Federal Register / Vol. 80, No. 64 / Friday, April 3, 2015 / Rules and Regulations 18099 

(5) [Reserved]. For further guidance 

see § 1.45G–1T(f)(5). 

(g) * * * 

(4) Taxable years beginning after 

December 31, 2011. [Reserved]. For 

further guidance see § 1.45G–1T(g)(4). 

(5) Taxable years beginning before 

January 1, 2012. [Reserved]. For further 

guidance see § 1.45G–1T(g)(5). 

■ Par. 7. Section 1.45G–1T is added to 

read as follows: 

§ 1.45G–1T. Railroad track maintenance 

credit (temporary). 

(a) through (e) [Reserved]. For further 

guidance, see § 1.45G–1(a) through (e). 

(f)(1) through (3) [Reserved]. For 

further guidance, see § 1.45G–1(f)(1) 

through (3). 

(4) Allocation of the group credit. The 

group credit is allocated to each member 

of the controlled group on a 

proportionate basis to its share of the 

aggregate of the QRTMEs taken into 

account for the taxable year by such 

controlled group for purposes of the 

credit. 

(5) Special rules for consolidated 

groups—(i) In general. For purposes of 

applying paragraph (f)(4) of this section, 

members of a consolidated group who 

are members of a controlled group are 

treated as a single member of the 

controlled group. 

(ii) Special rule for allocation of group 

credit among consolidated group 

members. The portion of the group 

credit that is allocated to a consolidated 

group is allocated to each member of the 

consolidated group on a proportionate 

basis to its share of the aggregate of the 

QRTMEs taken into account for the 

taxable year by such consolidated group 

for purposes of the credit. 

(6) through (8) [Reserved]. For further 

guidance, see § 1.45G–1(f)(6) through 

(8). 

(g)(1) through (3) [Reserved]. For 

further guidance, see § 1.45G–1(g)(1) 

through (3). 

(4) Taxable years beginning after 

December 31, 2011. Section 1.45G–1T is 

applicable for taxable years beginning 

on or after April 3, 2015. Taxpayers may 

apply § 1.45G–1T to taxable years 

beginning after December 31, 2011, but 

before April 3, 2015. For a taxpayer that 

does not apply § 1.45G–1T to a taxable 

year beginning after December 31, 2011, 

but before April 3, 2015, the guidance 

that applies to such taxable year is 

contained in Notice 2013–20 (2013–15 

IRB 902). 

(5) Taxable years ending before 

January 1, 2012. See § 1.45–1 as 

contained in 26 CFR part 1, revised 

April 1, 2014. 

(6) Expiration date. The applicability 

of § 1.45G–1T expires on April 2, 2018. 

■ Par. 8. Section 1.280C–4 is amended 

by revising paragraph (b)(2), 

redesignating paragraph (c) as (c)(1) and 

adding paragraphs (c)(2) and (3) to read 

as follows: 

§ 1.280C–4. Credit for increasing research 

activities. 

* * * * * 

(b) * * * 

(2) [Reserved]. For further guidance, 

see § 1.280C–4T(b)(2). 

* * * * * 

(c) * * * 

(2) [Reserved]. For further guidance, 

see § 1.280C–4T(c)(2). 

(3) [Reserved]. For further guidance, 

see § 1.280C–4T(c)(3). 

■ Par. 9. Section 1.280C–4T is added to 

read as follows: 

§ 1.280C–4T. Credit for increasing 

research activities (temporary). 

(a) [Reserved]. For further guidance, 

see § 1.280C–4(a). 

(b) Controlled groups of corporations; 

trades or businesses under common 

control. (1) [Reserved]. For further 

guidance, see § 1.280C–4(b)(1). 

(2) Example. The following example 

illustrates an application of paragraph (b) of 

this section: A, B, and C, all of which are 

calendar year taxpayers, are members of a 

controlled group of corporations (within the 

meaning of section 41(f)(5)). A, B, and C each 

attach a statement to the 2012 Form 6765, 

‘‘Credit for Increasing Research Activities,’’ 

showing A and C were the only members of 

the controlled group to have qualified 

research expenses when calculating the 

group credit. A and C report their allocated 

portions of the group credit on the 2012 Form 

6765 and B reports no research credit on 

Form 6765. Pursuant to § 1.280C–4(a), A and 

B, but not C, each make an election for the 

reduced credit under section 280(c)(3)(B) on 

the 2012 Form 6765. In December 2013, B 

determines it had qualified research expenses 

in 2012 resulting in an increased group 

credit. On an amended 2012 Form 6765, A, 

B, and C each report their allocated portions 

of the group credit. B reports its credit as a 

regular credit under section 41(a) and 

reduces the credit under section 

280C(c)(3)(B). C may not reduce its credit 

under section 280(c)(3)(B) because C did not 

make an election for the reduced credit with 

its original return. 

(c)(1) [Reserved]. For further guidance 

see § 1.280C–4(c)(1). 

(2) Taxable years beginning after 

December 31, 2011. Section 1.280C–4T 

is applicable for taxable years beginning 

on or after April 3, 2015. Taxpayers may 

apply § 1.280C–4T to taxable years 

beginning after December 31, 2011, but 

before April 3, 2015. For a taxpayer that 

does not apply § 1.280C–4T to a taxable 

year beginning after December 31, 2011, 

but before April 3, 2015, the guidance 

that applies to such taxable year is 

contained in Notice 2013–20 (2013–15 

IRB 902). 

(3) For taxable years ending before 

January 1, 2012. See § 1.280C–4 as 

contained in 26 CFR part 1, revised 

April 1, 2014. 

(4) Expiration date. The applicability 

of paragraph (b)(2) expires on April 2, 

2018. 

John Dalrymple, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: March 16, 2015. 

Mark J. Mazur, 

Assistant Secretary of the Treasury (Tax 

Policy). 

[FR Doc. 2015–07331 Filed 4–2–15; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 16 

[Docket No. OAG 140; AG Order No. 3517– 

2015] 

RIN 1105–AB27 

Revision of Department’s Freedom of 

Information Act Regulations 

AGENCY: Department of Justice. 

ACTION: Final rule. 

SUMMARY: This rule amends the 

Department’s regulations under the 

Freedom of Information Act (‘‘FOIA’’). 

The regulations have been revised to 

update and streamline the language of 

several procedural provisions and to 

incorporate changes brought about by 

the amendments to the FOIA under the 

OPEN Government Act of 2007. 

Additionally, the regulations have been 

updated to reflect developments in the 

case law and to include current cost 

figures to be used in calculating and 

charging fees. 

DATES: Effective May 4, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Lindsay Roberts, Attorney-Advisor, 

Office of Information Policy, (202) 514– 

3642. 

SUPPLEMENTARY INFORMATION: 

Background Information 

On March 21, 2011, the Department of 

Justice published a proposed rule to 

revise its existing regulations under the 

FOIA. See 76 FR 15236. On September 

19, 2011, the Department reopened the 

comment period for another thirty days 

in order to consider additional public 

comments. See 76 FR 57940. 

Comments 

Interested persons were afforded the 

opportunity to participate in the 


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rulemaking process through submission 

of written comments to the proposed 

rule during the two open comment 

periods. In total, the Department 

received fifteen public submissions in 

response to its proposed rule, including 

comments from another agency as well 

as internal comments from components 

of the Department. Due consideration 

has been given to each of the comments 

received and, in response, the 

Department has made several 

modifications to the rule. These 

modifications include clarifying, 

revising, or expanding various 

provisions, withdrawing a provision, 

retaining existing language for certain 

other provisions, and making technical 

edits, such as correcting Web site links. 

General Provisions 

As an initial matter, the Department 

has decided that the final regulations 

will reference the Department’s policy 

to encourage discretionary releases of 

information whenever disclosure would 

not foreseeably harm an interest 

protected by a FOIA exemption. 

Some commenters suggested the 

inclusion of provisions that would 

merely duplicate certain statutory 

requirements, such as adding provisions 

describing the FOIA’s standards for 

tolling of requests or delineating the 

statutory duties of FOIA Public 

Liaisons. Other than those instances 

where the Department believed it was 

important for emphasis, in order to 

streamline these regulations the 

Department has intentionally not simply 

repeated statutory provisions. These 

regulations implement the FOIA as well 

as the Office of Management and 

Budget’s Uniform Freedom of 

Information Act Fee Schedule and 

Guidelines, 52 FR 10012 (Mar. 27, 1987) 

(‘‘OMB Guidelines’’), and should be 

read in conjunction with those 

authorities. The regulations are not 

meant to duplicate or to serve as a 

substitute for these sources. 

Fee-Related Provisions 

Several public submissions contained 

comments regarding the Department’s 

assessment of fees. As a general matter, 

the Department notes that the fee 

provisions are written to conform with 

the OMB Guidelines, which establish 

uniform standards for fee matters. 

Conformity with the OMB Guidelines is 

required by the FOIA. See 5 U.S.C. 

552(a)(4)(A)(i). 

One commenter questioned the 

specific dollar amount that he had been 

charged by one Department component 

for producing records on compact discs 

(‘‘CDs’’) as well as the volume of 

material that was loaded onto each CD. 

In accordance with the OMB 

Guidelines, see 52 FR at 10018, the 

Department’s current regulations 

provide (without specifying a dollar 

amount) for the assessment of ‘‘direct 

costs,’’ meaning the actual cost of 

producing the media, incurred by the 

component when producing records in 

a format other than paper. The direct 

costs of producing records on CD may 

include scanning paper records into an 

electronic format and conducting 

requisite security scans in addition to 

the cost associated with the blank CD. 

Section 16.10(c)(2) of the final rule, 

which allows components to charge 

‘‘direct costs’’ for non-paper media, 

gives components flexibility to adjust 

fees as the costs of providing records in 

a specified format change over time. 

This same flexibility allows components 

to adjust the volume of material loaded 

onto each CD to ensure that requesters 

receive material as efficiently as 

possible. The expectation is that with 

technological advances, components 

will pass along the reduced costs to 

requesters contemporaneously, without 

first necessitating a change in the 

regulation. Accordingly, this regulation 

is not the proper venue for determining 

the specific dollar amount that 

components should charge or the 

volume of material that should be 

loaded onto each CD. 

Several commenters expressed 

concerns about the increase in search 

fees. In contrast to the use of ‘‘direct 

costs’’ for responding to a request for 

non-paper media, search fees are 

assessed on a uniform basis throughout 

the Department in accordance with the 

OMB Guidelines and are largely salarybased. See 52 FR at 10018. The 

Department has reexamined the rates 

using a formula for search and review 

fees that takes into account current pay 

rates for different levels of staff involved 

in processing FOIA requests. The 

revised rule changes the 

‘‘administrative’’ staff category to 

‘‘clerical/administrative’’ to account for 

work performed by either clerical or 

administrative staff who may assist 

FOIA professionals in searching for 

responsive records. As a result of these 

adjustments, while there is a small 

increase in the rates from our existing 

regulations, we were able to reduce the 

rates from those originally proposed. 

Updating these costs is consistent with 

the OMB Guidelines, which provide 

that ‘‘[a]gencies should charge fees that 

recoup the full allowable direct costs 

they incur.’’ Id. While certain costs are 

now higher than when last calculated 13 

years ago, the revised fee schedule 

includes a decrease in duplication fees 

due to advances in technology. The 

Department includes in the revised 

regulations a directive that components 

‘‘ensure that searches, review, and 

duplication are conducted in the most 

efficient and the least expensive 

manner.’’ § 16.10(a). For greater 

emphasis, the Department moves that 

directive in the final rule from the 

definition paragraph in proposed 

§ 16.10 to the introductory paragraph in 

the final rule. 

One commenter recommended that 

proposed § 16.10(b)(3) contain the 

statement, included in the existing 

version of that paragraph, 28 CFR 

16.11(b)(3), that ‘‘[c]omponents shall 

honor a requester’s specified preference 

of form or format.’’ The requirement to 

honor a requester’s specified form or 

format preference is now located in 

§ 16.10(c)(2), concerning charging 

duplication fees, which is a more 

appropriate location. 

Some commenters expressed concern 

regarding the provisions that govern fees 

for educational institutions. The FOIA 

provides in relevant part that ‘‘fees shall 

be limited to reasonable standard 

charges for document duplication when 

records are not sought for commercial 

use and the request is made by an 

educational or noncommercial scientific 

institution, whose purpose is scholarly 

or scientific research.’’ 5 U.S.C. 

552(a)(4)(A)(ii)(II). In other words, such 

a requester may not be charged fees for 

searches or review. 

