Federal Register: October 21, 2002 (Volume 67, Number 203)

DOCID: FR Doc 02-25970

SUBJECT CATEGORY:

Revision of the Freedom of Information Act Regulations and Implementation of the Electronic Freedom of Information Act Amendments of 1996

EFFECTIVE DATES: November 20, 2002.

DOCUMENT SUMMARY:

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

SUMMARY:

Electronic Freedom of Information Act Amendments of 1996; revisions,

SUPPLEMENTAL INFORMATION

Background

On July 16, 2001, the Department of the Interior published a proposed rule that revised its existing regulations under the FOIA and added new provisions implementing the Electronic FOIA Amendments. See 66 FR 36966, July 16, 2001. Interested persons were afforded an opportunity to participate in the rulemaking through submission of written comments on the proposed rule. The Department received three responses to its proposed rule. The Department has adopted several of the modifications suggested by the commenters and has made other revisions to its proposed rule for clarity as well.

The revision of Part 2, Subparts A and B, incorporates changes to the language and structure of the regulations and adds new provisions to implement the EFOIA (Public Law 104231). New provisions implementing the amendments are found at Sec. 2.4(c) (electronic reading rooms), Sec. 2.9 (format of disclosure), Sec. 2.12 (timing of responses), Sec. 2.14 (expedited processing), Sec. 2.21(a) (electronic searches), Sec. 2.21(c) (marking deletions), Sec. 2.21(d)(3) (volume estimation), and Sec. 2.26 (multitrack processing).

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

Section 2.3(t) has been revised to clarify that the term ``review'' includes the time spent by bureau staff and attorneys considering any formal objection to disclosure made by a submitter under Sec. 2.23(f).

In light of the decision in Public Citizen v. Department of State, 276 F.3d 634 (D.C. Cir. 2001), DOI has revised Sec. Sec. 2.7(d) and 2.21(a) of the final rule. These sections now provide that in determining which records are responsive to a FOIA request, the bureau will consider any records in its
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possession and control as of the date it begins its search.

Requesters now have 30 workdays, instead of 20 workdays, to file an appeal after the date of DOI's response or receipt of any records provided (Sec. 2.29(a)).

New sections have been added, such as: (1) Sec. 2.24 concerning submitter designations; (2) Sec. 2.25 regarding requests for Federallyfunded research data; (3) Sec. 2.27 on handling a request for information contained in a Privacy Act system of records; and (4) Sec. 2.33 on providing notice to requesters and submitters concerning appeal decisions dealing with commercial or financial information.

Revisions to the Department's fee schedule may be found in Appendix C. The duplication charge will remain the same, at thirteen cents per page. Document search and review charges will increase to reflect the average hourly labor costs, plus 16 percent for benefits, of employees in the following three categories: Clerical, professional, and managerial. (The managerial category is new and designed to cover employees at the GS13 level and above.) The average grade for the clerical and professional categories has been adjusted in the final rule to more accurately reflect the hourly labor costs for those categories and to clarify the employee grade levels that are covered by each category.

Also, the criteria for determining fee waivers have been clarified to make it clear that DOI decides fee waiver requests on a casebycase basis and to ensure that requesters know that they must provide sufficient justification to support their fee waiver requests (Sec. 2.19 and Appendix D).

The new rule increases the dollar amount below which we will not bill a requester. Under the old regulations, we charged a fee only if it cost us more than $15 to process a FOIA request. Under the new regulations, we will charge a fee only if the cost is more than $30. The new fee provisions are located in Sec. 2.16(b)(2).

Paragraphs (c)(3) and (c)(4) of Appendix F, Mineral Leasing Act and Mineral Leasing Act for Acquired LandsSpecial Rules, have been revised to make them more consistent with the statutory provisions from which they are derived.

Because we have rewritten the FOIA regulations extensively, Subparts C through E of the old regulations will be redesignated as Subparts F through H in the final rule. While the final rule redesignates these three subparts, it does not revise Subparts G or H. Subpart F is revised to clarify that this Subpart applies to information pertaining to Federal coal resources on acquired lands, as well as to Federal coal leases on lands that are governed by the Mineral Leasing Act. The Mineral Leasing Act for Acquired Lands applies to acquired Federal lands; the Mineral Leasing Act applies to other Federal lands. Both have similar provisions. In Appendix F, paragraph (a)(3), the clause ``which fit within an exemption to the FOIA'' has been removed. The Mineral Leasing Act, 30 U.S.C. 201(b)(3), applies to information collected pursuant to that provision, regardless of whether the information is subject to an exemption under the FOIA. Therefore, the clause ``which fit within an exemption to the FOIA'' is not necessary.

The Department received three responses from commenters: the first, from a national trade association; the second, from a nonprofit consumer advocacy organization; and the third, from a statewide nonprofit public interest organization. Due consideration has been given to each of the comments received. A discussion of the comments follows.

Issue 1: One commenter suggested adding an amendment to the Department's final rule incorporating the requirements of Public Law 105277 which directed OMB to amend Section.36 of OMB Circular A110. OMB's revised Circular A110 articulates the procedures by which Federallyfunded research data that were used by the Federal Government in developing an agency action may be made available to the public under the FOIA.

Our Response: This comment has been adopted by the Department. A new section has been added to DOI's final rule (Sec. 2.25) which provides procedures for handling FOIA requests for Federallyfunded research data in the possession of a private entity.

Issue 2: One commenter indicated that the Department's regulations should retain the existing requirement to articulate a ``sound ground'' for a denial or partial denial of an information request. This commenter suggested that the bureau must not only cite legal authority for the denial but also must provide a brief explanation why, given the record(s) and exemption(s) at issue, it is appropriate for the bureau to invoke the exemption rather than exercise its discretion (except where prohibited by law) to waive the exemption and disclose the record(s) in accordance with guidance issued by the Attorney General in May 1997 and September 1999.

