Department of the Interior.
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 (E-FOIA). Additionally, the regulations have been updated to reflect changes in the Department's policies and procedures, developments in case law, cost figures for calculating and charging fees, and organizational changes within DOI. As a result, the public will have a clearer understanding of DOI's policies and procedures implementing the FOIA.
November 20, 2002.
The complete file for this rule is available for public inspection, by appointment, during normal business hours at the U.S. Department of the Interior, 1849 C Street, NW, Room 5323, Washington, DC 20240.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Alexandra Mallus by telephone at (202) 208-5342, by fax at (202) 501-2360, or by e-mail at firstname.lastname@example.org.End Further Info End Preamble Start Supplemental Information
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 E-FOIA (Public Law 104-231). New provisions implementing the amendments are found at § 2.4(c) (electronic reading rooms), § 2.9 (format of disclosure), § 2.12 (timing of responses), § 2.14 (expedited processing), § 2.21(a) (electronic searches), § 2.21(c) (marking deletions), § 2.21(d)(3) (volume estimation), and § 2.26 (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 § 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 §§ 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 Start Printed Page 64528possession 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 (§ 2.29(a)).
New sections have been added, such as: (1) § 2.24 concerning submitter designations; (2) § 2.25 regarding requests for Federally-funded research data; (3) § 2.27 on handling a request for information contained in a Privacy Act system of records; and (4) § 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 GS-13 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 case-by-case basis and to ensure that requesters know that they must provide sufficient justification to support their fee waiver requests (§ 2.19 and Appendix D).
The 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 § 2.16(b)(2).
Paragraphs (c)(3) and (c)(4) of Appendix F, Mineral Leasing Act and Mineral Leasing Act for Acquired Lands—Special 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 105-277 which directed OMB to amend Section_.36 of OMB Circular A-110. OMB's revised Circular A-110 articulates the procedures by which Federally-funded 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 (§ 2.25) which provides procedures for handling FOIA requests for Federally-funded 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 § 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, § 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 § 2.12(a), § 2.13(c), and § 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 Start Printed Page 64529the 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. 104-795, 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 § 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 § 2.26(b)).
Issue 7: One commenter pointed out that § 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 E-FOIA.
Our Response: The Department has adopted this comment and has revised the language in § 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 § 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 § 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 intra-bureau requests, § 2.10(b)(3) has been revised. Under § 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, Start Printed Page 64530or loan programs or the rights or obligations of their recipients; or
(4) Raise novel legal or policy issues.
Regulatory Flexibility Act
DOI certifies that this regulation will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 606(b)). Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters. Thus, fees assessed by DOI are nominal.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule will not result in an annual effect on the economy of more than $100 million per year; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based companies to compete with foreign-based enterprises. It deals strictly with implementation of the FOIA within DOI.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments, or the private sector. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.)
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 §§ 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
This rule does not contain any information collection requirements for which OMB approval under the Paperwork Reduction Act (44 U.S.C. 3501-3520) is required.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act (42 U.S.C. 4321-4347) of 1969 is not required.
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.Start List of Subjects
List of Subjects in 43 CFR Part 2
- Administrative practice and procedure
- Classified information
- Freedom of information
- Government employees
Dated: October 2, 2002.
P. Lynn Scarlett,
Assistant Secretary—Policy, Management and Budget.
Regulation PromulgationStart Amendment Part
For the reasons stated in the preamble, we amend Part 2 of Title 43 of the Code of Federal Regulations, as follows:End Amendment Part Start Part
PART 2—RECORDS AND TESTIMONY: FREEDOM OF INFORMATION ACTEnd Part Start Amendment Part
1. The authority citation for Part 2 is revised to read as follows:End Amendment Part
Subparts C Through E [Redesignated as Subparts F Through H]Start Amendment Part
2. Subparts C through E are redesignated as Subparts F through H.End Amendment Part Start Amendment Part
3. Subparts A and B are revised in their entirety and redesignated as Subparts A through E to read as follows:End Amendment Part
- What do the regulations cover?
- What is DOI's policy regarding release of records under the FOIA?
- What terms do I need to know?
- How do I obtain information routinely available to the public?
- Does DOI maintain an index of its reading room materials?
- Will the Department accept written requests, including fax, e-mail, or telephone requests, for routinely available information?
- What do I need to know before filing a FOIA request?
- What information do I include in my request?
- May I specify the form or format of disclosure?
- Where do I send my request?
- Why is it important to send my request to the right office?
- When can I expect the response?
- When may the bureau take a time extension to respond to my request?
- When can I get expedited processing?
- Will I be charged fees?
- How are fees determined?
- How will my requester category affect the fees that I am charged?
- How are fees assessed and collected?
- When will bureaus waive fees?
- When will bureaus grant discretionary fee waivers?
- How will the bureau respond to my request?
- What happens if a bureau receives a request for records it does not have or did not create?
- 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?
- Is a submitter required to designate information that is commercially or financially sensitive?
- How will a bureau handle a request for Federally-funded research data in the possession of a private entity?
- Does the bureau provide multitrack processing of FOIA requests?
- 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)
- When may I file an appeal?
- How long do I have to file an appeal?
- How do I file an appeal?
- How will DOI respond to my appeal?
- How long does DOI have to respond to my appeal?
- How will the Department notify you and the submitter of commercial or financial information when it makes an appeal decision concerning such information? Start Printed Page 64531
- Where can I get a copy of DOI's FOIA annual report?
Subpart A—General Information
(a) The regulations implement the Freedom of Information Act (FOIA), 5 U.S.C. 552, and contain the procedures by which the public may inspect and obtain copies of Department of the Interior (DOI or Department) records through the FOIA or by other means.
(b) They apply to all agency records as defined in § 2.3(c).
(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).
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.
For the purposes of this part, the following definitions apply:
(a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as amended.
(b) Agency means any executive department, military department, Government corporation, Government-controlled corporation, or other establishment in the executive branch of the Federal Government, or any independent regulatory agency.
(c) Agency record means any documentary material which is either created or obtained by an agency in the transaction of agency business and under agency control. See §§ 2.21 and 2.25.
(1) Agency records include:
(i) Books, papers, maps, charts, plats, plans, architectural drawings, photographs, and microfilm;
(ii) Machine-readable materials such as magnetic tape and disks;
(iii) Electronic records (including e-mail messages);
(iv) Audiovisual material such as still pictures, sound and video recordings; and
(v) All other documentary materials, regardless of physical form, format or characteristics.