One commenter took issue with 

proposed § 16.10(b)(4), concerning the 

definition of the term educational 

institution. Specifically, the commenter 

objected to the phrase indicating that 

the educational institution must 

‘‘operate[] a program of scholarly 

research’’ and argued that this 

requirement would effectively exclude 

various types of schools other than 

universities. The commenter mistakenly 

asserted that the provision would be 

new; in fact, not only is it not new, but 

the requirement that an educational 

institution have as its purpose 

‘‘scholarly’’ research derives from the 

FOIA itself, see 5 U.S.C. 

552(a)(4)(A)(ii)(II), and the specific 

language was taken directly from the 

OMB Guidelines. 52 FR at 10018; see 

also id. at 10014 (addressing rationale 

for this requirement). As the OMB 

Guidelines note, whether a school 

qualifies must be determined on a caseby-case basis: 

As a practical matter, it is unlikely that a 

preschool or elementary or secondary school 

would be able to qualify for treatment as an 

‘‘educational’’ institution since few 

preschools, for example, could be said to 

conduct programs of scholarly research. But, 


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agencies should be prepared to evaluate 

requests on an individual basis when 

requesters can demonstrate that the request is 

from an institution that is within the 

category, that the institution has a program 

of scholarly research, and that the documents 

sought are in furtherance of the institution’s 

program of scholarly research and not for a 

commercial use. 

52 FR at 10014. 

Two commenters objected to the 

provision in proposed § 16.10(b)(4) 

stating that ‘‘[r]ecords requested for the 

intention of fulfilling credit 

requirements are not considered to be 

sought for a scholarly purpose.’’ This 

requirement is also taken from the OMB 

Guidelines, which distinguish 

individual research goals from an 

institution’s research goals. The 

addition of this language was intended 

to reflect longstanding Department 

practice and to alleviate any confusion 

among student requesters. The statute 

indicates that the relevant question is 

whether the request is made ‘‘by an 

educational or noncommercial scientific 

institution.’’ 5 U.S.C. 552(a)(4)(A)(ii)(II). 

The OMB Guidelines address how that 

inquiry is to be made: 

Agencies should ensure that it is apparent 

from the nature of the request that it serves 

a scholarly research goal of the institution, 

rather than an individual goal. Thus, for 

example, a request from a professor of 

geology at a State university for records 

relating to soil erosion, written on letterhead 

of the Department of Geology, could be 

presumed to be from an educational 

institution. A request from the same person 

for drug information from the Food and Drug 

Administration in furtherance of a murder 

mystery he is writing would not be presumed 

to be an institutional request, regardless of 

whether it was written on institutional 

stationary [sic] . . . . 

The institutional versus individual test 

would apply to student requests as well. A 

student who makes a request in furtherance 

of the completion of a course of instruction 

is carrying out an individual research goal 

and the request would not qualify, although 

the student in this case would certainly have 

the opportunity to apply to the agency for a 

reduction or waiver of fees. 

52 FR at 10014. 

The final rule clarifies this provision 

by replacing the sentence that 

commenters flagged with a series of 

examples based on the OMB Guidelines 

discussion quoted above, thereby 

making clear that this inquiry applies to 

professors as well. Students and 

professors who do not qualify for 

reduced fees under this provision, and 

who do not seek the records for a 

commercial use, will, of course, be 

afforded the benefits of the two free 

hours of search time and one hundred 

pages of duplication without cost that 

are afforded to any other noncommercial use requester. See 

§ 16.10(d)(4) of the final rule. And like 

all requesters, they may apply for a fee 

waiver under the fee waiver provision of 

the FOIA, pursuant to § 16.10(k) of the 

final rule. 

One commenter suggested that the 

provision in proposed § 16.10(b)(6) 

stating that ‘‘[a] component’s decision to 

grant a requester media status will be 

made on a case-by-case basis based 

upon the requester’s intended use’’ 

should be deleted. The Department 

agrees and believes that the language is 

better placed under the definition of a 

‘‘commercial use’’ requester. In the 

OMB Guidelines, the requester’s 

intended use of the requested records 

determines whether the requester will 

fall within the ‘‘commercial use’’ fee 

category, or one of the other categories. 

See 52 FR at 10013, 10017–18. As the 

OMB Guidelines explain, ‘‘it is possible 

to envision a commercial enterprise 

making a request that is not for a 

commercial use’’ and ‘‘[i]t is also 

possible that a non-profit organization 

could make a request that is for a 

commercial use.’’ Id. at 10013. To make 

this point clearer, the Department 

moves the reference to case-by-case 

determinations to the ‘‘commercial use’’ 

definition. Within the definition of 

‘‘representative of the news media,’’ the 

Department retains the statement from 

its existing regulations that ‘‘a request 

for records supporting the newsdissemination function of the requester 

shall not be considered to be for a 

commercial use.’’ 

This commenter also suggested 

including a reference to news 

organizations that operate solely on the 

Internet in the list of examples of 

‘‘representatives of the news media.’’ 

The Department concurs and adds such 

an example. 

Another commenter suggested that 

the definition of ‘‘representative of the 

news media’’ in proposed § 16.10(b)(6) 

should not require that the person or 

entity be ‘‘organized and operated to 

publish or broadcast news.’’ This 

requirement is being retained because it 

comes directly from the definition of 

‘‘representative of the news media’’ in 

the OMB Guidelines, see 52 FR at 

10018, which is in turn based on the 

statute’s inclusion of the term ‘‘news’’ in 

this fee category, see id. at 10015. 

One commenter suggested that 

proposed § 16.10(c)(1)(iii), regarding the 

direct costs associated with creating 

computer programs to extract 

information, require that requesters be 

notified of any such costs before the 

costs are incurred. The Department 

agrees and revises this provision 

accordingly. Another commenter 

suggested that the regulations address 

the provision of the OPEN Government 

Act of 2007, codified at 5 U.S.C. 

552(a)(4)(A)(viii), that limits the 

charging of fees in certain instances 

where time limits are not met. This 

statutory provision, in fact, has been 

expressly addressed in proposed 

§ 16.10(d)(2), which sets forth 

restrictions on charging fees. 

One commenter suggested that under 

proposed § 16.10(e), when components 

notify requesters of anticipated fees in 

excess of $25.00, they provide noncommercial use requesters with their 

statutory entitlements of one hundred 

free pages and, when search fees are 

assessed, their two hours of free search 

time or the cost equivalent. The 

Department believes that requesters 

should be apprised of the option to 

receive their statutory entitlements 

regardless of whether estimated fees 

exceed $25.00 and has revised the 

provision to account for that. However, 

the Department believes it is preferable 

not to require components to perform 

the statutorily entitled free search and 

duplication before the requester 

responds to the notice because it would 

not be an efficient use of limited FOIA 

resources, inasmuch as the requester 

might choose to revise the request after 

receipt of the notice. The Department 

also adds a provision to permit 

requesters to designate a specific 

amount of fees that they are willing to 

pay. If it turns out that the total cost of 

processing the request is higher, the 

component must still process the 

request up to the amount of fees the 

requester agreed to pay, unless the 

requester withdraws the request. 

Finally, the Department adds language 

to clarify that when a requester has 

indicated a willingness to pay some 

amount of fees, the time to respond is 

tolled when the Department informs the 

requester that the total cost of 

processing the request is higher than the 

amount the requester indicated a 

willingness to pay. Once the agency 

receives the requester’s response to the 

notice, the time to respond to the 

request will resume from where it was 

at the date of the notification. 

One commenter suggested that 

Department components should make 

fee waiver determinations based ‘‘on the 

face of the request’’ under proposed 

§ 16.10(k) and not defer such decisions 

‘‘until after search costs are incurred.’’ 

The commenter misinterprets the effect 

of the six factors contained in proposed 

§ 16.10(k). The regulations do not 

provide for the assessment of fees as 

part of the process of making a fee 

waiver determination. Rather, the six 

factors set out in the regulations guide 


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Department components in applying the 

statutory standard for waiving fees. 

Requesters do not incur any charge as a 

result of this process. 

Another commenter suggested that 

the Department delete the word 

‘‘ordinarily’’ from proposed 

§ 16.10(k)(2)(iii), concerning the third 

fee waiver factor, which discusses 

whether disclosure will contribute to 

public understanding of the subject. The 

Department accepts this comment and 

reinstates the original language: ‘‘It shall 

be presumed that a representative of the 

news media will satisfy this 

consideration.’’ 

This commenter also suggested 

reinstatement of language in the existing 

regulations regarding presumptions 

about disclosures made to data brokers. 

The Department agrees and reinstates 

that language in § 16.10(k)(3)(ii) as well 

as the related language about 

presumptions regarding disclosure to 

the news media. 

One commenter suggested adding a 

provision containing a statement that 

components may waive fees as a matter 

of discretion. The FOIA establishes a 

standard for waiver or reduction of fees. 

The Department’s regulations are 

intended to define the manner in which 

this standard is to be applied. In some 

cases, components may need to make 

discretionary judgments, but they must 

do so within the confines of the 

statutory standard. 

An agency commenter suggested that 

proposed § 16.10(e) be revised to 

include a provision that when 

components notify requesters of the 

actual or estimated amount of fees that 

they include in that estimate a 

breakdown of the fees for search, 

review, or duplication. The Department 

agrees and makes that revision. 

Exclusion Provision 

A number of commenters raised 

concerns regarding proposed 

§ 16.6(f)(2), which pertained to 

responses to requests involving records 

excluded from the requirements of the 

FOIA by 5 U.S.C. 552(c). Section 552(c), 

enacted as an amendment to the FOIA 

in 1986, see Public Law 99–570, secs. 

1801–04, 100 Stat. 3207, provides 

special protection for three categories of 

particularly sensitive law enforcement 

records. The first exclusion protects 

against disclosure of a pending criminal 

law enforcement investigation where 

there is reason to believe that the target 

is unaware of the investigation and 

disclosure of its existence could 

reasonably be expected to interfere with 

enforcement proceedings. The second 

exclusion, which applies only to records 

maintained by criminal law 

enforcement agencies, protects against 

disclosure of unacknowledged, 

confidential informants. The third 

exclusion, which applies only to the 

Federal Bureau of Investigation, protects 

against disclosure of foreign intelligence 

or counterintelligence, or international 

terrorism records, when the existence of 

those records is classified. 

Proposed § 16.6(f)(2) provided as 

follows: ‘‘When a component applies an 

exclusion to exclude records from the 

requirements of the FOIA pursuant to 5 

U.S.C. 552(c), the component utilizing 

the exclusion will respond to the 

request as if the excluded records did 

not exist. This response should not 

differ in wording from any other 

response given by the component.’’ 

Commenters suggested that this 

language would impede governmental 

transparency and accountability. 

Proposed § 16.6(f)(2) was intended to 

incorporate guidance issued more than 

20 years ago by Attorney General Edwin 

Meese. See Attorney General’s 

Memorandum on the 1986 Amendments 

to the Freedom of Information Act 18– 

30 (December 1987), available at 

http://www.justice.gov/oip/

86agmemo.htm (‘‘Meese Guidance’’). 

The Meese Guidance provided, among 

other things, that where the only records 

responsive to a request were excluded 

from the FOIA by statute, that ‘‘a 

requester can properly be advised in 

such a situation that ‘there exist no 

records responsive to your FOIA 

request.’ ’’ Id. at 27. The Meese 

Guidance also advised agencies that 

they must ensure that their FOIA 

responses are consistently worded so 

that a requester is not able to determine 

from the wording of a response that an 

exclusion was invoked. See id. 

In September 2012, in order to bring 

greater awareness to the public about 

the existence and effect of these 

statutory provisions, the Office of 

Information Policy (‘‘OIP’’) issued 

guidance outlining the steps all agencies 

should take to ensure proper 

implementation of exclusions and 

setting forth the new requirements for 

their use. See Office of Information 

Policy, ‘‘Implementing FOIA’s Statutory 

Exclusion Provisions’’ (September 14, 

2012), available at http://

www.justice.gov/oip/foiapost/

2012foiapost9.html (‘‘OIP Exclusion 

Guidance’’). 

