76898 Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. This rule is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects 

40 CFR Part 9 

Environmental protection, Reporting 

and recordkeeping requirements. 

40 CFR Part 721 

Environmental protection, Chemicals, 

Hazardous substances, Reporting and 

recordkeeping requirements. 

Dated: December 17, 2012. 

Maria J. Doa, 

Director, Chemical Control Division, Office 

of Pollution Prevention and Toxics. 

Therefore, 40 CFR parts 9 and 721 are 

amended as follows: 

PART 9—[AMENDED] 

■ 1. The authority citation for part 9 

continues to read as follows: 

Authority: 7 U.S.C. 135 et seq., 136–136y; 

15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; 

21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 

1321, 1326, 1330, 1342, 1344, 1345(d) and 

(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 

1971–1975 Comp. p. 973; 42 U.S.C. 241, 

242b, 243, 246, 300f, 300g, 300g–1, 300g–2, 

300g–3, 300g–4, 300g–5, 300g–6, 300j–1, 

300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq., 

6901–6992k, 7401–7671q, 7542, 9601–9657, 

11023, 11048. 

§ 9.1 [Amended] 

■ 2. The table in § 9.1 is amended by 

removing the entries ‘‘§ 721.10509’’ and 

‘‘§ 721.10515’’ under the undesignated 

center heading ‘‘Significant New Uses of 

Chemical Substances.’’ 

PART 721—[AMENDED] 

■ 3. The authority citation for part 721 

continues to read as follows: 

Authority: 15 U.S.C. 2604, 2607, and 

2625(c). 

§ 721.10509 [Removed] 

■ 4. Remove § 721.10509. 

§ 721.10515 [Removed] 

■ 5. Remove § 721.10515. 

[FR Doc. 2012–31403 Filed 12–28–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary 

43 CFR Part 2 

RIN 1093–AA15 

Freedom of Information Act 

Regulations 

AGENCY: Office of the Secretary, Interior. 

ACTION: Final rule. 

SUMMARY: This rule revises the 

regulations that the Department of the 

Interior (the ‘‘Department’’) follows in 

processing records under the Freedom 

of Information Act (‘‘FOIA’’). The 

revisions clarify and update procedures 

for requesting information from the 

Department and procedures that the 

Department follows in responding to 

requests from the public. The revisions 

also incorporate clarifications and 

updates resulting from changes to the 

FOIA and case law. Finally, the 

revisions include current cost figures to 

be used in calculating and charging fees 

and increase the amount of information 

that members of the public may receive 

from the Department without being 

charged processing fees. 

DATES: Effective January 30, 2013. 

SUPPLEMENTARY INFORMATION: 

I. Why We’re Publishing This Rule and 

What It Does 

A. Introduction 

The regulations are being revised to 

update, clarify, and streamline the 

language of procedural provisions, and 

to incorporate certain 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 also incorporate 

changes to the language and structure of 

the FOIA regulations in order to 

improve the Department’s FOIA 

performance. More nuanced multitrack 

processing can be found at § 2.15. 

Partial fee waivers are expressly 

permitted under § 2.45. Revisions of the 

Department’s fee schedule can be found 

at §§ 2.42, 2.49(a)(1), and Appendix A. 

The duplication charge for physical 

records or scanning records increased 

from thirteen to fifteen cents a page. The 

amount at or below which the 

Department will not charge a fee 

increased from $30.00 to $50.00. 

On September 13, 2012, the 

Department published a proposed rule 

in the Federal Register (77 FR 56592) 

and requested comments over a 60-day 

period ending on November 13, 2012. 

All comments received were considered 

in drafting this final rule. 

B. Discussion of Comments 

Six commenters responded to the 

invitation for comments, including one 

commenter from a subcomponent of a 

Federal agency and five commenters 

from non-Federal sources. While most 

of the commenters generally supported 

the proposed changes, they identified 

thirty specific issues or 

recommendations, which the 

Department addressed as follows: 

The Final Rule Should Include More 

Information in Its Introductory Section 

One commenter suggested that § 2.1 

discuss how to submit a FOIA request 

(and also expressed concern that the 

regulations might only allow FOIA 

requests to be submitted to the 

Department electronically). Because 

§ 2.3 directly addresses where to send a 

FOIA request (and specifically discusses 

where to find the physical and email 

addresses of each bureau’s FOIA 

Officer), the Department has not 

adopted this suggestion. 

The Final Rule Should Not Create 

Unnecessary Burdens for Requesters 

One commenter suggested that 

requiring requesters to ‘‘write directly to 

the bureau that you believe maintains 

those records’’ in § 2.3(b) was overly 

burdensome and creates barriers to 

access, because requesters may not 

know where the records are maintained. 

However, § 2.3(d) specifically notes that 

‘‘[q]uestions about where to send a 

FOIA request should be directed to the 

bureau that manages the underlying 

program or to the appropriate FOIA 

Public Liaison, as discussed in § 2.66.’’ 

Therefore, the Department does not 

believe § 2.3 is unduly burdensome and 

has not amended it. 