(2) This definition generally does not cover records of an individual which are:
(i) Created and maintained primarily for an individual's convenience;
(ii) Not subject to agency creation or retention requirements; and
(iii) Not distributed to other agency employees for their official use.
(d) Bureau means any major component of the Department administering its own FOIA program. A list of these components is contained in Appendix A to this part.
(e) Commercial-use request means a request from or on behalf of a person who seeks information for a use or purpose that furthers the commercial, trade or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester falls into this category, the bureau will consider the identity of the requester and intended use of the records in addition to any other available information about the requester.
(f) Direct costs means those expenses that a bureau actually incurs in searching for and duplicating (and in the case of commercial-use requests, reviewing) records to respond to a FOIA request. Direct costs include, for example, the salary and benefits of the employee performing the work and the cost of operating duplicating equipment. Not included in direct costs are overhead expenses such as the costs of space and heating or lighting of the facility in which the records are kept.
(g) Duplication means making a copy of a record, or the information contained in it, to respond to a FOIA request. Copies can take the form of paper, microform, photographs, audiovisual materials, or electronic records (for example, magnetic tape or disk), among others.
(h) Educational institution means a preschool, a public or private elementary or secondary school, 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 § 2.14).
(j) FOIA request means a written request (this includes facsimile (fax) and electronic mail (e-mail)) made by any member of the public for Federal agency records.
(k) Free-lance journalist means a representative of the news media who is able to demonstrate a solid basis for expecting publication through a news organization, even though not actually employed by it. A publication contract or past record of publication, or evidence of a specific free-lance assignment from a news organization may indicate a solid basis for expecting publication.
(l) 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 first-in/first-out 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 peer-reviewed 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 Start Printed Page 64532for 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 commercial-use 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 § 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 B—Information Routinely Available to the Public without Filing a FOIA Request
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.]
(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 on-site reference use from 7:45 a.m.-5:00 p.m., Monday-Friday (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 subject-matter index of its reading room records (see § 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 Start Printed Page 64533staff 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 § 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 § 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 § 2.19.
Each bureau will maintain and make available for public inspection and copying a current subject-matter index of its reading room materials (5 U.S.C. 552(a)(2)). The index will be available in the bureau's reading room(s) and in their electronic reading rooms on the Internet. Each index will be updated regularly.
Yes. Although a request for this type of information is not a FOIA request, the bureau will send you the requested information and charge you for the copies, according to the fee schedule in Appendix C to this part. While the bureau will attempt to respond to oral requests (those made by telephone or otherwise) for routinely available information, you should submit complex requests in writing to avoid any risk of misunderstanding.
Subpart C—Requests for Records under the FOIA
(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 e-mail)—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.
(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 § 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 § 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 Start Printed Page 64534a fee waiver is granted. This will permit the bureau to process your request for records at the same time it is considering the fee waiver request. If you are required to pay a fee, and it is later determined on appeal that you are entitled to a full or partial fee waiver, an appropriate refund will be made.
(3) You should indicate what fee category you are in, i.e., if you are a commercial-use requester, news media, educational institution/noncommercial scientific institution, or other requester (see §§ 2.3 and 2.17(a)). If you submit a FOIA request on behalf of another person or organization (for example, if you are an attorney submitting a request on behalf of a client), it is the underlying requester's identity and intended use that determines the fee category. If your fee category is unclear to the bureau, the 20-workday statutory time limit for processing your request will not begin to run (see § 2.12(b)) until this matter has been resolved. If the bureau requests additional clarification and does not hear from you within 20 workdays, it will assume that you are no longer interested in 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 e-mail 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), e-mail 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.)
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.
(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.
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 §§ 2.8 and 2.10 is received by the bureau office where the records are maintained. The processing of your request may be delayed if you send it to the Secretary of the Interior (or other high-level officials), the Office of Public Affairs/Communications, the DOI FOIA Officer, or the Department/bureau's webmaster.
(a) Basic time limit. Ordinarily, a bureau has 20 workdays from the date of receipt to determine whether to grant or deny your FOIA request (see paragraph (b) of this section). The bureau will notify you immediately upon reaching its decision. If you have not received a response within 20 workdays, or 30 workdays if an extension has been taken (see § 2.13) (be sure to allow for mailing time), you may contact the bureau to ask about the delay (see Appendix A to this part). You also have the right to consider any nonresponse within these time limits as a denial of records and file a formal appeal (see § 2.28(a)(3)) or lawsuit. These time limits do not apply to requests for expedited processing (see § 2.14).
(b) Running of basic time limit. The 20 workday time limit begins to run when a request complying with the Start Printed Page 64535procedures in §§ 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.
(a) The bureau may extend the 20-workday time limit for 10 more workdays when it needs to:
(1) Search for and collect the requested records from multiple offices; or
(2) Search for, collect, and examine a voluminous amount of separate and distinct records sought in a single request; or
(3) Consult with another agency having a substantial interest in the determination of the request or with one or more bureaus of the Department having substantial subject-matter interest in the request.
(b) If the bureau intends to take an extension under this subsection, it will notify you in writing and provide the reason for the extension and the date it expects to make a determination on your request.
(c) If an extension is necessary and the bureau is unable to respond to your request within 30 workdays, it will notify you in writing when you may expect a final response and advise you of your appeal rights. If an extension is taken and you have not received a response in 30 workdays, you may consider the request denied and file an appeal under § 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.
(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 §§ 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 § 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 § 2.28(a)(7)).
Bureaus will charge fees consistent with the provisions in §§ 2.16 and 2.17. The fee schedule in Appendix C to this part applies to all bureaus of the Department.
(a) Authority. Bureaus are authorized to charge fees to recover the direct costs of searching for, reviewing (commercial-use requesters only) and duplicating documents to respond to a FOIA request. However, nothing in this subsection will supersede any statutory authority which requires the bureau to charge specific fees for certain types of records.
(b) Policy. (1) Unless waived under the criteria in §§ 2.19 or 2.20, bureaus will charge fees for responding to FOIA requests consistent with the provisions of this section and the fee schedule in Appendix C.
(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 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, bureaus will aggregate them only where there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.
(3) Where a bureau responds to a request on behalf of more than one bureau, the fees that would be chargeable by all bureaus involved will be considered in determining whether the 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 § 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 § 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 §§ 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 Start Printed Page 64536
(2) Direct costs involving the use of computer time to locate requested records.
