"DOI FOIA Regulations"
Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64527 DEPARTMENT OF TRANSPORTATION replacement of all rails, railway timbers ADDRESSES: The complete file for this and bridge joints on the bridge. This rule is available for public inspection, Coast Guard work is essential for continued safe by appointment, during normal business operation of the draw span of the bridge. hours at the U.S. Department of the 33 CFR Part 117 This deviation allows the draw of the Interior, 1849 C Street, NW, Room 5323, [CGD08–02–028] railroad swing span bridge to remain Washington, DC 20240. closed to navigation from 7 a.m. until 5 FOR FURTHER INFORMATION CONTACT: Drawbridge Operation Regulation; p.m. from October 19, 2002 until Alexandra Mallus by telephone at (202) Three Mile Creek, Mobile, AL October 28, 2002; except that, the bridge 208–5342, by fax at (202) 501–2360, or will open on signal between noon and by e-mail at AGENCY: Coast Guard, DOT. 12:30 p.m. daily if at least two hours email@example.com. ACTION: Notice of temporary deviation advanced notification is given. The from regulations. draw will open on signal between 5 SUPPLEMENTARY INFORMATION: p.m. and 7 a.m. The draw will be Background SUMMARY: The Commander, Eighth opened for emergencies but delays of up Coast Guard District, has issued a On July 16, 2001, the Department of to one hour may occur during repair temporary deviation from the regulation the Interior published a proposed rule operations. The telephone number to governing the operation of the Alabama that revised its existing regulations call to request an opening during this State Docks Terminal Railway railroad under the FOIA and added new repair work is 251–441–7300. swing span drawbridge across Three provisions implementing the Electronic In accordance with 33 CFR 117.35(c), Mile Creek, mile 0.7, at Mobile, FOIA Amendments. See 66 FR 36966, this work will be performed with all due Alabama. This deviation allows the July 16, 2001. Interested persons were speed in order to return the bridge to draw of the railroad swing span bridge afforded an opportunity to participate in normal operation as soon as possible. to remain closed to navigation from 7 the rulemaking through submission of This deviation from the operating a.m. until 5 p.m. from October 19, 2002 written comments on the proposed rule. regulations is authorized under 33 CFR until October 28, 2002; except that, the The Department received three 117.35. bridge will open on signal between responses to its proposed rule. The noon and 12:30 p.m. daily if at least two Dated: October 9th, 2002. Department has adopted several of the hours advanced notification is given. Roy J. Casto, modifications suggested by the This temporary deviation is necessary to Rear Admiral, U.S. Coast Guard, Commander, commenters and has made other allow for the replacement of all rail, Eighth Coast Guard District. revisions to its proposed rule for clarity railway timbers and bridge joints. [FR Doc. 02–26551 Filed 10–18–02; 8:45 am] as well. DATES: This deviation is effective from BILLING CODE 4910–15–P The revision of Part 2, Subparts A and 7 a.m. on Saturday, October 19, 2002 B, incorporates changes to the language until 5 p.m. on Monday, October 28, and structure of the regulations and 2002. DEPARTMENT OF THE INTERIOR adds new provisions to implement the ADDRESSES: Materials referred to in this E-FOIA (Public Law 104–231). New notice are available for inspection or 43 CFR Part 2 provisions implementing the copying at the office of the Commander amendments are found at § 2.4(c) (obc), Eighth Coast Guard District, 501 RIN 1090–AA61 (electronic reading rooms), § 2.9 (format Magazine Street, New Orleans, of disclosure), § 2.12 (timing of Revision of the Freedom of Information responses), § 2.14 (expedited Louisiana, 70130–3396 between the Act Regulations and Implementation of processing), § 2.21(a) (electronic hours of 7 a.m. and 3 p.m. Monday the Electronic Freedom of Information searches), § 2.21(c) (marking deletions), through Friday except Federal holidays. Act Amendments of 1996 § 2.21(d)(3) (volume estimation), and The Bridge Administration Branch, Eighth District (obc), maintains the AGENCY: Department of the Interior. § 2.26 (multitrack processing). public docket for this notice. ACTION: Final rule. Subpart B now describes information FOR FURTHER INFORMATION CONTACT: that is routinely available to the public David Frank, Bridge Administration SUMMARY: This document amends the through the agency reading rooms and Branch, telephone (504) 589–2965. Department of the Interior’s (DOI or the Internet. Requesters are encouraged SUPPLEMENTARY INFORMATION: The Agency) regulations implementing the to use these resources first before filing Alabama State Docks Terminal Railway Freedom of Information Act (FOIA). The a FOIA request. Subpart E is added to railroad swing span drawbridge across FOIA regulations have been completely include information on DOI’s FOIA Three Mile Creek, Baldwin County, rewritten in plain language, question annual report. Alabama has a vertical clearance in the and answer format. The regulations also Section 2.3(t) has been revised to closed-to-navigation position of 4 feet contain new provisions implementing clarify that the term ‘‘review’’ includes above mean high water. The bridge the Electronic Freedom of Information the time spent by bureau staff and provides unlimited vertical clearance in Act Amendments of 1996 (E-FOIA). attorneys considering any formal the open-to-navigation position. Additionally, the regulations have been objection to disclosure made by a Navigation on the waterway consists of updated to reflect changes in the submitter under § 2.23(f). tugs with tows. Presently, the draw Department’s policies and procedures, In light of the decision in Public opens on signal for the passage of developments in case law, cost figures Citizen v. Department of State, 276 F.3d vessels as required by 33 CFR 117.5. for calculating and charging fees, and 634 (D.C. Cir. 2001), DOI has revised Alabama State Docks Terminal organizational changes within DOI. As a §§ 2.7(d) and 2.21(a) of the final rule. Railway requested a temporary result, the public will have a clearer These sections now provide that in deviation for the operation of the understanding of DOI’s policies and determining which records are drawbridge to accommodate procedures implementing the FOIA. responsive to a FOIA request, the maintenance work. The work involves EFFECTIVE DATE: November 20, 2002. bureau will consider any records in its VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 64528 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations possession and control as of the date it applies to information pertaining to commenter’s suggestion, it has modified begins its search. Federal coal resources on acquired the proposed rule. The 1997 and 1999 Requesters now have 30 workdays, lands, as well as to Federal coal leases guidance which this commenter instead of 20 workdays, to file an appeal on lands that are governed by the references has been superseded by after the date of DOI’s response or Mineral Leasing Act. The Mineral guidance issued by the Attorney General receipt of any records provided Leasing Act for Acquired Lands applies in October 2001. It is subject to further (§ 2.29(a)). to acquired Federal lands; the Mineral revision by this or subsequent New sections have been added, such Leasing Act applies to other Federal administrations. There is nothing in the as: (1) § 2.24 concerning submitter lands. Both have similar provisions. In FOIA which requires the inclusion of designations; (2) § 2.25 regarding Appendix F, paragraph (a)(3), the clause the ‘‘sound grounds’’ language in the requests for Federally-funded research ‘‘which fit within an exemption to the Department’s FOIA regulations. In light data; (3) § 2.27 on handling a request for FOIA’’ has been removed. The Mineral of these considerations, the Department information contained in a Privacy Act Leasing Act, 30 U.S.C. 201(b)(3), applies has changed the language to avoid system of records; and (4) § 2.33 on to information collected pursuant to that conflicts with current and future providing notice to requesters and provision, regardless of whether the Department of Justice (DOJ) guidance on submitters concerning appeal decisions information is subject to an exemption this subject. DOI also has modified the dealing with commercial or financial under the FOIA. Therefore, the clause language in § 2.21(d)(2) to make clear information. ‘‘which fit within an exemption to the that the bureau’s response should Revisions to the Department’s fee FOIA’’ is not necessary. include an explanation of the reasons schedule may be found in Appendix C. The Department received three for the denial of the request. Finally, The duplication charge will remain the responses from commenters: the first, § 2.21(b)(2) of this rule has been revised same, at thirteen cents per page. from a national trade association; the to provide that a bureau may, consistent Document search and review charges second, from a nonprofit consumer with Departmental policy, determine will increase to reflect the average advocacy organization; and the third, that a discretionary release is hourly labor costs, plus 16 percent for from a statewide nonprofit public appropriate under the particular benefits, of employees in the following interest organization. Due consideration circumstances. three categories: Clerical, professional, has been given to each of the comments Issue 3: One commenter indicated and managerial. (The managerial received. A discussion of the comments that the availability of immediate category is new and designed to cover follows. judicial relief, without filing an appeal, employees at the GS–13 level and Issue 1: One commenter suggested was not clearly stated in the proposed above.) The average grade for the adding an amendment to the rule, and suggested that the requester’s clerical and professional categories has Department’s final rule incorporating right to sue be stated more explicitly been adjusted in the final rule to more the requirements of Public Law 105–277 throughout the regulations. accurately reflect the hourly labor costs which directed OMB to amend Our Response: DOI believes that it has for those categories and to clarify the Sectionl.36 of OMB Circular A–110. given sufficient notice concerning a employee grade levels that are covered OMB’s revised Circular A–110 requester’s right to file a lawsuit (see by each category. articulates the procedures by which § 2.12(a), § 2.13(c), and § 2.31(b)) and, Also, the criteria for determining fee Federally-funded research data that accordingly, has declined to adopt this waivers have been clarified to make it were used by the Federal Government in commenter’s suggestion. clear that DOI decides fee waiver developing an agency action may be Issue 4: DOI received several requests on a case-by-case basis and to made available to the public under the comments from one individual ensure that requesters know that they FOIA. concerning the fee waiver criteria that must provide sufficient justification to Our Response: This comment has are included in Appendix D of the support their fee waiver requests (§ 2.19 been adopted by the Department. A new proposed regulations. This commenter and Appendix D). section has been added to DOI’s final objected to the requirement that a The new rule increases the dollar rule (§ 2.25) which provides procedures requester submit detailed information to amount below which we will not bill a for handling FOIA requests for support a fee waiver request, claiming requester. Under the old regulations, we Federally-funded research data in the that the requester may not be able to charged a fee only if it cost us more than possession of a private entity. provide ‘‘detailed information’’ without $15 to process a FOIA request. Under Issue 2: One commenter indicated having seen the information in the the new regulations, we will charge a that the Department’s regulations requested records. According to this fee only if the cost is more than $30. should retain the existing requirement commenter, the criteria in Appendix D The new fee provisions are located in to articulate a ‘‘sound ground’’ for a could unreasonably restrict the § 2.16(b)(2). denial or partial denial of an availability of fee waivers by making it Paragraphs (c)(3) and (c)(4) of information request. This commenter unreasonably difficult to show that Appendix F, Mineral Leasing Act and suggested that the bureau must not only disclosure of the information ‘‘is likely Mineral Leasing Act for Acquired cite legal authority for the denial but to contribute significantly to public Lands—Special Rules, have been also must provide a brief explanation understanding of the operations or revised to make them more consistent why, given the record(s) and activities of the government.’’ This with the statutory provisions from exemption(s) at issue, it is appropriate commenter also discussed the potential which they are derived. for the bureau to invoke the exemption value of previously released Because we have rewritten the FOIA rather than exercise its discretion information, and the definition of regulations extensively, Subparts C (except where prohibited by law) to ‘‘public at large’’ as it relates to fee through E of the old regulations will be waive the exemption and disclose the waivers. Finally, this commenter redesignated as Subparts F through H in record(s) in accordance with guidance pointed out an error in paragraph the final rule. While the final rule issued by the Attorney General in May numbering in Appendix D. redesignates these three subparts, it 1997 and September 1999. Our Response: The intent of the does not revise Subparts G or H. Subpart Our Response: Although the Department’s regulations is not to F is revised to clarify that this Subpart Department declines to adopt this demand ‘‘detailed information’’ about VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64529 the records being sought, but rather to expedited processing. However, Our Response: The Department clarify for the public the determinative consistent with the language in the declines to adopt this comment. DOI factors that the Department considers statute, their main professional activity must consider which agency is in a when deciding whether to grant a fee or occupation must be information better position to make the proper waiver. Requesters then can adequately dissemination. release determination. Consideration of address these factors in their fee waiver Issue 6: One commenter stated that workload issues should not drive the requests. DOI has added the following while the bureaus should be allowed to determination of which agency is best language to the first paragraph of develop their own standards for suited to make the release Appendix D in response to this multitrack processing, these standards, determination. Use of workload commenter’s concerns: ‘‘You should once formulated, should be made considerations for this determination explain the significance of the release of available for public comment prior to could result in improper releases. the information to the public’s implementation. Issue 10: Another commenter understanding of the Government’s Our response: Prior to implementing suggested that DOI should have a operations and activities based on your a multitrack processing system, the central location where all FOIA requests understanding of the type of Department will provide guidance in can be sent if the requester is not certain information that your are requesting.’’ the Federal Register and/or on its FOIA which bureau has the records he/she is DOI agrees with the comment on the website so that requesters will know seeking. potential value of previously released how to draft their requests to qualify for Our Response: DOI has not adopted information. Confirmation or a faster processing track (see amended this comment. The Department’s FOIA clarification of previously released language at § 2.26(b)). regulations provide the public with information can be as important to Issue 7: One commenter pointed out sufficient notice on how requests will be public understanding of Government that § 2.4(c)(iv) of the proposed rule processed. In response to another issue activities as the initial disclosure of contains an incomplete description of this commenter raised involving intra- information when it was new the records that should be in DOI’s bureau requests, § 2.10(b)(3) has been information. The Department has electronic reading rooms and thus does revised. Under § 2.10(b)(3), as revised, if amended the regulations at paragraph not comply fully with E–FOIA. the request states that it seeks records (b)(3)(ii) of Appendix D to clarify this. Our Response: The Department has from unspecified offices within the In response to another comment, DOI adopted this comment and has revised same bureau, the FOIA Contact will has added ‘‘a reasonably broad audience the language in § 2.4(c)(1)(iv) of the final send the request to the Bureau FOIA of persons interested in the subject’’ at rule to read as follows: ‘‘Copies of Officer, who will refer it to those offices the end of the initial question in records that have been or are likely to which, to the best of his/her knowledge, paragraph (b)(2) (iv) of Appendix D. become the subject of frequent requests have or are likely to have responsive Finally, DOI has corrected the paragraph under the FOIA and an index of those records. designation in Appendix D, Fee Waiver documents.’’ DOI also has added a Issue 11: One commenter stated that Criteria. definition of ‘‘frequently requested the standard for starting the statutory Issue 5: Two comments concerned records’’ under § 2.3(l) for clarification time limits should be the same for expedited processing of requests. One purposes. ‘‘regular mail and e-mailed’’ requests/ commenter asked the Department to Issue 8: One commenter appeals, i.e., the time period for an adopt an additional provision recommended that the Department electronic request/appeal should begin expediting the processing of records that provide the same notice to requesters when the request is received, not when are subject to multiple pending requests. whose requests have been referred to it is opened. This commenter also urged DOI to other Federal agencies as those whose Our Response: The Department has expand the criteria covering who may requests have been referred to other DOI adopted this comment. Sections 2.12(b), make a request for expedited processing bureaus. 2.30(b), and 2.32(a) of this rule have to include organizations whose business Our Response: DOI has amended the been changed to provide that the time includes disseminating information, language in § 2.22(b)(2) to provide for limit for an electronic request/appeal even if disseminating information is not such notification in the event a bureau begins when the request is received, not their primary business, i.e., non-news refers documents to another agency (the when it is opened. media requesters when those entities originating agency) for a release have an urgent need to report on a determination. However, if a bureau Regulatory Planning and Review (E.O. Government activity. receives a request for records not in its 12866) Our Response: DOI has declined to possession, but which it believes may be DOI has determined that this rule is adopt these comments. With regard to in the possession of another Federal not a ‘‘significant regulatory action’’ the first comment, while Congress did agency, it will return the request to the under the terms of Executive Order give agencies latitude to expand requester and advise him/her to submit 12866 and therefore is not subject to expedited processing to other categories, it to the other agency directly. OMB review because it is not likely to: it also admonished agencies that being Issue 9: One commenter indicated (1) Have an annual effect on the ‘‘unduly generous’’ in creating other that if DOI receives a FOIA request for economy of $100 million or more or categories for expedited processing a record in its possession that originated adversely affect in a material way the ‘‘would unfairly disadvantage other with another agency (or with which economy, a sector of the economy, requesters.’’ H.R. Rep. No. 104–795, at another agency is substantially productivity, competition, jobs, the 26 (1996). Accordingly, the Department concerned), it should make the release environment, public health or safety, or declines to create a fourth expedited determination after consulting with the State, local, or tribal governments, or processing category for records subject originating agency. This commenter communities; to multiple requests. In response to the suggested that DOI should not refer the (2) Create a serious inconsistency or second issue, the language in record to the originating agency if that otherwise interfere with an action taken § 2.14(a)(2) has been modified to allow agency has a backlog or the agency’s or planned by another agency; entities other than representatives of the policy on processing referrals will delay (3) Materially alter the budgetary news media to be considered for the response to the requester. impact of entitlements, grants, user fees, VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 64530 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations or loan programs or the rights or unduly burden the judicial system and 2.1 What do the regulations cover? obligations of their recipients; or the requirements of §§ 3(a) and 3(b)(2) of 2.2 What is DOI’s policy regarding release (4) Raise novel legal or policy issues. the Order. of records under the FOIA? 2.3 What terms do I need to know? Regulatory Flexibility Act Paperwork Reduction Act Subpart B—Information Routinely Available DOI certifies that this regulation will This rule does not contain any to the Public Without Filing a FOIA Request not have a significant economic impact information collection requirements for 2.4 How do I obtain information routinely on a substantial number of small entities which OMB approval under the available to the public? under the Regulatory Flexibility Act (5 Paperwork Reduction Act (44 U.S.C. 2.5 Does DOI maintain an index of its U.S.C. 606(b)). Under the FOIA, 3501–3520) is required. reading room materials? agencies may recover only the direct 2.6 Will the Department accept written National Environmental Policy Act costs of searching for, reviewing, and requests, including fax, e-mail, or duplicating the records processed for This rule does not constitute a major telephone requests, for routinely requesters. Thus, fees assessed by DOI Federal action significantly affecting the available information? are nominal. quality of the human environment. A Subpart C—Requests for Records Under detailed statement under the National Small Business Regulatory Enforcement the FOIA Environmental Policy Act (42 U.S.C. Fairness Act 4321–4347) of 1969 is not required. 2.7 What do I need to know before filing a FOIA request? This rule is not a major rule under 5 Executive Order 13211 2.8 What information do I include in my U.S.C. 804(2), the Small Business request? Regulatory Enforcement Fairness Act. On May 18, 2001, the President issued an Executive Order (E.O. 13211) on 2.9 May I specify the form or format of This rule will not result in an annual disclosure? effect on the economy of more than regulations that significantly affect 2.10 Where do I send my request? $100 million per year; a major increase energy supply, distribution, and use. 2.11 Why is it important to send my request in costs or prices for consumers, Executive Order 13211 requires agencies to the right office? individual industries, Federal, State, or to prepare Statements of Energy Effects 2.12 When can I expect the response? local government agencies, or when undertaking certain actions. As 2.13 When may the bureau take a time geographic regions; or significant this rule is not expected to significantly extension to respond to my request? adverse effects on competition, affect energy supplies, distribution, or 2.14 When can I get expedited processing? employment, investment, productivity, use, this action is not a significant 2.15 Will I be charged fees? innovation, or on the ability of U.S.- energy action and no Statement of 2.16 How are fees determined? Energy Effects is required. 2.17 How will my requester category affect based companies to compete with the fees that I am charged? foreign-based enterprises. It deals List of Subjects in 43 CFR Part 2 2.18 How are fees assessed and collected? strictly with implementation of the 2.19 When will bureaus waive fees? Administrative practice and FOIA within DOI. 2.20 When will bureaus grant discretionary procedure, Classified information, Unfunded Mandates Reform Act Courts, Freedom of information, fee waivers? Government employees, Privacy. 2.21 How will the bureau respond to my This rule does not impose an request? unfunded mandate on State, local, or Dated: October 2, 2002. 2.22 What happens if a bureau receives a tribal governments, or the private sector P. Lynn Scarlett, request for records it does not have or of more than $100 million per year. The Assistant Secretary—Policy, Management did not create? rule does not have a significant or and Budget. 2.23 How will a bureau handle a request for unique effect on State, local, or tribal commercial or financial information that Regulation Promulgation it has obtained from a person or entity governments, or the private sector. Therefore, no actions were deemed For the reasons stated in the outside the Federal Government? necessary under the provisions of the 2.24 Is a submitter required to designate preamble, we amend Part 2 of Title 43 information that is commercially or Unfunded Mandates Reform Act (2 of the Code of Federal Regulations, as financially sensitive? U.S.C. 1531 et seq.) follows: 2.25 How will a bureau handle a request for Takings (E.O. 12630) Federally-funded research data in the PART 2—RECORDS AND TESTIMONY: possession of a private entity? In accordance with Executive Order FREEDOM OF INFORMATION ACT 2.26 Does the bureau provide multitrack 12630, this rule does not have any processing of FOIA requests? 1. The authority citation for Part 2 is takings implications. It deals strictly 2.27 How will a bureau handle a request for revised to read as follows: with implementation of the FOIA information that is contained in a within DOI. Therefore, a takings Authority: 5 U.S.C. 301, 552 and 552a; 31 Privacy Act system of records? (See assessment is not required. U.S.C. 9701 and 43 U.S.C. 1460–1461. DOI’s Privacy Act regulations (Subpart G Appendix F to Part 2 also is issued under 30 of this part) for additional information) Federalism (E.O. 13132) U.S.C. 201–209; 30 U.S.C. 351–360. Subpart D—FOIA Appeals In accordance with Executive Order Subparts C Through E [Redesignated 13132, this rule does not have 2.28 When may I file an appeal? as Subparts F Through H] 2.29 How long do I have to file an appeal? Federalism implications as it deals 2.30 How do I file an appeal? strictly with implementation of the 2. Subparts C through E are 2.31 How will DOI respond to my appeal? FOIA within DOI. Therefore, a redesignated as Subparts F through H. 2.32 How long does DOI have to respond to Federalism assessment is not required. 3. Subparts A and B are revised in my appeal? Civil Justice Reform (E.O. 12988) their entirety and redesignated as 2.33 How will the Department notify you Subparts A through E to read as follows: and the submitter of commercial or In accordance with Executive Order financial information when it makes an 12988, the Office of the Solicitor has Subpart A—General Information appeal decision concerning such determined that this rule does not Sec. information? VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64531 Subpart E—FOIA Annual Report (2) This definition generally does not (j) FOIA request means a written 2.34 Where can I get a copy of DOI’s FOIA cover records of an individual which request (this includes facsimile (fax) and annual report? are: electronic mail (e-mail)) made by any * * * * * (i) Created and maintained primarily member of the public for Federal agency for an individual’s convenience; records. Subpart A—General Information (ii) Not subject to agency creation or (k) Free-lance journalist means a retention requirements; and representative of the news media who is § 2.1 What do the regulations cover? (iii) Not distributed to other agency able to demonstrate a solid basis for (a) The regulations implement the employees for their official use. expecting publication through a news Freedom of Information Act (FOIA), 5 (d) Bureau means any major organization, even though not actually U.S.C. 552, and contain the procedures component of the Department employed by it. A publication contract by which the public may inspect and administering its own FOIA program. A or past record of publication, or obtain copies of Department of the list of these components is contained in evidence of a specific free-lance Interior (DOI or Department) records Appendix A to this part. assignment from a news organization through the FOIA or by other means. (e) Commercial-use request means a may indicate a solid basis for expecting (b) They apply to all agency records request from or on behalf of a person publication. as defined in § 2.3(c). who seeks information for a use or (l) Frequently requested documents (c) The policy and procedures set purpose that furthers the commercial, means documents that have been forth in these regulations apply to all trade or profit interests of the requester requested at least three times under the bureaus and offices of the Department. or the person on whose behalf the FOIA. It also includes documents the (d) Nothing in the regulations will request is made. In determining whether agency anticipates would likely be the entitle you to any service or any record a requester falls into this category, the subject of three or more requests. that is not required to be provided bureau will consider the identity of the requester and intended use of the (m) Multitrack processing means under the FOIA. placing simple requests, requiring (e) These regulations do not apply to records in addition to any other available information