Our Response: Although the Department declines to adopt this commenter's suggestion, it has modified the proposed rule. The 1997 and 1999 guidance which this commenter references has been superseded by guidance issued by the Attorney General in October 2001. It is subject to further revision by this or subsequent administrations. There is nothing in the FOIA which requires the inclusion of the ``sound grounds'' language in the Department's FOIA regulations. In light of these considerations, the Department has changed the language to avoid conflicts with current and future Department of Justice (DOJ) guidance on this subject. DOI also has modified the language in Sec. 2.21(d)(2) to make clear that the bureau's response should include an explanation of the reasons for the denial of the request. Finally, Sec. 2.21(b)(2) of this rule has been revised to provide that a bureau may, consistent with Departmental policy, determine that a discretionary release is appropriate under the particular circumstances.

Issue 3: One commenter indicated that the availability of immediate judicial relief, without filing an appeal, was not clearly stated in the proposed rule, and suggested that the requester's right to sue be stated more explicitly throughout the regulations.

Our Response: DOI believes that it has given sufficient notice concerning a requester's right to file a lawsuit (see Sec. 2.12(a), Sec. 2.13(c), and Sec. 2.31(b)) and, accordingly, has declined to adopt this commenter's suggestion.

Issue 4: DOI received several comments from one individual concerning the fee waiver criteria that are included in Appendix D of the proposed regulations. This commenter objected to the requirement that a requester submit detailed information to support a fee waiver request, claiming that the requester may not be able to provide ``detailed information'' without having seen the information in the requested records. According to this commenter, the criteria in Appendix D could unreasonably restrict the availability of fee waivers by making it unreasonably difficult to show that disclosure of the information ``is likely to contribute significantly to public understanding of the operations or activities of the government.'' This commenter also discussed the potential value of previously released information, and the definition of ``public at large'' as it relates to fee waivers. Finally, this commenter pointed out an error in paragraph numbering in Appendix D.

Our Response: The intent of the Department's regulations is not to demand ``detailed information'' about
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the records being sought, but rather to clarify for the public the determinative factors that the Department considers when deciding whether to grant a fee waiver. Requesters then can adequately address these factors in their fee waiver requests. DOI has added the following language to the first paragraph of Appendix D in response to this commenter's concerns: ``You should explain the significance of the release of the information to the public's understanding of the Government's operations and activities based on your understanding of the type of information that your are requesting.''

DOI agrees with the comment on the potential value of previously released information. Confirmation or clarification of previously released information can be as important to public understanding of Government activities as the initial disclosure of information when it was new information. The Department has amended the regulations at paragraph (b)(3)(ii) of Appendix D to clarify this.

In response to another comment, DOI has added ``a reasonably broad audience of persons interested in the subject'' at the end of the initial question in paragraph (b)(2) (iv) of Appendix D. Finally, DOI has corrected the paragraph designation in Appendix D, Fee Waiver Criteria.

Issue 5: Two comments concerned expedited processing of requests. One commenter asked the Department to adopt an additional provision expediting the processing of records that are subject to multiple pending requests. This commenter also urged DOI to expand the criteria covering who may make a request for expedited processing to include organizations whose business includes disseminating information, even if disseminating information is not their primary business, i.e., non news media requesters when those entities have an urgent need to report on a Government activity.

Our Response: DOI has declined to adopt these comments. With regard to the first comment, while Congress did give agencies latitude to expand expedited processing to other categories, it also admonished agencies that being ``unduly generous'' in creating other categories for expedited processing ``would unfairly disadvantage other requesters.'' H.R. Rep. No. 104795, at 26 (1996). Accordingly, the Department declines to create a fourth expedited processing category for records subject to multiple requests. In response to the second issue, the language in Sec. 2.14(a)(2) has been modified to allow entities other than representatives of the news media to be considered for expedited processing. However, consistent with the language in the statute, their main professional activity or occupation must be information dissemination.

Issue 6: One commenter stated that while the bureaus should be allowed to develop their own standards for multitrack processing, these standards, once formulated, should be made available for public comment prior to implementation.

Our response: Prior to implementing a multitrack processing system, the Department will provide guidance in the Federal Register and/or on its FOIA website so that requesters will know how to draft their requests to qualify for a faster processing track (see amended language at Sec. 2.26(b)).

Issue 7: One commenter pointed out that Sec. 2.4(c)(iv) of the proposed rule contains an incomplete description of the records that should be in DOI's electronic reading rooms and thus does not comply fully with EFOIA.

Our Response: The Department has adopted this comment and has revised the language in Sec. 2.4(c)(1)(iv) of the final rule to read as follows: ``Copies of records that have been or are likely to become the subject of frequent requests under the FOIA and an index of those documents.'' DOI also has added a definition of ``frequently requested records'' under Sec. 2.3(l) for clarification purposes.

Issue 8: One commenter recommended that the Department provide the same notice to requesters whose requests have been referred to other Federal agencies as those whose requests have been referred to other DOI bureaus.

Our Response: DOI has amended the language in Sec. 2.22(b)(2) to provide for such notification in the event a bureau refers documents to another agency (the originating agency) for a release determination. However, if a bureau receives a request for records not in its possession, but which it believes may be in the possession of another Federal agency, it will return the request to the requester and advise him/her to submit it to the other agency directly.

Issue 9: One commenter indicated that if DOI receives a FOIA request for a record in its possession that originated with another agency (or with which another agency is substantially concerned), it should make the release determination after consulting with the originating agency. This commenter suggested that DOI should not refer the record to the originating agency if that agency has a backlog or the agency's policy on processing referrals will delay the response to the requester.

Our Response: The Department declines to adopt this comment. DOI must consider which agency is in a better position to make the proper release determination. Consideration of workload issues should not drive the determination of which agency is best suited to make the release determination. Use of workload considerations for this determination could result in improper releases.