(d) Reviews (Commercial-use requests only). (1) Bureaus will charge commercial-use requesters (see § 2.17(a)(1)) for time spent by bureau staff and attorneys in reviewing requested records for releasability. (See § 2.3(e).)
(2) Review costs will be assessed even if a record ultimately is not disclosed.
(e) Duplication. Bureaus will charge duplication fees according to the fee schedule in Appendix C to this part.
(f) Categories of requesters. There are four categories of requesters for the purposes of determining fees—commercial-use, educational and noncommercial scientific institutions, news media, and all others. (See §§ 2.3 and 2.17.)
(a) When you submit a FOIA request, you must specify your fee category. Based on the information you provide, the bureau office processing your request will decide your fee category and charge as follows:
(1) Commercial-use requesters are charged 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 20-workday statutory time limit for responding to your request will not begin to run until you provide sufficient information. If the bureau requests additional clarification and does not hear from you within 20 workdays, it will assume that you are no longer interested in 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|
|Non-Commercial Scientific Institution||No||No||Yes (100 pages free)|
|All Other||Yes (2 hours free)||No||Yes (100 pages free)|
(a) Threshold for charging fees. Except in those situations covered by § 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 you to pay fees; or
(ii) You did not pay a previous FOIA fee promptly.
(2) If you have previously failed to pay a fee within 30 calendar days of the date of billing, the bureau will require you to:
(i) Pay the full amount owed plus any applicable interest penalties (see paragraph (g) of this section) and to make an advance payment of the full amount of the estimated fee of the new request; or
(ii) Demonstrate that you have, in fact, paid the prior fee.
(3) At the same time the bureau notifies you that an advance payment is due, it will give you an opportunity to modify your request to reduce the fee.
(d) Resolving the fee issue. The bureau will not start processing your request until the fee issue has been resolved (see §§ 2.8(b) and 2.12(b)). If the bureau seeks clarification from you about a fee issue 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.
(e) Billing procedures. If you are required to pay a fee associated with your request, the bureau that processes your request will send you a bill for collection.
(f) Form of payment. You should submit a check or money order made payable to the “Department of the Interior” or the bureau furnishing the information. The term United States or the initials “U.S.” should not be included on the check or money order. Where appropriate, the official responsible for handling a request may require that payment by check be made in the form of a certified check. Some bureaus accept payment by credit card. Contact the bureau to determine what forms of payment it accepts.
(g) Failure to pay fees. The bill for collection or the response letter will include a statement that interest will be charged in accordance with the Debt Start Printed Page 64537Collection Act of 1982, as amended (31 U.S.C. 3717) and implementing regulations, if the fees are not paid within 30 calendar days of the date of the bill. This requirement does not apply if the requester is a state, local, or tribal government.
(a) Fees for processing your request may be waived if you meet the criteria listed in paragraph (b) of this section and Appendix D to this part. The burden is on you to justify entitlement to a fee waiver. Requests for fee waivers are decided on a case-by-case basis. The fact that you have received a fee waiver in the past does not mean you are automatically entitled to a fee waiver for every request you may submit, because the essential element of any fee waiver determination is whether the release of the particular documents sought in the request will likely contribute significantly to public understanding of the operations or activities of the Government. The bureau will rely on the fee waiver justification you have submitted in your request letter. If you do not submit sufficient justification, your fee waiver request will be denied. The bureau may, at its discretion, communicate with you to request additional information if necessary. However the bureau must make a determination on the fee waiver request within the statutory time limit, even if the agency has not received such additional information. In certain circumstances, a partial fee waiver may be appropriate, if some, but not all, of the requested records are likely to contribute significantly to public understanding of the operations and activities of the Government.
(b) Bureaus will waive fees (in whole or part) if disclosure of all or part of the information is in the public interest because its release—
(1) Is likely to contribute significantly to public understanding of the operations or activities of the Government; and
(2) Is not primarily in the commercial interest of the requester.
(c) If a bureau denies your request for a fee waiver, it will notify you, in writing, of the following:
(1) The basis for the denial, including a full explanation of why your fee waiver request did not meet DOI's fee waiver criteria (see paragraph (b) of this section and Appendix D to this part);
(2) The name(s) and title(s) or position(s) of each person responsible for the denial;
(3) The name and title of the Office of the Solicitor attorney consulted; and
(4) A statement that the denial may be appealed within 30 workdays after the date of the denial letter to the FOIA Appeals Officer (see Appendix A to this part) under the procedures in § 2.30.
(a) A bureau may waive fees at its discretion if a request involves:
(1) Furnishing a copy of a document that the bureau has reproduced for free distribution;
(2) Furnishing one copy of a personal document (e.g., a birth certificate) to a person who has been required to furnish it for retention by the Department;
(3) Furnishing one copy of the transcript of a hearing before a hearing officer in a grievance or similar proceeding to the employee for whom the hearing was held;
(4) Furnishing records to donors with respect to their gifts;
(5) Furnishing records to individuals or private nonprofit organizations having an official, voluntary or cooperative relationship with the Department to assist the individual or organization in working with the Department;
(6) Furnishing a reasonable number records to members of the U.S. Congress, state, local, and foreign governments, public international organizations, and Indian tribes, when to do so without charge is an appropriate courtesy, or when the recipient is carrying on a function related to that of the Department and to do so will help to accomplish the work of the Department;
(7) Furnishing records when to do so is in conformance with generally established business custom (e.g., furnishing personal reference data to prospective employers of former Department employees); or
(8) Furnishing one copy of a single record in order to assist the requester in obtaining financial benefits to which he or she may be entitled (e.g., veterans or their dependents, employees with Government employee compensation claims).
(b) You cannot appeal the denial of a discretionary fee waiver.
(a) After all the criteria in §§ 2.8 and 2.10 have been met, the bureau will make a reasonable effort to search for records responsive to your request. In determining which records are responsive to your request, the bureau will include any records in its possession and control as of the date it begins its search. This will include searching for records in an electronic form/format, except where it would interfere significantly with the bureau's automated information systems.
(b) In response to your request, the bureau will do one of two things:
(1) Include the requested records with the response letter or notify you of how, when, and where the records will be made available; or
(2) Deny part or all of your request, except that the bureau may, consistent with Departmental policy, determine that a discretionary release is appropriate under the particular circumstances. Your request will be denied or partially denied only if one of the nine statutory exemptions listed in Appendix E to this part applies to all or part of the records you have requested.