The Final Rule Should Provide 

Examples of How Requesters Can 

Reasonably Describe the Records They 

Seek 

One commenter suggested that 

examples of how requesters can 

reasonably describe the records they 

seek be added to § 2.5(b), and the 

Department has adopted this suggestion. 

The Final Rule Should Not Use the 

Ambiguous Phrase ‘‘Does Not Hear 

From You’’ 

One commenter suggested, in the 

context of § 2.5, that the use of ‘‘does 

not hear from you’’ was ambiguous. The 

Department has adopted this suggestion 


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by replacing the ambiguous phrase with 

‘‘does not receive a written response 

from you’’ everywhere it occurred 

(§§ 2.5, 2.6, and 2.51). 

The Final Rule Should Allow 

Requesters More Time To Respond to 

the Department’s Communications and 

Make Advance Payments 

One commenter suggested that the 

time for requesters to respond to the 

Department in §§ 2.5(c), 2.6(c), and 

2.50(e) be expanded from 20 workdays 

(the time period in the draft version of 

the final rule, as well as in the 

Department’s previous version of the 

final rule) to 30 workdays. As the 

commenter notes, the Department does 

‘‘expend[] numerous resources to 

produce documents pursuant to the 

FOIA, and the agency has an interest in 

resolving FOIA matters in an organized 

and timely fashion.’’ Although the 

commenter believes the 20 workday 

deadline is ‘‘unreasonable and 

arbitrary,’’ it has been the standard for 

the Department for over a decade and 

the Department believes that it is 

reasonable and comports with the 

statutory FOIA processing deadlines. 

The Department therefore declines to 

adopt this suggestion. 

The Final Rule Should Require the 

Department To Notify Requesters in 

Advance Before Charging Them the 

Direct Costs of Converting Records to 

the Format They Request 

One commenter suggested § 2.8(b) be 

revised to require a bureau to inform 

requesters in advance if it intends to 

charge the requester any direct costs for 

converting the requested records into a 

requested format. The Department has 

adopted this suggestion by adding a 

cross reference to § 2.44 and adding this 

scenario to the examples given in 

§ 2.44(b). 

The Final Rule Should Not Confuse 

Expedited Processing Requests and 

FOIA Requests 

One commenter suggested that the 

juxtaposition of §§ 2.10 and 2.11 could 

lead to confusion about what kinds of 

‘‘requests’’ were being referenced in 

these sections. The Department agrees 

and has adopted this suggestion by 

amending § 2.10. 

The Final Rule Should Elaborate on the 

Department’s Consultation and Referral 

Process 

One commenter suggested that, in 

§ 2.13(c) and (e), the Department notify 

requesters of whether part of the request 

or entire request has been referred, and 

the Department has adopted this 

suggestion. The same commenter also 

suggested that the Department provide 

the requester with the contact 

information (in addition to the name) of 

the person the request had been referred 

to, and the Department has adopted this 

suggestion. Another commenter 

expressed concerns about § 2.13, stating 

that portions of it were ‘‘ambiguous and 

have no legal basis.’’ This commenter 

specified that § 2.13(e) permitted the 

Department to withhold the identity of 

outside agencies to which the 

Department refers FOIA requests, under 

limited circumstances, and §§ 2.13(f)(2) 

and 2.13(f)(4) did not have concrete 

examples. The Department has carefully 

reviewed § 2.13(e) and finds it to be 

unambiguous and consistent with law 

and policy. The Department has also 

concluded that adding examples to 

§§ 2.13(f)(2) and 2.13(f)(4) would not be 

beneficial, as the situations that will 

arise under these sections are highly fact 

specific and general examples would be 

bulky and would not be illuminating. 

However, the Department agrees that the 

previous versions of §§ 2.13(a) and 

2.13(h) were unintentionally confusing. 

The Department therefore has adopted 

this suggestion in part and revised these 

sections for clarity. 

The Final Rule Should Not Expand the 

Time Period for Determining Whether 

the Department Will Comply With a 

Request 

One commenter suggested that the 

multiple tracks for processing FOIA 

requests outlined in § 2.15 violated 

FOIA’s requirement that agencies 

‘‘determine within 20 days [or longer in 

unusual circumstances] * * * after the 

receipt of any [FOIA] request whether to 

comply with such request * * * ’’ 5 

U.S.C. 552(a)(6)(A). However, § 2.15 

does not alter the statutory requirement 

for a bureau to determine whether it 

will comply with a request. To the 

contrary, it implements 5 U.S.C. 

552(a)(6)(D)(i), which specifically 

permits agencies to promulgate 

regulations ‘‘providing for multitrack 

processing of requests for records based 

on the amount of work or time (or both) 

involved in processing requests.’’ This 

provision of the FOIA recognizes that a 

bureau exercising due diligence can 

determine whether it will comply with 

a request within the statutory 

timeframe, but may need additional 

time to search for and process the 

records in question. It also recognizes 

that simple requests should not have to 

wait for long periods of time while more 

complex requests are processed. To 

clarify this point, the Department has 

added paragraph (f) to this section. (The 

Department has also corrected a 

typographical error in § 2.15(c)(3) that 

may have created confusion about 

processing times.) The same commenter 

also suggested the definition of 

‘‘review’’ in § 2.70 would violate FOIA’s 

mandated time limits. However, the 

definition addresses when fees will be 

charged to a requester, not how long a 

bureau has to respond to a FOIA 

request. Neither § 2.15 nor § 2.70 

expands the time period for determining 

whether to comply with a request and 

therefore neither have been amended. 