The OIP Exclusion Guidance 

establishes a new approach for all 

agencies to take when responding to 

requests, in lieu of the approach that 

had been set forth in proposed 

§ 16.6(f)(2). Specifically, all agency 

components that maintain criminal law 

enforcement records now include a 

notification in their FOIA response 

letters advising requesters that Congress 

excluded certain records from the 

requirements of the FOIA and that the 

agency’s response addresses those 

records that are subject to the 

requirements of the FOIA. The 

Department instructed these law 

enforcement components to include the 

following language in response to all 

FOIA requests: 

For your information, Congress excluded 

three discrete categories of law enforcement 

and national security records from the 

requirements of the FOIA. See 5 U.S.C. 552(c) 

(2006 & Supp. IV 2010). This response is 

limited to those records that are subject to the 

requirements of the FOIA. This is a standard 

notification that is given to all our requesters 

and should not be taken as an indication that 

excluded records do, or do not, exist. 

See OIP Exclusion Guidance. 

As explained in greater length in the 

OIP Exclusion Guidance, the 

Department believes that the use of this 

language addresses the concerns raised 

by the commenters who had criticized 

proposed § 16.6(f)(2), while preserving 

the integrity of the sensitive law 

enforcement records at stake. 

The final rule retains two provisions 

in the proposed rule aimed at ensuring 

proper use of exclusions. Before 

applying an exclusion, the component 

must first obtain approval from OIP. See 

§ 16.6(g)(1). Furthermore, any 

component invoking an exclusion must 

maintain records of its use and 

approval. See § 16.6(g)(2). These 

provisions are intended to enhance 

accountability in the use of exclusions. 

One commenter suggested that the 

last sentence of proposed § 16.4(a), 

which provides that ‘‘[a] record that is 

excluded from the requirements of the 

FOIA pursuant to 5 U.S.C. 552(c), shall 

not be considered responsive to a 

request’’ should be changed to say that 

the records ‘‘may not be considered 

responsive.’’ This sentence was 

designed to provide notice that records 

determined by a component to be 

properly subject to an exclusion are not 

considered to be responsive to the FOIA 

request. The FOIA provides that 

agencies ‘‘may,’’ under certain defined 

circumstances, treat records ‘‘as not 

subject to the requirements of [the 

FOIA],’’ 5 U.S.C. 552(c). As a result, 

components may choose not to apply an 

exclusion even if the FOIA would allow 

them to do so. This provision addresses 

those situations where a component 

does decide to lawfully apply an 

exclusion. The provision makes clear 

that in those cases the excluded records 

are not responsive to the request. For 

clarity, we have changed the wording in 

the final rule to replace the word 


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‘‘shall’’ with ‘‘is’’ so that the regulation 

more clearly conveys that it is 

addressing the consequence of those 

situations where a component has 

decided to apply an exclusion. 

An agency commenter suggested that 

requiring components to obtain OIP 

approval before applying an exclusion 

would conflict with OIP’s role as the 

adjudicator of any subsequent 

administrative appeal. The commenter 

questioned whether, if OIP approved the 

use of an exclusion beforehand, it could 

review impartially its own decision on 

appeal. The commenter therefore 

recommended that components be 

required only to consult with OIP, 

rather than obtain its approval, before 

applying an exclusion. The Department 

declines to make this change. OIP is 

both a guidance office and an appeal 

authority, and aims to assist 

components as early as possible in the 

process to ensure that requests are 

processed properly and to obviate the 

need for appeals where possible. In light 

of the importance of invoking 

exclusions properly, the Department 

believes it is critical that OIP approve 

their use beforehand, given that only a 

subset of requesters file administrative 

appeals. 

Other Provisions 

Section 16.2 (Proactive Disclosure of 

Department Records) 

One commenter expressed concern 

that the proposed rule removes a 

reference to the requirement that 

records required to be made available 

for public inspection be indexed as 

well. In fact, the rule does not remove 

this requirement; rather, it states that 

each component is responsible for 

posting and indexing such records, and 

for updating posted records and indices 

on an ongoing basis. 

The same commenter suggested that 

proposed § 16.2 should be modified to 

require that Department components 

post online the responses to all FOIA 

requests that do not involve individuals 

seeking access to their own records. The 

Department encourages the posting of 

all records, particularly records likely to 

be of interest to the public. However, 

given that resources are needed to 

properly code records for posting, it is 

important that Department components 

retain flexibility to decide how best to 

use those resources, including flexibility 

to use other options such as posting logs 

of FOIA responses. 

Section 16.3 (Requirements for Making 

a Request) 

One commenter expressed concern 

that proposed § 16.3(a) ‘‘will allow the 

agency to summarily deny requests 

when the requester fails to write to the 

correct ‘FOIA office of the Department 

component.’’’ This scenario was not the 

intention of that provision, nor will it be 

a consequence of the provision. Indeed, 

as noted in § 16.5(a) of the proposed 

regulations and as is contemplated in 

the FOIA itself, components are 

expected to re-route misdirected 

requests to the proper component. See 

5 U.S.C. 552(a)(6)(A)(ii). For emphasis, 

the Department adds a new § 16.4(c) 

that expressly states the obligation to reroute misdirected requests. 

In addition, the Department adds 

language to the provision to explain that 

the requester will receive the quickest 

response if the request is directed to the 

component that maintains the records. 

Requesters have another option as well. 

For any requester who is uncertain as to 

which Department component may 

maintain responsive records, or who 

simply chooses to do so, proposed 

§ 16.3(a)(2) provides the requester with 

the option of submitting the request to 

the FOIA/PA Mail Referral Unit, which 

will then direct the request to the 

component(s) that it determines is most 

appropriate. The Mail Referral Unit is a 

long-standing service the Department 

provides to assist requesters who are 

uncertain as to where to direct their 

requests. 

The same commenter asserted that 

proposed § 16.3(a)(3), which requires 

the submission of a certification of 

identity for first-party requesters and 

references the Department’s Privacy Act 

regulation in subpart D on that point, 

should be clarified as only applying to 

U.S. citizens or lawful alien residents. 

This provision of the regulations is 

intended to apply to all first-party 

requesters, regardless of their country of 

origin and is intended to protect the 

privacy of individuals. The reference to 

subpart D of the regulations is merely 

meant to inform requesters as to the 

location of the requirements for 

verifying their identities when making 

requests for their own records. As a 

matter of policy, the Department 

requires verification of identity for all 

first-party requesters, not just requesters 

who are covered by the Privacy Act, to 

appropriately protect the privacy of all 

individuals and ensure that an 

individual’s private records are not 

improperly disclosed to a third party. 

This is not a new requirement and is in 

the existing regulations. 

One commenter expressed concern 

that the change in language proposed for 

§ 16.3(c), (redesignated as § 16.3(b) in 

the final rule), which addresses the 

requirement to reasonably describe the 

records sought, would ‘‘establish new 

barriers to access.’’ That was not the 

Department’s intention. We revise this 

section to conform to the existing 

regulations and add further resources 

for requesters to assist them in 

reasonably describing the records they 

seek. The section now provides that 

requesters may discuss their requests 

with the component’s FOIA contact or 

its FOIA Public Liaison in advance of 

making a request, as well as to clarify a 

request already made. Further, 

requesters may also contact a 

representative of OIP for assistance. All 

these officials will be available to assist 

requesters in reasonably describing the 

records sought. 

Section 16.4 (Responsibility for 

Responding to Requests) 

One commenter noted that the 

proposed rule deleted existing § 16.7 

concerning classified information. This 

commenter also indicated that it was 

unclear whether the citation to part 17 

in proposed § 16.4(d) (redesignated as 

§ 16.4(e) in the final rule) reflects the 

Department’s obligations with respect to 

such material. The Department further 

clarifies this provision to make clear 

that, in responding to requests for 

classified information, the component 

must determine whether the 

information remains currently and 

properly classified. 

With respect to proposed § 16.4(e) 

(now incorporated into § 16.4(d) in the 

final rule), regarding notice of referrals, 

one commenter was concerned with the 

reference to protecting the identities of 

recipients of document referrals when 

disclosure of the recipient would itself 

disclose a sensitive, exempt fact. In the 

intervening period since the close of the 

second comment period, the 

Department has issued new guidance on 

consultations and referrals that requires 

agencies to use coordination 

procedures, rather than making a 

referral, if the recipient cannot be 

identified due to law enforcement or 

national security concerns. As a result, 

this provision, as well as proposed 

§ 16.4(c) (now incorporated into 

§ 16.4(d) in the final rule), is being 

revised to reflect that new Department 

guidance. See Office of Information 

Policy, ‘‘Referrals, Consultations, and 

Coordination: Procedures for Processing 

Records When Another Agency or 

Entity Has an Interest in Them,’’ 

(December 2011), available at 

www.justice.gov/oip/foiapost/

2011foiapost42.html (explaining 

exceptions to standard procedures for 

making referrals and procedures for 

coordinating responses). 

One commenter suggested that any 

agreements between Department 


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components as to the processing of 

certain records, which was discussed in 

proposed § 16.4(g), should be made 

publicly available. This provision is 

intended to hasten processing by 

eliminating certain consults or referrals 

for components that share or encounter 

the same types of records on a regular 

basis. There is no requirement, however, 

that components create formal 

agreements appropriate for posting with 

respect to these records. In the interests 

of maintaining flexibility and enhancing 

efficiency, which are the goals of this 

section, no changes are being made to 

the provision. 

Section 16.5 (Timing of Responses to 

Requests) 

One commenter contended that the 

portion of proposed § 16.5(a) concerning 

the commencement of response time for 

misdirected requests should be deleted. 

The commenter is referred to 5 U.S.C. 

552(a)(6)(A)(ii) of the FOIA, which is 

the statutory provision establishing the 

time period to route misdirected 

requests. 

Another commenter recommended 

that proposed § 16.5(a) require 

components to forward any misdirected 

requests to the Justice Management 

Division’s Mail Referral Unit, rather 

than to the Department component that 

the receiving component deems most 

appropriate. While components are free 

to do so when they are uncertain as to 

the proper component, imposing a 

requirement to route all misdirected 

requests through the Mail Referral Unit 

rather than directly to the proper 

component would unnecessarily delay 

the receipt of the request by the 

appropriate Department component. 

The Department has issued guidance on 

the handling of misdirected requests, 

see Office of Information Policy, ‘‘OIP 

Guidance: New Requirement to Route 

Misdirected FOIA Requests,’’ 

(November 11, 2008), available at 

http://www.justice.gov/oip/foiapost/

2008foiapost31.htm. 

One commenter took issue with the 

use of the term ‘‘unusual 

circumstances’’ contained in proposed 

§ 16.5(c) and suggested instead using the 

term ‘‘unforeseen circumstances.’’ 

However, ‘‘unusual circumstances’’ is a 

term of art that is taken directly from, 

and defined by, the FOIA. See 5 U.S.C. 

552(a)(6)(B)(i). 

One commenter asserted that the 

language from the existing regulation 

stating that information dissemination 

‘‘need not be a [requester’s] sole 

occupation,’’ 28 CFR 16.5(d)(3) should 

be restored in proposed § 16.5(e)(3), 

which pertains to expedited processing. 

It was not the Department’s intention to 

narrow this standard—indeed, the 

example provided in the provision 

references a requester who is not a fulltime member of the news media. To 

provide even greater clarity, the final 

rule provides that information 

dissemination ‘‘need not be the 

requester’s sole occupation.’’ 

The commenter also suggested 

deletion of a sentence from proposed 

§ 16.5(e)(3) regarding the provision of 

news articles. The commenter noted 

that requesters frequently make use of 

news articles to demonstrate a need for 

expedited processing. While 

acknowledging that provision of news 

articles does not ‘‘necessarily require[] 

the grant of expedited processing’’ in all 

instances, the commenter objected to 

the proposed sentence as not 

recognizing the usefulness of providing 

articles. The Department modifies this 

sentence to make it clear that provision 

of news articles on a topic ‘‘can be 

helpful’’ to establishing that the 

standard is met. This language conveys 

more appropriately the impact of 

providing numerous news articles. 

Finally, the Department revises the final 

sentence of proposed § 16.5(e)(4), 

regarding administrative appeal of any 

component denial of expedited 

processing, to maintain the language 

used in the existing regulations. 

Section 16.6 (Responses to Requests) 

One commenter suggested adding a 

sentence to proposed § 16.6(d) 

(redesignated as § 16.6(e) in the final 

rule), which concerns estimating the 

volume of information withheld, to 

require a listing of any documents 

withheld in full. Another commenter 

suggested that a brief description of the 

withheld information be provided if 

doing so would not reveal exempt 

information. While the Department 

understands the desire for such further 

detail, and encourages components to 

use their judgment to provide additional 

helpful information when practical, the 

Department must balance the time 

involved with imposing such a 

requirement against the heavy demands 

faced by many components to process 

thousands or tens of thousands of 

requests each year. In light of those 

demands, imposing such a requirement 

would be counterproductive. Contrary 

to the first commenter’s assertion, a 

listing is not required at the 

administrative stage of processing a 

FOIA request. See Bangoura v. U.S. 