(c) Where a document contains both exempt and nonexempt material, the bureau will generally separate and release the nonexempt information. When disclosing a record in part, the bureau will indicate on the released portion of the record how much information was deleted, unless doing so would harm an interest protected by the exemption used to withhold the information. Further, if technically feasible, the amount of information deleted and the exemption used to withhold the information will be indicated where the deletion is made. If the nonexempt material is so intertwined with the exempt material that disclosure of it would leave only meaningless words and phrases, the entire portion may be withheld.
(d) If a bureau denies your request for records in whole or in part, the bureau's response will include:
(1) A reference to the specific exemption or exemptions authorizing the withholding;
(2) An explanation of the reason(s) for the denial;
(3) An estimate of the volume of information being withheld. The bureau will make a reasonable effort to estimate the volume of any records denied, or portions of records (e.g., 100 pages, 4 Federal Record Center boxes, 1,000 kilobytes, etc.), unless such an estimate would harm an interest protected by the exemption used to withhold the information.
(4) The name(s) and title(s) of the person(s) responsible for the denial;
(5) The name and title of the Office of the Solicitor attorney consulted; and
(6) A statement that the denial may be appealed to the FOIA Appeals Officer (see Appendix A to this part), within 30 workdays of the date of the denial letter or 30 workdays after the records have been released under the procedures in § 2.30. Start Printed Page 64538
(e) If records do not exist within DOI, cannot be located, are not reasonably described, or if a procedural issue remains unresolved (e.g., a fee issue), the bureau will respond to you in writing, including the following information, as applicable:
(1) An explanation of the basis of the decision;
(2) The name(s) and title(s) of the person(s) responsible for the decision; and
(3) A statement that the matter may be appealed within 30 workdays of the date of the response, to the FOIA Appeals Officer under the procedures in § 2.30.
(f) The bureau must consult with the Office of the Solicitor if it is considering withholding a requested record or denying a fee waiver.
(g) If any fees are due, the bureau will notify you in writing of the amount.
(h) All bureau responses will include the name and telephone number of a contact person in case you have questions concerning the response.
(i) Requests for information concerning coal under the Mineral Leasing Act or the Mineral Leasing Act for Acquired Lands are subject to special rules (see Appendix F to this part).
(a) Consultations/referrals within DOI. (1) If a bureau receives a request for records not in its possession, but which it knows another bureau has or is likely to have, it will refer the request to that bureau(s) for response. It also will notify you of the referral in writing and provide the name of a contact in the other bureau(s) to which the referral was made. The time limit for responding to your request starts when the request reaches the bureau office that has the records.
(2) If a bureau (other than the Office of Inspector General) receives a request for records in its possession that another bureau created or is substantially concerned with, it will consult with the other bureau before deciding whether to release or withhold the records. As an alternative, the bureau may refer the request along with the records to that bureau for direct response. It 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. Such a referral does not restart the statutory time limit for responding to your request.
(b) Consultations/referrals with agencies outside DOI. (1) If a bureau receives a request for records not in its possession, but which the bureau believes may be in the possession of another Federal agency, the bureau will return your request and advise you to submit it directly to the other agency. If you still believe that the records exist within DOI, you should notify the bureau FOIA contact of any additional information which leads you to believe the records exist and where they might be found. Alternatively, you may treat such a response as a denial of records and file an appeal.
(2) If, in response to a request, a bureau locates documents that originated with another Federal agency, it will refer the request, along with any responsive document(s), to that agency for a release determination and direct response. If the bureau refers the documents to another agency, it will notify you of the referral in writing and provide the name of a contact at the other agency. However, in the following situations, the bureau will make the release determination, after consulting with the originating agency:
(i) When the record is of primary interest to DOI (a record is of primary interest to DOI if it was developed or prepared according to DOI regulations or directives, or in response to a DOI request);
(ii) If DOI is in a better position than the originating agency to assess whether the record is exempt from disclosure;
(iii) If the originating agency is not subject to the FOIA; or
(iv) When it is more efficient or practical depending on the circumstances.
(3) If a bureau receives a request for records which have been classified by another agency under Executive Order 12958, Classified National Security Information, or superseding Executive order, it must refer the request to that agency for response.
(a) If a bureau receives a FOIA request for records containing commercial or financial information submitted by a person or entity outside the Federal Government, under Executive Order 12600, Predisclosure Notification Procedures for Confidential Commercial Information, or superseding Executive order, the bureau must provide the submitter with prompt written notice of the request, except as provided in paragraph (h) of this section, whenever:
(1) The submitter has designated the information as confidential commercial or financial information, or
(2) The bureau has reason to believe that the information may be protected under exemption (4).
(b) The notice to the submitter will—
(1) Include a copy of the FOIA request.
(2) Describe the information requested or include copies of the pertinent records.
(3) Advise the submitter of the procedures for objecting to the release of the requested material and specify the time limit for responding.
(4) Give the submitter no less than 10 workdays, from receipt (or publication as set forth in paragraph (c) of this section) of the bureau's notice, to object to the release and to explain the basis for the objection, if any.
(5) Advise the submitter that:
(i) Information contained in his/her objections may be subject to disclosure under the FOIA if the bureau receives a FOIA request for it; and
(ii) If the submitter's objections contain commercial or financial information and a requester asks for the objections under the FOIA, the notification procedures of this subsection will apply.
(6) Advise the submitter that it is the bureau, rather than the submitter, that is responsible for deciding whether the information will be released or withheld.
(7) If the submitter designated the material as confidential commercial or financial information 10 or more years before the request, request the submitter's views on whether he/she still considers the information to be confidential.
(c) Where a large number of submitters is involved, the bureau may, rather than providing written notice to each submitter, publish a notice in a manner reasonably calculated to reach the attention of the submitters (e.g., in newspapers/newsletters, the bureau's Web site, or the Federal Register).
(d) Whenever a bureau notifies a submitter that he/she may be required to disclose information in response to a FOIA request, it also will notify you that it is giving the submitter an opportunity to review and comment on the material.
(e) If the submitter has any objection to disclosure he/she must submit a detailed written statement including the following:
(1) The justification for withholding any portion of the information under any exemption of the FOIA. In the case of exemption (4), there must be a specific and detailed discussion of:
(i) Whether the Government required the information in question to be submitted, and if so, how substantial Start Printed Page 64539competitive or other business harm would likely result from release; or
(ii) Whether the submitter provided the information voluntarily and, if so, how the information in question fits into a category of information that the submitter customarily does not release to the public.
(2) A certification that the information is confidential, has not been disclosed to the public by the submitter, and is essentially non-public because it is not routinely available to the public from other sources.