The Final Rule Should Help Set 

Requesters’ Expectations of When To 

Expect a Response 

One commenter suggested a clause 

and a sentence be added to § 2.16(a) 

referring to the potential of a 10-day 

extension, to help set the requester’s 

expectations of when to expect a 

response. The Department has adopted 

the suggestion to refer to the potential 

extension, but consolidated the 

suggested language. The final rule 

already has a provision discussing when 

the bureau may extend the basic time 

limit (§ 2.19) and a cross reference to it 

has been added to § 2.16(a). The 

Department has also amended § 2.16(a) 

to more exactly track the language of 5 

U.S.C. 552(a)(6)(A)(i). 

The Final Rule Should Not Exceed the 

FOIA’s Temporary Suspension 

Authority 

One commenter expressed concern 

that the provisions in § 2.18(b) exceeded 

the FOIA’s provisions for temporarily 

suspending the statutory response 

period because a temporary suspension 

was allowed to occur more than once if 

the bureau needed to clarify issues 

regarding fee assessments. However, 5 

U.S.C. 552(a)(6)(A) makes it clear that, 

although a temporary suspension can 

occur only once when a bureau is 

reasonably asking for clarifying 

information unrelated to fee 

assessments (and the temporary 

suspension ends with a requester’s 

response), temporary suspensions of the 

statutory response period can occur as 

many times as is necessary when a 

bureau needs clarifying information 

regarding a fee assessment. This section 

therefore does not exceed FOIA’s 

temporary suspension authority and has 

not been amended. 

The Final Rule Should Require the 

Department To Include a Brief 

Description of the Subject of the Request 

in Acknowledgement Letters 

One commenter suggested that the 

Department add a clause to § 2.21(b) 

requiring bureaus to provide a brief 

description of the subject of the request 

in its acknowledgment letter. The 


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Department declines to adopt the 

portion of the suggestion about making 

this description mandatory, due to the 

increased burden it would place on 

bureaus (especially those with a high 

rate of FOIA requests) and the 

dampening effect this would have on 

experimenting with new forms of 

written acknowledgments that could 

more quickly serve requesters (such as 

post cards). The Department has, 

however, added a sentence to § 2.21(b) 

noting this information may be 

included. 

The Final Rule Should Clarify When 

Procedural Benefits Are Denied Versus 

When Records Are Denied 

A commenter suggested modifying 

§ 2.23 to clarify when a request is being 

denied as opposed to the denial of 

procedural benefits under FOIA. The 

Department agrees this would be helpful 

and has made the suggested 

modifications, along with a few minor 

clarifications. The Department also 

made a minor change to paragraph (a)(3) 

of this section because a some material 

that had previously been included in 

§ 2.13(h), amendments to which were 

discussed above, made more sense in 

this context. 

The Final Rule Should Require the 

Department to State the Precise Volume 

of Denied Material and Provide a 

Detailed Justification of Its 

Withholdings 

One commenter suggested § 2.24 be 

amended to state that, where possible, 

the requester will be provided with the 

precise volume of denied material, 

rather than an estimated volume. 

Although the Department has declined 

to adopt this exact suggestion (because 

it believes the change would have a 

significant negative impact on the 

Department’s processing and response 

times while providing the requester 

with very little, if any, additional, 

meaningful information), it has 

amended § 2.25 to more exactly track 

the language of 5 U.S.C. 552(b), which 

the commenter referenced. Another 

commenter suggested § 2.24 be amended 

to require ‘‘a detailed justification for [a] 

denial,’’ citing case law requiring 

detailed justifications in a litigation 

context. The Department has considered 

this suggestion, but declined to adopt it 

because it is not required at an 

administrative level and would have a 

tremendous negative impact on the 

Department’s processing and response 

times. 

The Final Rule Should Correctly State 

What Types of Information Can Be 

Protected Under the Trade Secrets Act 

One commenter suggested that § 2.36 

be amended to state that only trade 

secrets can be withheld under the Trade 

Secrets Act, 18 U.S.C. 1905. However, 

the Trade Secrets Act is a broadly 

worded criminal statute that prohibits 

the unauthorized disclosure of more 

than simply ‘‘trade secrets.’’ See, e.g., 

Bartholdi Cable Co. v. FCC, 114 F.3d 

274, 281 (D.C. Cir. 1997) (citing CAN 

Fin. Corp v. Donovan, 830 F.2d 1132, 

1140 (D.C. Cir. 1987) and declaring: 

‘‘[W]e have held that information falling 

within Exemption 4 of FOIA also comes 

within the Trade Secrets Act.’’); Parker 

v. Bureau of Land Mgmt., 141 F. Supp. 

2d 71, 77 n.5 (D.D.C. 2001) (‘‘Although 

FOIA exemptions are normally 

permissive rather than mandatory, the 

D.C. Circuit has held that the disclosure 

of material which is exempted under 

[Exemption 4 of the FOIA] is prohibited 

under the Trade Secrets Act’’). This 

section therefore has not been amended. 

