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[Federal Register Volume 76, Number 54 (Monday, March 21, 2011)]
[Proposed Rules]
[Pages 15236-15244]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6473]

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DEPARTMENT OF JUSTICE

28 CFR Part 16

[Docket No. OAG 140; AG Order No. 3259-2011]
RIN 1105-AB27

Freedom of Information Act Regulations

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes revisions to the Department's regulations 
under the Freedom of Information Act (FOIA). The regulations are being 
revised to update and streamline the language of several procedural 
provisions, and to incorporate certain of the changes brought about by 
the amendments to the FOIA under the OPEN Government Act of 2007. 
Additionally, the regulations are being updated to reflect developments 
in the case law and to include current cost figures to be used in 
calculating and charging fees.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before April 20, 2011. Comments received by mail 
will be considered timely if they are postmarked on or before that 
date. The electronic Federal Docket Management System will accept 
comments until Midnight Eastern Time at the end of that day.

ADDRESSES: You may submit comments by any of the following methods:
     Federal eRulemaking Portal: http//www.regulations.gov.
     FAX: (202) 514-1009. Send your comments to the attention 
of Caroline A. Smith.
     Mail: Caroline A. Smith, Office of Information Policy, 
U.S. Department of Justice, 1425 New York Ave., Suite 11050, 
Washington, DC 20530-0001.
    To ensure proper handling, please reference OAG Docket No. 140 on 
your correspondence.
    See SUPPLEMENTARY INFORMATION for further instructions for 
submitting comments.

FOR FURTHER INFORMATION CONTACT: Caroline A. Smith, 202-514-3642.

SUPPLEMENTARY INFORMATION:
    Posting of Public Comments: Please note that all comments received 
are considered part of the public record and made available for public 
inspection online at http://www.regulations.gov. Such information 
includes personal identifying information (such as your name, address, 
etc.) voluntarily submitted by the commenter.
    You are not required to submit personal identifying information in 
order to comment on this rule. Nevertheless, if you still want to 
submit personal identifying information (such as your name, address, 
etc.) as part of your comment, but do not want it to be posted online, 
you must include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the 
first paragraph of your comment. You also must locate all the personal 
identifying information you do not want posted online in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION CONTACT paragraph.
    The reason that the Department is requesting electronic comments 
before Midnight Eastern Time on the day the comment period closes is 
because the inter-agency Regulations.gov/Federal Docket Management 
System (FDMS) which receives electronic comments terminates the 
public's ability to submit comments at Midnight on the day the comment 
period closes. Commenters in time zones other than Eastern may want to 
take this fact into account so that their electronic comments can be 
received. The constraints imposed by the Regulations.gov/FDMS system do 
not apply to U.S. postal comments which will be considered as timely 
filed if they are postmarked before Midnight on the day the comment 
period closes.

Discussion

    This rule proposes revisions to the Department's regulations under 
the FOIA to update and streamline the language of several procedural 
provisions and to incorporate certain of the changes brought about by 
the amendments to the FOIA under the OPEN Government Act of 2007, 
Public Law 110-175, 121 Stat. 2524. Additionally, the regulations are 
being updated to reflect developments in the case law and to include 
current cost figures to be used in calculating and charging fees.
    The revisions of the FOIA regulations in subpart A of part 16 
incorporate changes to the language and structure of the regulations. 
Revised provisions include Sec.  16.1 (General Provisions), Sec.  16.2 
(Proactive disclosure of Department records), Sec.  16.3 (Requirements 
for making requests), Sec.  16.5 (Timing of responses to requests), 
Sec.  16.6 (Responses to requests), Sec.  16.7 (Confidential commercial 
information), and Sec.  16.8 (Administrative appeals). In addition, 
current Sec.  16.7 (Classified Information) is to be deleted and 
subsequent sections renumbered accordingly.
    Proposed revisions of the Department's fee schedule can be found at 
Sec.  16.10(c) and (d). The duplication charge for photocopying will 
decrease to

[[Page 15237]]

five cents a page, while document search and review charges will 
increase to $16.50 and $13.00 per quarter hour for professional and 
administrative time, respectively. The amount at or below which the 
Department will not charge a fee will increase from $14.00 to $25.00.