(3) If not already provided, a telephone number (where the submitter can be reached during normal business hours, an e-mail address and a fax number (if available). This information is very important to help the bureau or Department communicate with the submitter.
(f) The bureau will review and consider all objections to release that are received within the time specified in the notice to the submitter. However, it is the bureau, rather than the submitter, that is responsible for deciding whether the information should be released or withheld. If a submitter fails to respond to the bureau within the time limits specified in the notice, the bureau will presume that the submitter has no objection to disclosure of the information.
(g) If the bureau decides to release records over the submitter's objections, it will inform the submitter and you in writing. The notice to the submitter will be sent by certified mail, return receipt requested, to the submitter's last known address and will include copies of the records the bureau intends to release and the bureau's reasons for deciding to release them. The notice also will inform the submitter that it intends to release the records 10 workdays after receipt of the notice by the submitter.
(h) The bureau will not consult with the submitter if:
(1) The bureau responsible for the decision determines that the information is exempt from disclosure;
(2) The information has been lawfully published or otherwise made available to the public, such as in response to an earlier FOIA request or if the submitter has made the information public;
(3) Disclosure of the information is required by statute (other than the FOIA) or regulation (other than this subpart);
(4) Disclosure of the information is prohibited by statute; or
(5) The designation of confidentiality made by the submitter appears obviously frivolous. However, the bureau will notify the submitter of any final decision to disclose the information 15 workdays prior to releasing it.
(i) The bureau will inform the submitter within 10 workdays of the Department's receipt of a court complaint if you file a lawsuit for access to any of the withheld records. Similarly, the bureau will notify you within 10 workdays of the Department's receipt of a court complaint if the submitter files a lawsuit to prohibit the bureau from disclosing the records.
(j) If the bureau determines that the requested information is protected from release by exemption (4) of the FOIA, the bureau has no discretion to release the information as doing so would violate the Trade Secrets Act, a criminal provision found at 18 U.S.C. 1905.
No. If in the course of responding to a FOIA request, a bureau cannot readily determine whether the information obtained from a person is commercially or financially sensitive information, the bureau will obtain and consider the views of the submitter of the information and provide the submitter an opportunity to object to any decision to disclose the information.
When published research findings are produced under a grant or other Federal assistance, and the findings are used by a bureau in developing an agency action, e.g., a policy or regulation, research data related to such findings are considered agency records even if they are in the possession of the recipient of the Federal financial assistance (recipient).
(a) If you submit a FOIA request for such research data, the bureau will require the recipient to provide the information to it within a reasonable amount of time, so the bureau can consider the data for release to the public under the FOIA.
(b) The bureau will notify you that it may charge you for any additional fees incurred as a result of obtaining the research data from the recipient. This fee is in addition to any fees the bureau may charge to process your request under the FOIA.
(c) The bureau will forward a copy of the request to the recipient, who is responsible for searching for and reviewing the requested information in accordance with DOI's FOIA regulations (43 CFR part 2). The recipient will forward a copy of any responsive records that are located, along with his/her recommendations concerning the releasability of the data, and the total cost incurred in searching for, reviewing, and providing the data to the appropriate bureau FOIA contact.
(d) The bureau will review and consider the recommendations of the recipient regarding the releasability of the requested data. However, it is the bureau, rather than the recipient, that is responsible for deciding whether the information will be released or withheld.
(a) A bureau may use two or more processing tracks to distinguish between simple and complex requests based on the amount of work and/or time needed to process the request, including the number of pages involved.
(b) If a bureau uses multitrack processing, it will advise requesters in its slower track(s) of the criteria of its faster track(s). For example, a bureau using multitrack processing may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the bureau's faster track(s). A bureau doing so will contact the requester by telephone or in writing, whichever is more efficient in each case.
(a) When you request information pertaining to yourself that is contained in a Privacy Act system of records applicable to you (i.e., the information contained in the system of records is retrieved by the bureau using your name or other personal identifier), the request will be processed under both the FOIA and the Privacy Act. If you request information about yourself, you must submit certain identifying information, usually an original signature (see the appropriate Privacy Act system notice and, Subpart G of this part) before the bureau will process your request. (Note: If you request information about yourself that is not covered by the Privacy Act, e.g., the information may be filed under another subject, such as an organization, activity, event, or an investigation not retrievable by a name or personal identifier, the request will be treated only as a FOIA request.)
(b) The Privacy Act never prohibits disclosure of material that the FOIA requires to be released. Both a Privacy Act and a FOIA exemption must apply to withhold information from you if the information you seek is contained in a Start Printed Page 64540Privacy Act system of records applicable to you.
(c) Sometimes a request for Privacy Act information is submitted by a “third party” (an individual other than the person who is the subject of the Privacy Act record). If you request Privacy Act information about another individual, the material will not be disclosed without prior written approval by that individual unless—
(1) The release is provided for under one of the Privacy Act conditions of disclosure (5 U.S.C. 552a(b)), one of which is that Privacy Act information is releasable if it is required to be released under the FOIA, or
(2) In most circumstances, if the individual is deceased. See § 2.8(d)(4).
(d) In handling a request covered by paragraph (a) of this section, the fee provisions and time limits under the FOIA will apply, except that with regard to information that is subject to the Privacy Act, the bureau will charge only for duplication and not for search and review time (see Appendix C to this part). There will be no charge if the fee for processing the request is $30 or less.
Subpart D—FOIA Appeals
(a) You may file an appeal when:
(1) Records or parts of records have been withheld;
(2) The bureau informs you that you have not adequately described the records you are seeking, or that it does not possess responsive records and you have reason to believe it does or you question the adequacy of the bureau's search for responsive records;
(3) A decision has not been made on your request within the time limits provided in § 2.12;
(4) The bureau did not address all aspects of your request for records;
(5) You believe there is a procedural deficiency (e.g., fees are improperly calculated);
(6) A fee waiver has been denied; or
(7) A request for expedited processing has been denied or not responded to on time. (Special procedures apply to this type of appeal (see §§ 2.14, 2.29(c), and 2.32(b)). An appeal of this type relates only to the request for expedited processing and does not constitute an appeal of your underlying request for records.
(b) Before filing an appeal, you may wish to communicate with the contact person listed in the FOIA response or the bureau's FOIA Officer to see if the issue can be resolved informally. Informal resolution of your concerns may be appropriate where the bureau has not responded to your request or where you believe the search conducted was not adequate. In this latter instance, you may be able to provide additional information that may assist the bureau in locating records. However, if you wish to file an appeal, it must be received by the FOIA Appeals Officer within the time limits in § 2.29.