The Final Rule Should Reflect Three 

Fee Categories, Rather Than Four 

One commenter suggested that §§ 2.38 

and 2.70 be amended to reflect that the 

FOIA provides for three fee categories, 

not four. While the Department agrees 

that only three categories are referred to 

in the FOIA, it has found over many 

years that requesters appreciate and 

benefit from the additional clarity 

provided by having one of the broader 

categories split in two. The Department 

therefore has not adopted this 

suggestion. 

The Final Rule Should Use 

Individualized Local Locality Payments 

One commenter suggested that 

§ 2.41(b) be amended from ‘‘the fees will 

be the average hourly General Schedule 

(‘‘GS’’) base salary, plus the District of 

Columbia locality payment’’ to ‘‘the fees 

will be the average hourly General 

Schedule (‘‘GS’’) base salary, plus any 

applicable locality payment.’’ The 

Department utilized the District of 

Columbia (‘‘DC’’) locality payments as 

its standardized locality payment in its 

previous version of the final rule and 

found it to be both efficient and 

reasonable. It allows the Department to 

create a standard chart that all bureaus 

can use to calculate fees, rather than 

each bureau calculating different 

amounts for different employees (in the 

Department, it is not unusual for people 

who work on the same request to be in 

multiple geographic locations) and 

requesters being confused by widely 

varying charges for the same work. It 

makes sense to use the DC locality as 

the standard, given the large numbers of 

the Department’s FOIA professionals 

and processors that are based in DC The 

Department therefore has not adopted 

this suggestion. 

The Final Rule Should Not Unduly 

Limit Agency Decisions on Fee Waivers 

and Appeals 

One commenter suggested that 

§ 2.45(c) unduly limits bureau decisions 

on fee waivers and this would 

negatively impact appeal decisions 

under § 2.57. However, § 2.45(c) merely 

allows a bureau to make fee waiver 

decisions based on what is submitted to 

it by the requester, rather than being 

required to seek additional information 

(although it is free to do so, at its 

discretion). The Department therefore 

has not amended these sections. 

The Final Rule Should Further Clarify 

When Fees May Be Waived 

One commenter suggested adding the 

following sentence to § 2.45(d) in order 

to further assist the Department in 

setting expectations for requesters 

regarding fee waivers: ‘‘A fee waiver is 

tied to the subject of the request in 

addition to the identity of the 

requester.’’ The Department is 

concerned that adopting this suggestion 

would give the mistaken impression 

that only these two criteria are at issue 

in fee waiver determinations. But, in 

response to this comment, § 2.45(d) now 

includes two cross references. These 

cross references, to the fee waiver 

criteria in §§ 2.45(a) and 2.48, will help 

set requesters’ expectations regarding 

fee waivers. 

The Final Rule Should Say More About 

Where and How To File a Fee Waiver 

One commenter suggested that § 2.46 

discuss where and how to file a fee 

waiver request. Because § 2.6 directly 

addresses where and how to file fee 

waiver requests (and § 2.46 already 

cross references § 2.6), the Department 

believes adopting this suggestion is not 

necessary. 

The Final Rule Should Not Be Narrower 

than FOIA’s Fee Waiver Standards 

One commenter expressed concern 

that § 2.48(a)(4), which outlines one of 

the four criteria bureaus are asked to 

consider when evaluating a fee waiver 

request, was narrower than FOIA’s fee 

waiver standards. However, this 

provision does not narrow the scope of 

5 U.S.C. 552(a)(4)(A)(iii), it simply helps 

the Department analyze whether the 

disclosure of the information is likely to 

contribute significantly to public 

understanding of the operations or 


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activities of the government. Because 

§ 2.48(a)(4) is not narrower than FOIA’s 

fee waiver standards, the Department 

has not adopted this suggestion. The 

same commenter also expressed concern 

about a change of phrasing in 

§ 2.48(a)(3)(iv) from the parallel 

provision in the previous version of the 

final rule. The Department did not 

intend to change the provision’s 

meaning. Therefore, in accordance with 

the commenter’s suggestion, the word 

‘‘unlikely’’ has been removed and the 

phrase ‘‘less likely’’ restored. 

The Final Rule Should Require the 

Department to Allow Requesters To Pay 

in Installments 

One commenter suggested that 

§ 2.50(e) be amended to require the 

Department to ‘‘collaborate with FOIA 

requesters to establish a payment 

schedule that would permit requesters 

to pay [advance payments] in 

installments instead of closing out 

requests.’’ As the commenter notes, this 

provision mirrors the applicable 

provision in the previous version of the 

final rule. Changing it would greatly add 

to the complexity, uncertainty, and time 

spent processing advance fee payments, 

impairing the Department’s FOIA 

processing. The Department therefore 

declines to adopt this suggestion. 

The Final Rule Should Clearly 

Articulate its Rationale for Combining 

or Aggregating Requests 

One commenter suggested the 

Department should articulate its 

rationale for combining or aggregating 

requests more clearly in § 2.54. The 

Department agrees the previous version 

of this section was unintentionally 

confusing. The lettering/numbering 

therefore has been amended. 