Issue 10: Another commenter suggested that DOI should have a central location where all FOIA requests can be sent if the requester is not certain which bureau has the records he/she is seeking.

Our Response: DOI has not adopted this comment. The Department's FOIA regulations provide the public with sufficient notice on how requests will be processed. In response to another issue this commenter raised involving intrabureau requests, Sec. 2.10(b)(3) has been revised. Under Sec. 2.10(b)(3), as revised, if the request states that it seeks records from unspecified offices within the same bureau, the FOIA Contact will send the request to the Bureau FOIA Officer, who will refer it to those offices which, to the best of his/her knowledge, have or are likely to have responsive records.

Issue 11: One commenter stated that the standard for starting the statutory time limits should be the same for ``regular mail and e mailed'' requests/appeals, i.e., the time period for an electronic request/appeal should begin when the request is received, not when it is opened.

Our Response: The Department has adopted this comment. Sections 2.12(b), 2.30(b), and 2.32(a) of this rule have been changed to provide that the time limit for an electronic request/appeal begins when the request is received, not when it is opened.

Regulatory Planning and Review (E.O. 12866)

DOI has determined that this rule is not a ``significant regulatory action'' under the terms of Executive Order 12866 and therefore is not subject to OMB review because it is not likely to:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments, or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees,
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or loan programs or the rights or obligations of their recipients; or (4) Raise novel legal or policy issues.

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments, or the private sector. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.)

Takings (E.O. 12630)

In accordance with Executive Order 12630, this rule does not have any takings implications. It deals strictly with implementation of the FOIA within DOI. Therefore, a takings assessment is not required. Federalism (E.O. 13132)

In accordance with Executive Order 13132, this rule does not have Federalism implications as it deals strictly with implementation of the FOIA within DOI. Therefore, a Federalism assessment is not required. Civil Justice Reform (E.O. 12988)

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

Paperwork Reduction Act

This rule does not contain any information collection requirements for which OMB approval under the Paperwork Reduction Act (44 U.S.C. 35013520) is required.

National Environmental Policy Act

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act (42 U.S.C. 43214347) of 1969 is not required.

Executive Order 13211

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

List of Subjects in 43 CFR Part 2

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

Dated: October 2, 2002.
P. Lynn Scarlett,
Assistant SecretaryPolicy, Management and Budget.

Regulation Promulgation

For the reasons stated in the preamble, we amend Part 2 of Title 43 of the Code of Federal Regulations, as follows:

PART 2RECORDS AND TESTIMONY: FREEDOM OF INFORMATION ACT

1. The authority citation for Part 2 is revised to read as follows:

Authority: 5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701 and 43 U.S.C. 14601461. Appendix F to Part 2 also is issued under 30 U.S.C. 201209; 30 U.S.C. 351360.
Subparts C Through E [Redesignated as Subparts F Through H]

2. Subparts C through E are redesignated as Subparts F through H.

3. Subparts A and B are revised in their entirety and redesignated as Subparts A through E to read as follows:
Subpart AGeneral Information
Sec.
2.1 What do the regulations cover?
2.2 What is DOI's policy regarding release of records under the FOIA?
2.3 What terms do I need to know?
Subpart BInformation Routinely Available to the Public Without Filing a FOIA Request
2.4 How do I obtain information routinely available to the public? 2.5 Does DOI maintain an index of its reading room materials? 2.6 Will the Department accept written requests, including fax, e mail, or telephone requests, for routinely available information? Subpart CRequests for Records Under the FOIA
2.7 What do I need to know before filing a FOIA request?
2.8 What information do I include in my request?
2.9 May I specify the form or format of disclosure?
2.10 Where do I send my request?
2.11 Why is it important to send my request to the right office? 2.12 When can I expect the response?
2.13 When may the bureau take a time extension to respond to my request?
2.14 When can I get expedited processing?
2.15 Will I be charged fees?
2.16 How are fees determined?
2.17 How will my requester category affect the fees that I am charged?
2.18 How are fees assessed and collected?
2.19 When will bureaus waive fees?
2.20 When will bureaus grant discretionary fee waivers?
2.21 How will the bureau respond to my request?
2.22 What happens if a bureau receives a request for records it does not have or did not create?
2.23 How will a bureau handle a request for commercial or financial information that it has obtained from a person or entity outside the Federal Government?
2.24 Is a submitter required to designate information that is commercially or financially sensitive?
2.25 How will a bureau handle a request for Federallyfunded research data in the possession of a private entity?
2.26 Does the bureau provide multitrack processing of FOIA requests? 2.27 How will a bureau handle a request for information that is contained in a Privacy Act system of records? (See DOI's Privacy Act regulations (Subpart G of this part) for additional information) Subpart DFOIA Appeals
2.28 When may I file an appeal?
2.29 How long do I have to file an appeal?
2.30 How do I file an appeal?
2.31 How will DOI respond to my appeal?
2.32 How long does DOI have to respond to my appeal?
2.33 How will the Department notify you and the submitter of commercial or financial information when it makes an appeal decision concerning such information?
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Subpart EFOIA Annual Report
2.34 Where can I get a copy of DOI's FOIA annual report?
* * * * *
Subpart AGeneral Information
Sec. 2.1 What do the regulations cover?
(a) The regulations implement the Freedom of Information Act (FOIA), 5 U.S.C. 552, and contain the procedures by which the public may inspect and obtain copies of Department of the Interior (DOI or Department) records through the FOIA or by other means.
(b) They apply to all agency records as defined in Sec. 2.3(c). (c) The policy and procedures set forth in these regulations apply to all bureaus and offices of the Department.
(d) Nothing in the regulations will entitle you to any service or any record that is not required to be provided under the FOIA. (e) These regulations do not apply to records that fall under the law enforcement exclusions contained in 5 U.S.C. 552(c).
Sec. 2.2 What is DOI's policy regarding release of records under the FOIA?