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 this regulation 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 Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, Sec.  1(b), Principles of Regulation. The Office 
of Management and Budget has determined that this rule is a 
``significant regulatory action'' under Executive Order 12866, Sec.  
3(f), Regulatory Planning and Review, and accordingly this rule has 
been reviewed by that Office.

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 
$100,000,000 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 (as 
amended), 5 U.S.C. 804. This rule will not result in an annual effect 
on the economy of $100,000,000 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 companies to compete with foreign-based companies 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 
proposes to amend 28 CFR Chapter 1, part 16, as follows:

PART 16--DISCLOSURE OR PRODUCTION OF MATERIAL OR INFORMATION

    1. The authority citation for part 16 is revised 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. Subpart A of part 16 is revised 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 disclosures 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 business 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

Sec.  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 as amended. These rules 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 at 52 FR 10012 (Mar. 27, 1987) (hereinafter ``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.
    (b) As referenced in this subpart, component means the FOIA office 
of each separate bureau, office, division, commission, service, center, 
or administration that is designated by the Department as a primary 
organizational entity.

Sec.  16.2  Proactive disclosure of Department records.

    Records that are required by the FOIA to be made available for 
public inspection and copying are accessible on the Department's Web 
site, http://www.justice.gov. 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 such 
records. 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/servicecenters.htm.

Sec.  16.3  Requirements for making requests.

    (a) General information.
    (1) To make a request for records of the Department, a requester 
must write directly to the FOIA office of the Department component that 
maintains those records. Each component's FOIA office and any 
additional requirements for submitting a request to a given component 
are listed in Appendix I of this part. Further details are provided in 
Attachments B and C of the Department's FOIA Reference Guide. Those 
Attachments contain detailed descriptions of each component's 
functions, as well as their major information systems. Part 0 of this 
chapter summarizes the functions of each component. These references 
can be used by requesters to determine where to send their request 
within the Department.
    (2) When a requester is unable to determine the proper Department 
component to which to direct a request, the requester may send the 
request to the FOIA/PA Mail Referral Unit, Justice Management Division, 
Department of Justice, Washington, DC 20530-0001. 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

[[Page 15238]]

by that individual or a declaration by that individual made in 
compliance with the requirements set forth in 28 U.S.C. 1746 
authorizing disclosure of the records to the requester, or submits 
proof that the individual is deceased (e.g., a copy of a death 
certificate or an obituary). As an exercise of its 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) Addressing requests. Requests should be addressed to the FOIA 
office of the component that maintains the requested records. 
Attachment B of the FOIA Reference Guide lists the addresses of each 
FOIA office and the methods for submitting requests to each component.
    (c) 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 of this part for additional component-specific requirements. 
In general, requesters should include as much detail as possible about 
the specific records or the types of records that they are seeking. If 
the requester fails to reasonably describe the records sought, the 
component shall inform the requester what additional information is 
needed or why the request is deficient. Requesters who are attempting 
to reformulate or modify such a request may discuss their request with 
the component's designated FOIA contact or its FOIA Public Liaison. 
When a requester fails to provide sufficient detail after having been 
asked to clarify a request, the component shall notify the requester 
that the request has not been properly made and that no further action 
will be taken.

Sec.  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), shall not be 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) Consultations and referrals. A component in receipt of a 
request shall determine whether another component or another agency of 
the Federal government is in a better position to decide whether any 
records responsive to the request are exempt from disclosure under the 
FOIA and, if so, whether they should be released on a discretionary 
basis. If the receiving component determines that it is best able to 
process the record in response to the request, then it shall do so. If 
the receiving component determines to the contrary, then it shall 
either:
    (1) Respond to the request, after consulting with the component or 
the agency that has a substantial interest in the records involved; or
    (2) Refer the responsibility for responding to the request or 
portion of the request to the component best able to determine whether 
to disclose the relevant records, or to the agency that created or 
initially acquired the record as long as that agency is subject to the 
FOIA. Ordinarily, the component or agency that created or initially 
acquired the record will be presumed to be best able to make the 
disclosure assessment. The referring component shall document the 
referral and maintain a copy of the records that it refers.
    (d) Classified information. On receipt of any request involving 
classified information, the component shall 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 should consider the 
information for classification. Whenever a component's record contains 
information that has been derivatively classified, i.e., 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.
    (e) Notice of referral. Whenever a component refers any part of the 
responsibility for responding to a request to another component or 
agency, it will notify the requester of the referral and inform the 
requester of the name of each component or agency to which the records 
were referred, unless identifying the recipient will itself disclose a 
sensitive, exempt fact.
    (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, not any later date.
    (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.