Dep’t of the Army, 607 F. Supp. 2d 134, 

143 n.8 (D.D.C. 2009) (holding that list 

of withheld documents is not required 

at administrative stage of processing 

FOIA requests and appeals). 

One commenter mistakenly thought 

that proposed § 16.6(e) had eliminated 

the requirement that a denial be signed 

by the head of the component or a 

designee. The first line of § 16.6(e) in 

the final rule continues to contain this 

requirement. 

An agency commenter recommended 

that acknowledgments of requests 

include a brief description of the subject 

of the request in order to help requesters 

keep track of multiple pending requests. 

The Department agrees and has 

included such language in § 16.6(b) of 

the final rule. 

The same commenter recommended 

that the rule reference the statutory 

requirement that agencies indicate, if 

technically feasible, the amount of 

information deleted and the exemption 

under which each deletion is made 

unless doing so would harm an interest 

protected by an applicable exemption. 

The Department adds such language in 

§ 16.6 of the final rule. 

Section 16.7 (Confidential Commercial 

Information) 

One commenter approved of the 

change to proposed § 16.7(b) which 

states that ‘‘[a] submitter of confidential 

commercial information must use good 

faith efforts to designate by appropriate 

markings . . . any portion of its 

submission that it considers to be 

protected from disclosure under 

Exemption 4.’’ A similar requirement is 

also contained in proposed § 16.7(e) for 

submitters relying on Exemption 4 as a 

basis for nondisclosure after receipt of 

submitter notice. However, the 

commenter objected to the language of 

proposed § 16.7(e) that also states that a 

submitter should provide the 

component with detailed reasons for 

withholding under any FOIA 

exemption. The commenter suggested 

the use of the word ‘‘must’’ instead of 

‘‘should.’’ 

The difference in the requirements is 

based on the nature of the information 

at issue. Submitters are in the best 

position to explain why information 

should be considered confidential 

commercial information pursuant to 

Exemption 4, but would not have any 

specialized insight into the application 

of other FOIA exemptions. Accordingly, 

although a submitter’s opinion on the 

applicability of other FOIA exemptions 

is solicited, the Department does not 

require it because the components are 

best suited to make such disclosure 

determinations. 

Section 16.8 (Administrative Appeals) 

Two commenters took issue with the 

timing associated with submitting an 

administrative appeal set forth in 


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proposed § 16.8(a). In response, the 

Department increases the time period 

from 45 days to 60 days. The 

Department notes that the use of the 

postmark or transmission date, rather 

than a ‘‘received’’ date, will provide a 

date certain for requesters to ensure, and 

components to ascertain, the timeliness 

of an appeal. 

The Department also adds language in 

§ 16.8(c) of the final rule to indicate 

that, when issuing a decision on appeal, 

it will inform the requester of the 

mediation services offered by the Office 

of Government Information Services 

(‘‘OGIS’’) of the National Archives and 

Records Administration as a nonexclusive alternative to litigation. 

Section 16.9 (Preservation of Records) 

One commenter objected to the 

language in proposed § 16.9 concerning 

document preservation. The purpose of 

proposed § 16.9 is to ensure that 

components appropriately preserve all 

records that are subject to a pending 

request, appeal, or lawsuit under the 

FOIA. It was not the Department’s 

intention to narrow the scope of the 

obligation and so the Department is 

revising the language to state: ‘‘Records 

will not be disposed of or destroyed 

while they are the subject of a pending 

request, appeal, or lawsuit under the 

FOIA.’’ 

Miscellaneous 

One commenter recommended that 

the regulations restate various 

provisions included in the 2009 

President’s Memorandum on the FOIA, 

Presidential Memorandum for Heads of 

Executive Departments and Agencies 

Concerning the Freedom of Information 

Act, 74 FR 4683 (Jan. 21, 2009), and the 

2009 Attorney General FOIA 

Guidelines, Attorney General Holder’s 

Memorandum for Heads of Executive 

Departments and Agencies Concerning 

the Freedom of Information Act, 74 FR 

51879 (Oct. 8, 2009). For example, the 

commenter requested that the rule 

restate the provision in the Attorney 

General’s FOIA Guidelines that the 

Department will defend in litigation a 

denial of a FOIA request only if the 

disclosure is prohibited by law or if the 

agency reasonably foresees that 

disclosure would harm an interest 

protected by a statutory exemption. 

Because this rule addresses the 

procedures for making and responding 

to FOIA requests, rather than the 

conduct of FOIA litigation, the 

Department declines to make this 

change. The commenter also requested 

that the rule restore the provision in 

§ 16.1(a) of the existing regulations with 

regard to the Department’s policy on 

making discretionary disclosures. The 

Department has decided to do so. 

In response to the public comments 

and feedback from Department 

components with respect to the 

phrasing of certain provisions, the 

Department is revising for clarity the 

following provisions: § 16.1 (General 

provisions), § 16.3 (Requirements for 

making requests), § 16.4 (Responsibility 

for responding to requests), § 16.6 

(Responses to requests), § 16.8 

(Administrative appeals), and § 16.10 

(Fees). The new wording more precisely 

states the Department’s obligations with 

respect to consultations and referrals of 

documents, classified information, 

acknowledging receipt of requests, 

marking documents before release, and 

determining fee status. 

In recognition of the greater efficiency 

of electronic communication, the final 

rule makes clear that requesters may 

submit requests and appeals 

electronically, and instructs 

components to communicate 

electronically with requesters to the 

extent practicable. This language is 

being added in § 16.3(a) (Requirements 

for making requests) (General 

information), § 16.6(a) (Responses to 

requests) (In general), and § 16.8(a) 

(Administrative appeals) (Requirements 

for making an appeal). 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act (5 

U.S.C. 605(b)), has reviewed this 

regulation and by approving it certifies 

that it will not have a significant 

economic impact on a substantial 

number of small entities. 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 

the Department are nominal. Further, 

the ‘‘small entities’’ that make FOIA 

requests, as compared with individual 

requesters and other requesters, are 

relatively few in number. 

Executive Orders 12866 and 13563— 

Regulatory Review 

This regulation has been drafted and 

reviewed in accordance with Executive 

Order 12866 (‘‘Regulatory Planning and 

Review’’), section 1(b) (‘‘The Principles 

of Regulation’’), and in accordance with 

Executive Order 13563 (‘‘Improving 

Regulation and Regulatory Review’’), 

section 1 (‘‘General Principles of 

Regulation’’). 

The Department of Justice has 

determined that this rule is a 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), 

and, accordingly, this rule has been 

reviewed by the Office of Management 

and Budget. 

Further, both Executive Orders 12866 

and 13563 direct agencies to assess all 

costs and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. The 

Department has assessed the costs and 

benefits of this regulation and believes 

that the regulatory approach selected 

maximizes net benefits. 

The rule benefits the public by 

updating and streamlining the language 

in the Department’s existing FOIA 

regulation. For example, the rule 

simplifies the assessment of fees in two 

ways: (1) By eliminating the 

presumption that requesters will pay 

fees up to $25 and instead providing 

that no fees will be assessed if the fees 

are under $25; and (2) by collapsing 

three categories of personnel into two 

for purposes of calculating search fees. 

The rule also benefits the public by 

incorporating references to procedures 

reflecting Department guidance issued 

subsequent to the existing version of the 

regulations, such as guidance on 

conducting consultations, referrals, and 

coordination, use of exclusions, 

assigning tracking numbers, notifying 

requesters of mediation services, and 

routing of misdirected requests. 

Updating the regulation to reflect 

existing procedures enhances 

transparency and reduces the risk of 

confusion for requesters. There are only 

de minimis costs associated with 

incorporating the guidance changes into 

the rule. Many of the provisions 

addressed in the guidance are 

implemented simply by inserting 

standard language into correspondence, 

such as the language advising requesters 

of the mediation services offered by 

OGIS. Other provisions, such as those 

requiring assignment of tracking 

numbers, routing of misdirected 

requests, and provision of status 

estimates, reference procedures that 

components were already doing to 

varying degrees and so incur no 

meaningful new costs, and to the extent 

those procedures are now standardized, 

the time expended to comply is 

minimal. 

The Department does not have 

statistics as to how many requests fall 

within the $15 to $25 range. Based on 

our experience, the Department does not 


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expect that raising the fee threshold to 

$25 will have a significant effect on the 

number of FOIA submissions. Further, 

for the subset of requests where the fees 

are more than $14, but less than $25, the 

public benefits by receiving the 

additional value of $11 of services 

without charge. While the Department 

will incur the cost for those additional 

services, the cost is minimal since it is 

only a difference of $11 per request, and 

it is counterbalanced by the time 

savings incurred by having the rule 

simplified. As a result, the Department 

believes that the effect of the threshold 

change will be de minimis. It simplifies 

matters for Department personnel as 

now there is a clear line between what 

requesters get for free—services under 

$25—and when components start 

assessing fees—at $25. That 

simplification for Department personnel 

is a benefit. The fees that the 

Department currently collects from 

requesters represent only 0.17% of the 

Department’s processing costs and so 

the slight change in the threshold for 

assessing fees simply does not have a 

measurable cost impact on the 

Department. 

The rule further benefits requesters by 

changing the way in which timeliness is 

determined for filing administrative 

appeals. The rule replaces the difficultto-determine ‘‘received’’ date with a 

date certain (a postmark), which 

provides requesters with clarity as to 

timeliness while imposing no cost on 

the Department. 

Lastly, the rule promotes 

understanding of requesters’ statutory 

fee entitlements by requiring 

Department components to advise noncommercial-use requesters of their right 

to obtain 100 pages and two hours of 

search time for free. This will impose 

few if any costs on the Department; 

some components already follow this 

procedure, and the remainder can 

implement it easily. 

In sum, the Department is confident 

that the rule provides multiple benefits 

to the public while imposing minimal 

costs. 

Unfunded Mandates Reform Act of 1995 

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 804. This 

rule will not result in an annual effect 

on the economy of $100 million or 

more; a major increase in costs or prices; 

or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

List of Subjects in 28 CFR Part 16 

Administrative practice and 

procedure, Freedom of information, 

Privacy. 

For the reasons stated in the 

preamble, the Department of Justice 

amends 28 CFR chapter I, part 16, as 

follows: 

PART 16—PRODUCTION OR 

DISCLOSURE OF MATERIAL OR 

INFORMATION 

■ 1. Revise the authority citation for part 

16 to read as follows: 

Authority: 5 U.S.C. 301, 552, 552a, 553; 

28 U.S.C. 509, 510, 534; 31 U.S.C. 3717. 

■ 2. Revise subpart A of part 16 to read 

as follows: 

Subpart A—Procedures for Disclosure of 

Records Under the Freedom of Information 

Act 

Sec. 

16.1 General provisions. 

16.2 Proactive disclosure of Department 

records. 

16.3 Requirements for making requests. 

16.4 Responsibility for responding to 

requests. 

16.5 Timing of responses to requests. 

16.6 Responses to requests. 

16.7 Confidential commercial information. 

16.8 Administrative appeals. 

16.9 Preservation of records. 

16.10 Fees. 

16.11 Other rights and services. 

Subpart A—Procedures for Disclosure 

of Records Under the Freedom of 

Information Act 

§ 16.1 General provisions. 

(a) This subpart contains the rules 

that the Department of Justice follows in 

processing requests for records under 

the Freedom of Information Act 

(‘‘FOIA’’), 5 U.S.C. 552. The rules in this 

subpart should be read in conjunction 

with the text of the FOIA and the 

Uniform Freedom of Information Fee 

Schedule and Guidelines published by 

the Office of Management and Budget 

(‘‘OMB Guidelines’’). Additionally, the 

Department’s ‘‘FOIA Reference Guide’’ 

and its attachments contain information 

about the specific procedures particular 

to the Department with respect to 

making FOIA requests and descriptions 

of the types of records maintained by 

different Department components. This 

resource is available at http://

www.justice.gov/oip/04_3.html. 

Requests made by individuals for 

records about themselves under the 

Privacy Act of 1974, 5 U.S.C. 552a, are 

processed under subpart D of part 16 as 

well as under this subpart. As a matter 

of policy, the Department makes 

discretionary disclosures of records or 

information exempt from disclosure 

under the FOIA whenever disclosure 

would not foreseeably harm an interest 

protected by a FOIA exemption, but this 

policy does not create any right 

enforceable in court. 

