.C. 208-1(b), and information developed by USGS under an exploratory program authorized by 30 U.S.C. 208-1;

(3) Category C. Information obtained from commercial sources which the commercial source acquired while not under contract with the United States Government;

(4) Category D. Information provided to the Secretary by a Federal department or agency pursuant to 30 U.S.C. 208-1(e); and

(5) Category E. The fair-market value of coal to be leased and comments received by the Secretary with respect to such value.

(c) Availability of information. Information obtained by the Department from various sources will be made available to the public as follows:

(1) Category A—Information. Category A information must not be disclosed to the public until after the areas to which the information pertains have been leased by the Department, or until the Secretary determines that release of the information to the public would not damage the competitive position of the holder of the exploration license, whichever comes first.

(2) Category B—Information. Category B information must not be withheld from the public; it will be made available by means of and at the time of open filing or publication by USGS.

(3) Category C—Information. Category C information must not be made available to the public until after the areas to which the information pertains have been leased by the Department.

(4) Category D—Information. Category D information must be made available to the public under the terms and conditions to which, at the time he or she acquired it, the head of the department or agency from whom the Secretary later obtained the information agreed.

(5) Category E—Information. Category E information must not be made public until the lands to which the information pertains have been leased, or until the Secretary has determined that its release prior to the issuance of a lease is in the public interest.

BILLING CODE 4310-RK-P

BILLING CODE 4310-RK-C

[FR Doc. 01-17491 Filed 7-13-01; 8:45 am]

BILLING CODE 4310-RK-P

Visit the Official Version

Document Information

Published:: 07/16/2001
Department:: Interior Department
Entry Type:: Proposed Rule
Action:: Proposed rule.
Document Number:: 01-17491
Dates:: We will accept comments from all interested parties until September 14, 2001.
Pages:: 36966-36989 (24 pages)
RINs:: 1090-AA61: Records and Testimony; Freedom of Information Act
RIN Links:: https://www.federalregister.gov/regulations/1090-AA61/records-and-testimony-freedom-of-information-act
Topics:: Administrative practice and procedure, Classified information, Courts, Freedom of information, Government employees, Privacy
PDF File:: 01-17491.pdf
CFR: (32): 43 CFR 2.1; 43 CFR 2.2; 43 CFR 2.3; 43 CFR 2.4; 43 CFR 2.5; More ...