Additionally, a ‘‘will’’ in § 2.54(a)(2) has 

been amended to ‘‘may.’’ 

The Final Rule Should Provide 

Examples of Types of Records the 

Department May Charge Fees for 

Outside the Scope of FOIA 

One commenter suggested it may be 

helpful to include examples of the 

particular types of records that a bureau 

may charge fees for outside of the scope 

of the FOIA in § 2.55. The Department 

has carefully considered this suggestion 

and has concluded that examples in this 

area would be so specific and narrow 

that they would be more distracting 

than illuminating. The Department 

therefore has not adopted this 

suggestion. 

The Final Rule Should Allow Bureaus 

Not Only To Waive Fees Discretionarily, 

But Also To Reduce them 

Discretionarily 

One commenter suggested that § 2.56 

be amended to allow for the 

discretionary reduction of fees (in 

addition to the discretionary waiver of 

fees) and the Department has adopted 

this suggestion. The same commenter 

also suggested that new language be 

added to give Department employees 

additional, broader discretion for 

waiving or reducing fees, for example, 

whenever ‘‘the interest of the United 

States Government would be served.’’ 

The Department has declined to adopt 

this suggestion, because it is concerned 

that it would create unrealistic 

expectations on the part of requesters, 

undercut FOIA’s statutory fee 

requirements, and provide Department 

employees with an unacceptably vague 

standard. 

The Final Rule Should Strengthen the 

Regulations to Expand Online 

Disclosures 

One commenter suggested that the 

Department require all responses to 

FOIA requests be posted online (except 

those that implicate the Privacy Act) 

and that it adopt a policy to proactively 

disclose information to the greatest 

extent possible. The Department has 

carefully considered this suggestion, but 

declines to adopt it because it believes 

the final rule reflects the appropriate 

balance between providing useful 

information and an appropriate use of 

the Department’s resources. 

The Final Rule Should Specifically 

Discuss Working With the Office of 

Government Information Services 

(‘‘OGIS’’) 

Two commenters suggested the final 

rule discuss the services offered by 

OGIS. The Department agrees that 

OGIS’s role in the FOIA process should 

be noted in the final rule. Rather than 

waiting until after an appeal decision 

has been made to introduce this 

information (as one of the commenters 

suggested), the Department has adopted 

this suggestion by requiring bureaus to 

provide information on OGIS in letters 

taking final action on a request, which 

will ensure maximum dissemination of 

the information at the most appropriate 

stage of the process. The revised 

§ 2.21(a) both clarifies the provision and 

requires the Department to provide 

notice of the services offered by OGIS to 

all of the Department’s FOIA requesters, 

rather than just the ones that file 

appeals. 

The Final Rule Should Include 

Procedures for Confidential Business 

Information 

One commenter suggested the 

Department require submitters of older 

records to provide additional 

information to explain why the 

information is still confidential and its 

release would still be harmful after the 

passage of time. However, § 2.28(g) 

already requires this, so the Department 

believes adopting this suggestion is not 

necessary. 

The Final Rule Should Not Contravene 

Transparency Goals 

One commenter asserted, in addition 

to a number of specific comments, that 

the final rule directly contravenes 

transparency goals. The Department has 

carefully considered this assertion, but 

believes the final rule improves overall 

processing and increases transparency, 

so no changes have been made based on 

this comment. 

The Final Rule Should Not Change the 

FOIA, Exceed the Scope of the 

Department’s Rulemaking Authority, or 

Be Contrary to Law 

One commenter’s entire comment 

was: ‘‘NO.Do not change the freedom of 

info act.’’ As noted above, this rule 

consists of the regulations that the 

Department follows in processing 

records under the FOIA. It does not 

change the FOIA itself in any way. 

Another commenter asserted, in 

addition to a number of specific 

comments, that the final rule exceeded 

the scope of the Department’s 

rulemaking authority and was ‘‘contrary 

to law.’’ The Department has carefully 

considered these assertions, but believes 

the final rule was fully within the scope 

of the Department’s rulemaking 

authority and completely consistent 

with all applicable laws, so no changes 

have been made based on this comment. 

C. Technical and Procedural Comments 

A number of commenters made 

suggestions related to minor word 

choices, minor clarifications, and 

additional citations, many of which 

have been adopted without further 

comment. The Department has also 

fixed a few minor typographical errors. 

Additionally, the Department added 

cross references, and/or made very 

minor clarifications in the following 

sections: 2.7(a) and (b), 2.15(a), 2.17, 

2.19(c), 2.20(c), 2.22(c), 2.33, 2.41(a) and 

(c), 2.42(a), 2.43(a), and 2.60(b). Finally, 

in the interests of clarity, the 

Department also added phrases to 

§§ 2.31(a) and 2.63(c) and a second 

paragraph to § 2.37(f). 


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II. Compliance With Laws and 

Executive Orders 

1. Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs will review all significant rules. 

The Office of Information and 

Regulatory Affairs has determined that 

this rule is not significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this rule in a manner consistent with 

these requirements. 

2. Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). 

3. Small Business Regulatory 

Enforcement Fairness Act (SBREFA) 

This is not a major rule under 5 U.S.C. 