about the relatively minimal review, in one records that fall under the law processing track and more voluminous enforcement exclusions contained in 5 requester. (f) Direct costs means those expenses and complex requests in one or more U.S.C. 552(c). other tracks. Requests in each track are that a bureau actually incurs in § 2.2 What is DOI’s policy regarding searching for and duplicating (and in processed on a first-in/first-out basis. release of records under the FOIA? the case of commercial-use requests, (n) Noncommercial scientific It is our policy to make records of the reviewing) records to respond to a FOIA institution means an institution that is Department available to the public request. Direct costs include, for not operated for commerce, trade or consistent with the spirit of the FOIA example, the salary and benefits of the profit, and that is operated solely for the and the Privacy Act. employee performing the work and the purpose of conducting scientific cost of operating duplicating equipment. research the results of which are not § 2.3 What terms do I need to know? Not included in direct costs are intended to promote any particular For the purposes of this part, the overhead expenses such as the costs of product or industry. To be in this following definitions apply: space and heating or lighting of the category, a requester must show that the (a) Act and FOIA mean the Freedom facility in which the records are kept. request is authorized by and is made of Information Act, 5 U.S.C. 552, as (g) Duplication means making a copy under the auspices of a qualifying amended. of a record, or the information contained institution and that the records are not (b) Agency means any executive in it, to respond to a FOIA request. sought for a commercial use but are department, military department, Copies can take the form of paper, sought to further scientific research. Government corporation, Government- microform, photographs, audiovisual (o) Privacy Act request means a controlled corporation, or other materials, or electronic records (for written request (paper copy with an establishment in the executive branch of example, magnetic tape or disk), among original signature) made by an the Federal Government, or any others. individual for information about himself independent regulatory agency. (h) Educational institution means a or herself that is contained in a Privacy (c) Agency record means any preschool, a public or private Act system of records. The Privacy Act documentary material which is either elementary or secondary school, or an applies only to U.S. citizens and aliens created or obtained by an agency in the institution of undergraduate higher lawfully admitted for permanent transaction of agency business and education, an institution of graduate residence. Therefore, only those under agency control. See §§ 2.21 and higher education, an institution of individuals may make Privacy Act 2.25. professional education, or an institution requests. (1) Agency records include: of vocational education, which operates (p) Published research findings means (i) Books, papers, maps, charts, plats, a program of scholarly research. To be research findings that are either: plans, architectural drawings, in this category, a requester must show (1) Published in a peer-reviewed photographs, and microfilm; that the request is authorized by and is scientific or technical journal; or (ii) Machine-readable materials such made under the auspices of a qualifying (2) Publicly and officially cited by a as magnetic tape and disks; institution and that the records are not Federal agency in support of an agency (iii) Electronic records (including e- sought for a commercial use but are action that has the force and effect of mail messages); sought to further scholarly research. law. (iv) Audiovisual material such as still (i) Expedited processing means giving (q) Reading room materials means pictures, sound and video recordings; a FOIA request priority, and processing records (paper or electronic) that are and it ahead of other requests pending in the required to be made available to the (v) All other documentary materials, bureau because a requester has shown public under 5 U.S.C. 552(a)(2), as well regardless of physical form, format or an exceptional need or urgency for the as other records that a bureau, at its characteristics. records (see § 2.14). discretion, makes available to the public VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 64532 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations for inspection and copying without Subpart B—Information Routinely regarding the Library’s holdings and requiring the filing of a FOIA request. Available to the Public without Filing a services may be obtained by visiting its (r) Representative of the news media FOIA Request home page (see Appendix B to this means any person actively gathering part). § 2.4 How do I obtain information routinely (b) Published information and rules. news for an entity that is organized and available to the public? Under 5 U.S.C. 552(a)(1), bureaus are operated to publish or broadcast news to A great deal of information is required to publish certain information the public. The term ‘‘news’’ means available to the public without filing a in the Federal Register for the guidance information that is about current events FOIA request. Examples are of the public, such as descriptions of or that is (or would be) of current Departmental policies, procedures, and their central and field organizations, interest to the public. Examples of news organizational descriptions. The functions, procedures, substantive rules, media entities include, but are not following guidance will help you obtain and statements of general policy. limited to, newspapers, television or this information. [Note: For copies of (c) Reading room materials. radio stations broadcasting to the public records that are not routinely available, (1) Under 5 U.S.C. 552(a)(2), each at large, and publishers of periodicals you must submit a FOIA request to the bureau is responsible for making the (but only in those instances when they DOI office where the records are information listed in paragraphs (c)(1)(i) can qualify as disseminators of ‘‘news’’) located. Procedures for requesting through (v) of this section available for who make their products available for records under the FOIA are provided in public inspection and copying unless purchase or subscription by the general Subpart C of this part.] the materials are promptly published public. To be in this category, a (a) General. and copies offered for sale. Bureaus (1) General information about DOI or must make any such records created on requester must not be seeking the one of its bureaus may be obtained by or after November 1, 1996, available by requested records for a commercial use. visiting DOI’s home page (see Appendix the Internet or by other computer Further, a bureau normally will not B to this part for a list of Internet consider requests for records involving telecommunication methods or addresses) or by contacting the Office of electronic means as quickly as news dissemination to be commercial- Public Affairs/Communications for the use requests. practicable. appropriate bureau (see Appendix A to (i) Final opinions rendered in the (s) Research data means the recorded this part for a list of DOI contacts). adjudication of cases. factual material commonly accepted in Many documents are made available to (ii) Policy statements and the scientific community as necessary to the public through DOI’s reading rooms. interpretations which have been validate research findings, but not such Some documents also may be available adopted by DOI and are not published things as trade secrets, commercial in DOI’s electronic reading rooms on the in the Federal Register. information, personnel and medical Internet. (iii) Administrative staff manuals and information and any similar information (2) Information on DOI’s FOIA instructions affecting the public. which is protected under law. Program and a Reference Guide to assist (iv) Copies of records that have been you in obtaining various types of or are likely to become the subject of (t) Review means the examination of information are available in DOI’s frequent FOIA requests and an index of a record located in response to a request reading rooms, through the FOIA home those documents. in order to determine whether any page, or by contacting the Departmental (v) A subject-matter index of its portion of it is exempt from disclosure. FOIA Officer. reading room records (see § 2.5). It also includes the deletion of exempt (3) To obtain information about (2) Bureaus may, at their discretion, material or other processing necessary specific records in DOI, you also may make other records available for to prepare the record(s) for disclosure, refer to: inspection and copying in reading including routine consultation among (i) The index of documents frequently rooms or via their home pages. bureau staff and attorneys regarding the requested under the FOIA, which is (d) Inspection and copying of reading applicability of exemptions; and time available in DOI’s reading rooms, room materials. spent considering any formal objection through the FOIA home page, or by (1) Reading room materials are to disclosure made by a submitter under contacting one of the bureau FOIA available for inspection and copying at § 2.23(f). Officers; and the locations listed in Appendix A to (ii) The index and description of this part and, in some cases, through the (u) Search means the process of DOI’s major information and record Internet; however, not all records may looking for and retrieving agency locator systems, which are available in be available in all locations. records and information responsive to a DOI’s reading rooms, through the FOIA (i) If you need assistance in request (manually or by automated home page, or by contacting one of the determining the location and means). bureau FOIA Officers. availability of the records you are (v) Submitter means any person or (4) Another source of information is seeking, contact the appropriate reading entity outside the Federal Government DOI’s Library, which contains over one room or FOIA Contact listed in from whom the Department directly or million holdings dealing with a broad Appendix A to this part. indirectly obtains commercial or range of matters pertaining to the (ii) If you file a FOIA request for financial information. The term Department’s mission. You may wish to reading room materials and the includes, but is not limited to visit the Library, which is located at the information you request is available on C Street entrance of the Main Interior the Internet, the FOIA Contact should individuals, corporations, and state, Building, 1849 C Street, NW., refer you to the appropriate Web site. If local, tribal, and foreign governments. Washington, DC 20240 (see Appendix A the reading room materials are not (w) Workday means a regular Federal to this part). The Library is open to the available electronically, the FOIA workday. It does not include Saturdays, public for on-site reference use from Contact may either send you the Sundays, or Federal legal public 7:45 a.m.–5:00 p.m., Monday–Friday materials, or forward your request to the holidays. (excluding Federal legal public appropriate reading room and provide holidays). Additional information the name and telephone number of a VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64533 staff member you may contact. You a FOIA request to the FOIA Contact at present custodian of the record and the may, nevertheless, ask the bureau to the bureau office where you believe the geographical location (e.g., headquarters process your request as any other FOIA records are maintained (see Appendix A or a regional/field office); the timeframe request. to this part). FOIA requests must be for which you are seeking records; and (2) A bureau may delete exempt submitted in writing (this includes fax any other information that will assist information from some records before and e-mail)—DOI does not accept oral the bureau in locating the material. making them available for inspection FOIA requests. Before submitting a (ii) If the request involves a matter in and copying in a reading room. (See request, you may find it useful to litigation, state the case name and § 2.21(c)). You may not appeal a contact the appropriate bureau FOIA docket number as well as the court in bureau’s decision to delete exempt Contact or the Departmental FOIA which the case was filed. information from a document it places Officer for additional information (2) The bureau will not begin in a public reading room. If you would concerning DOI’s FOIA Program. You processing your request until any issues like access to the entire record, you may find the Department’s Reference regarding the scope or nature of your must submit a FOIA request under the Guide, which is available electronically request are resolved. When a request is procedures in Subpart C of this part. through the FOIA home page and in overly broad, unclear, involves an However, this does not guarantee that paper form as well, helpful in making extremely voluminous amount of the entire record will be released. If you your request. records, or a burdensome search, the submit such a FOIA request and are not (b) The FOIA requires that we release bureau will contact you to identify and satisfied with the response, you may file records unless they are protected by one clarify the records you are seeking. It an appeal as described in § 2.28. of nine exemptions (see Appendix E to will work with you to define the subject (3) There is no charge to inspect this part). matter, clarify terms that are used, or reading room materials. Copying (c) The Act does not require a bureau narrow the scope of your request. services will be provided at the fees to answer questions that may be asked (3) The time limit for responding to specified in Appendix C to this part. in a FOIA request. your request will not start until the However, other fees may apply where a (d)(1) In order for a record to be bureau receives a request reasonably bureau has a statute that specifically considered subject to your FOIA describing the records or clarifying the requires the bureau to set fees for request, it must be in the bureau’s initial request. If the bureau asks you for particular types of records. possession and control at the time the additional clarification and does not (4) If you submit a fee waiver request bureau begins its search for responsive hear from you within 20 workdays, it for information in a reading room, it records. There is no obligation for the will assume that you are no longer will be processed under the procedures bureau to create or compile a record to interested in pursuing your request and in § 2.19. satisfy a FOIA request (for example, by will close the file on your request. combining or compiling selected items (b) Fee information. § 2.5 Does DOI maintain an index of its (1) Unless you request a fee waiver from manual files, preparing a new reading room materials? (see paragraph (b)(2) of this section), computer program, calculating Each