(b) As referenced in this subpart, 

component means each separate bureau, 

office, division, commission, service, 

center, or administration that is 

designated by the Department as a 

primary organizational entity. 

(c) The Department has a 

decentralized system for processing 

requests, with each component handling 

requests for its records. 

§ 16.2 Proactive disclosure of Department 

records. 

Records that are required by the FOIA 

to be made available for public 

inspection and copying may be accessed 

through the Department’s Web site at 

http://www.justice.gov/oip/04_2.html. 

Each component is responsible for 

determining which of its records are 

required to be made publicly available, 

as well as identifying additional records 

of interest to the public that are 

appropriate for public disclosure, and 

for posting and indexing such records. 

Each component shall ensure that its 

Web site of posted records and indices 

is reviewed and updated on an ongoing 

basis. Each component has a FOIA 

Public Liaison who can assist 

individuals in locating records 

particular to a component. A list of the 

Department’s FOIA Public Liaisons is 

available at http://www.justice.gov/oip/

foiacontact/index-list.html. 

§ 16.3 Requirements for making requests. 

(a) General information. (1) The 

Department has a decentralized system 

for responding to FOIA requests, with 

each component designating a FOIA 

office to process records from that 

component. All components have the 

capability to receive requests 

electronically either through email or a 

web portal. To make a request for 


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records of the Department, a requester 

should write directly to the FOIA office 

of the component that maintains the 

records being sought. A request will 

receive the quickest possible response if 

it is addressed to the FOIA office of the 

component that maintains the records 

sought. The Department’s FOIA 

Reference Guide, which may be 

accessed as described in § 16.1(a), 

contains descriptions of the functions of 

each component and provides other 

information that is helpful in 

determining where to make a request. 

Each component’s FOIA office and any 

additional requirements for submitting a 

request to a given component are listed 

in Appendix I to this part. Part 0 of this 

chapter also summarizes the functions 

of each component. These references 

can all be used by requesters to 

determine where to send their requests 

within the Department. 

(2) A requester may also send requests 

to the FOIA/PA Mail Referral Unit, 

Justice Management Division, 

Department of Justice, 950 Pennsylvania 

Avenue NW., Washington, DC 20530– 

0001, or via email to 

MRUFOIA.Requests@usdoj.gov, or via 

fax to (202) 616–6695. The Mail Referral 

Unit will forward the request to the 

component(s) that it determines to be 

most likely to maintain the records that 

are sought. 

(3) A requester who is making a 

request for records about himself or 

herself must comply with the 

verification of identity provision set 

forth in subpart D of this part. 

(4) Where a request for records 

pertains to a third party, a requester may 

receive greater access by submitting 

either a notarized authorization signed 

by that individual or a declaration made 

in compliance with the requirements set 

forth in 28 U.S.C. 1746 by that 

individual authorizing disclosure of the 

records to the requester, or by 

submitting proof that the individual is 

deceased (e.g., a copy of a death 

certificate or an obituary). As an 

exercise of administrative discretion, 

each component can require a requester 

to supply additional information if 

necessary in order to verify that a 

particular individual has consented to 

disclosure. 

(b) Description of records sought. 

Requesters must describe the records 

sought in sufficient detail to enable 

Department personnel to locate them 

with a reasonable amount of effort. To 

the extent possible, requesters should 

include specific information that may 

assist a component in identifying the 

requested records, such as the date, title 

or name, author, recipient, subject 

matter of the record, case number, file 

designation, or reference number. 

Requesters should refer to Appendix I to 

this part for additional, componentspecific requirements. In general, 

requesters should include as much 

detail as possible about the specific 

records or the types of records that they 

are seeking. Before submitting their 

requests, requesters may contact the 

component’s FOIA contact or FOIA 

Public Liaison to discuss the records 

they are seeking and to receive 

assistance in describing the records. If 

after receiving a request a component 

determines that it does not reasonably 

describe the records sought, the 

component shall inform the requester 

what additional information is needed 

or why the request is otherwise 

insufficient. Requesters who are 

attempting to reformulate or modify 

such a request may discuss their request 

with the component’s designated FOIA 

contact, its FOIA Public Liaison, or a 

representative of the Office of 

Information Policy (‘‘OIP’’), each of 

whom is available to assist the requester 

in reasonably describing the records 

sought. If a request does not reasonably 

describe the records sought, the 

agency’s response to the request may be 

delayed. 

§ 16.4 Responsibility for responding to 

requests. 

(a) In general. Except in the instances 

described in paragraphs (c) and (d) of 

this section, the component that first 

receives a request for a record and 

maintains that record is the component 

responsible for responding to the 

request. In determining which records 

are responsive to a request, a component 

ordinarily will include only records in 

its possession as of the date that it 

begins its search. If any other date is 

used, the component shall inform the 

requester of that date. A record that is 

excluded from the requirements of the 

FOIA pursuant to 5 U.S.C. 552(c), is not 

considered responsive to a request. 

(b) Authority to grant or deny 

requests. The head of a component, or 

designee, is authorized to grant or to 

deny any requests for records that are 

maintained by that component. 

(c) Re-routing of misdirected requests. 

Where a component’s FOIA office 

determines that a request was 

misdirected within the Department, the 

receiving component’s FOIA office shall 

route the request to the FOIA office of 

the proper component(s). 

(d) Consultation, referral, and 

coordination. When reviewing records 

located by a component in response to 

a request, the component shall 

determine whether another component 

or another agency of the Federal 

Government is better able to determine 

whether the record is exempt from 

disclosure under the FOIA and, if so, 

whether it should be released as a 

matter of discretion. As to any such 

record, the component shall proceed in 

one of the following ways: 

(1) Consultation. When records 

originated with the component 

processing the request, but contain 

within them information of interest to 

another component, agency, or other 

Federal Government office, the 

component processing the request 

should typically consult with that other 

component or agency prior to making a 

release determination. 

(2) Referral. (i) When the component 

processing the request believes that a 

different component, agency, or other 

Federal Government office is best able 

to determine whether to disclose the 

record, the component typically should 

refer the responsibility for responding to 

the request regarding that record, as 

long as the referral is to a component or 

agency that is subject to the FOIA. 

Ordinarily, the component or agency 

that originated the record will be 

presumed to be best able to make the 

disclosure determination. However, if 

the component processing the request 

and the originating component or 

agency jointly agree that the former is in 

the best position to respond regarding 

the record, then the record may be 

handled as a consultation. 

(ii) Whenever a component refers any 

part of the responsibility for responding 

to a request to another component or 

agency, it shall document the referral, 

maintain a copy of the record that it 

refers, and notify the requester of the 

referral and inform the requester of the 

name(s) of the component or agency to 

which the record was referred, 

including that component’s or agency’s 

FOIA contact information, 

(3) Coordination. The standard 

referral procedure is not appropriate 

where disclosure of the identity of the 

component or agency to which the 

referral would be made could harm an 

interest protected by an applicable 

exemption, such as the exemptions that 

protect personal privacy or national 

security interests. For example, if a nonlaw enforcement component responding 

to a request for records on a living third 

party locates within its files records 

originating with a law enforcement 

agency, and if the existence of that law 

enforcement interest in the third party 

was not publicly known, then to 

disclose that law enforcement interest 

could cause an unwarranted invasion of 

the personal privacy of the third party. 

Similarly, if a component locates within 

its files material originating with an 


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Intelligence Community agency, and the 

involvement of that agency in the matter 

is classified and not publicly 

acknowledged, then to disclose or give 

attribution to the involvement of that 

Intelligence Community agency could 

cause national security harms. In such 

instances, in order to avoid harm to an 

interest protected by an applicable 

exemption, the component that received 

the request should coordinate with the 

originating component or agency to seek 

its views on the disclosability of the 

record. The release determination for 

the record that is the subject of the 

coordination should then be conveyed 

to the requester by the component that 

originally received the request. 

(e) Classified information. On receipt 

of any request involving classified 

information, the component shall 

determine whether the information is 

currently and properly classified and 

take appropriate action to ensure 

compliance with part 17 of this title. 

Whenever a request involves a record 

containing information that has been 

classified or may be appropriate for 

classification by another component or 

agency under any applicable executive 

order concerning the classification of 

records, the receiving component shall 

refer the responsibility for responding to 

the request regarding that information to 

the component or agency that classified 

the information, or that should consider 

the information for classification. 

Whenever a component’s record 

contains information that has been 

derivatively classified (for example, 

when it contains information classified 

by another component or agency), the 

component shall refer the responsibility 

for responding to that portion of the 

request to the component or agency that 

classified the underlying information. 

(f) Timing of responses to 

consultations and referrals. All 

consultations and referrals received by 

the Department will be handled 

according to the date that the FOIA 

request initially was received by the 

first component or agency. 

(g) Agreements regarding 

consultations and referrals. Components 

may establish agreements with other 

components or agencies to eliminate the 

need for consultations or referrals with 

respect to particular types of records. 

§ 16.5 Timing of responses to requests. 

(a) In general. Components ordinarily 

will respond to requests according to 

their order of receipt. Appendix I to this 

part contains the list of the Department 

components that are designated to 

accept requests. In instances involving 

misdirected requests that are re-routed 

pursuant to § 16.4(c), the response time 

will commence on the date that the 

request is received by the proper 

component’s office that is designated to 

receive requests, but in any event not 

later than 10 working days after the 

request is first received by any 

component’s office that is designated by 

these regulations to receive requests. 

(b) Multitrack processing. All 

components must designate a specific 

track for requests that are granted 

expedited processing, in accordance 

with the standards set forth in 

paragraph (e) of this section. A 

component may also designate 

additional processing tracks that 

distinguish between simple and more 

complex requests based on the 

estimated amount of work or time 

needed to process the request. Among 

the factors a component may consider 

are the number of pages involved in 

processing the request and the need for 

consultations or referrals. Components 

shall advise requesters of the track into 

which their request falls and, when 

appropriate, shall offer the requesters an 

opportunity to narrow their request so 

that it can be placed in a different 

processing track. 

(c) Unusual circumstances. Whenever 

the statutory time limit for processing a 

request cannot be met because of 

‘‘unusual circumstances,’’ as defined in 

the FOIA, and the component extends 

the time limit on that basis, the 

component shall, before expiration of 

the 20-day period to respond, notify the 

requester in writing of the unusual 

circumstances involved and of the date 

by which processing of the request can 

be expected to be completed. Where the 

extension exceeds 10 working days, the 

component shall, as described by the 

FOIA, provide the requester with an 

opportunity to modify the request or 

arrange an alternative time period for 

processing. The component shall make 

available its designated FOIA contact 

and its FOIA Public Liaison for this 

purpose. 

(d) Aggregating requests. For the 

purposes of satisfying unusual 

circumstances under the FOIA, 

components may aggregate requests in 

cases where it reasonably appears that 

multiple requests, submitted either by a 

requester or by a group of requesters 

acting in concert, constitute a single 

request that would otherwise involve 

unusual circumstances. Components 

shall not aggregate multiple requests 

that involve unrelated matters. 

(e) Expedited processing. (1) Requests 

and appeals shall be processed on an 

expedited basis whenever it is 

determined that they involve: 

(i) Circumstances in which the lack of 

expedited processing could reasonably 

be expected to pose an imminent threat 

to the life or physical safety of an 

individual; 

(ii) An urgency to inform the public 

about an actual or alleged Federal 

Government activity, if made by a 

person who is primarily engaged in 

disseminating information; 

(iii) The loss of substantial due 

process rights; or 

(iv) A matter of widespread and 

exceptional media interest in which 

there exist possible questions about the 

government’s integrity that affect public 

confidence. 

(2) A request for expedited processing 

may be made at any time. Requests 

based on paragraphs (e)(1)(i), (ii), and 

(iii) of this section must be submitted to 

the component that maintains the 

records requested. When making a 

request for expedited processing of an 

administrative appeal, the request 

should be submitted to OIP. Requests 

for expedited processing that are based 

on paragraph (e)(1)(iv) of this section 

must be submitted to the Director of 

Public Affairs at the Office of Public 

Affairs, Department of Justice, 950 

Pennsylvania Avenue NW., Washington, 

DC 20530–0001. A component that 

receives a misdirected request for 

expedited processing under the 

standard set forth in paragraph (e)(1)(iv) 

of this section shall forward it 

immediately to the Office of Public 

Affairs for its determination. The time 

period for making the determination on 

the request for expedited processing 

under paragraph (e)(1)(iv) of this section 

shall commence on the date that the 

Office of Public Affairs receives the 

request, provided that it is routed 

within 10 working days. 