804(2), the Small Business Regulatory 

Enforcement Fairness Act. This rule: 

a. Does not have an annual effect on 

the economy of $100 million or more. 

b. Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

c. Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. 

4. Unfunded Mandates Reform Act 

This rule does not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of more than $100 million per year. This 

rule does not have a significant or 

unique effect on State, local or tribal 

governments or the private sector. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) is not 

required. 

5. Takings (E.O. 12630) 

In accordance with Executive Order 

12630, this rule does not have 

significant takings implications. A 

takings implication assessment is not 

required. 

6. Federalism (E.O. 13132) 

In accordance with Executive Order 

13132, this rule does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

It would not substantially and directly 

affect the relationship between the 

Federal and state governments. A 

Federalism Assessment is not required. 

7. Civil Justice Reform (E.O. 12988) 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that this rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. 

8. Consultation With Indian Tribes (E.O. 

13175) 

Under the criteria in Executive Order 

13175, we have evaluated this rule and 

determined that it has no potential 

effects on federally recognized Indian 

tribes. This rule does not have tribal 

implications that impose substantial 

direct compliance costs on Indian Tribal 

governments. 

9. Paperwork Reduction Act 

This rule does not contain 

information collection requirements, 

and a submission to the Office of 

Management and Budget under the 

Paperwork Reduction Act is not 

required. 

9. National Environmental Policy Act 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment. A 

detailed statement under the National 

Environmental Policy Act of 1969 is not 

required. Pursuant to Department 

Manual 516 DM 2.3A(2), Section 1.10 of 

516 DM 2, Appendix 1 excludes from 

documentation in an environmental 

assessment or impact statement 

‘‘policies, directives, regulations and 

guidelines of an administrative, 

financial, legal, technical or procedural 

nature; or the environmental effects of 

which are too broad, speculative or 

conjectural to lend themselves to 

meaningful analysis and will be subject 

late to the NEPA process, either 

collectively or case-by-case.’’ 

10. Effects on the Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action under the definition in Executive 

Order 13211. A Statement of Energy 

Effects is not required. This rule will not 

have a significant effect on the nation’s 

energy supply, distribution, or use. 

List of Subjects in 43 CFR Part 2 

Freedom of information. 

David J. Hayes, 

Deputy Secretary of the Interior. 

For the reasons stated in the 

preamble, the Department of the Interior 

amends 43 CFR subtitle A as follows: 

PART 2—FREEDOM OF INFORMATION 

ACT; RECORDS AND TESTIMONY 

■ 1. The authority citation for part 2 is 

revised to read as follows: 

Authority: 5 U.S.C. 301, 552, 552a, 553; 31 

U.S.C. 3717; 43 U.S.C. 1460, 1461. 

■ 2. The heading of part 2 is revised to 

read as set forth above. 

Subparts F through H [Redesignated 

as Subparts J through L] 

■ 3. Subpart F (consisting of § 2.41), 

subpart G (consisting of §§ 2.45 through 

2.79), and subpart H (consisting of 

§§ 2.80 through 2.90) are redesignated as 

subpart J, subpart K, and subpart L. 

■ 4. Subparts A through E are revised to 

read as follows: 

Subpart A—Introduction 

Sec. 

2.1 What should you know up front? 

2.2 What kinds of records are not covered 

by the regulations in subparts A through 

I of this part? 

Subpart B—How to Make a Request 

2.3 Where should you send a FOIA request? 

2.4 Does where you send your request affect 

its processing? 

2.5 How should you describe the records 

you seek? 

2.6 How will fee information affect the 

processing of your request? 

2.7 What information should you include 

about your fee category? 

2.8 Can you ask for records to be disclosed 

in a particular form or format? 

2.9 What if your request seeks records about 

another person? 

2.10 May you ask for the processing of your 

request to be expedited? 

2.11 What contact information should your 

request include? 

Subpart C—Processing Requests 

2.12 What should you know about how 

bureaus process requests? 

2.13 How do consultations and referrals 

work? 


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Subpart D—Timing of Responses to 

Requests 

2.14 In what order are responses usually 

made? 

2.15 What is multitrack processing and how 

does it affect your request? 

2.16 What is the basic time limit for 

responding to a request? 

2.17 When does the basic time limit begin 

for misdirected FOIA requests? 

2.18 When can the bureau suspend the 

basic time limit? 

2.19 When may the bureau extend the basic 

time limit? 

2.20 When will expedited processing be 

provided and how will it affect your 

request? 

Subpart E—Responses to Requests 

2.21 How will the bureau respond to 

requests? 

2.22 How will the bureau grant requests? 

2.23 When will the bureau deny a request 

or procedural benefits? 

2.24 How will the bureau deny requests? 

2.25 What if the requested records contain 

both exempt and nonexempt material? 

Subpart A—Introduction 

§ 2.1 What should you know up front? 

(a) Subparts A through I of this part 

contain the rules that the Department 

follows in processing records under the 

Freedom of Information Act (FOIA), 5 

U.S.C. 552. 

(b) Definitions of terms used in 

Subparts A through I of this part are 

found at § 2.70. 