Sec.  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, i.e., where a 
request is sent to one of the Department components designated in 
Appendix I but is actually seeking records maintained by another 
Department component, the response time will commence on the date that 
the request is received by the appropriate component, but in any event 
not later than ten working days after the request is first received.
    (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. A 
component can consider factors such as the number of pages involved in 
processing the request or 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 limits for 
processing

[[Page 15239]]

a request cannot be met because of ``unusual circumstances,'' as 
defined in the FOIA, and the component extends the time limits on that 
basis, the component shall, before expiration of the twenty-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 
ten working days, the component shall, as described by the FOIA, 
provide the requester with an opportunity to modify the request or 
agree to 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 will not aggregate multiple requests that 
involve unrelated matters.
    (e) Expedited processing. (1) Requests and appeals will 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 which 
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 the Office of 
Information Policy. 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 ten 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 (d)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that he or she is a 
person whose primary professional activity or occupation is information 
dissemination. 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. A requester cannot satisfy the ``urgency 
to inform'' requirement solely by demonstrating that numerous articles 
have been published on a given subject. As a matter of administrative 
discretion, a component may waive the formal certification requirement.
    (4) A component shall notify the requester within ten 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 component denies expedited processing, any appeal 
of that decision which complies with the procedures set forth in Sec.  
16.8 of this subpart shall be acted on expeditiously.

Sec.  16.6  Responses to requests.

    (a) Acknowledgments of requests. Upon receipt of a request that 
will take longer than ten days to process, a component shall send the 
requester an acknowledgment letter that assigns the request an 
individualized tracking number.
    (b) 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 Sec.  16.10 of this subpart and shall disclose the 
requested records to the requester promptly upon payment of any 
applicable fees.
    (c) 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.
    (d) Content of denial letter. The denial letter 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; and
    (3) An estimate of the volume of any records or information 
withheld, for example, by providing the number of pages or some other 
reasonable form of estimation. This estimation 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.
    (4) A statement that the denial may be appealed under Sec.  16.8(a) 
of this subpart, and a description of the requirements set forth 
therein.
    (e) Markings on released documents. Markings on released documents 
must be clearly visible to the requester.
    (f) 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 head of the FOIA office of that component must 
confer with the Office of Information Policy (OIP) to obtain approval 
to apply the exclusion.
    (2) 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.

[[Page 15240]]

    (3) Any component invoking an exclusion shall maintain an 
administrative record of the process of invocation and approval of the 
exclusion by OIP.

Sec.  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.
    (2) Submitter means any person or entity from whom the Department 
obtains confidential commercial information, directly or indirectly.
    (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 will expire ten 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 whenever:
    (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.
    (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 lawfully has been 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 will 
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 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 will 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 nondislosure 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.

Sec.  16.8  Administrative appeals.

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determinations denying his or her request to the Office of 
Information Policy. The contact information for the Office of 
Information Policy is contained in the FOIA Reference Guide. Examples 
of adverse determinations are provided in Sec.  16.6(c) of this 
subpart. 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 45 calendar days after the date of the 
letter denying the request. Appeals that have not been postmarked or 
transmitted within the specified timeframe will be considered untimely 
and will be administratively closed with notice to the requester. The 
appeal letter should clearly identify the component's determination 
that is being appealed and the assigned request number. 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 the Office of 
Information Policy 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, the 
Office of Information Policy 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, and will provide the requester 
with notification of the statutory right to file a lawsuit. 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.

[[Page 15241]]

Sec.  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 that are identified as responsive to a request will not be 
disposed of or destroyed while they are the subject of a pending 
request, appeal, or lawsuit under the FOIA.