(3) A requester who seeks expedited 

processing must submit a statement, 

certified to be true and correct, 

explaining in detail the basis for making 

the request for expedited processing. 

For example, under paragraph (e)(1)(ii) 

of this section, a requester who is not a 

full-time member of the news media 

must establish that the requester is a 

person whose primary professional 

activity or occupation is information 

dissemination, though it need not be the 

requester’s sole occupation. Such a 

requester also must establish a 

particular urgency to inform the public 

about the government activity involved 

in the request—one that extends beyond 

the public’s right to know about 

government activity generally. The 

existence of numerous articles 

published on a given subject can be 

helpful in establishing the requirement 

that there be an ‘‘urgency to inform’’ the 

public on the topic. As a matter of 

administrative discretion, a component 


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may waive the formal certification 

requirement. 

(4) A component shall notify the 

requester within 10 calendar days of the 

receipt of a request for expedited 

processing of its decision whether to 

grant or deny expedited processing. If 

expedited processing is granted, the 

request shall be given priority, placed in 

the processing track for expedited 

requests, and shall be processed as soon 

as practicable. If a request for expedited 

processing is denied, any appeal of that 

decision shall be acted on 

expeditiously. 

§ 16.6 Responses to requests. 

(a) In general. Components should, to 

the extent practicable, communicate 

with requesters having access to the 

Internet using electronic means, such as 

email or web portal. 

(b) Acknowledgments of requests. A 

component shall acknowledge the 

request and assign it an individualized 

tracking number if it will take longer 

than 10 working days to process. 

Components shall include in the 

acknowledgment a brief description of 

the records sought to allow requesters to 

more easily keep track of their requests. 

(c) Grants of requests. Once a 

component makes a determination to 

grant a request in full or in part, it shall 

notify the requester in writing. The 

component also shall inform the 

requester of any fees charged under 

§ 16.10 and shall disclose the requested 

records to the requester promptly upon 

payment of any applicable fees. 

(d) Adverse determinations of 

requests. A component making an 

adverse determination denying a request 

in any respect shall notify the requester 

of that determination in writing. 

Adverse determinations, or denials of 

requests, include decisions that: the 

requested record is exempt, in whole or 

in part; the request does not reasonably 

describe the records sought; the 

information requested is not a record 

subject to the FOIA; the requested 

record does not exist, cannot be located, 

or has been destroyed; or the requested 

record is not readily reproducible in the 

form or format sought by the requester. 

Adverse determinations also include 

denials involving fees or fee waiver 

matters or denials of requests for 

expedited processing. 

(e) Content of denial. The denial shall 

be signed by the head of the component, 

or designee, and shall include: 

(1) The name and title or position of 

the person responsible for the denial; 

(2) A brief statement of the reasons for 

the denial, including any FOIA 

exemption applied by the component in 

denying the request; 

(3) An estimate of the volume of any 

records or information withheld, such 

as the number of pages or some other 

reasonable form of estimation, although 

such an estimate is not required if the 

volume is otherwise indicated by 

deletions marked on records that are 

disclosed in part or if providing an 

estimate would harm an interest 

protected by an applicable exemption; 

and 

(4) A statement that the denial may be 

appealed under § 16.8(a), and a 

description of the requirements set forth 

therein. 

(f) Markings on released documents. 

Markings on released documents must 

be clearly visible to the requester. 

Records disclosed in part shall be 

marked to show the amount of 

information deleted and the exemption 

under which the deletion was made 

unless doing so would harm an interest 

protected by an applicable exemption. 

The location of the information deleted 

shall also be indicated on the record, if 

technically feasible. 

(g) Use of record exclusions. (1) In the 

event that a component identifies 

records that may be subject to exclusion 

from the requirements of the FOIA 

pursuant to 5 U.S.C. 552(c), the 

component must confer with OIP to 

obtain approval to apply the exclusion. 

(2) Any component invoking an 

exclusion shall maintain an 

administrative record of the process of 

invocation and approval of the 

exclusion by OIP. 

§ 16.7 Confidential commercial 

information. 

(a) Definitions. (1) Confidential 

commercial information means 

commercial or financial information 

obtained by the Department from a 

submitter that may be protected from 

disclosure under Exemption 4 of the 

FOIA, 5 U.S.C. 552(b)(4). 

(2) Submitter means any person or 

entity, including a corporation, State, or 

foreign government, but not including 

another Federal Government entity, that 

provides information, either directly or 

indirectly to the Federal Government. 

(b) Designation of confidential 

commercial information. A submitter of 

confidential commercial information 

must use good faith efforts to designate 

by appropriate markings, either at the 

time of submission or within a 

reasonable time thereafter, any portion 

of its submission that it considers to be 

protected from disclosure under 

Exemption 4. These designations shall 

expire 10 years after the date of the 

submission unless the submitter 

requests and provides justification for a 

longer designation period. 

(c) When notice to submitters is 

required. (1) A component shall 

promptly provide written notice to a 

submitter of confidential commercial 

information whenever records 

containing such information are 

requested under the FOIA if, after 

reviewing the request, the responsive 

records, and any appeal by the 

requester, the component determines 

that it may be required to disclose the 

records, provided: 

(i) The requested information has 

been designated in good faith by the 

submitter as information considered 

protected from disclosure under 

Exemption 4; or 

(ii) The component has a reason to 

believe that the requested information 

may be protected from disclosure under 

Exemption 4, but has not yet 

determined whether the information is 

protected from disclosure under that 

exemption or any other applicable 

exemption. 

(2) The notice shall either describe the 

commercial information requested or 

include a copy of the requested records 

or portions of records containing the 

information. In cases involving a 

voluminous number of submitters, 

notice may be made by posting or 

publishing the notice in a place or 

manner reasonably likely to accomplish 

it. 

(d) Exceptions to submitter notice 

requirements. The notice requirements 

of this section shall not apply if: 

(1) The component determines that 

the information is exempt under the 

FOIA; 

(2) The information has been lawfully 

published or has been officially made 

available to the public; 

(3) Disclosure of the information is 

required by a statute other than the 

FOIA or by a regulation issued in 

accordance with the requirements of 

Executive Order 12600 of June 23, 1987; 

or 

(4) The designation made by the 

submitter under paragraph (b) of this 

section appears obviously frivolous, 

except that, in such a case, the 

component shall give the submitter 

written notice of any final decision to 

disclose the information and must 

provide that notice within a reasonable 

number of days prior to a specified 

disclosure date. 

(e) Opportunity to object to disclosure. 

(1) A component shall specify a 

reasonable time period within which 

the submitter must respond to the notice 

referenced above. If a submitter has any 

objections to disclosure, it should 

provide the component a detailed 

written statement that specifies all 

grounds for withholding the particular 


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information under any exemption of the 

FOIA. In order to rely on Exemption 4 

as basis for nondisclosure, the submitter 

must explain why the information 

constitutes a trade secret or commercial 

or financial information that is 

privileged or confidential. 

(2) A submitter who fails to respond 

within the time period specified in the 

notice shall be considered to have no 

objection to disclosure of the 

information. Information received by 

the component after the date of any 

disclosure decision shall not be 

considered by the component. Any 

information provided by a submitter 

under this subpart may itself be subject 

to disclosure under the FOIA. 

(f) Analysis of objections. A 

component shall consider a submitter’s 

objections and specific grounds for 

nondisclosure in deciding whether to 

disclose the requested information. 

(g) Notice of intent to disclose. 

Whenever a component decides to 

disclose information over the objection 

of a submitter, the component shall 

provide the submitter written notice, 

which shall include: 

(1) A statement of the reasons why 

each of the submitter’s disclosure 

objections was not sustained; 

(2) A description of the information to 

be disclosed; and 

(3) A specified disclosure date, which 

shall be a reasonable time subsequent to 

the notice. 

(h) Notice of FOIA lawsuit. Whenever 

a requester files a lawsuit seeking to 

compel the disclosure of confidential 

commercial information, the component 

shall promptly notify the submitter. 

(i) Requester notification. The 

component shall notify a requester 

whenever it provides the submitter with 

notice and an opportunity to object to 

disclosure; whenever it notifies the 

submitter of its intent to disclose the 

requested information; and whenever a 

submitter files a lawsuit to prevent the 

disclosure of the information. 

§ 16.8 Administrative appeals. 

(a) Requirements for making an 

appeal. A requester may appeal any 

adverse determinations to OIP. The 

contact information for OIP is contained 

in the FOIA Reference Guide, which is 

available at http://www.justice.gov/oip/

04_3.html. Appeals can be submitted 

through the web portal accessible on 

OIP’s Web site. Examples of adverse 

determinations are provided in 

§ 16.6(d). The requester must make the 

appeal in writing and to be considered 

timely it must be postmarked, or in the 

case of electronic submissions, 

transmitted, within 60 calendar days 

after the date of the response. The 

appeal should clearly identify the 

component’s determination that is being 

appealed and the assigned request 

number. To facilitate handling, the 

requester should mark both the appeal 

letter and envelope, or subject line of 

the electronic transmission, ‘‘Freedom 

of Information Act Appeal.’’ 

(b) Adjudication of appeals. (1) The 

Director of OIP or designee will act on 

behalf of the Attorney General on all 

appeals under this section. 

(2) An appeal ordinarily will not be 

adjudicated if the request becomes a 

matter of FOIA litigation. 

(3) On receipt of any appeal involving 

classified information, OIP shall take 

appropriate action to ensure compliance 

with part 17 of this title. 

(c) Decisions on appeals. A decision 

on an appeal must be made in writing. 

A decision that upholds a component’s 

determination will contain a statement 

that identifies the reasons for the 

affirmance, including any FOIA 

exemptions applied. The decision will 

provide the requester with notification 

of the statutory right to file a lawsuit 

and will inform the requester of the 

mediation services offered by the Office 

of Government Information Services of 

the National Archives and Records 

Administration as a non-exclusive 

alternative to litigation. If a component’s 

decision is remanded or modified on 

appeal, the requester will be notified of 

that determination in writing. The 

component will thereafter further 

process the request in accordance with 

that appeal determination and respond 

directly to the requester. 

(d) When appeal is required. Before 

seeking review by a court of a 

component’s adverse determination, a 

requester generally must first submit a 

timely administrative appeal. 

§ 16.9 Preservation of records. 

Each component shall preserve all 

correspondence pertaining to the 

requests that it receives under this 

subpart, as well as copies of all 

requested records, until disposition or 

destruction is authorized pursuant to 

title 44 of the United States Code or the 

General Records Schedule 14 of the 

National Archives and Records 

Administration. Records shall not be 

disposed of or destroyed while they are 

the subject of a pending request, appeal, 

or lawsuit under the FOIA. 

§ 16.10 Fees. 

(a) In general. Components shall 

charge for processing requests under the 

FOIA in accordance with the provisions 

of this section and with the OMB 

Guidelines. In order to resolve any fee 

issues that arise under this section, a 

component may contact a requester for 

additional information. Components 

shall ensure that searches, review, and 

duplication are conducted in the most 

efficient and the least expensive 

manner. A component ordinarily will 

collect all applicable fees before sending 

copies of records to a requester. 

Requesters must pay fees by check or 

money order made payable to the 

Treasury of the United States. 

(b) Definitions. For purposes of this 

section: 

(1) Commercial use request is a 

request that asks for information for a 

use or a purpose that furthers a 

commercial, trade, or profit interest, 

which can include furthering those 

interests through litigation. A 

component’s decision to place a 

requester in the commercial use 

category will be made on a case-by-case 

basis based on the requester’s intended 

use of the information. 

(2) Direct costs are those expenses that 

an agency incurs in searching for and 

duplicating (and, in the case of 

commercial use requests, reviewing) 

records in order to respond to a FOIA 

request. For example, direct costs 

include the salary of the employee 

performing the work (i.e., the basic rate 

of pay for the employee, plus 16 percent 

of that rate to cover benefits) and the 

cost of operating computers and other 

electronic equipment, such as 

photocopiers and scanners. Direct costs 

do not include overhead expenses such 

as the costs of space, and of heating or 

lighting a facility. 

(3) Duplication is reproducing a copy 

of a record, or of the information 

contained in it, necessary to respond to 

a FOIA request. Copies can take the 

form of paper, audiovisual materials, or 

electronic records, among others. 

(4) Educational institution is any 

school that operates a program of 

scholarly research. A requester in this 

fee category must show that the request 

is authorized by, and is made under the 

auspices of, an educational institution 

and that the records are not sought for 

a commercial use, but rather are sought 

to further scholarly research. To fall 

within this fee category, the request 

must serve the scholarly research goals 

of the institution rather than an 

individual research goal. 