It is our policy to make records of the Department available to the public consistent with the spirit of the FOIA and the Privacy Act. Sec. 2.3 What terms do I need to know?

For the purposes of this part, the following definitions apply: (a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as amended.
(b) Agency means any executive department, military department, Government corporation, Governmentcontrolled corporation, or other establishment in the executive branch of the Federal Government, or any independent regulatory agency.
(c) Agency record means any documentary material which is either created or obtained by an agency in the transaction of agency business and under agency control. See Sec. Sec. 2.21 and 2.25.
(1) Agency records include:
(i) Books, papers, maps, charts, plats, plans, architectural drawings, photographs, and microfilm;
(ii) Machinereadable materials such as magnetic tape and disks; (iii) Electronic records (including email messages);
(iv) Audiovisual material such as still pictures, sound and video recordings; and
(v) All other documentary materials, regardless of physical form, format or characteristics.
(2) This definition generally does not cover records of an individual which are:
(i) Created and maintained primarily for an individual's convenience;
(ii) Not subject to agency creation or retention requirements; and (iii) Not distributed to other agency employees for their official use.
(d) Bureau means any major component of the Department administering its own FOIA program. A list of these components is contained in Appendix A to this part.
(e) Commercialuse request means a request from or on behalf of a person who seeks information for a use or purpose that furthers the commercial, trade or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester falls into this category, the bureau will consider the identity of the requester and intended use of the records in addition to any other available information about the requester.
(f) Direct costs means those expenses that a bureau actually incurs in searching for and duplicating (and in the case of commercialuse requests, reviewing) records to respond to a FOIA request. Direct costs include, for example, the salary and benefits of the employee performing the work and the cost of operating duplicating equipment. Not included in direct costs are overhead expenses such as the costs of space and heating or lighting of the facility in which the records are kept.
(g) Duplication means making a copy of a record, or the information contained in it, to respond to a FOIA request. Copies can take the form of paper, microform, photographs, audiovisual materials, or electronic records (for example, magnetic tape or disk), among others. (h) Educational institution means a preschool, a public or private elementary or secondary school, or an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education, which operates a program of scholarly research. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scholarly research.
(i) Expedited processing means giving a FOIA request priority, and processing it ahead of other requests pending in the bureau because a requester has shown an exceptional need or urgency for the records (see Sec. 2.14).
(j) FOIA request means a written request (this includes facsimile (fax) and electronic mail (email)) made by any member of the public for Federal agency records.
(k) Freelance journalist means a representative of the news media who is able to demonstrate a solid basis for expecting publication through a news organization, even though not actually employed by it. A publication contract or past record of publication, or evidence of a specific freelance assignment from a news organization may indicate a solid basis for expecting publication.
(l) Frequently requested documents means documents that have been requested at least three times under the FOIA. It also includes documents the agency anticipates would likely be the subject of three or more requests.
(m) Multitrack processing means placing simple requests, requiring relatively minimal review, in one processing track and more voluminous and complex requests in one or more other tracks. Requests in each track are processed on a firstin/firstout basis.
(n) Noncommercial scientific institution means an institution that is not operated for commerce, trade or profit, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scientific research.
(o) Privacy Act request means a written request (paper copy with an original signature) made by an individual for information about himself or herself that is contained in a Privacy Act system of records. The Privacy Act applies only to U.S. citizens and aliens lawfully admitted for permanent residence. Therefore, only those individuals may make Privacy Act requests.
(p) Published research findings means research findings that are either:
(1) Published in a peerreviewed scientific or technical journal; or
(2) Publicly and officially cited by a Federal agency in support of an agency action that has the force and effect of law.
(q) Reading room materials means records (paper or electronic) that are required to be made available to the public under 5 U.S.C. 552(a)(2), as well as other records that a bureau, at its discretion, makes available to the public
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for inspection and copying without requiring the filing of a FOIA request.
(r) Representative of the news media means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term ``news'' means information that is about current events or that is (or would be) of current interest to the public. Examples of news media entities include, but are not limited to, newspapers, television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of ``news'') who make their products available for purchase or subscription by the general public. To be in this category, a requester must not be seeking the requested records for a commercial use. Further, a bureau normally will not consider requests for records involving news dissemination to be commercialuse requests.
(s) Research data means the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not such things as trade secrets, commercial information, personnel and medical information and any similar information which is protected under law.
(t) Review means the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. It also includes the deletion of exempt material or other processing necessary to prepare the record(s) for disclosure, including routine consultation among bureau staff and attorneys regarding the applicability of exemptions; and time spent considering any formal objection to disclosure made by a submitter under Sec. 2.23(f).
(u) Search means the process of looking for and retrieving agency records and information responsive to a request (manually or by automated means).
(v) Submitter means any person or entity outside the Federal Government from whom the Department directly or indirectly obtains commercial or financial information. The term includes, but is not limited to individuals, corporations, and state, local, tribal, and foreign governments.
(w) Workday means a regular Federal workday. It does not include Saturdays, Sundays, or Federal legal public holidays.
Subpart BInformation Routinely Available to the Public without Filing a FOIA Request
Sec. 2.4 How do I obtain information routinely available to the public?