(c) Subparts A through I of this part 

should be read in conjunction with the 

text of the FOIA and the OMB Fee 

Guidelines. 

(d) The Department’s FOIA Handbook 

and its attachments contain detailed 

information about Department 

procedures for making FOIA requests 

and descriptions of the types of records 

maintained by different Department 

bureaus or offices. This resource is 

available at http://www.doi.gov/foia/ 

guidance.cfm. 

(e) Requests made by individuals for 

records about themselves under the 

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

processed under subparts A through I 

and subpart K of this part. 

(f) Part 2 does not entitle any person 

to any service or to the disclosure of any 

record that is not required under the 

FOIA. 

(g) Before you file a FOIA request, you 

are encouraged to review the 

Department’s electronic FOIA libraries 

at http://www.doi.gov/foia/libraries.cfm. 

The material you seek may be 

immediately available electronically at 

no cost. 

§ 2.2 What kinds of records are not 

covered by the regulations in subparts A 

through I of this part? 

Subparts A through I of this part do 

not apply to records that fall under the 

law enforcement exclusions in 5 U.S.C. 

552(c)(1)–(3). These exclusions may be 

used only in the limited circumstances 

delineated by the statute and require 

both prior approval from the Office of 

the Solicitor and the recording of their 

use and approval process. 

Subpart B—How To Make a Request 

§ 2.3 Where should you send a FOIA 

request? 

(a) The Department does not have a 

central location for submitting FOIA 

requests and it does not maintain a 

central index or database of records in 

its possession. Instead, the Department’s 

records are decentralized and 

maintained by various bureaus and 

offices throughout the country. 

(b) To make a request for Department 

records, you must write directly to the 

bureau that you believe maintains those 

records. 

(c) Address requests to the 

appropriate FOIA contact in the bureau 

that maintains the requested records. 

The Department’s FOIA Web site, http:// 

www.doi.gov/foia/index.cfm, lists the 

physical and email addresses of each 

bureau’s FOIA Officer, along with other 

appropriate FOIA contacts at http:// 

www.doi.gov/foia/contacts.cfm. 

(d) Questions about where to send a 

FOIA request should be directed to the 

bureau that manages the underlying 

program or to the appropriate FOIA 

Public Liaison, as discussed in § 2.66 of 

this part. 

§ 2.4 Does where you send your request 

affect its processing? 

(a) A request to a particular bureau 

component (for example, a request 

addressed to a regional or field office) 

will be presumed to seek only records 

from that particular component. 

(b) If you seek records from an entire 

bureau, submit your request to the 

bureau FOIA Officer. The bureau FOIA 

Officer will forward it to the bureau 

component(s) that he or she believes has 

or are likely to have responsive records. 

(c) If a request to a bureau states that 

it seeks records located at another 

specific component of the same bureau, 

the appropriate FOIA contact will 

forward the request to the other 

component. 

(d) If a request to a bureau states that 

it seeks records from other unspecified 

components within the same bureau, 

the appropriate FOIA contact will send 

the request to the Bureau FOIA Officer. 

He or she will forward it to the 

components that the bureau FOIA 

Officer believes have or are likely to 

have responsive records. 

(e) If a request to a bureau states that 

it seeks records of another specified 

bureau, the bureau will route the 

misdirected request to the specified 

bureau for response. 

(f) If a request to a bureau states that 

it seeks records from other unspecified 

bureaus, the bureau’s FOIA Officer may 

forward the request to those bureaus 

which he or she believes have or are 

likely to have responsive records. If the 

bureau FOIA Officer forwards the 

request, they will notify you in writing 

and provide the name of a contact in the 

other bureau(s). If it does not forward 

the request, the bureau will return it to 

you, advise you to submit the request 

directly to the other bureaus, notify you 

that it cannot comply with the request, 

and close the request. 

§ 2.5 How should you describe the records 

you seek? 

(a) You must reasonably describe the 

records sought. A reasonable 

description contains sufficient detail to 

enable bureau personnel familiar with 

the subject matter of the request to 

locate the records with a reasonable 

amount of effort. 

(b) You should include as much detail 

as possible about the specific records or 

types of records that you are seeking. 

This will assist the bureau in identifying 

the requested records (for example, time 

frames involved or specific personnel 

who may have the requested records). 

For example, whenever possible, 

identify: 

(1) The date, title or name, author, 

recipient, and subject of any particular 

records you seek; 

(2) The office that created the records 

you seek; 

(3) The timeframe for which you are 

seeking records; and 

(4) Any other information that will 

assist the bureau in locating the records. 

(c) The bureau’s FOIA Public Liaison 

can assist you in formulating or 

reformulating a request in an effort to 

better identify the records you seek. 

(d) If the request does not reasonably 

describe the records sought, the bureau 

will inform you what additional 

information is needed. It will also notify 

you that it will not be able to comply 

with your FOIA request unless you 

provide the additional information 

requested within 20 workdays. If you 

receive this sort of response, you may 

wish to discuss it with the bureau’s 

designated FOIA contact or its FOIA 

Public Liaison (see § 2.66 of this part). 