Example 1. A request from a professor 

of geology at a university for records 

relating to soil erosion, written on 

letterhead of the Department of Geology, 

would be presumed to be from an 

educational institution. 

Example 2. A request from the same 

professor of geology seeking drug 

information from the Food and Drug 

Administration in furtherance of a 


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murder mystery he is writing would not 

be presumed to be an institutional 

request, regardless of whether it was 

written on institutional stationery. 

Example 3. A student who makes a 

request in furtherance of the completion 

of a course of instruction would be 

presumed to be carrying out an 

individual research goal, rather than a 

scholarly research goal of the institution 

and would not qualify as part of this fee 

category. 

(5) Noncommercial scientific 

institution is an institution that is not 

operated on a ‘‘commercial’’ basis, as 

defined in paragraph (b)(1) of this 

section 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. A requester in this 

category must show that the request is 

authorized by and is made under the 

auspices of a qualifying institution and 

that the records are sought to further 

scientific research and are not for a 

commercial use. 

(6) Representative of the news media 

is any person or entity organized and 

operated to publish or broadcast news to 

the public that actively gathers 

information of potential interest to a 

segment of the public, uses its editorial 

skills to turn the raw materials into a 

distinct work, and distributes that work 

to an audience. The term ‘‘news’’ means 

information that is about current events 

or that would be of current interest to 

the public. Examples of news media 

entities include television or radio 

stations that broadcast ‘‘news’’ to the 

public at large and publishers of 

periodicals that disseminate ‘‘news’’ 

and make their products available 

through a variety of means to the 

general public, including news 

organizations that disseminate solely on 

the Internet. A request for records 

supporting the news-dissemination 

function of the requester shall not be 

considered to be for a commercial use. 

‘‘Freelance’’ journalists who 

demonstrate a solid basis for expecting 

publication through a news media entity 

shall be considered as a representative 

of the news media. A publishing 

contract would provide the clearest 

evidence that publication is expected; 

however, components shall also 

consider a requester’s past publication 

record in making this determination. 

(7) Review is the examination of a 

record located in response to a request 

in order to determine whether any 

portion of it is exempt from disclosure. 

Review time includes processing any 

record for disclosure, such as doing all 

that is necessary to prepare the record 

for disclosure, including the process of 

redacting the record and marking the 

appropriate exemptions. Review costs 

are properly charged even if a record 

ultimately is not disclosed. Review time 

also includes time spent both obtaining 

and considering any formal objection to 

disclosure made by a confidential 

commercial information submitter 

under § 16.7, but it does not include 

time spent resolving general legal or 

policy issues regarding the application 

of exemptions. 

(8) Search is the process of looking for 

and retrieving records or information 

responsive to a request. Search time 

includes page-by-page or line-by-line 

identification of information within 

records and the reasonable efforts 

expended to locate and retrieve 

information from electronic records. 

(c) Charging fees. In responding to 

FOIA requests, components shall charge 

the following fees unless a waiver or 

reduction of fees has been granted under 

paragraph (k) of this section. Because 

the fee amounts provided below already 

account for the direct costs associated 

with a given fee type, components 

should not add any additional costs to 

charges calculated under this section. 

(1) Search. (i) Requests made by 

educational institutions, noncommercial 

scientific institutions, or representatives 

of the news media are not subject to 

search fees. Search fees shall be charged 

for all other requesters, subject to the 

restrictions of paragraph (d) of this 

section. Components may properly 

charge for time spent searching even if 

they do not locate any responsive 

records or if they determine that the 

records are entirely exempt from 

disclosure. 

(ii) For each quarter hour spent by 

personnel searching for requested 

records, including electronic searches 

that do not require new programming, 

the fees shall be as follows: 

professional—$10.00; and clerical/

administrative—$4.75. 

(iii) Requesters shall be charged the 

direct costs associated with conducting 

any search that requires the creation of 

a new computer program to locate the 

requested records. Requesters shall be 

notified of the costs associated with 

creating such a program and must agree 

to pay the associated costs before the 

costs may be incurred. 

(iv) For requests that require the 

retrieval of records stored by an agency 

at a Federal records center operated by 

the National Archives and Records 

Administration (NARA), additional 

costs shall be charged in accordance 

with the Transactional Billing Rate 

Schedule established by NARA. 

(2) Duplication. Duplication fees shall 

be charged to all requesters, subject to 

the restrictions of paragraph (d) of this 

section. A component shall honor a 

requester’s preference for receiving a 

record in a particular form or format 

where it is readily reproducible by the 

component in the form or format 

requested. Where photocopies are 

supplied, the component shall provide 

one copy per request at a cost of five 

cents per page. For copies of records 

produced on tapes, disks, or other 

media, components shall charge the 

direct costs of producing the copy, 

including operator time. Where paper 

documents must be scanned in order to 

comply with a requester’s preference to 

receive the records in an electronic 

format, the requester shall pay the direct 

costs associated with scanning those 

materials. For other forms of 

duplication, components shall charge 

the direct costs. 

(3) Review. Review fees shall be 

charged to requesters who make 

commercial use requests. Review fees 

shall be assessed in connection with the 

initial review of the record, i.e., the 

review conducted by a component to 

determine whether an exemption 

applies to a particular record or portion 

of a record. No charge will be made for 

review at the administrative appeal 

stage of exemptions applied at the 

initial review stage. However, if a 

particular exemption is deemed to no 

longer apply, any costs associated with 

a component’s re-review of the records 

in order to consider the use of other 

exemptions may be assessed as review 

fees. Review fees shall be charged at the 

same rates as those charged for a search 

under paragraph (c)(1)(ii) of this section. 

(d) Restrictions on charging fees. (1) 

No search fees will be charged for 

requests by educational institutions 

(unless the records are sought for a 

commercial use), noncommercial 

scientific institutions, or representatives 

of the news media. 

(2) If a component fails to comply 

with the time limits in which to respond 

to a request, and if no unusual or 

exceptional circumstances, as those 

terms are defined by the FOIA, apply to 

the processing of the request, it may not 

charge search fees, or, in the instances 

of requests from requesters described in 

paragraph (d)(1) of this section, may not 

charge duplication fees. 

(3) No search or review fees will be 

charged for a quarter-hour period unless 

more than half of that period is required 

for search or review. 

(4) Except for requesters seeking 

records for a commercial use, 

components shall provide without 

charge: 


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18112 Federal Register / Vol. 80, No. 64 / Friday, April 3, 2015 / Rules and Regulations 

(i) The first 100 pages of duplication 

(or the cost equivalent for other media); 

and 

(ii) The first two hours of search. 

(5) When, after first deducting the 100 

free pages (or its cost equivalent) and 

the first two hours of search, a total fee 

calculated under paragraph (c) of this 

section is $25.00 or less for any request, 

no fee will be charged. 

(e) Notice of anticipated fees in excess 

of $25.00. (1) When a component 

determines or estimates that the fees to 

be assessed in accordance with this 

section will exceed $25.00, the 

component shall notify the requester of 

the actual or estimated amount of the 

fees, including a breakdown of the fees 

for search, review or duplication, unless 

the requester has indicated a 

willingness to pay fees as high as those 

anticipated. If only a portion of the fee 

can be estimated readily, the component 

shall advise the requester accordingly. If 

the requester is a noncommercial use 

requester, the notice shall specify that 

the requester is entitled to the statutory 

entitlements of 100 pages of duplication 

at no charge and, if the requester is 

charged search fees, two hours of search 

time at no charge, and shall advise the 

requester whether those entitlements 

have been provided. 

(2) In cases in which a requester has 

been notified that the actual or 

estimated fees are in excess of $25.00, 

the request shall not be considered 

received and further work will not be 

completed until the requester commits 

in writing to pay the actual or estimated 

total fee, or designates some amount of 

fees the requester is willing to pay, or 

in the case of a noncommercial use 

requester who has not yet been provided 

with the requester’s statutory 

entitlements, designates that the 

requester seeks only that which can be 

provided by the statutory entitlements. 

The requester must provide the 

commitment or designation in writing, 

and must, when applicable, designate 

an exact dollar amount the requester is 

willing to pay. Components are not 

required to accept payments in 

installments. 

(3) If the requester has indicated a 

willingness to pay some designated 

amount of fees, but the component 

estimates that the total fee will exceed 

that amount, the component shall toll 

the processing of the request when it 

notifies the requester of the estimated 

fees in excess of the amount the 

requester has indicated a willingness to 

pay. The component shall inquire 

whether the requester wishes to revise 

the amount of fees the requester is 

willing to pay or modify the request. 

Once the requester responds, the time to 

respond will resume from where it was 

at the date of the notification. 

(4) Components shall make available 

their FOIA Public Liaison or other FOIA 

professional to assist any requester in 

reformulating a request to meet the 

requester’s needs at a lower cost. 

(f) Charges for other services. 

Although not required to provide 

special services, if a component chooses 

to do so as a matter of administrative 

discretion, the direct costs of providing 

the service shall be charged. Examples 

of such services include certifying that 

records are true copies, providing 

multiple copies of the same document, 

or sending records by means other than 

first class mail. 

(g) Charging interest. Components 

may charge interest on any unpaid bill 

starting on the 31st day following the 

date of billing the requester. Interest 

charges shall be assessed at the rate 

provided in 31 U.S.C. 3717 and will 

accrue from the billing date until 

payment is received by the component. 

Components shall follow the provisions 

of the Debt Collection Act of 1982 (Pub. 

L. 97–365, 96 Stat. 1749), as amended, 

and its administrative procedures, 

including the use of consumer reporting 

agencies, collection agencies, and offset. 

(h) Aggregating requests. When a 

component reasonably believes that a 

requester or a group of requesters acting 

in concert is attempting to divide a 

single request into a series of requests 

for the purpose of avoiding fees, the 

component may aggregate those requests 

and charge accordingly. Components 

may presume that multiple requests of 

this type made within a 30-day period 

have been made in order to avoid fees. 

For requests separated by a longer 

period, components will aggregate them 

only where there is a reasonable basis 

for determining that aggregation is 

warranted in view of all the 

circumstances involved. Multiple 

requests involving unrelated matters 

shall not be aggregated. 

(i) Advance payments. (1) For 

requests other than those described in 

paragraphs (i)(2) or (i)(3) of this section, 

a component shall not require the 

requester to make an advance payment 

before work is commenced or continued 

on a request. Payment owed for work 

already completed (i.e., payment before 

copies are sent to a requester) is not an 

advance payment. 

(2) When a component determines or 

estimates that a total fee to be charged 

under this section will exceed $250.00, 

it may require that the requester make 

an advance payment up to the amount 

of the entire anticipated fee before 

beginning to process the request. A 

component may elect to process the 

request prior to collecting fees when it 

receives a satisfactory assurance of full 

payment from a requester with a history 

of prompt payment. 

(3) Where a requester has previously 

failed to pay a properly charged FOIA 

fee to any component or agency within 

30 calendar days of the billing date, a 

component may require that the 

requester pay the full amount due, plus 

any applicable interest on that prior 

request, and the component may require 

that the requester make an advance 

payment of the full amount of any 

anticipated fee before the component 

begins to process a new request or 

continues to process a pending request 

or any pending appeal. Where a 

component has a reasonable basis to 

believe that a requester has 

misrepresented the requester’s identity 

in order to avoid paying outstanding 

fees, it may require that the requester 

provide proof of identity. 

(4) In cases in which a component 

requires advance payment, the request 

shall not be considered received and 

further work will not be completed until 

the required payment is received. If the 

requester does not pay the advance 

payment within 30 calendar days after 

the date of the component’s fee 

determination, the request will be 

closed. 

(j) Other statutes specifically 

providing for fees. The fee schedule of 

this section does not apply to fees 

charged under any statute that 

specifically requires an agency to set 

and collect fees for particular types of 

records. In instances where records 

responsive to a request are subject to a 

statutorily-based fee schedule program, 

the component shall inform the 

requester of the contact information for 

that program. 

(k) Requirements for waiver or 

reduction of fees. (1) Records responsive 

to a request shall be furnished without 

charge or at a reduced rate below the 

rate established under paragraph (c) of 

this section, where a component 

determines, based on all available 

information, that the requester has 

demonstrated that: 

(i) Disclosure of the requested 

information is in the public interest 

because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

government, and 

(ii) Disclosure of the information is 

not primarily in the commercial interest 

of the requester. 