A great deal of information is available to the public without filing a FOIA request. Examples are Departmental policies, procedures, and organizational descriptions. The following guidance will help you obtain this information. [Note: For copies of records that are not routinely available, you must submit a FOIA request to the DOI office where the records are located. Procedures for requesting records under the FOIA are provided in Subpart C of this part.]
(a) General.
(1) General information about DOI or one of its bureaus may be obtained by visiting DOI's home page (see Appendix B to this part for a list of Internet addresses) or by contacting the Office of Public Affairs/Communications for the appropriate bureau (see Appendix A to this part for a list of DOI contacts). Many documents are made available to the public through DOI's reading rooms. Some documents also may be available in DOI's electronic reading rooms on the Internet.
(2) Information on DOI's FOIA Program and a Reference Guide to assist you in obtaining various types of information are available in DOI's reading rooms, through the FOIA home page, or by contacting the Departmental FOIA Officer.
(3) To obtain information about specific records in DOI, you also may refer to:
(i) The index of documents frequently requested under the FOIA, which is available in DOI's reading rooms, through the FOIA home page, or by contacting one of the bureau FOIA Officers; and
(ii) The index and description of DOI's major information and record locator systems, which are available in DOI's reading rooms, through the FOIA home page, or by contacting one of the bureau FOIA Officers.
(4) Another source of information is DOI's Library, which contains over one million holdings dealing with a broad range of matters pertaining to the Department's mission. You may wish to visit the Library, which is located at the C Street entrance of the Main Interior Building, 1849 C Street, NW., Washington, DC 20240 (see Appendix A to this part). The Library is open to the public for onsite reference use from 7:45 a.m.5:00 p.m., MondayFriday (excluding Federal legal public holidays). Additional information regarding the Library's holdings and services may be obtained by visiting its home page (see Appendix B to this part).
(b) Published information and rules. Under 5 U.S.C. 552(a)(1), bureaus are required to publish certain information in the Federal Register for the guidance of the public, such as descriptions of their central and field organizations, functions, procedures, substantive rules, and statements of general policy.
(c) Reading room materials.
(1) Under 5 U.S.C. 552(a)(2), each bureau is responsible for making the information listed in paragraphs (c)(1)(i) through (v) of this section available for public inspection and copying unless the materials are promptly published and copies offered for sale. Bureaus must make any such records created on or after November 1, 1996, available by the Internet or by other computer telecommunication methods or electronic means as quickly as practicable.
(i) Final opinions rendered in the adjudication of cases. (ii) Policy statements and interpretations which have been adopted by DOI and are not published in the Federal Register.
(iii) Administrative staff manuals and instructions affecting the public.
(iv) Copies of records that have been or are likely to become the subject of frequent FOIA requests and an index of those documents. (v) A subjectmatter index of its reading room records (see Sec. 2.5).
(2) Bureaus may, at their discretion, make other records available for inspection and copying in reading rooms or via their home pages. (d) Inspection and copying of reading room materials.
(1) Reading room materials are available for inspection and copying at the locations listed in Appendix A to this part and, in some cases, through the Internet; however, not all records may be available in all locations.
(i) If you need assistance in determining the location and availability of the records you are seeking, contact the appropriate reading room or FOIA Contact listed in Appendix A to this part. (ii) If you file a FOIA request for reading room materials and the information you request is available on the Internet, the FOIA Contact should refer you to the appropriate Web site. If the reading room materials are not available electronically, the FOIA Contact may either send you the materials, or forward your request to the appropriate reading room and provide the name and telephone number of a [[Page 64533]]
staff member you may contact. You may, nevertheless, ask the bureau to process your request as any other FOIA request.
(2) A bureau may delete exempt information from some records before making them available for inspection and copying in a reading room. (See Sec. 2.21(c)). You may not appeal a bureau's decision to delete exempt information from a document it places in a public reading room. If you would like access to the entire record, you must submit a FOIA request under the procedures in Subpart C of this part. However, this does not guarantee that the entire record will be released. If you submit such a FOIA request and are not satisfied with the response, you may file an appeal as described in Sec. 2.28.
(3) There is no charge to inspect reading room materials. Copying services will be provided at the fees specified in Appendix C to this part. However, other fees may apply where a bureau has a statute that specifically requires the bureau to set fees for particular types of records.
(4) If you submit a fee waiver request for information in a reading room, it will be processed under the procedures in Sec. 2.19. Sec. 2.5 Does DOI maintain an index of its reading room materials?

Each bureau will maintain and make available for public inspection and copying a current subjectmatter index of its reading room materials (5 U.S.C. 552(a)(2)). The index will be available in the bureau's reading room(s) and in their electronic reading rooms on the Internet. Each index will be updated regularly.
Sec. 2.6 Will the Department accept written requests, including fax, email, or telephone requests, for routinely available information?