(a) Appeals covered by §§ 2.28(a)(1), (2), and (4) thru (6). Your appeal must be received by the FOIA Appeals Officer no later than 30 workdays after the date of the final response or 30 workdays after receipt of any records that are provided to you.
(b) Appeals covered by § 2.28(a)(3). You may file an appeal any time after the time limit for responding to your request has passed.
(c) Appeals covered by § 2.28(a)(7). You should file an appeal as soon as possible.
(a) You must submit your appeal in writing, i.e., by mail, fax or e-mail, to the FOIA Appeals Officer, U.S. Department of the Interior (see Appendix A for the address). Your appeal must include the information specified in paragraph (b) of this section. Failure to send your appeal directly to the FOIA Appeals Officer may result in a delay in processing.
(b) Your appeal must contain copies of all correspondence between you and the bureau, including your request and the bureau's response (if there is one). DOI will not begin processing your appeal and the time limits for responding to your appeal will not begin to run until these documents are received.
(c) You also should include in as much detail as possible any reason(s) why you believe the bureau's response was in error.
(d) Include your name and daytime telephone number (or the name and telephone number of an appropriate contact), e-mail address and fax number (if available), in case DOI needs additional information or clarification of your appeal.
(e) If you file an appeal concerning a fee waiver denial or a denial of expedited processing, you should, in addition to complying with paragraph (b) of this section, demonstrate fully how the criteria in § 2.19(b) (see Appendix D) or § 2.14(a) are met. You also should state in as much detail as possible why you believe the initial decision was incorrect.
(f) All communications concerning your appeal should be clearly marked with the words: “FREEDOM OF INFORMATION APPEAL.”
(a) Appeals will be decided by the FOIA Appeals Officer. When necessary, the FOIA Appeals Officer will consult other appropriate offices, including the Office of the Solicitor (in the case of all denials of information and fee waivers, and other technical issues as necessary).
(b) The final decision on an appeal will be in writing and will state the basis for DOI's decision as follows:
(1) Decision to release or withhold records.
(i) If the FOIA Appeals Officer decides to release the withheld records or portions thereof, he/she will make the records available or instruct the appropriate bureau to make them available as soon as possible.
(ii) If the FOIA Appeals Officer decides to uphold in whole or part the denial of a request for records, he/she will advise you of your right to obtain judicial review.
(2) Non-possession of records. If the FOIA Appeals Officer decides that the requested records exist, the bureau that has the records will issue a response to you promptly and the FOIA Appeals Officer will close the file on your appeal. If the FOIA Appeals Officer decides that the requested records cannot be located or do not exist, he/she will advise you of your right to treat the decision as a denial and seek judicial review.
(3) Non-response to a FOIA request. If a bureau has not issued an appropriate response to your FOIA request within the 20-workday statutory time limit, the FOIA Appeals Officer will direct the bureau to issue a response directly to you as soon as possible. If the bureau responds to your request within 20-workdays after receipt of the appeal, the FOIA Appeals Officer will close the file on your appeal. Otherwise, the FOIA Appeals Officer will advise you that you may treat the lack of a response by the bureau as a denial of your appeal and seek judicial review.
(4) Incomplete response to a FOIA request. If a bureau has not issued a complete response to your FOIA request, the FOIA Appeals Officer will direct the bureau to issue a complete response directly to you as soon as possible, and provide you with the name and telephone number of a contact person. The FOIA Appeals Officer will close your FOIA appeal and advise you that you may treat the incomplete response by the bureau as a denial of your appeal and seek judicial review.Start Printed Page 64541
(5) Procedural deficiencies. If the FOIA Appeals Officer decides that the bureau was in error, he/she will instruct the bureau to correct the error and advise you accordingly. If the FOIA Appeals Officer decides that the bureau acted properly, he/she will deny your appeal and advise you of your right to seek judicial review.
(6) Fee waiver denials. If the decision is to grant your request for a fee waiver, the FOIA Appeals Officer will advise the appropriate bureau of the Department's decision and instruct the bureau to proceed with processing the request or to refund any monies you have paid. If the decision is to deny the fee waiver request, the Department will advise you of your right to seek judicial review. You also should contact the bureau office to make further arrangements to process your request if you still wish to obtain the records.
(7) Denial of expedited processing. If the FOIA Appeals Officer decides to grant expedited processing, he/she will direct the bureau to process your request as soon as practicable. If your request for expedited processing is denied on appeal, the FOIA Appeals Officer will advise you of your right to seek judicial review of the denial of expedited processing.
(a) The statutory time limit for responding to an appeal is 20 workdays after receipt of an appeal meeting the requirements of § 2.30.
(b) If you request expedited processing of your appeal, you must demonstrate to the Department's satisfaction that the appeal meets one of the criteria under § 2.14(a). The FOIA Appeals Officer will advise you whether the Department will grant expedited processing within 10 calendar days of its receipt of your appeal. If the FOIA Appeals Officer decides to grant expedited processing, he/she will give your appeal priority and process it ahead of other pending appeals.
(c) If you have not received a decision on your appeal within 20 workdays, you have the right to seek review in a District Court of the United States (see 5 U.S.C. 552(a)(4) and (6)). In the event that the Department is unable to reach a decision within the given time limits, the FOIA Appeals Officer will notify you of the reason for the delay and the right to seek judicial review.
(a) Notice of appeal decision. If the Department decides on appeal to release records over the objections of a submitter who has advised DOI that the information is protected from release by exemption (4), the Department will advise you and the submitter that it intends to release the records 10 workdays after the notice to the submitter regarding the appeal decision.
(b) Notice of litigation.
(1) The Department will notify the submitter within 10 workdays of receipt of the court complaint if you file a lawsuit seeking access to any records found on appeal to be protected from release by exemption (4).
(2) The Department will notify you within 10 workdays of receipt of the court complaint if the submitter files a lawsuit requesting the court to prohibit the Department from releasing information it alleges qualifies for protection under exemption (4).
Subpart E—FOIA Annual Report
Under 5 U.S.C. 552(e), DOI is required to prepare an annual report regarding its FOIA activities. The report includes information about FOIA requests, appeals, and litigation against the Department. Copies of DOI's annual FOIA report may be obtained from the Departmental FOIA Officer or by contacting DOI's Library which is located at the C Street entrance of the Main Interior Building (MIB), 1849 C Street, NW., Washington, DC 20240 (see Appendix A to this part). You may access the annual reports electronically by visiting DOI's FOIA home page (see Appendix B to this part for the Internet address).