bureau will maintain and make you should state that you are willing to proportions, percentages, frequency pay all fees associated with processing available for public inspection and distributions, trends and comparisons, your request or that you are willing to copying a current subject-matter index or creating maps). Normally if a bureau pay up to a specified amount. The of its reading room materials (5 U.S.C. is extracting information from an bureau will not begin processing your 552(a)(2)). The index will be available in existing computer database, this would request until this written assurance has the bureau’s reading room(s) and in not constitute the creation of a new been received. If the bureau anticipates their electronic reading rooms on the record. However, a bureau has the that the fees for processing your request Internet. Each index will be updated option of creating a new record if— exceed the amount you have indicated regularly. (i) Doing so will provide a more you are willing to pay, the bureau will § 2.6 Will the Department accept written useful response to the requester, notify you that it needs your assurance requests, including fax, e-mail, or telephone (ii) It is less burdensome than of payment of fees as high as are requests, for routinely available providing the existing records, and information? (iii) The newly created record is fully anticipated, or an advance payment (see responsive to the request. § 2.18(b) and (c)). If the bureau does not Yes. Although a request for this type (2) The fee in this case will not be hear from you within 20 workdays, it of information is not a FOIA request, the more than the fee for the individual will assume that you are no longer bureau will send you the requested records. Fees will be charged consistent interested in this matter and will close information and charge you for the with the schedule in Appendix C to this the file on your request. copies, according to the fee schedule in (2) You may request a fee waiver. If Appendix C to this part. While the part. you are seeking a fee waiver, you must bureau will attempt to respond to oral provide sufficient justification to § 2.8 What information do I include in my requests (those made by telephone or request? support your fee waiver request (see the otherwise) for routinely available criteria in § 2.19 and in Appendix D to (a) Description of records. information, you should submit this part). Failure to provide adequate (1) You must describe the requested complex requests in writing to avoid justification will result in a denial of records in enough detail to enable an any risk of misunderstanding. your fee waiver request. Remember that employee familiar with the subject area Subpart C—Requests for Records of the request to locate the record(s) if you are requesting a fee waiver, the under the FOIA with a reasonable amount of effort. Be burden is on you to demonstrate in your as specific as possible in describing the request that you are entitled to it. The § 2.7 What do I need to know before filing records you are seeking. For example, bureau will not begin processing your a FOIA request? whenever possible: request until the fee issues are resolved. (a) If the records you are seeking are (i) Identify the date, title or name, As an option, at the same time you not routinely available as described in author, recipient, and the subject of the request a fee waiver you may state your Subpart B of this part, you must submit record; the office that created it, the willingness to pay regardless of whether VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 64534 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations a fee waiver is granted. This will permit obituary) as the Privacy Act does not request to the other office. If the request the bureau to process your request for apply to a deceased individual. (Note: states that it seeks records from other records at the same time it is Information about a deceased individual unspecified offices within the same considering the fee waiver request. If may be subject to protection under bureau, the FOIA Contact will send the you are required to pay a fee, and it is exemption (6) of the FOIA if the release request to the Bureau FOIA Officer who later determined on appeal that you are of the information could result in an will refer it to those offices that, to the entitled to a full or partial fee waiver, invasion of the privacy of a living best of his/her knowledge, have or are an appropriate refund will be made. individual.) likely to have responsive records. (3) You should indicate what fee (4) If a request to a bureau states that category you are in, i.e., if you are a § 2.9 May I specify the form or format of it seeks records of another specified commercial-use requester, news media, disclosure? bureau, the bureau will refer the request educational institution/noncommercial Generally, you may choose the form to the appropriate bureau for response. scientific institution, or other requester or format of disclosure for records that If the request states that it seeks records (see §§ 2.3 and 2.17(a)). If you submit a you request under the FOIA (5 U.S.C. from other unspecified bureaus, the FOIA request on behalf of another 552(a)(3)(B)). Bureaus must provide the FOIA Contact will send the request to person or organization (for example, if record in the requested form/format if the Bureau FOIA Officer who will you are an attorney submitting a request the office responding to the request can ensure that the request is referred to on behalf of a client), it is the readily reproduce the record in that those bureaus which, to the best of his/ underlying requester’s identity and form/format with reasonable efforts. her knowledge, have or are likely to intended use that determines the fee However, if the process of providing the have responsive records. In either case, category. If your fee category is unclear information in the requested format the Bureau FOIA Officer will notify you to the bureau, the 20-workday statutory would damage or destroy an original of the referral in writing and provide the time limit for processing your request document, it may not be possible to name of a contact in the other bureau(s) will not begin to run (see § 2.12(b)) until honor your format request. Bureaus to which the referral was made. this matter has been resolved. If the must make reasonable efforts to bureau requests additional clarification maintain their records in forms or § 2.11 Why is it important to send my and does not hear from you within 20 formats that are reproducible. You may request to the right office? workdays, it will assume that you are no be charged the direct costs involved in The bureau and office FOIA Contacts longer interested in this matter and will converting information to the requested listed in Appendix A to this part have close the file on your request. format if the bureau normally does not primary responsibility for responding to (c) Mailing address information: Your maintain the information in that format. FOIA requests. Failure to send your postal address is required for the bureau request to the FOIA Contact at the to mail any responsive documents to § 2.10 Where do I send my request? appropriate bureau office may delay you. (a) DOI does not have a central processing, because the time limit for (d) The following information will location where you may submit your the bureau to respond will not begin to assist the bureau in processing your FOIA request nor does it maintain a run until a request complying with request: central index or database of documents §§ 2.8 and 2.10 is received by the bureau (1) The words ‘‘FOIA REQUEST’’ in its possession. DOI’s files are office where the records are maintained. (prominently displayed) on the request decentralized and are maintained by The processing of your request may be letter and the envelope, or subject line various bureau offices throughout the delayed if you send it to the Secretary of a request sent via e-mail or fax, or country. of the Interior (or other high-level ‘‘PRIVACY ACT REQUEST’’ when (b) Submit your request in writing to officials), the Office of Public Affairs/ requesting records pertaining to yourself the FOIA Contact at the bureau office Communications, the DOI FOIA Officer, that you believe are covered by the where you believe the records are or the Department/bureau’s webmaster. Privacy Act, as well as citing the maintained. If it is unclear where to appropriate act in your letter; send your request, seek assistance from § 2.12 When can I expect the response? (2) Your telephone number (where the FOIA Contact of the bureau that (a) Basic time limit. Ordinarily, a you can be reached during normal manages the programs whose records bureau has 20 workdays from the date business hours), e-mail address and fax you are requesting or the Departmental of receipt to determine whether to grant number, if available, in case the bureau, FOIA Officer. You may have to do a or deny your FOIA request (see or the Department needs to little research to find the proper office paragraph (b) of this section). The communicate with you about your to handle your inquiry, but you will bureau will notify you immediately request. This information is very save time in the long run if you send upon reaching its decision. If you have important. your request directly to the FOIA not received a response within 20 (3) A list of all the bureau FOIA Contact at the appropriate bureau office. workdays, or 30 workdays if an Contacts to which you are sending your The bureau will process your request as extension has been taken (see § 2.13) (be request. For the quickest possible follows: sure to allow for mailing time), you may handling, you should address a separate (1) A request to a bureau headquarters contact the bureau to ask about the copy of your request to each bureau office may be presumed to seek only delay (see Appendix A to this part). You FOIA Contact where you believe the records from the headquarters office, also have the right to consider any records are maintained. unless the request specifies otherwise. nonresponse within these time limits as (4) When making a request for (2) A request to a regional/field office a denial of records and file a formal personal records about another of a bureau may be presumed to seek appeal (see § 2.28(a)(3)) or lawsuit. individual, a written authorization from only records at that office, unless the These time limits do not apply to that individual and any other request specifies otherwise. requests for expedited processing (see information required by the Privacy Act (3) If a request to a bureau states that § 2.14). system of records notice; or proof that it seeks records located at another (b) Running of basic time limit. The the individual is deceased (for example, specific office of the same bureau, the 20 workday time limit begins to run a copy of a death certificate or an appropriate FOIA Contact will refer the when a request complying with the VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64535 procedures in §§ 2.8 and 2.10 is value that will be lost if not charge specific fees for certain types of received by the FOIA contact at the disseminated quickly, and ordinarily records. bureau office that has the records you refers to a breaking news story of (b) Policy. (1) Unless waived under are seeking. This means that all issues general public interest. However, the criteria in §§ 2.19 or 2.20, bureaus regarding fees and the scope of your information of historical interest only, will charge fees for responding to FOIA request must be resolved before the or information sought for litigation or requests consistent with the provisions bureau will begin processing your commercial activities would not qualify, of this section and the fee schedule in request. nor would a news media deadline Appendix C. unrelated to breaking news; or (2) A bureau normally will not charge § 2.13 When may the bureau take a time (3) The loss of substantial due process extension to respond to my request? a fee where the fee would be $30 or less. rights. (a) The bureau may extend the 20- However, if the bureau has a reasonable (b) A request for expedited processing workday time limit for 10 more basis to conclude that a requester or should be submitted with your FOIA workdays when it needs to: group of requesters has divided a request. For a prompt determination, (1) Search for and collect the request into a series of requests on a you must submit a request complying requested records from multiple offices; single subject or related subjects to with the requirements of §§ 2.8 and 2.10 or avoid fees, the requests may be to the FOIA Contact at the bureau office (2) Search for, collect, and examine a aggregated and fees charged that maintains the records you are voluminous amount of separate and accordingly. Bureaus may presume that seeking. distinct records sought in a single (c) If you are seeking expedited multiple requests of this type that are request; or processing, you must submit a statement made within a 30-day period have been (3) Consult with another agency explaining in detail the basis for your made in order to avoid fees. Where having a substantial interest in the request. You must certify in your letter requests are separated by a longer determination of the request or with one that your need for expedited processing period, bureaus will aggregate them or more bureaus of the Department is true and correct to the best of your only where there exists a solid basis for having substantial subject-matter knowledge and belief. For example, a determining that aggregation is interest in the request. requester within the category of warranted under all the circumstances (b) If the bureau intends to take an paragraph (a)(2) of this section, if not a involved. Multiple requests involving extension under this subsection, it will full time member of the news media, unrelated matters will not be aggregated. notify you in writing and provide the must establish that he or she is a person (3) Where a bureau responds to a reason for the extension and the date it whose main professional activity or request on behalf of more than one expects to make a determination on occupation is information bureau, the fees that would be your request. dissemination, though it need not be chargeable by all bureaus involved will (c) If an extension is necessary and his/her sole occupation. be considered in determining whether the bureau is unable to respond to your (d) Within 10 calendar days of receipt the total FOIA processing fee is $30 or request within 30 workdays, it will of your request, the bureau will notify less. If a bureau is responding on behalf notify you in writing when you may you whether it will grant expedited of more than one bureau, and you fall expect a final response and advise you processing. If expedited processing is under one of the fee categories in of your appeal rights. If an extension is granted, the bureau will give priority to § 2.17(a)(2) or (a)(3), you will be entitled taken and you have not received a that FOIA request and process the to receive up to a total of 100 pages of response in 30 workdays, you