Yes. Although a request for this type of information is not a FOIA request, the bureau will send you the requested information and charge you for the copies, according to the fee schedule in Appendix C to this part. While the bureau will attempt to respond to oral requests (those made by telephone or otherwise) for routinely available information, you should submit complex requests in writing to avoid any risk of misunderstanding.
Subpart CRequests for Records under the FOIA
Sec. 2.7 What do I need to know before filing a FOIA request? (a) If the records you are seeking are not routinely available as described in Subpart B of this part, you must submit a FOIA request to the FOIA Contact at the bureau office where you believe the records are maintained (see Appendix A to this part). FOIA requests must be submitted in writing (this includes fax and email)DOI does not accept oral FOIA requests. Before submitting a request, you may find it useful to contact the appropriate bureau FOIA Contact or the Departmental FOIA Officer for additional information concerning DOI's FOIA Program. You may find the Department's Reference Guide, which is available electronically through the FOIA home page and in paper form as well, helpful in making your request.
(b) The FOIA requires that we release records unless they are protected by one of nine exemptions (see Appendix E to this part). (c) The Act does not require a bureau to answer questions that may be asked in a FOIA request.
(d)(1) In order for a record to be considered subject to your FOIA request, it must be in the bureau's possession and control at the time the bureau begins its search for responsive records. There is no obligation for the bureau to create or compile a record to satisfy a FOIA request (for example, by combining or compiling selected items from manual files, preparing a new computer program, calculating proportions, percentages, frequency distributions, trends and comparisons, or creating maps). Normally if a bureau is extracting information from an existing computer database, this would not constitute the creation of a new record. However, a bureau has the option of creating a new record if
(i) Doing so will provide a more useful response to the requester, (ii) It is less burdensome than providing the existing records, and (iii) The newly created record is fully responsive to the request. (2) The fee in this case will not be more than the fee for the individual records. Fees will be charged consistent with the schedule in Appendix C to this part.
Sec. 2.8 What information do I include in my request?
(a) Description of records.
(1) You must describe the requested records in enough detail to enable an employee familiar with the subject area of the request to locate the record(s) with a reasonable amount of effort. Be as specific as possible in describing the records you are seeking. For example, whenever possible:
(i) Identify the date, title or name, author, recipient, and the subject of the record; the office that created it, the present custodian of the record and the geographical location (e.g., headquarters or a regional/field office); the timeframe for which you are seeking records; and any other information that will assist the bureau in locating the material.
(ii) If the request involves a matter in litigation, state the case name and docket number as well as the court in which the case was filed.
(2) The bureau will not begin processing your request until any issues regarding the scope or nature of your request are resolved. When a request is overly broad, unclear, involves an extremely voluminous amount of records, or a burdensome search, the bureau will contact you to identify and clarify the records you are seeking. It will work with you to define the subject matter, clarify terms that are used, or narrow the scope of your request.
(3) The time limit for responding to your request will not start until the bureau receives a request reasonably describing the records or clarifying the initial request. If the bureau asks you for additional clarification and does not hear from you within 20 workdays, it will assume that you are no longer interested in pursuing your request and will close the file on your request.
(b) Fee information.
(1) Unless you request a fee waiver (see paragraph (b)(2) of this section), you should state that you are willing to pay all fees associated with processing your request or that you are willing to pay up to a specified amount. The bureau will not begin processing your request until this written assurance has been received. If the bureau anticipates that the fees for processing your request exceed the amount you have indicated you are willing to pay, the bureau will notify you that it needs your assurance of payment of fees as high as are anticipated, or an advance payment (see Sec. 2.18(b) and (c)). If the bureau does not hear from you within 20 workdays, it will assume that you are no longer interested in this matter and will close the file on your request.
(2) You may request a fee waiver. If you are seeking a fee waiver, you must provide sufficient justification to support your fee waiver request (see the criteria in Sec. 2.19 and in Appendix D to this part). Failure to provide adequate justification will result in a denial of your fee waiver request. Remember that if you are requesting a fee waiver, the burden is on you to demonstrate in your request that you are entitled to it. The bureau will not begin processing your request until the fee issues are resolved. As an option, at the same time you request a fee waiver you may state your willingness to pay regardless of whether
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a fee waiver is granted. This will permit the bureau to process your request for records at the same time it is considering the fee waiver request. If you are required to pay a fee, and it is later determined on appeal that you are entitled to a full or partial fee waiver, an appropriate refund will be made.
(3) You should indicate what fee category you are in, i.e., if you are a commercialuse requester, news media, educational institution/ noncommercial scientific institution, or other requester (see Sec. Sec. 2.3 and 2.17(a)). If you submit a FOIA request on behalf of another person or organization (for example, if you are an attorney submitting a request on behalf of a client), it is the underlying requester's identity and intended use that determines the fee category. If your fee category is unclear to the bureau, the 20workday statutory time limit for processing your request will not begin to run (see Sec. 2.12(b)) until this matter has been resolved. If the bureau requests additional clarification and does not hear from you within 20 workdays, it will assume that you are no longer interested in this matter and will close the file on your request.
(c) Mailing address information: Your postal address is required for the bureau to mail any responsive documents to you.
(d) The following information will assist the bureau in processing your request:
(1) The words ``FOIA REQUEST'' (prominently displayed) on the request letter and the envelope, or subject line of a request sent via email or fax, or ``PRIVACY ACT REQUEST'' when requesting records pertaining to yourself that you believe are covered by the Privacy Act, as well as citing the appropriate act in your letter;
(2) Your telephone number (where you can be reached during normal business hours), email address and fax number, if available, in case the bureau, or the Department needs to communicate with you about your request. This information is very important.
(3) A list of all the bureau FOIA Contacts to which you are sending your request. For the quickest possible handling, you should address a separate copy of your request to each bureau FOIA Contact where you believe the records are maintained.
(4) When making a request for personal records about another individual, a written authorization from that individual and any other information required by the Privacy Act system of records notice; or proof that the individual is deceased (for example, a copy of a death certificate or an obituary) as the Privacy Act does not apply to a deceased individual. (Note: Information about a deceased individual may be subject to protection under exemption (6) of the FOIA if the release of the information could result in an invasion of the privacy of a living individual.)

Sec. 2.9 May I specify the form or format of disclosure?