Sec.  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. 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.
    (2) Direct costs are those expenses that an agency expends 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. 
Components shall ensure that searches, review, and duplication are 
conducted in the most efficient and the least expensive manner. 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 category must show that the 
request is authorized by, and is made under the auspices of, a 
qualifying institution and that the records are not sought for a 
commercial use, but rather are sought to further scholarly research. 
Records requested for the intention of fulfilling credit requirements 
are not considered to be sought for a scholarly purpose.
    (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 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. A request for records that supports 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 working for that entity. 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. 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.
    (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 Sec.  
16.7 of this subpart, 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 those 
charges.
    (1) Search. (i) Search fees shall be charged for all requests 
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 will be as follows: Professional--$16.50; and 
administrative--$13.00.
    (iii) Requesters will be charged the direct costs associated with 
conducting any search that requires the creation of a new program to 
locate the requested records.
    (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 will 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 will provide one copy per 
request at a cost of five cents per page. For copies of records 
produced on tapes, disks, or other

[[Page 15242]]

electronic media, components will 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 will charge the direct costs.
    (3) Review. Review fees will be charged to requesters who make 
commercial-use requests. Review fees will 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, when the appellate authority determines that a 
particular exemption no longer applies, 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 will 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, noncommercial 
scientific institutions, or representatives of the news media. When the 
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 defined in paragraphs (b)(4), (b)(5) and (b)(6) of this 
section, may not charge duplication fees.
    (2) 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.
    (3) Except for requesters seeking records for a commercial use, 
components will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (4) 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. 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, 
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. 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. Such a 
commitment must be made by the requester in writing, must indicate a 
given dollar amount, and must be received by the component within 30 
calendar days from the date of notification of the fee estimate. If a 
commitment is not received within this period, the request shall be 
closed. Components will make available their FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request in an effort to reduce fees. Components are not required to 
accept payments in installments.
    (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 
will 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 will 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 will follow the provisions of the 
Debt Collection Act of 1982 (Public Law 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 will not be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i)(2) and (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 his or her 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 letter, 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 will inform the requester

[[Page 15243]]

of the contact information for that source.
    (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 that 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 of the government, 
components will consider 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) The disclosable portions 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 his or her ability and 
intention to effectively convey information to the public shall be 
considered. It shall ordinarily be presumed that a representative of 
the news media satisfies 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 will 
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.
    (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 will be required to pay any costs incurred up to 
the date the fee waiver request was received.

Sec.  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. Appendix I to part 16 is revised to read as follows:

Appendix I to Part 16--Components of the Department of Justice

    Please consult Attachment B of the Department of Justice Freedom 
of Information Act 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/referenceguide.htm 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 components marked with an asterisk, FOIA and Privacy Act 
(``PA'') access requests must be sent to the Office of Information 
Policy, which handles initial requests for those seven components.

A

Office of the Attorney General*
Office of the Deputy Attorney General*
Office of the Associate Attorney General*

B

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 action number, and judicial district.
Civil Rights Division, FOIA/PA Branch
Community Relations Service, FOIA/PA Coordinator
Criminal Division, FOIA/PA Unit
    Requests for records from criminal case files must include the 
case caption or name, civil action number, judicial district, dates 
of arrest or conviction, and Federal offenses involved.
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 the case 
caption or name, civil action number, and judicial district.
    Executive Office for Immigration Review, Office of the General 
Counsel
    When applicable, requesters must include an alien registration 
number. If the ``A'' number is not known or the case occurred before 
1988, the date of the 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
    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 the 
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 Drug Intelligence Center, FOIA Coordinator
National Security Division, FOIA Initiatives Coordinator
Office of Community Oriented Policing Services, FOIA Officer, Legal 
Division
Office of Dispute Resolution, FOIA Officer
Office of the Federal Detention Trustee, Office of General Counsel
Office of Information Policy
Office of the Inspector General, Office of the General Counsel
Office of Intergovernmental and Public Liaison*
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

[[Page 15244]]

Office of Public Affairs*
Office of the Solicitor General
    Requests for records from case files must include the 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 the case 
caption or name, civil action number, and judicial district.
United States Marshals Service, Office of the General Counsel
    Requests for records pertaining to individuals must include the 
judicial district. Requests for records related to prisoner 
transportation must include the date and trip number. Requests for 
records concerning seized property must specify the judicial 
district, civil action number, asset identification number, or an 
accurate description of the property.
United States Parole Commission, FOIA/PA Specialist

    Dated: March 14, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-6473 Filed 3-18-11; 8:45 am]
BILLING CODE 4410-BE-P
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