may request as soon as practicable. If duplication without charge (there is no consider the request denied and file an expedited processing is denied, the charge for searching for responsive appeal under § 2.28(a)(3) or file a bureau will notify you of your right to records). If a bureau is responding on lawsuit. appeal the decision on expedited behalf of more than one bureau, and you (d) A bureau may not take an processing. Appeals of denials of fall under the fee category in extension of time to decide whether to requests for expedited processing will § 2.17(a)(4), you will be entitled to grant a request for a fee waiver. be processed ahead of other appeals (see receive up to a total of 100 pages of § 2.32(b)). If the bureau has not duplication and two hours of search § 2.14 When can I get expedited responded to your request for expedited time without charge. processing? processing within 10 calendar days, you (4) If a bureau obtains research data (a) When requested, a bureau will have a right to file an appeal for solely in response to your FOIA request, provide expedited processing if you nonresponse (see § 2.28(a)(7)). it may charge you a reasonable fee demonstrate to the satisfaction of the bureau that the request involves: equaling the full cost of obtaining the § 2.15 Will I be charged fees? (1) Circumstances in which the lack of research data from the recipient. Bureaus will charge fees consistent expedited treatment could reasonably be (c) Searches. Searches will be with the provisions in §§ 2.16 and 2.17. expected to pose an imminent threat to conducted in the most efficient and The fee schedule in Appendix C to this the life or physical safety of an least expensive manner, so as to part applies to all bureaus of the individual; minimize costs for both you and the Department. (2) An urgency to inform the public bureau. Except where provided in about an actual or alleged Federal § 2.16 How are fees determined? §§ 2.17(a)(2) and (a)(3), bureaus will Government activity if the request is (a) Authority. Bureaus are authorized charge for time spent in the following made by a person primarily engaged in to charge fees to recover the direct costs search activities: disseminating information. In most of searching for, reviewing (commercial- (1) Time spent in trying to locate situations, a person primarily engaged use requesters only) and duplicating records which come within the scope of in disseminating information will be a documents to respond to a FOIA the request, whether or not documents representative of the news media. The request. However, nothing in this responsive to the request are located or requested information must be the type subsection will supersede any statutory the records located are exempt from of information which has particular authority which requires the bureau to disclosure; and VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 64536 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations (2) Direct costs involving the use of request will decide your fee category entitled to the first two hours of search computer time to locate requested and charge as follows: time and the first 100 pages of paper records. (1) Commercial-use requesters are copies without charge (or the equivalent (d) Reviews (Commercial-use requests charged fees for costs incurred in cost thereof if the records are in some only). (1) Bureaus will charge document search, review, and other form). The bureau will not charge commercial-use requesters (see duplication. such requesters for document review. § 2.17(a)(1)) for time spent by bureau (2) Educational/noncommercial (b) If you do not submit sufficient staff and attorneys in reviewing scientific institutions are charged for information in your FOIA request for requested records for releasability. (See document duplication, except that the the bureau to determine your fee § 2.3(e).) first 100 pages of paper copies (or the category (see paragraphs (a)(1) through (2) Review costs will be assessed even equivalent cost thereof if the records are (a)(4) of this section), the bureau may if a record ultimately is not disclosed. in some other form) will be provided ask you to provide additional (e) Duplication. Bureaus will charge without charge. The bureau will not clarification. This applies to all duplication fees according to the fee charge such requesters for document requesters. The bureau will notify you schedule in Appendix C to this part. search and review. promptly when additional information (f) Categories of requesters. There are (3) News media requesters are charged is needed. In these circumstances, the four categories of requesters for the for document duplication, except that 20-workday statutory time limit for purposes of determining fees— the first 100 pages of paper copies (or responding to your request will not commercial-use, educational and the equivalent cost thereof if the records begin to run until you provide sufficient noncommercial scientific institutions, are in some other form) will be provided information. If the bureau requests news media, and all others. (See §§ 2.3 without charge. The bureau will not additional clarification and does not and 2.17.) charge such requesters for document hear from you within 20 workdays, it § 2.17 How will my requester category search and review. will assume that you are no longer affect the fees that I am charged? (4) Requesters not covered by interested in this matter and will close (a) When you submit a FOIA request, paragraphs (a)(1) through (a)(3) of this the file on your request. you must specify your fee category. section—‘‘other requesters’’ are charged (c) The following table summarizes Based on the information you provide, fees for document search and the chargeable fees for each category of the bureau office processing your duplication, except that they are requester. Category Search fees Review fees Duplication fees Commercial Use ............................................................................................................. Yes ................... Yes ................... Yes Educational Institution. Non-Commercial Scientific Institution ............................................................................ No ..................... No ..................... Yes (100 pages free) News Media. All Other ......................................................................................................................... Yes ................... No ..................... Yes (2 hours free) .... (100 pages free) § 2.18 How are fees assessed and (iii) Give you an opportunity to §§ 2.8(b) and 2.12(b)). If the bureau collected? modify your request to reduce the fee. seeks clarification from you about a fee (a) Threshold for charging fees. Except (c) Advance payment. (1) The bureau issue and does not hear from you within in those situations covered by will require advance payment when the 20 workdays, it will assume that you are § 2.16(b)(2), the bureau will not charge estimated fee is over $250 and— no longer interested in this matter and you if the fee is $30 or less. (i) You have never made a FOIA will close the file on your request. (b) Notice of anticipated fees. (1) request to DOI requiring you to pay fees; (e) Billing procedures. If you are Unless you have been granted a fee or required to pay a fee associated with waiver or have previously agreed to pay (ii) You did not pay a previous FOIA your request, the bureau that processes all the fees associated with your request, fee promptly. your request will send you a bill for or the anticipated fee is $30 or less, the (2) If you have previously failed to collection. bureau will: pay a fee within 30 calendar days of the (f) Form of payment. You should date of billing, the bureau will require submit a check or money order made (i) Promptly notify you of the you to: payable to the ‘‘Department of the estimated costs and ask you to provide Interior’’ or the bureau furnishing the (i) Pay the full amount owed plus any written assurance of payment of all fees information. The term United States or applicable interest penalties (see or fees up to a designated amount; and the initials ‘‘U.S.’’ should not be paragraph (g) of this section) and to (ii) Give you an opportunity to modify make an advance payment of the full included on the check or money order. your request at that time to reduce the amount of the estimated fee of the new Where appropriate, the official fee. request; or responsible for handling a request may (2) After the bureau begins processing (ii) Demonstrate that you have, in fact, require that payment by check be made your request, if it finds that the actual paid the prior fee. in the form of a certified check. Some cost will exceed the amount you (3) At the same time the bureau bureaus accept payment by credit card. previously agreed to pay, the bureau notifies you that an advance payment is Contact the bureau to determine what will: due, it will give you an opportunity to forms of payment it accepts. (i) Stop processing your request; modify your request to reduce the fee. (g) Failure to pay fees. The bill for (ii) Promptly notify you of the higher (d) Resolving the fee issue. The bureau collection or the response letter will amount and ask you to provide written will not start processing your request include a statement that interest will be assurance of payment; and until the fee issue has been resolved (see charged in accordance with the Debt VerDate 0ct<09>2002 16:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64537 Collection Act of 1982, as amended (31 (4) A statement that the denial may be searching for records in an electronic U.S.C. 3717) and implementing appealed within 30 workdays after the form/format, except where it would regulations, if the fees are not paid date of the denial letter to the FOIA interfere significantly with the bureau’s within 30 calendar days of the date of Appeals Officer (see Appendix A to this automated information systems. the bill. This requirement does not part) under the procedures in § 2.30. (b) In response to your request, the apply if the requester is a state, local, or bureau will do one of two things: tribal government. § 2.20 When will bureaus grant (1) Include the requested records with discretionary fee waivers? the response letter or notify you of how, § 2.19 When will bureaus waive fees? (a) A bureau may waive fees at its when, and where the records will be (a) Fees for processing your request discretion if a request involves: made available; or may be waived if you meet the criteria (1) Furnishing a copy of a document (2) Deny part or all of your request, listed in paragraph (b) of this section that the bureau has reproduced for free except that the bureau may, consistent and Appendix D to this part. The distribution; with Departmental policy, determine burden is on you to justify entitlement (2) Furnishing one copy of a personal that a discretionary release is to a fee waiver. Requests for fee waivers document (e.g., a birth certificate) to a appropriate under the particular are decided on a case-by-case basis. The person who has been required to furnish circumstances. Your request will be fact that you have received a fee waiver it for retention by the Department; denied or partially denied only if one of in the past does not mean you are (3) Furnishing one copy of the the nine statutory exemptions listed in automatically entitled to a fee waiver for transcript of a hearing before a hearing Appendix E to this part applies to all or every request you may submit, because officer in a grievance or similar part of the records you have requested. the essential element of any fee waiver proceeding to the employee for whom (c) Where a document contains both determination is whether the release of the hearing was held; exempt and nonexempt material, the the particular documents sought in the (4) Furnishing records to donors with bureau will generally separate and request will likely contribute respect to their gifts; release the nonexempt information. significantly to public understanding of (5) Furnishing records to individuals When disclosing a record in part, the the operations or activities of the or private nonprofit organizations bureau will indicate on the released Government. The bureau will rely on having an official, voluntary or portion of the record how much the fee waiver justification you have cooperative relationship with the information was deleted, unless doing submitted in your request letter. If you Department to assist the individual or so would harm an interest protected by do not submit sufficient justification, organization in working with the the exemption used to withhold the your fee waiver request will be denied. Department; information. Further, if technically The bureau may, at its discretion, (6) Furnishing a reasonable number feasible, the amount of information communicate with you to request records to members of the U.S. deleted and the exemption used to additional information if necessary. Congress, state, local, and foreign withhold the information will be However the bureau must make a governments, public international indicated where the deletion is made. If determination on the fee waiver request organizations, and Indian tribes, when the nonexempt material is so within the statutory time limit, even if to do so without charge is an intertwined with the exempt material the agency has not received such appropriate courtesy, or when the that disclosure of it would leave only additional information. In certain recipient is carrying on a function meaningless words and phrases, the circumstances, a partial fee waiver may related to that of the Department and to entire portion may be withheld. be appropriate, if some, but not all, of do so will help to accomplish the work (d) If a bureau denies your request for the requested records are likely to of the Department; records in whole or in part, the bureau’s contribute significantly to public (7) Furnishing records when to do so response will include: understanding of the operations and is in conformance with generally (1) A reference to the specific activities of the Government. established business custom (e.g., exemption or exemptions authorizing (b) Bureaus will waive fees (in whole furnishing personal reference data to the withholding; or part) if disclosure of all or part of the prospective employers of former (2) An explanation of the reason(s) for information is in the public interest Department employees); or the denial; (8) Furnishing one copy of a single (3) An estimate of the volume of because its release— record in order to assist the requester in information being withheld. The bureau (1) Is likely to contribute significantly obtaining financial benefits to which he will make a reasonable effort to estimate to public understanding of the or she may be entitled (e.g., veterans or the volume of any records denied, or operations or activities of the their dependents, employees with portions of records (e.g., 100 pages, 4 Government; and Government employee compensation Federal Record Center boxes, 1,000 (2) Is not primarily in the commercial kilobytes, etc.), unless such an estimate claims). interest