Generally, you may choose the form or format of disclosure for records that you request under the FOIA (5 U.S.C. 552(a)(3)(B)). Bureaus must provide the record in the requested form/format if the office responding to the request can readily reproduce the record in that form/format with reasonable efforts. However, if the process of providing the information in the requested format would damage or destroy an original document, it may not be possible to honor your format request. Bureaus must make reasonable efforts to maintain their records in forms or formats that are reproducible. You may be charged the direct costs involved in converting information to the requested format if the bureau normally does not maintain the information in that format.
Sec. 2.10 Where do I send my request?
(a) DOI does not have a central location where you may submit your FOIA request nor does it maintain a central index or database of documents in its possession. DOI's files are decentralized and are maintained by various bureau offices throughout the country. (b) Submit your request in writing to the FOIA Contact at the bureau office where you believe the records are maintained. If it is unclear where to send your request, seek assistance from the FOIA Contact of the bureau that manages the programs whose records you are requesting or the Departmental FOIA Officer. You may have to do a little research to find the proper office to handle your inquiry, but you will save time in the long run if you send your request directly to the FOIA Contact at the appropriate bureau office. The bureau will process your request as follows:
(1) A request to a bureau headquarters office may be presumed to seek only records from the headquarters office, unless the request specifies otherwise.
(2) A request to a regional/field office of a bureau may be presumed to seek only records at that office, unless the request specifies otherwise.
(3) If a request to a bureau states that it seeks records located at another specific office of the same bureau, the appropriate FOIA Contact will refer the request to the other office. If the request states that it seeks records from other unspecified offices within the same bureau, the FOIA Contact will send the request to the Bureau FOIA Officer who will refer it to those offices that, to the best of his/her knowledge, have or are likely to have responsive records.
(4) If a request to a bureau states that it seeks records of another specified bureau, the bureau will refer the request to the appropriate bureau for response. If the request states that it seeks records from other unspecified bureaus, the FOIA Contact will send the request to the Bureau FOIA Officer who will ensure that the request is referred to those bureaus which, to the best of his/her knowledge, have or are likely to have responsive records. In either case, the Bureau FOIA Officer will notify you of the referral in writing and provide the name of a contact in the other bureau(s) to which the referral was made.
Sec. 2.11 Why is it important to send my request to the right office?

The bureau and office FOIA Contacts listed in Appendix A to this part have primary responsibility for responding to FOIA requests. Failure to send your request to the FOIA Contact at the appropriate bureau office may delay processing, because the time limit for the bureau to respond will not begin to run until a request complying with Sec. Sec. 2.8 and 2.10 is received by the bureau office where the records are maintained. The processing of your request may be delayed if you send it to the Secretary of the Interior (or other highlevel officials), the Office of Public Affairs/Communications, the DOI FOIA Officer, or the Department/bureau's webmaster.
Sec. 2.12 When can I expect the response?
(a) Basic time limit. Ordinarily, a bureau has 20 workdays from the date of receipt to determine whether to grant or deny your FOIA request (see paragraph (b) of this section). The bureau will notify you immediately upon reaching its decision. If you have not received a response within 20 workdays, or 30 workdays if an extension has been taken (see Sec. 2.13) (be sure to allow for mailing time), you may contact the bureau to ask about the delay (see Appendix A to this part). You also have the right to consider any nonresponse within these time limits as a denial of records and file a formal appeal (see Sec. 2.28(a)(3)) or lawsuit. These time limits do not apply to requests for expedited processing (see Sec. 2.14).
(b) Running of basic time limit. The 20 workday time limit begins to run when a request complying with the
[[Page 64535]]
procedures in Sec. Sec. 2.8 and 2.10 is received by the FOIA contact at the bureau office that has the records you are seeking. This means that all issues regarding fees and the scope of your request must be resolved before the bureau will begin processing your request. Sec. 2.13 When may the bureau take a time extension to respond to my request?
(a) The bureau may extend the 20workday time limit for 10 more workdays when it needs to:
(1) Search for and collect the requested records from multiple offices; or
(2) Search for, collect, and examine a voluminous amount of separate and distinct records sought in a single request; or (3) Consult with another agency having a substantial interest in the determination of the request or with one or more bureaus of the Department having substantial subjectmatter interest in the request. (b) If the bureau intends to take an extension under this subsection, it will notify you in writing and provide the reason for the extension and the date it expects to make a determination on your request.
(c) If an extension is necessary and the bureau is unable to respond to your request within 30 workdays, it will notify you in writing when you may expect a final response and advise you of your appeal rights. If an extension is taken and you have not received a response in 30 workdays, you may consider the request denied and file an appeal under Sec. 2.28(a)(3) or file a lawsuit.
(d) A bureau may not take an extension of time to decide whether to grant a request for a fee waiver.
Sec. 2.14 When can I get expedited processing?
(a) When requested, a bureau will provide expedited processing if you demonstrate to the satisfaction of the bureau that the request involves:
(1) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(2) An urgency to inform the public about an actual or alleged Federal Government activity if the request is made by a person primarily engaged in disseminating information. In most situations, a person primarily engaged in disseminating information will be a representative of the news media. The requested information must be the type of information which has particular value that will be lost if not disseminated quickly, and ordinarily refers to a breaking news story of general public interest. However, information of historical interest only, or information sought for litigation or commercial activities would not qualify, nor would a news media deadline unrelated to breaking news; or
(3) The loss of substantial due process rights.
(b) A request for expedited processing should be submitted with your FOIA request. For a prompt determination, you must submit a request complying with the requirements of Sec. Sec. 2.8 and 2.10 to the FOIA Contact at the bureau office that maintains the records you are seeking.
(c) If you are seeking expedited processing, you must submit a statement explaining in detail the basis for your request. You must certify in your letter that your need for expedited processing is true and correct to the best of your knowledge and belief. For example, a requester within the category of paragraph (a)(2) of this section, if not a full time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his/her sole occupation.
(d) Within 10 calendar days of receipt of your request, the bureau will notify you whether it will grant expedited processing. If expedited processing is granted, the bureau will give priority to that FOIA request and process the request as soon as practicable. If expedited processing is denied, the bureau will notify you of your right to appeal the decision on expedited processing. Appeals of denials of requests for expedited processing will be processed ahead of other appeals (see Sec. 2.32(b)). If the bureau has not responded to your request for expedited processing within 10 calendar days, you have a right to file an appeal for nonresponse (see Sec. 2.28(a)(7)). Sec. 2.15 Will I be charged fees?