(2) In deciding whether disclosure of 

the requested information is in the 

public interest because it is likely to 

contribute significantly to public 

understanding of operations or activities 


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Federal Register / Vol. 80, No. 64 / Friday, April 3, 2015 / Rules and Regulations 18113 

of the government, components shall 

consider all four of the following 

factors: 

(i) The subject of the request must 

concern identifiable operations or 

activities of the Federal Government, 

with a connection that is direct and 

clear, not remote or attenuated. 

(ii) Disclosure of the requested 

records must be meaningfully 

informative about government 

operations or activities in order to be 

‘‘likely to contribute’’ to an increased 

public understanding of those 

operations or activities. The disclosure 

of information that already is in the 

public domain, in either the same or a 

substantially identical form, would not 

contribute to such understanding where 

nothing new would be added to the 

public’s understanding. 

(iii) The disclosure must contribute to 

the understanding of a reasonably broad 

audience of persons interested in the 

subject, as opposed to the individual 

understanding of the requester. A 

requester’s expertise in the subject area 

as well as the requester’s ability and 

intention to effectively convey 

information to the public shall be 

considered. It shall be presumed that a 

representative of the news media will 

satisfy this consideration. 

(iv) The public’s understanding of the 

subject in question must be enhanced by 

the disclosure to a significant extent. 

However, components shall not make 

value judgments about whether the 

information at issue is ‘‘important’’ 

enough to be made public. 

(3) To determine whether disclosure 

of the requested information is 

primarily in the commercial interest of 

the requester, components shall 

consider the following factors: 

(i) Components shall identify any 

commercial interest of the requester, as 

defined in paragraph (b)(1) of this 

section, that would be furthered by the 

requested disclosure. Requesters shall 

be given an opportunity to provide 

explanatory information regarding this 

consideration. 

(ii) A waiver or reduction of fees is 

justified where the public interest is 

greater than any identified commercial 

interest in disclosure. Components 

ordinarily shall presume that where a 

news media requester has satisfied the 

public interest standard, the public 

interest will be the interest primarily 

served by disclosure to that requester. 

Disclosure to data brokers or others who 

merely compile and market government 

information for direct economic return 

shall not be presumed to primarily serve 

the public interest. 

(4) Where only some of the records to 

be released satisfy the requirements for 

a waiver of fees, a waiver shall be 

granted for those records. 

(5) Requests for a waiver or reduction 

of fees should be made when the request 

is first submitted to the component and 

should address the criteria referenced 

above. A requester may submit a fee 

waiver request at a later time so long as 

the underlying record request is 

pending or on administrative appeal. 

When a requester who has committed to 

pay fees subsequently asks for a waiver 

of those fees and that waiver is denied, 

the requester shall be required to pay 

any costs incurred up to the date the fee 

waiver request was received. 

§ 16.11 Other rights and services. 

Nothing in this subpart shall be 

construed to entitle any person, as of 

right, to any service or to the disclosure 

of any record to which such person is 

not entitled under the FOIA. 

■ 3. Revise Appendix I to part 16 to read 

as follows: 

Appendix I to Part 16—Components of 

the Department of Justice 

Please consult Attachment B of the 

Department of Justice FOIA Reference Guide 

for the contact information and a detailed 

description of the types of records 

maintained by each Department component. 

The FOIA Reference Guide is available at 

http://www.justice.gov/oip/04_3.html or 

upon request to the Office of Information 

Policy. 

The FOIA offices of Department 

components and any component-specific 

requirements for making a FOIA request are 

listed below. The Certification of Identity 

form, available at http://www.justice.gov/oip/ 

forms/cert_ind.pdf, may be used by 

individuals who are making requests for 

records pertaining to themselves. For each of 

the six components marked with an asterisk, 

FOIA and Privacy Act (PA) access requests 

must be sent to OIP, which handles initial 

requests for those six components. 

Antitrust Division, FOIA/PA Unit 

Bureau of Alcohol, Tobacco, Firearms, and 

Explosives, Disclosure Division 

Civil Division, FOIA/PA Officer 

Requests for records from case files must 

include a case caption or name, civil 

court case number, and judicial district. 

Civil Rights Division, FOIA/PA Branch 

Community Relations Service, FOIA/PA 

Coordinator 

Criminal Division, FOIA/PA Unit 

Drug Enforcement Administration, Freedom 

of Information Operations Unit, FOI/

Records Management Section 

Environment and Natural Resources 

Division, FOIA Coordinator, Law and 

Policy Section 

Requests for records from case files must 

include a case caption or name, civil or 

criminal court case number, and judicial 

district. 

Executive Office for Immigration Review, 

Office of the General Counsel 

When seeking access to records concerning 

a named alien individual, requesters 

must include an alien registration 

number (‘‘A’’ number). If the ‘‘A’’ 

number is not known or the case 

occurred before 1988, the date of an 

Order to Show Cause, country of origin, 

and location of the immigration hearing 

must be provided. 

Executive Office for United States Attorneys, 

FOIA/Privacy Unit 

Executive Office for Organized Crime Drug 

Enforcement Task Forces 

Requests for records from case files must 

include the judicial district in which the 

investigation/prosecution or other 

litigation occurred. 

Executive Office for United States Trustees, 

FOIA/PA Counsel, Office of the General 

Counsel 

Requests for records from bankruptcy case 

files must include a case caption or 

name, case number, and judicial district. 

Federal Bureau of Investigation, Record/

Information Dissemination Section, 

Records Management Division 

Federal Bureau of Prisons, FOIA/PA Section 

Foreign Claims Settlement Commission 

INTERPOL–U.S. National Central Bureau, 

FOIA/PA Specialist, Office of General 

Counsel 

Justice Management Division, FOIA Contact 

National Security Division, FOIA Initiatives 

Coordinator 

Office of the Associate Attorney General* 

Office of the Attorney General* 

Office of Community Oriented Policing 

Services, FOIA Officer, Legal Division 

Office of the Deputy Attorney General* 

Office of Information Policy 

Office of the Inspector General, Office of the 

General Counsel 

Office of Justice Programs, Office of the 

General Counsel 

Office of Legal Counsel 

Office of Legal Policy* 

Office of Legislative Affairs* 

Office of the Pardon Attorney, FOIA Officer 

Office of Professional Responsibility, Special 

Counsel for Freedom of Information and 

Privacy Acts 

Office of Public Affairs* 

Office of the Solicitor General 

Requests for records from case files must 

include a case name, docket number, or 

citation to case. 

Office on Violence Against Women 

Professional Responsibility Advisory Office, 

Information Management Specialist 

Tax Division, Division Counsel for FOIA and 

PA Matters 

Requests for records from case files must 

include a case caption or name, civil or 

criminal court case number, and judicial 

district. 

United States Marshals Service, Office of the 

General Counsel 

Requests for records concerning seized 

property must specify the judicial 

district of the seizure, civil court case 

number, asset identification number, and 

an accurate description of the property. 

United States Parole Commission, FOIA/PA 

Specialist 


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18114 Federal Register / Vol. 80, No. 64 / Friday, April 3, 2015 / Rules and Regulations 

Dated: March 27, 2015. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2015–07772 Filed 4–2–15; 8:45 am] 

BILLING CODE 4110–BE–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2014–1029] 

RIN 1625–AA09 

Drawbridge Operation Regulation; 

Hoquiam River, Hoquiam, WA 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

temporarily modifying the operating 

schedule that governs the Simpson 

Avenue Bridge on the Hoquiam River, 

mile 0.5, at Hoquiam, Washington. This 

temporary final rule is necessary to 

accommodate Washington State 

Department of Transportation’s 

(WSDOT) extensive maintenance and 

restoration efforts on this bridge. 

WSDOT will only open one leaf of the 

double leaf bascule bridge when at least 

two hours of notice is given. 

DATES: This temporary final rule is 

effective from 7 a.m. on April 1, 2015 

to 11 p.m. on November 30, 2015. 

ADDRESSES: Documents mentioned in 

this preamble are part of docket USCG– 

2014–1029. To view documents 

mentioned in this preamble as being 

available in the docket, go to http://

www.regulations.gov, type the docket 

number in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rulemaking. You may also visit the 

Docket Management Facility in Room 

W12–140 on the ground floor of the 

Department of Transportation West 

Building, 1200 New Jersey Avenue SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. The telephone 

number is 202–366–9329. 

See the ‘‘Public Participation and 

Request for Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments. To avoid duplication, please 

use only one of three methods. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

rule change, call or email Steven M. 

Fischer, Bridge Administrator, 

Thirteenth Coast Guard District Bridge 

Program Office, telephone 206–220– 

7282; email d13-pf-d13bridges@

uscg.mil. If you have questions on 

viewing or submitting material to the 

docket, call Cheryl Collins, Program 

Manager, Docket Operations, telephone 

202–366–9826. 

SUPPLEMENTARY INFORMATION: 

Table of Acronyms 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of Proposed Rulemaking 

§ Section Symbol 

U.S.C. United States Code 

A. Regulatory History and Information 

On January 2, 2015, the Coast Guard 

published a Notice of Proposed 

Rulemaking (NPRM) entitled 

‘‘Drawbridge Operation Regulation; 

Hoquiam River, Hoquiam, WA’’ in the 

Federal Register (80 FR 21). We 

received no comments on the proposed 

rule. No public meeting was requested, 

and none was held. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective in less than 30 

days after publication in the Federal 

Register because to wait otherwise 

would be impracticable because 

WSDOT’s work will commence on April 

1, 2015 and, as noted below, there is no 

indication that the change will have a 

significant impact on any waterways 

users. 

B. Basis and Purpose 

WSDOT, who owns and operates the 

Simpson Avenue Bridge on the 

Hoquiam River in Hoquiam, 

Washington, has requested a change to 

the bridge’s existing operating 

regulations in order to facilitate the 

maintenance and restoration of the 

bridge. The restoration project will 

entail painting, rust removal, and steel 

repairs which require a full containment 

system to keep paint and debris out of 

the Hoquiam River. 

In an effort to accommodate both the 

needs of the waterway and highway 

users, WSDOT has requested a rule 

change in order to eliminate the need to 

repeatedly uninstall and reinstall the 

containment system. As such, the Coast 

Guard will change the bridge’s current 

operating regulation from April 1, 2015 

to November 30, 2015. During that time 

the drawbridge would be maintained in 

the closed position except that, upon at 

least two hours advance notice, one leaf 

of the double leaf bascule bridge would 

be opened. 

Vessels that are able to transit under 

the bridge without an opening will be 

free to do so. However, the existing 

vertical navigation clearance of the 

closed draw span leaf (one half of the 

double leaf draw bridge), will be 

reduced from approximately 35 feet to 

approximately 25 feet at mean high tide 

and the horizontal navigation clearance 

will be reduced from 125 feet to 

approximately 52 feet. Navigation 

clearance reduction is due to the 

installation of a required containment 

system. 

Vessel traffic along this part of the 

Hoquiam River consists of vessels 

ranging from commercial tug and barge 

to small pleasure craft. WSDOT has 

examined bridge opening logs and 

contacted all waterway users that have 

requested bridge openings throughout 

the last year. The input WSDOT 

received from waterway users indicated 

that the temporary rule change will have 

no impact on the known users. 

C. Discussion of Final Rule 

The Coast Guard will revise the 

operating regulations at 33 CFR 

117.1047. The regulation currently 

states that the Simpson Avenue Bridge 

shall open on signal if at least one hour 

notice is given. The Coast Guard will 

change the regulation such that from 7 

a.m. on April 1, 2015 to 6 p.m. on 

November 30, 2015, the draw of the 

Simpson Avenue Bridge, on the 

Hoquiam River at mile 0.5, at Hoquiam, 

Washington, shall open half of the 

bascule (single leaf) when at least two 

hours of advance notice is given. No 

alternate routes are available for this 

waterway. Vessels that can transit under 

the bridge without an opening may do 

so at any time, although the existing 

vertical navigation clearance of the 

closed draw span (one half of the double 

leaf draw bridge), will be reduced from 

approximately 35 feet to approximately 

25 feet at mean high tide and the 

horizontal navigation clearance will be 

reduced from 125 feet to approximately 

52 feet. Navigation clearance reduction 

is due to the installation of a required 

containment system. 

D. Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

executive orders related to rulemaking. 

Below we summarize our analyses 

based on these statutes or executive 

orders. 

1. Regulatory Planning and Review 

This rule is not a ‘‘significant 

regulatory action’’ under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review, as supplemented 

by Executive Order 13563, Improving 

Regulation and Regulatory Review, and 

does not require an assessment of 


asabaliauskas on DSK5VPTVN1PROD with RULES