4. Appendices A and B to part 2 are revised and Appendices C through F to part 2 are aldded to read as follows:End Amendment Part Start Appendix Start Printed Page 64542
Appendix A To Part 2—Department of the Interior FOIA/Public Affairs Contacts and Reading RoomsStart Printed Page 64543 Start Printed Page 64544 Start Printed Page 64545 Start Printed Page 64546 Start Printed Page 64547 Start Printed Page 64548 Start Printed Page 64549 Start Printed Page 64550
For more information on FOIA, including the most current listing of FOIA Contacts, visit DOI's FOIA home page at http://www.doi.gov/foia/.End Appendix Start Appendix
Appendix B to Part 2—Internet Addresses
1. Department of the Interior (DOI) Home Page: http://www.doi.gov
2. DOI FOIA Home Page: http://www.doi.gov/foia/
3. DOI Reference Guide for Obtaining Information: http://www.doi.gov/foia/foitabl.htm
4. List of DOI Public Affairs Offices: http://www.doi.gov/foia/list.html
5. DOI FOIA Contacts: http://www.doi.gov/foia/contacts.html
6. DOI FOIA Regulations (43 CFR, Part 2, Subparts A and B): http://www.doi.gov/foia/foiaregs.html
7. DOI FOIA Policy and Guidance: http://www.doi.gov/foia/policy.html
8. Electronic Reading Room: http://www.doi.gov/foia/readroom.html
9. Index of Frequently Requested Documents: http://www.doi.gov/foia/freq.html
10. DOI's Frequently Requested Documents: http://www.doi.gov/foia/frrindex.html
11. FOIA Annual Reports to Congress: http://www.doi.gov/foia/report.html
12. DOI's Library: http://library.doi.gov
13. General Records Schedule 14, Information Services Records: http://ardor.nara.gov/grs/grs14.html
14. DOI Records Management Program: http://www.doi.gov/ocio/records/ Start Printed Page 64551
15. DOI Privacy Act Program: http://www.doi.gov/ocio/privacy/
16. DOI Privacy Act Officers: http://www.doi.gov/ocio/privacy/doi_privacy_act_officers.htm
17. DOI Privacy Act Regulations: http://www.doi.gov/foia/43cfrsub.html
18. DOI Privacy Act Systems of Records Notices: http://www.access.gpo.gov/su_docs/aces/1999_pa.html
19. FirstGov Portal: http://www.firstgov.gov
See DOI's FOIA home page at http://www.doi.gov/foia/ for the most current listing of FOIA-related website addresses.End Appendix Start Appendix
Appendix C to Part 2—Fee Schedule
If you submit a FOIA request, the bureau will charge you to search for, review, and duplicate the requested records according to your fee category (see §§ 2.16 and 2.17) and the following fee schedule. In addition, the bureau will charge you for any special handling or services performed in connection with processing your request and/or appeal under Subparts C and D of this part. The following fees will be used by all bureaus of the Department; these fees apply to services performed in making documents available for public inspection and copying under Subpart B of this part as well. The duplicating fees also are applicable to records provided in response to requests made under the Privacy Act. Fees will not be charged under either the FOIA or the Privacy Act where the total amount of fees for processing the request is $30 or less (see § 2.16(b)(2)), where the requester has met the requirements for a statutory fee waiver, or where the bureau has granted a discretionary fee waiver (see §§ 2.19 and 2.20).
(1) Search and review (review applies to commercial-use requesters only). Fees are based on: the average hourly salary (base salary plus DC locality payment), plus 16 percent for benefits, of employees in the following three categories. The average grade was established by surveying the bureaus to obtain the average grade of employees conducting FOIA searches and reviews. Fees will be increased annually consistent with Congressionally approved pay increases. Fees are charged in quarter hour increments.
(a) Clerical—Based on GS-6, Step 5, pay (all employees at GS-7 and below)
(b) Professional—Based on GS-11, Step 7, pay (all employees at GS-8 through GS-12)
(c) Managerial—Based on GS-14, Step 2, pay (all employees at GS-13 and above)
Fees for the current fiscal year are posted on DOI's FOIA home page (see Appendix B). If you do not have access to the Internet, please call the Departmental FOIA Officer (see Appendix A) for a copy of the fee schedule.
|Pages no larger than 8.5 × 14 inches, when reproduced by standard office copying machines||$.13 per page ($.26 for double-sided copying)|
|Color copies of pages no larger than 8.5 × 11 inches||$.90 per page|
|Pages larger than 8.5 × 14 inches||Direct cost to DOI|
|Color copies of pages no larger than 11 × 17 inches||$1.50 per page|
|Photographs and records requiring special handling (e.g., because of age, size, or format)||Direct cost to DOI|
|(3) Electronic records:|
|Charges for services related to processing requests for electronic records||Direct cost to DOI|
|Each certificate of verification attached to authenticate copies of records||$.25|
|Charges that exceed the cost of first class postage. Examples of such charges are express mail or overnight delivery||Postage or Delivery charge|
|(6) Other Services:|
|Cost of special services or materials, other than those provided for by this fee schedule, when requester is notified of such costs in advance and agrees to pay them||Direct cost to DOI|
Appendix D to Part 2—Fee Waiver Criteria
If you are seeking a fee waiver, it is your responsibility to provide detailed information to support your request. You must submit this information with your FOIA request. 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 you are requesting. Each fee waiver request is judged on its own merit—we do not grant “blanket” fee waivers, i.e., obtaining a fee waiver once does not mean you will obtain a subsequent fee waiver. Please note that inability to pay is not sufficient to justify a fee waiver.
(a) The statutory requirement for granting a fee waiver is that release of the information must be in the public interest because it—
(1) Is likely to contribute significantly to public understanding of the operations and activities of the Government; and
(2) Is not primarily in your commercial interest.
(b) In deciding whether you are entitled to a fee waiver, the bureau will consider the criteria in paragraphs (1) through (4), below. Your request for a fee waiver must address each of these criteria.
(1) How do the records concern the operations or activities of the Government?
(2) If the records concern the operations or activities of the Government, how will disclosure likely contribute to public understanding of these operations and activities?
(i) How are the contents of the records you are seeking meaningfully informative on the Department's or a bureau's operations and activities? Is there a logical connection between the content of the records and the operations or activities you are interested in?