Bureaus will charge fees consistent with the provisions in Sec. Sec. 2.16 and 2.17. The fee schedule in Appendix C to this part applies to all bureaus of the Department.
Sec. 2.16 How are fees determined?
(a) Authority. Bureaus are authorized to charge fees to recover the direct costs of searching for, reviewing (commercialuse requesters only) and duplicating documents to respond to a FOIA request. However, nothing in this subsection will supersede any statutory authority which requires the bureau to charge specific fees for certain types of records.
(b) Policy. (1) Unless waived under the criteria in Sec. Sec. 2.19 or 2.20, bureaus will charge fees for responding to FOIA requests consistent with the provisions of this section and the fee schedule in Appendix C.
(2) A bureau normally will not charge a fee where the fee would be $30 or less. However, if the bureau has a reasonable basis to conclude that a requester or group of requesters has divided a request into a series of requests on a single subject or related subjects to avoid fees, the requests may be aggregated and fees charged accordingly. Bureaus may presume that multiple requests of this type that are made within a 30day period have been made in order to avoid fees. Where requests are separated by a longer period, bureaus will aggregate them only where there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.
(3) Where a bureau responds to a request on behalf of more than one bureau, the fees that would be chargeable by all bureaus involved will be considered in determining whether the total FOIA processing fee is $30 or less. If a bureau is responding on behalf of more than one bureau, and you fall under one of the fee categories in Sec. 2.17(a)(2) or (a)(3), you will be entitled to receive up to a total of 100 pages of duplication without charge (there is no charge for searching for responsive records). If a bureau is responding on behalf of more than one bureau, and you fall under the fee category in Sec. 2.17(a)(4), you will be entitled to receive up to a total of 100 pages of duplication and two hours of search time without charge. (4) If a bureau obtains research data solely in response to your FOIA request, it may charge you a reasonable fee equaling the full cost of obtaining the research data from the recipient.
(c) Searches. Searches will be conducted in the most efficient and least expensive manner, so as to minimize costs for both you and the bureau. Except where provided in Sec. Sec. 2.17(a)(2) and (a)(3), bureaus will charge for time spent in the following search activities: (1) Time spent in trying to locate records which come within the scope of the request, whether or not documents responsive to the request are located or the records located are exempt from disclosure; and
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(2) Direct costs involving the use of computer time to locate requested records.
(d) Reviews (Commercialuse requests only). (1) Bureaus will charge commercialuse requesters (see Sec. 2.17(a)(1)) for time spent by bureau staff and attorneys in reviewing requested records for releasability. (See Sec. 2.3(e).)?
(2) Review costs will be assessed even if a record ultimately is not disclosed.
(e) Duplication. Bureaus will charge duplication fees according to the fee schedule in Appendix C to this part.
(f) Categories of requesters. There are four categories of requesters for the purposes of determining feescommercialuse, educational and noncommercial scientific institutions, news media, and all others. (See Sec. Sec. 2.3 and 2.17.)
Sec. 2.17 How will my requester category affect the fees that I am charged?
(a) When you submit a FOIA request, you must specify your fee category. Based on the information you provide, the bureau office processing your request will decide your fee category and charge as follows:
(1) Commercialuse requesters are charged fees for costs incurred in document search, review, and duplication.
(2) Educational/noncommercial scientific institutions are charged for document duplication, except that the first 100 pages of paper copies (or the equivalent cost thereof if the records are in some other form) will be provided without charge. The bureau will not charge such requesters for document search and review.
(3) News media requesters are charged for document duplication, except that the first 100 pages of paper copies (or the equivalent cost thereof if the records are in some other form) will be provided without charge. The bureau will not charge such requesters for document search and review.
(4) Requesters not covered by paragraphs (a)(1) through (a)(3) of this section``other requesters'' are charged fees for document search and duplication, except that they are entitled to the first two hours of search time and the first 100 pages of paper copies without charge (or the equivalent cost thereof if the records are in some other form). The bureau will not charge such requesters for document review. (b) If you do not submit sufficient information in your FOIA request for the bureau to determine your fee category (see paragraphs (a)(1) through (a)(4) of this section), the bureau may ask you to provide additional clarification. This applies to all requesters. The bureau will notify you promptly when additional information is needed. In these circumstances, the 20workday statutory time limit for responding to your request will not begin to run until you provide sufficient information. If the bureau requests additional clarification and does not hear from you within 20 workdays, it will assume that you are no longer interested in this matter and will close the file on your request.
(c) The following table summarizes the chargeable fees for each category of requester.
Category Search fees Review fees Duplication fees Commercial Use.................. Yes..................... Yes..................... Yes Educational Institution.........
NonCommercial Scientific No...................... No...................... Yes Institution. (100 pages free) News Media......................
All Other....................... Yes..................... No...................... Yes (2 hours free).......... (100 pages free) Sec. 2.18 How are fees assessed and collected?
(a) Threshold for charging fees. Except in those situations covered by Sec. 2.16(b)(2), the bureau will not charge you if the fee is $30 or less.
(b) Notice of anticipated fees. (1) Unless you have been granted a fee waiver or have previously agreed to pay all the fees associated with your request, or the anticipated fee is $30 or less, the bureau will:
(i) Promptly notify you of the estimated costs and ask you to provide written assurance of payment of all fees or fees up to a designated amount; and
(ii) Give you an opportunity to modify your request at that time to reduce the fee.
(2) After the bureau begins processing your request, if it finds that the actual cost will exceed the amount you previously agreed to pay, the bureau will:
(i) Stop processing your request;
(ii) Promptly notify you of the higher amount and ask you to provide written assurance of payment; and
(iii) Give you an opportunity to modify your request to reduce the fee.
(c) Advance payment. (1) The bureau will require advance payment when the estimated fee is over $250 and
(i) You have never made a FOIA request to DOI requiring

FOR FURTHER INFORMATION CONTACT

Alexandra Mallus by telephone at (202) 2085342, by fax at (202) 5012360, or by email at alexandra mallus@ios.doi.gov.

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