of the requester. would harm an interest protected by the (b) You cannot appeal the denial of a (c) If a bureau denies your request for exemption used to withhold the discretionary fee waiver. a fee waiver, it will notify you, in information. writing, of the following: § 2.21 How will the bureau respond to my (4) The name(s) and title(s) of the (1) The basis for the denial, including request? person(s) responsible for the denial; a full explanation of why your fee (a) After all the criteria in §§ 2.8 and (5) The name and title of the Office of waiver request did not meet DOI’s fee 2.10 have been met, the bureau will the Solicitor attorney consulted; and waiver criteria (see paragraph (b) of this make a reasonable effort to search for (6) A statement that the denial may be section and Appendix D to this part); records responsive to your request. In appealed to the FOIA Appeals Officer (2) The name(s) and title(s) or determining which records are (see Appendix A to this part), within 30 position(s) of each person responsible responsive to your request, the bureau workdays of the date of the denial letter for the denial; will include any records in its or 30 workdays after the records have (3) The name and title of the Office of possession and control as of the date it been released under the procedures in the Solicitor attorney consulted; and begins its search. This will include § 2.30. VerDate 0ct<09>2002 16:47 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 64538 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations (e) If records do not exist within DOI, possession, but which the bureau (2) The bureau has reason to believe cannot be located, are not reasonably believes may be in the possession of that the information may be protected described, or if a procedural issue another Federal agency, the bureau will under exemption (4). remains unresolved (e.g., a fee issue), return your request and advise you to (b) The notice to the submitter will— the bureau will respond to you in submit it directly to the other agency. If (1) Include a copy of the FOIA writing, including the following you still believe that the records exist request. information, as applicable: within DOI, you should notify the (2) Describe the information requested (1) An explanation of the basis of the bureau FOIA contact of any additional or include copies of the pertinent decision; information which leads you to believe records. (2) The name(s) and title(s) of the the records exist and where they might (3) Advise the submitter of the person(s) responsible for the decision; be found. Alternatively, you may treat procedures for objecting to the release of and such a response as a denial of records the requested material and specify the (3) A statement that the matter may be and file an appeal. time limit for responding. appealed within 30 workdays of the (2) If, in response to a request, a (4) Give the submitter no less than 10 date of the response, to the FOIA bureau locates documents that workdays, from receipt (or publication Appeals Officer under the procedures in originated with another Federal agency, as set forth in paragraph (c) of this § 2.30. it will refer the request, along with any section) of the bureau’s notice, to object (f) The bureau must consult with the responsive document(s), to that agency to the release and to explain the basis Office of the Solicitor if it is considering for a release determination and direct for the objection, if any. withholding a requested record or response. If the bureau refers the (5) Advise the submitter that: denying a fee waiver. documents to another agency, it will (i) Information contained in his/her (g) If any fees are due, the bureau will notify you of the referral in writing and objections may be subject to disclosure notify you in writing of the amount. provide the name of a contact at the under the FOIA if the bureau receives a (h) All bureau responses will include other agency. However, in the following FOIA request for it; and the name and telephone number of a situations, the bureau will make the (ii) If the submitter’s objections contact person in case you have release determination, after consulting contain commercial or financial questions concerning the response. with the originating agency: information and a requester asks for the (i) Requests for information objections under the FOIA, the (i) When the record is of primary concerning coal under the Mineral notification procedures of this interest to DOI (a record is of primary Leasing Act or the Mineral Leasing Act subsection will apply. interest to DOI if it was developed or for Acquired Lands are subject to (6) Advise the submitter that it is the prepared according to DOI regulations special rules (see Appendix F to this bureau, rather than the submitter, that is or directives, or in response to a DOI part). responsible for deciding whether the request); § 2.22 What happens if a bureau receives (ii) If DOI is in a better position than information will be released or a request for records it does not have or did the originating agency to assess whether withheld. not create? the record is exempt from disclosure; (7) If the submitter designated the (a) Consultations/referrals within DOI. (iii) If the originating agency is not material as confidential commercial or (1) If a bureau receives a request for subject to the FOIA; or financial information 10 or more years records not in its possession, but which (iv) When it is more efficient or before the request, request the it knows another bureau has or is likely practical depending on the submitter’s views on whether he/she to have, it will refer the request to that circumstances. still considers the information to be bureau(s) for response. It also will notify (3) If a bureau receives a request for confidential. you of the referral in writing and records which have been classified by (c) Where a large number of provide the name of a contact in the another agency under Executive Order submitters is involved, the bureau may, other bureau(s) to which the referral was 12958, Classified National Security rather than providing written notice to made. The time limit for responding to Information, or superseding Executive each submitter, publish a notice in a your request starts when the request order, it must refer the request to that manner reasonably calculated to reach reaches the bureau office that has the agency for response. the attention of the submitters (e.g., in records. newspapers/newsletters, the bureau’s (2) If a bureau (other than the Office § 2.23 How will a bureau handle a request Web site, or the Federal Register). of Inspector General) receives a request for commercial or financial information that (d) Whenever a bureau notifies a for records in its possession that another it has obtained from a person or entity submitter that he/she may be required to bureau created or is substantially outside the Federal Government? disclose information in response to a concerned with, it will consult with the (a) If a bureau receives a FOIA request FOIA request, it also will notify you that other bureau before deciding whether to for records containing commercial or it is giving the submitter an opportunity release or withhold the records. As an financial information submitted by a to review and comment on the material. alternative, the bureau may refer the person or entity outside the Federal (e) If the submitter has any objection request along with the records to that Government, under Executive Order to disclosure he/she must submit a bureau for direct response. It will notify 12600, Predisclosure Notification detailed written statement including the you of the referral in writing and Procedures for Confidential Commercial following: provide the name of a contact in the Information, or superseding Executive (1) The justification for withholding other bureau(s) to which the referral was order, the bureau must provide the any portion of the information under made. Such a referral does not restart submitter with prompt written notice of any exemption of the FOIA. In the case the statutory time limit for responding the request, except as provided in of exemption (4), there must be a to your request. paragraph (h) of this section, whenever: specific and detailed discussion of: (b) Consultations/referrals with (1) The submitter has designated the (i) Whether the Government required agencies outside DOI. (1) If a bureau information as confidential commercial the information in question to be receives a request for records not in its or financial information, or submitted, and if so, how substantial VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64539 competitive or other business harm information 15 workdays prior to her recommendations concerning the would likely result from release; or releasing it. releasability of the data, and the total (ii) Whether the submitter provided (i) The bureau will inform the cost incurred in searching for, the information voluntarily and, if so, submitter within 10 workdays of the reviewing, and providing the data to the how the information in question fits Department’s receipt of a court appropriate bureau FOIA contact. into a category of information that the complaint if you file a lawsuit for access (d) The bureau will review and submitter customarily does not release to any of the withheld records. consider the recommendations of the to the public. Similarly, the bureau will notify you recipient regarding the releasability of (2) A certification that the information within 10 workdays of the Department’s the requested data. However, it is the is confidential, has not been disclosed receipt of a court complaint if the bureau, rather than the recipient, that is to the public by the submitter, and is submitter files a lawsuit to prohibit the responsible for deciding whether the essentially non-public because it is not bureau from disclosing the records. information will be released or routinely available to the public from (j) If the bureau determines that the withheld. other sources. requested information is protected from (3) If not already provided, a § 2.26 Does the bureau provide multitrack release by exemption (4) of the FOIA, processing of FOIA requests? telephone number (where the submitter the bureau has no discretion to release can be reached during normal business (a) A bureau may use two or more the information as doing so would processing tracks to distinguish between hours, an e-mail address and a fax violate the Trade Secrets Act, a criminal number (if available). This information simple and complex requests based on provision found at 18 U.S.C. 1905. the amount of work and/or time needed is very important to help the bureau or Department communicate with the § 2.24 Is a submitter required to designate to process the request, including the submitter. information that is commercially or number of pages involved. (f) The bureau will review and financially sensitive? (b) If a bureau uses multitrack consider all objections to release that are No. If in the course of responding to processing, it will advise requesters in received within the time specified in the a FOIA request, a bureau cannot readily its slower track(s) of the criteria of its notice to the submitter. However, it is determine whether the information faster track(s). For example, a bureau obtained from a person is commercially using multitrack processing may the bureau, rather than the submitter, or financially sensitive information, the provide requesters in its slower track(s) that is responsible for deciding whether bureau will obtain and consider the with an opportunity to limit the scope the information should be released or views of the submitter of the of their requests in order to qualify for withheld. If a submitter fails to respond information and provide the submitter faster processing within the specified to the bureau within the time limits an opportunity to object to any decision limits of the bureau’s faster track(s). A specified in the notice, the bureau will to disclose the information. bureau doing so will contact the presume that the submitter has no requester by telephone or in writing, objection to disclosure of the § 2.25 How will a bureau handle a request whichever is more efficient in each case. information. for Federally-funded research data in the (g) If the bureau decides to release possession of a private entity? § 2.27 How will a bureau handle a request records over the submitter’s objections, for information that is contained in a it will inform the submitter and you in When published research findings are Privacy Act system of records? (See DOI’s writing. The notice to the submitter will produced under a grant or other Federal Privacy Act regulations (Subpart G of this be sent by certified mail, return receipt assistance, and the findings are used by part) for additional information.) requested, to the submitter’s last known a bureau in developing an agency (a) When you request information address and will include copies of the action, e.g., a policy or regulation, pertaining to yourself that is contained records the bureau intends to release research data related to such findings in a Privacy Act system of records and the bureau’s reasons for deciding to are considered agency records even if applicable to you (i.e., the information release them. The notice also will they are in the possession of the contained in the system of records is inform the submitter that it intends to recipient of the Federal financial retrieved by the bureau using your name release the records 10 workdays after assistance (recipient). or other personal identifier), the request receipt of the notice by the submitter. (a) If you submit a FOIA request for will be processed under both the FOIA (h) The bureau will not consult with such research data, the bureau will and the Privacy Act. If you request the submitter if: require the recipient to provide the information about yourself, you must (1) The bureau responsible for the information to it within a reasonable submit certain identifying information, decision determines that the amount of time, so the bureau can usually an original signature (see the information is exempt from disclosure; consider the data for release to the appropriate Privacy Act system notice (2) The information has been lawfully public under the FOIA. and, Subpart G of this part) before the published or otherwise made available (b) The bureau will notify you that it bureau will process your request. (Note: to the public, such as in response to an may charge you for any additional fees If you request information about earlier FOIA request or if the submitter incurred as a result of obtaining the yourself that is not covered by the has made the information public; research data from the recipient. This Privacy Act, e.g., the information may (3) Disclosure of the information is fee is in addition to any fees the bureau be filed under another subject, such as required by statute (other than the may charge to process your request an organization, activity, event, or an FOIA) or regulation (other than this under the FOIA. investigation not retrievable by a name subpart); (c) The bureau will forward a copy of or personal identifier, the request will (4) Disclosure of the information is the request to the recipient, who is be treated only as a FOIA request.) prohibited by statute; or responsible for searching for and (b) The Privacy Act never prohibits (5) The designation of confidentiality reviewing the requested information in disclosure of material that the FOIA made by the submitter appears accordance with DOI’s FOIA regulations requires to be released. Both a Privacy obviously frivolous. However, the (43 CFR part 2). The recipient will Act and a FOIA exemption must apply bureau will notify the submitter of any forward a copy of any responsive to withhold information from you if the final decision to disclose the records that are located, along with his/ information you seek is contained in a VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 64540 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations Privacy Act system of records applicable where you believe the search conducted with the words: ‘‘FREEDOM OF to you. was not adequate. In this latter instance, INFORMATION APPEAL.’’ (c) Sometimes a request for Privacy you may be able to provide additional Act information is submitted by a ‘‘third information that may assist the bureau § 2.31 How will DOI respond to my appeal? party’’ (an individual other than the in locating records. However, if you (a) Appeals will be decided by the person who is the subject of the Privacy wish to file an appeal, it must be FOIA Appeals Officer. When necessary, Act record). If you request Privacy Act received by the FOIA Appeals Officer the FOIA Appeals Officer will consult information about another individual, within the time limits in § 2.29. other appropriate offices, including the the material will not be disclosed Office of the Solicitor (in the case of all without prior written approval by that § 2.29 How long do I have to file an denials of information and fee waivers, appeal? and other technical issues as necessary). individual unless— (1) The release is provided for under (a) Appeals covered by §§ 2.28(a)(1), (b) The final decision on an appeal one of the Privacy Act conditions of (2), and (4) thru (6). Your appeal must will be in writing and will state the disclosure (5 U.S.C. 552a(b)), one of be received by the FOIA Appeals Officer basis for DOI’s decision as follows: which is that Privacy Act information is no later than 30 workdays after the date (1) Decision to release or withhold releasable if it is required to be released of the final response or 30 workdays records. under the FOIA, or after receipt of any records that are (i) If the FOIA Appeals Officer (2) In most circumstances, if the provided to you. decides to release the withheld records individual is deceased. See § 2.8(d)(4). (b) Appeals covered by § 2.28(a)(3). or portions thereof, he/she will make (d) In handling a request covered by You may file an appeal any time after the records available or instruct the paragraph (a) of this section, the fee the time limit for responding to your appropriate bureau to make them provisions and time limits under the request has passed. available as soon as possible. FOIA will apply, except that with regard (c) Appeals covered by § 2.28(a)(7). (ii) If the FOIA Appeals Officer to information that is subject to the You should file an appeal as soon as decides to uphold in whole or part the Privacy Act, the bureau will charge only possible. denial of a request for records, he/she for duplication and not for search and § 2.30 How do I file an appeal? will advise you of your right to obtain review time (see Appendix C to this judicial review. (a) You must submit your appeal in part). There will be no charge if the fee (2) Non-possession of records. If the writing, i.e., by mail, fax or e-mail, to for processing the request is $30 or less. FOIA Appeals Officer decides that the the FOIA Appeals Officer, U.S. Department of the Interior (see requested records exist, the bureau that Subpart D—FOIA Appeals has the records will issue a response to Appendix A for the address). Your § 2.28 When may I file an appeal? appeal must include the information you promptly and the FOIA Appeals (a) You may file an appeal when: specified in paragraph (b) of this Officer will close the file on your (1) Records or parts of records have section. Failure to send your appeal appeal. If the FOIA Appeals Officer been withheld; directly to the FOIA Appeals Officer decides that the requested records (2) The bureau informs you that you may result in a delay in processing. cannot be located or do not exist, he/she have not adequately described the (b) Your appeal must contain copies will advise you of your right to treat the records you are seeking, or that it does of all correspondence between you and decision as a denial and seek judicial not possess responsive records and you the bureau, including your request and review. have reason to believe it does or you the bureau’s response (if there is one). (3) Non-response to a FOIA request. If question the adequacy of the bureau’s DOI will not begin processing your a bureau has not issued an appropriate search for responsive records; appeal and the time limits for response to your FOIA request within (3) A decision has not been made on responding to your appeal will not the 20-workday statutory time limit, the your request within the time limits begin to run until these documents are FOIA Appeals Officer will direct the provided in § 2.12; received. bureau to issue a response directly to (4) The bureau did not address all (c) You also should include in as you as soon as possible. If the bureau aspects of your request for records; much detail as possible any reason(s) responds to your request within 20- (5) You believe there is a procedural why you believe the bureau’s response workdays after receipt of the appeal, the deficiency (e.g., fees are improperly was in error. FOIA Appeals Officer will close the file calculated); (d) Include your name and daytime on your appeal. Otherwise, the FOIA (6) A fee waiver has been denied; or telephone number (or the name and Appeals Officer will advise you that you (7) A request for expedited processing telephone number of an appropriate may treat the lack of a response by the has been denied or not responded to on contact), e-mail address and fax number bureau as a denial of your appeal and time. (Special procedures apply to this (if available), in case DOI needs seek judicial review. type of appeal (see §§ 2.14, 2.29(c), and additional information or clarification of (4) Incomplete response to a FOIA 2.32(b)). An appeal of this type relates your appeal. request. If a bureau has not issued a only to the request for expedited (e) If you file an appeal concerning a complete response to your FOIA processing and does not constitute an fee waiver denial or a denial of request, the FOIA Appeals Officer will appeal of your underlying request for expedited processing, you should, in direct the bureau to issue a complete records. addition to complying with paragraph response directly to you as soon as (b) Before filing an appeal, you may (b) of this section, demonstrate fully possible, and provide you with the wish to communicate with the contact how the criteria in § 2.19(b) (see name and telephone number of a person listed in the FOIA response or Appendix D) or § 2.14(a) are met. You contact person. The FOIA Appeals the bureau’s FOIA Officer to see if the also should state in as much detail as Officer will close your FOIA appeal and issue can be resolved informally. possible why you believe the initial advise you that you may treat the Informal resolution of your concerns decision was incorrect. incomplete response by the bureau as a may be appropriate where the bureau (f) All communications concerning denial of your appeal and seek judicial has not responded to your request or your appeal should be clearly marked review. VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64541 (5) Procedural deficiencies. If the (b) If you request expedited (1) The Department will notify the FOIA Appeals Officer decides that the processing of your appeal, you must submitter within 10 workdays of receipt bureau was in error, he/she will instruct demonstrate to the Department’s of the court complaint if you file a the bureau to correct the error and satisfaction that the appeal meets one of lawsuit seeking access to any records advise you accordingly. If the FOIA the criteria under § 2.14(a). The FOIA found on appeal to be protected from Appeals Officer decides that the bureau Appeals Officer will advise you whether release by exemption (4). acted properly, he/she will deny your the Department will grant expedited (2) The Department will notify you appeal and advise you of your right to processing within 10 calendar days of within 10 workdays of receipt of the seek judicial review. its receipt of your appeal. If the FOIA court complaint if the submitter files a (6) Fee waiver denials. If the decision Appeals Officer decides to grant lawsuit requesting the court to prohibit is to grant your request for a fee waiver, expedited processing, he/she will give the Department from releasing the FOIA Appeals Officer will advise your appeal priority and process it information it alleges qualifies for the appropriate bureau of the ahead of other pending appeals. protection under exemption (4). Department’s decision and instruct the (c) If you have not received a decision bureau to proceed with processing the on your appeal within 20 workdays, you Subpart E—FOIA Annual Report request or to refund any monies you have the right to seek review in a have paid. If the decision is to deny the District Court of the United States (see § 2.34 Where can I get a copy of DOI’s fee waiver request, the Department will FOIA annual report? 5 U.S.C. 552(a)(4) and (6)). In the event advise you of your right to seek judicial that the Department is unable to reach Under 5 U.S.C. 552(e), DOI is required review. You also should contact the a decision within the given time limits, to prepare an annual report regarding its bureau office to make further the FOIA Appeals Officer will notify FOIA activities. The report includes arrangements to process your request if you of the reason for the delay and the information about FOIA requests, you still wish to obtain the records. right to seek judicial review. appeals, and litigation against the (7) Denial of expedited processing. If Department. Copies of DOI’s annual the FOIA Appeals Officer decides to § 2.33 How will the Department notify you FOIA report may be obtained from the grant expedited processing, he/she will and the submitter of commercial or Departmental FOIA Officer or by direct the bureau to process your financial information when it makes an appeal decision concerning such contacting DOI’s Library which is request as soon as practicable. If your information? located at the C Street entrance of the request for expedited processing is Main Interior Building (MIB), 1849 C denied on appeal, the FOIA Appeals (a) Notice of appeal decision. If the Department decides on appeal to release Street, NW., Washington, DC 20240 (see Officer will advise you of your right to Appendix A to this part). You may seek judicial review of the denial of records over the objections of a submitter who has advised DOI that the access the annual reports electronically expedited processing. by visiting DOI’s FOIA home page (see information is protected from release by § 2.32 How long does DOI have to respond exemption (4), the Department will Appendix B to this part for the Internet to my appeal? advise you and the submitter that it address). (a) The statutory time limit for intends to release the records 10 4. Appendices A and B to part 2 are responding to an appeal is 20 workdays workdays after the notice to the revised and Appendices C through F to after receipt of an appeal meeting the submitter regarding the appeal decision. part 2 are aldded to read as follows: requirements of § 2.30. (b) Notice of litigation. BILLING CODE 4310–RK–P VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 64542 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations Appendix A To Part 2—Department of the Interior FOIA/Public Affairs Contacts and Reading Rooms ER21OC02.020</GPH> VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4725 E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64543 ER21OC02.021</GPH> VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4725 E:\FR\FM\21OCR1.SGM 21OCR1 64544 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations ER21OC02.022</GPH> VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4725 E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64545 ER21OC02.023</GPH> VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4725 E:\FR\FM\21OCR1.SGM 21OCR1 64546 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations ER21OC02.024</GPH> VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4725 E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64547 ER21OC02.025</GPH> VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4725 E:\FR\FM\21OCR1.SGM 21OCR1 64548 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations ER21OC02.026</GPH> VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4725 E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64549 ER21OC02.027</GPH> VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4725 E:\FR\FM\21OCR1.SGM 21OCR1 64550 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations BILLING CODE 4310–RK–C 3. DOI Reference Guide for Obtaining 9. Index of Frequently Requested Note: For more information on FOIA, Information: http://www.doi.gov/foia/ Documents: http://www.doi.gov/foia/ including the most current listing of FOIA foitabl.htm freq.html Contacts, visit DOI’s FOIA home page at 4. List of DOI Public Affairs Offices: http:/ 10. DOI’s Frequently Requested http://www.doi.gov/foia/. /www.doi.gov/foia/list.html Documents: http://www.doi.gov/foia/ 5. DOI FOIA Contacts: http://www.doi.gov/ frrindex.html Appendix B to Part 2—Internet foia/contacts.html 11. FOIA Annual Reports to Congress: 6. DOI FOIA Regulations (43 CFR, Part 2, http://www.doi.gov/foia/report.html Addresses Subparts A and B): http://www.doi.gov/foia/ 12. DOI’s Library: http://library.doi.gov 1. Department of the Interior (DOI) Home foiaregs.html 13. General Records Schedule 14, Page: http://www.doi.gov 7. DOI FOIA Policy and Guidance: http:// Information Services Records: http:// 2. DOI FOIA Home Page: http:// www.doi.gov/foia/policy.html ardor.nara.gov/grs/grs14.html www.doi.gov/foia/ 8. Electronic Reading Room: http:// 14. DOI Records Management Program: ER21OC02.028</GPH> www.doi.gov/foia/readroom.html http://www.doi.gov/ocio/records/ VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations 64551 15. DOI Privacy Act Program: http:// bureau will charge you for any special salary plus DC locality payment), plus 16 www.doi.gov/ocio/privacy/ handling or services performed in connection percent for benefits, of employees in the 16. DOI Privacy Act Officers: http:// with processing your request and/or appeal following three categories. The average grade www.doi.gov/ocio/privacy/ under Subparts