(ii) Other than enhancing your knowledge, how will disclosure of the requested records contribute to the understanding of the public at large or a reasonably broad audience of persons interested in the subject?
(iii) Your identity, vocation, qualifications, and expertise regarding the requested information (whether you are affiliated with a newspaper, college or university, have previously published articles, books, etc.) may be relevant factors. However, merely stating that you are going to write a book, research a particular subject, or perform doctoral dissertation work, is insufficient, without demonstrating how you plan to disclose the information in a manner which will be informative to a reasonably broad audience of persons interested in the subject.
(iv) Do you have the ability and intention to disseminate the information to the general public or a reasonably broad audience of persons interested in the subject?
(A) How and to whom do you intend to disseminate the information?
(B) How do you plan to use the information to contribute to public understanding of the Government's operations or activities?
(3) If there is likely to be a contribution to public understanding, will release of the requested records contribute significantly to public understanding?
(i) Is the information being disclosed new?
(ii) Does the information being disclosed confirm or clarify data which has been released previously?
(iii) How will disclosure increase the level of public understanding of the operations or activities of the Department or a bureau that existed prior to disclosure?
(iv) Is the information already publicly available? If the Government previously has published the information you are seeking or it is routinely available to the public in a library, reading room, through the Internet, or as part of the administrative record for a Start Printed Page 64552particular issue (e.g., the listing of the spotted owl as an endangered species), it is less likely that there will be a significant contribution from release.
(4) Would disclosure be primarily in your commercial interest?
(i) Do you have a commercial interest that would be furthered by disclosure? A commercial interest is a commercial, trade, or profit interest as these terms are commonly understood. Your status as “profitmaking” or “non-profitmaking” is not the deciding factor. Not only profitmaking entities, but other organizations or individuals may have a commercial interest to be served by disclosure, depending on the circumstances involved.
(ii) If you do have a commercial interest that would be furthered by disclosure, would disclosure be primarily in that interest? Would the public interest in disclosure be greater than any commercial interest you or your organization may have in the documents? If so, how would it be greater?
(iii) Your identity, vocation, and the circumstances surrounding your request are all factors to be considered in determining whether disclosure would be primarily in your commercial interest. For example:
(A) If you are a representative of a news media organization seeking information as part of the news gathering process, we will presume that the public interest outweighs your commercial interest.
(B) If you represent a business/corporation/association or you are an attorney representing such an organization, we will presume that your commercial interest outweighs the public interest unless you demonstrate otherwise.
(c) If the bureau cannot make a determination based on the information you have provided, it may ask you for additional justification regarding your request.End Appendix Start Appendix
Appendix E to Part 2—FOIA Exemptions
Under the FOIA (5 U.S.C. 552(b)), there are nine exemptions which may be used to protect information from disclosure. The Department has paraphrased the exemptions, below, for your information. The paraphrases are not intended to be interpretations of the exemptions.
(1) National security information concerning national defense or foreign policy, provided that such information has been properly classified, in accordance with an Executive Order;
(2) Information related solely to the internal personnel rules and practices of an agency;
(3) Information specifically exempted from disclosure by statute (other than the Privacy Act or the Trade Secrets Act), provided that such statute:
(A) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(B) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information which is obtained from a person and is privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters, which would not be available by law to a party other than an agency in litigation with the agency;
(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) Records or information compiled for law enforcement purposes, the release of which:
(A) Could reasonably be expected to interfere with enforcement proceedings;
(B) Would deprive a person of a right to a fair trial or an impartial adjudication;
(C) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(D) Could reasonably be expected to disclose the identity of a confidential source;
(E) Would disclose techniques, procedures, or guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or
(F) Could reasonably be expected to endanger the life or physical safety of any individual.
(8) Information contained in or related to examination, operating, or condition reports, prepared by, or on behalf of, or for the use of an agency responsible for regulating or supervising financial institutions; and
(9) Geological and geophysical information and data, including maps, concerning wells.End Appendix
Appendix F to Part 2—Mineral Leasing Act and Mineral Leasing Act for Acquired Lands—Special Rules
(a) Definitions. As used in the section:
(1) Exploration license means a license issued by the Secretary of the Interior to conduct coal exploration operations on land subject to the Mineral Leasing Act, under 30 U.S.C. 201(b), or subject to the Mineral Leasing Act for Acquired Lands, under 30 U.S.C. 351-360.
(2) Fair-market value of coal to be leased means the minimum amount of a bid the Secretary is willing to accept in leasing coal within leasing tracts offered in general lease sales or reserved and offered for lease to public bodies, including Federal agencies, rural electric cooperatives, or non-profit corporations controlled by any of such entities, under 30 U.S.C. 201(a)(1) or 30 U.S.C. 351-360.
(3) Information means data, statistics, samples and other facts, whether analyzed or processed or not, pertaining to Federal coal resources.
(b) Applicability. This Appendix applies to the following categories of information:
(2) Category B. Information acquired from commercial or other sources under service contract with United States Geological Survey (USGS) under 30 U.S.C. 208-1(b) (and corresponding information under 30 U.S.C. 351-360), and information developed by USGS under an exploratory program authorized by 30 U.S.C. 208-1 (and corresponding information under 30 U.S.C. 351-360);
(3) Category C. Information obtained from commercial sources which the commercial source acquired while not under contract with the United States Government;
(5) Category E. The fair-market value of coal to be leased and comments received by the Secretary with respect to such value.
(c) Availability of information. Information obtained by the Department from various sources will be made available to the public as follows:
(1) Category A—Information. Category A information must not be disclosed to the public until after the areas to which the information pertains have been leased by the Department, or until the Secretary determines that release of the information to the public would not damage the competitive position of the holder of the exploration license, whichever comes first.
(2) Category B—Information. Category B information must not be withheld from the public; it will be made available by means of and at the time of open filing or publication by USGS.
(3) Category C—Information. To the extent Category C information is proprietary, such information must not be made available to the public until after the areas to which the information pertains have been leased by the Department.
(4) Category D—Information. To the extent Category D information is proprietary, the Department will withhold the information from the public for the length of time the department or agency providing the information agreed to when it obtained the information.
(5) Category E—Information. Category E information must not be made public until the lands to which the information pertains have been leased, or until the Secretary has determined that its release prior to the issuance of a lease is in the public interest.End Supplemental Information
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[FR Doc. 02-25970 Filed 10-18-02; 8:45 am]
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