C and D of this part. The was established by surveying the bureaus to doi_privacy_act_officers.htm following fees will be used by all bureaus of obtain the average grade of employees 17. DOI Privacy Act Regulations: http:// the Department; these fees apply to services conducting FOIA searches and reviews. Fees www.doi.gov/foia/43cfrsub.html performed in making documents available for will be increased annually consistent with 18. DOI Privacy Act Systems of Records public inspection and copying under Subpart Congressionally approved pay increases. Fees Notices: http://www.access.gpo.gov/su_docs/ B of this part as well. The duplicating fees are charged in quarter hour increments. aces/1999_pa.html also are applicable to records provided in (a) Clerical—Based on GS–6, Step 5, pay 19. FirstGov Portal: http://www.firstgov.gov response to requests made under the Privacy (all employees at GS–7 and below) Act. Fees will not be charged under either the Note: See DOI’s FOIA home page at http:/ (b) Professional—Based on GS–11, Step 7, FOIA or the Privacy Act where the total /www.doi.gov/foia/ for the most current pay (all employees at GS–8 through GS–12) amount of fees for processing the request is listing of FOIA-related website addresses. (c) Managerial—Based on GS–14, Step 2, $30 or less (see § 2.16(b)(2)), where the requester has met the requirements for a pay (all employees at GS–13 and above) Appendix C to Part 2—Fee Schedule Note: Fees for the current fiscal year are statutory fee waiver, or where the bureau has If you submit a FOIA request, the bureau granted a discretionary fee waiver (see posted on DOI’s FOIA home page (see will charge you to search for, review, and §§ 2.19 and 2.20). Appendix B). If you do not have access to the duplicate the requested records according to (1) Search and review (review applies to Internet, please call the Departmental FOIA your fee category (see §§ 2.16 and 2.17) and commercial-use requesters only). Fees are Officer (see Appendix A) for a copy of the fee the following fee schedule. In addition, the based on: the average hourly salary (base schedule. Fee (2) Duplication: Pages no larger than 8.5 × 14 inches, when reproduced by standard office copy- $.13 per page ($.26 for double-sided copying) ing machines. Color copies of pages no larger than 8.5 × 11 inches ............................................. $.90 per page Pages larger than 8.5 × 14 inches ........................................................................... Direct cost to DOI Color copies of pages no larger than 11 × 17 inches .............................................. $1.50 per page Photographs and records requiring special handling (e.g., because of age, size, Direct cost to DOI or format). (3) Electronic records: Charges for services related to processing requests for electronic records ............ Direct cost to DOI (4) Certification .......................................................................................................... Fee 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 Postage or Delivery charge are express mail or overnight delivery. (6) Other Services: Cost of special services or materials, other than those provided for by this fee Direct cost to DOI schedule, when requester is notified of such costs in advance and agrees to pay them. Appendix D to Part 2—Fee Waiver Your request for a fee waiver must address disclose the information in a manner which Criteria each of these criteria. will be informative to a reasonably broad (1) How do the records concern the audience of persons interested in the subject. If you are seeking a fee waiver, it is your operations or activities of the Government? (iv) Do you have the ability and intention responsibility to provide detailed (2) If the records concern the operations or to disseminate the information to the general information to support your request. You activities of the Government, how will public or a reasonably broad audience of must submit this information with your FOIA disclosure likely contribute to public persons interested in the subject? request. You should explain the significance understanding of these operations and (A) How and to whom do you intend to of the release of the information to the activities? disseminate the information? public’s understanding of the Government’s (i) How are the contents of the records you (B) How do you plan to use the information operations and activities based on your are seeking meaningfully informative on the to contribute to public understanding of the understanding of the type of information that Department’s or a bureau’s operations and Government’s operations or activities? you are requesting. Each fee waiver request activities? Is there a logical connection (3) If there is likely to be a contribution to is judged on its own merit—we do not grant between the content of the records and the public understanding, will release of the ‘‘blanket’’ fee waivers, i.e., obtaining a fee operations or activities you are interested in? requested records contribute significantly to waiver once does not mean you will obtain (ii) Other than enhancing your knowledge, public understanding? a subsequent fee waiver. Please note that how will disclosure of the requested records (i) Is the information being disclosed new? inability to pay is not sufficient to justify a contribute to the understanding of the public (ii) Does the information being disclosed fee waiver. at large or a reasonably broad audience of confirm or clarify data which has been (a) The statutory requirement for granting persons interested in the subject? released previously? a fee waiver is that release of the information (iii) Your identity, vocation, qualifications, (iii) How will disclosure increase the level must be in the public interest because it— and expertise regarding the requested of public understanding of the operations or (1) Is likely to contribute significantly to information (whether you are affiliated with activities of the Department or a bureau that public understanding of the operations and a newspaper, college or university, have existed prior to disclosure? activities of the Government; and previously published articles, books, etc.) (iv) Is the information already publicly (2) Is not primarily in your commercial may be relevant factors. However, merely available? If the Government previously has interest. stating that you are going to write a book, published the information you are seeking or (b) In deciding whether you are entitled to research a particular subject, or perform it is routinely available to the public in a a fee waiver, the bureau will consider the doctoral dissertation work, is insufficient, library, reading room, through the Internet, or criteria in paragraphs (1) through (4), below. without demonstrating how you plan to as part of the administrative record for a VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1 64552 Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / Rules and Regulations particular issue (e.g., the listing of the spotted available by law to a party other than an (3) Category C. Information obtained from owl as an endangered species), it is less agency in litigation with the agency; commercial sources which the commercial likely that there will be a significant (6) Personnel and medical files and similar source acquired while not under contract contribution from release. files, the disclosure of which would with the United States Government; (4) Would disclosure be primarily in your constitute a clearly unwarranted invasion of (4) Category D. Information provided to the commercial interest? personal privacy; Secretary by a Federal department or agency (i) Do you have a commercial interest that (7) Records or information compiled for under 30 U.S.C. 208–1(e) (and corresponding would be furthered by disclosure? A law enforcement purposes, the release of information under 30 U.S.C. 351–360); and commercial interest is a commercial, trade, or which: (5) Category E. The fair-market value of profit interest as these terms are commonly (A) Could reasonably be expected to coal to be leased and comments received by understood. Your status as ‘‘profitmaking’’ or interfere with enforcement proceedings; the Secretary with respect to such value. ‘‘non-profitmaking’’ is not the deciding (B) Would deprive a person of a right to a (c) Availability of information. Information factor. Not only profitmaking entities, but fair trial or an impartial adjudication; obtained by the Department from various other organizations or individuals may have (C) Could reasonably be expected to sources will be made available to the public a commercial interest to be served by constitute an unwarranted invasion of as follows: disclosure, depending on the circumstances personal privacy; (1) Category A—Information. Category A involved. (D) Could reasonably be expected to information must not be disclosed to the (ii) If you do have a commercial interest disclose the identity of a confidential source; public until after the areas to which the that would be furthered by disclosure, would (E) Would disclose techniques, procedures, information pertains have been leased by the disclosure be primarily in that interest? or guidelines for law enforcement Department, or until the Secretary Would the public interest in disclosure be investigations or prosecutions if such determines that release of the information to greater than any commercial interest you or disclosure could reasonably be expected to the public would not damage the competitive your organization may have in the risk circumvention of the law; or position of the holder of the exploration documents? If so, how would it be greater? (F) Could reasonably be expected to license, whichever comes first. (iii) Your identity, vocation, and the endanger the life or physical safety of any circumstances surrounding your request are (2) Category B—Information. Category B individual. information must not be withheld from the all factors to be considered in determining (8) Information contained in or related to whether disclosure would be primarily in public; it will be made available by means of examination, operating, or condition reports, and at the time of open filing or publication your commercial interest. For example: prepared by, or on behalf of, or for the use (A) If you are a representative of a news by USGS. of an agency responsible for regulating or (3) Category C—Information. To the extent media organization seeking information as supervising financial institutions; and part of the news gathering process, we will Category C information is proprietary, such (9) Geological and geophysical information information must not be made available to presume that the public interest outweighs and data, including maps, concerning wells. your commercial interest. the public until after the areas to which the (B) If you represent a business/corporation/ Appendix F to Part 2—Mineral Leasing information pertains have been leased by the association or you are an attorney Act and Mineral Leasing Act for Department. representing such an organization, we will (4) Category D—Information. To the extent Acquired Lands—Special Rules Category D information is proprietary, the presume that your commercial interest outweighs the public interest unless you (a) Definitions. As used in the section: Department will withhold the information demonstrate otherwise. (1) Exploration license means a license from the public for the length of time the (c) If the bureau cannot make a issued by the Secretary of the Interior to department or agency providing the determination based on the information you conduct coal exploration operations on land information agreed to when it obtained the have provided, it may ask you for additional subject to the Mineral Leasing Act, under 30 information. justification regarding your request. U.S.C. 201(b), or subject to the Mineral (5) Category E—Information. Category E Leasing Act for Acquired Lands, under 30 information must not be made public until Appendix E to Part 2—FOIA U.S.C. 351–360. the lands to which the information pertains Exemptions (2) Fair-market value of coal to be leased have been leased, or until the Secretary has Under the FOIA (5 U.S.C. 552(b)), there are means the minimum amount of a bid the determined that its release prior to the nine exemptions which may be used to Secretary is willing to accept in leasing coal issuance of a lease is in the public interest. protect information from disclosure. The within leasing tracts offered in general lease [FR Doc. 02–25970 Filed 10–18–02; 8:45 am] Department has paraphrased the exemptions, sales or reserved and offered for lease to BILLING CODE 4310–RK–P below, for your information. The paraphrases public bodies, including Federal agencies, are not intended to be interpretations of the rural electric cooperatives, or non-profit exemptions. corporations controlled by any of such (1) National security information entities, under 30 U.S.C. 201(a)(1) or 30 FEDERAL COMMUNICATIONS concerning national defense or foreign U.S.C. 351–360. COMMISSION policy, provided that such information has (3) Information means data, statistics, been properly classified, in accordance with samples and other facts, whether analyzed or 47 CFR Part 73 an Executive Order; processed or not, pertaining to Federal coal (2) Information related solely to the resources. [DA 02–2228] internal personnel rules and practices of an (b) Applicability. This Appendix applies to agency; the following categories of information: Radio Broadcasting Services; Various (3) Information specifically exempted from (1) Category A. Information provided to or Locations disclosure by statute (other than the Privacy obtained by a bureau under 30 U.S.C. Act or the Trade Secrets Act), provided that 201(b)(3) (and corresponding information AGENCY: Federal Communications such statute: under 30 U.S.C. 351–360) from the holder of Commission. (A) Requires that the matters be withheld an exploration license; ACTION: Final rule. from the public in such a manner as to leave (2) Category B. Information acquired from no discretion on the issue; or commercial or other sources under service SUMMARY: The Commission, on its own (B) Establishes particular criteria for contract with United States Geological motion, editorially amends the Table of withholding or refers to particular types of Survey (USGS) under 30 U.S.C. 208–1(b) FM Allotments to specify the actual matters to be withheld; (and corresponding information under 30 (4) Trade secrets and commercial or U.S.C. 351–360), and information developed classes of channels allotted to various financial information which is obtained from by USGS under an exploratory program communities. The changes in channel a person and is privileged or confidential; authorized by 30 U.S.C. 208–1 (and classifications have been authorized in (5) Inter-agency or intra-agency corresponding information under 30 U.S.C. response to applications filed by memorandums or letters, which would not be 351–360); licensees and permittees operating on VerDate 0ct<09>2002 14:53 Oct 18, 2002 Jkt 200001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\21OCR1.SGM 21OCR1