If the bureau does not hear from you 

within 20 workdays after asking for 


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additional information, it will presume 

that you are no longer interested in the 

records and will close the file on the 

request. 

§ 2.6 How will fee information affect the 

processing of your request? 

(a) Your request must explicitly state 

that you will pay all fees associated 

with processing the request, that you 

will pay fees up to a specified amount, 

and/or that you are seeking a fee waiver. 

(b) If the bureau anticipates that the 

fees for processing the request will 

exceed the amount you have agreed to 

pay, or if you did not agree in writing 

to pay processing fees and the bureau 

anticipates the processing costs will 

exceed your entitlements, the bureau 

will notify you: 

(1) Of the estimated processing fees; 

(2) Of its need for either an advance 

payment (see § 2.50 of this part) or your 

written assurance that you will pay the 

anticipated fees (or fees up to a 

specified amount); and 

(3) That it will not be able to fully 

comply with your FOIA request unless 

you provide the written assurance or 

advance payment requested. 

(c) If the bureau does not receive a 

written response from you within 20 

workdays after requesting the 

information in paragraph (b) of this 

section, it will presume that you are no 

longer interested in the records and will 

close the file on the request. 

(d) If you are seeking a fee waiver, 

your request must include sufficient 

justification (see the criteria in §§ 2.45, 

2.48, and 2.56 of this part). Failure to 

provide sufficient justification will 

result in a denial of the fee waiver 

request. If you are seeking a fee waiver, 

you may also indicate the amount you 

are willing to pay if the fee waiver is 

denied. This allows the bureau to 

process the request for records while it 

considers your fee waiver request. 

(e) The bureau will begin processing 

the request only after the fee issues are 

resolved. 

(f) If you are required to pay a fee and 

it is later determined on appeal that you 

were entitled to a full or partial fee 

waiver, you will receive an appropriate 

refund. 

§ 2.7 What information should you include 

about your fee category? 

(a) A request should indicate your fee 

category (that is, whether you are a 

commercial-use requester, news media, 

educational or noncommercial scientific 

institution, or other requester as 

described in §§ 2.38 and 2.39 of this 

part). 

(b) If you submit a FOIA request on 

behalf of another person or organization 

(for example, if you are an attorney 

submitting a request on behalf of a 

client), the bureau will determine the 

fee category by considering the 

underlying requester’s identity and 

intended use of the information. 

(c) If your fee category is unclear, the 

bureau may ask you for additional 

information (see § 2.51 of this part). 

§ 2.8 Can you ask for records to be 

disclosed in a particular form or format? 

(a) Generally, you may choose the 

form or format of disclosure for records 

requested. The bureau must provide the 

records in the requested form or format 

if the bureau can readily reproduce the 

record in that form or format. 

(b) The bureau may charge you the 

direct costs involved in converting 

records to the requested format if the 

bureau does not normally maintain the 

records in that format (see § 2.44 of this 

part). 

§ 2.9 What if your request seeks records 

about another person? 

(a) When a request seeks records 

about another person, you may receive 

greater access by submitting proof that 

the person either: 

(1) Consents to the release of the 

records to you (for example, a notarized 

authorization signed by that person); or 

(2) Is deceased (for example, a copy of 

a death certificate or an obituary). 

(b) At its discretion, the bureau can 

require you to supply additional 

information if necessary to verify that a 

particular person has consented to 

disclosure or is deceased. 

§ 2.10 May you ask for the processing of 

your request to be expedited? 

You may ask for the processing of 

your request to be expedited. The 

bureau will determine whether to 

expedite the processing of your request 

using the criteria outlined in § 2.20. 

§ 2.11 What contact information should 

your request include? 

A request should include your name, 

mailing address, daytime telephone 

number (or the name and telephone 

number of an appropriate contact), 

email address, and fax number (if 

available) in case the bureau needs 

additional information or clarification of 

your request. 

Subpart C—Processing Requests 

§ 2.12 What should you know about how 

bureaus process requests? 

(a) Except as described in §§ 2.4 and 

2.13 of this part, the bureau to which 

the request is addressed is responsible 

for responding to the request and for 

making a reasonable effort to search for 

responsive records. 

(b) In determining which records are 

responsive to a request, the bureau will 

include only records in its possession 

and control on the date that it begins its 

search. 

(c) The bureau will make reasonable 

efforts to search for the requested 

records in electronic form or format, 

except when these efforts would 

significantly interfere with the operation 

of the bureau’s automated information 

system. 

(d) If a bureau receives a request for 

records in its possession that it did not 

create or that another bureau or a 

Federal agency is substantially 

concerned with, it may undertake 

consultations and/or referrals as 

described in § 2.13. 

§ 2.13 How do consultations and referrals 

work? 

(a) Consultations and referrals can 

occur within the Department or outside 

the Department. 

(1) Paragraphs (b) and (c) of this 

section addresses consultations and 

referrals that occur within the 

Department when the bureau has 

responsive records. 

(2) Paragraphs (d) through (g) of this 

section address consultations and 

referrals that occur outside the 

Department when the bureau has 

responsive records. 

(3) Paragraph (h) of this section 

addresses what happens when the 

bureau has no responsive records but 

believes responsive records may be in 

the possession of a Federal agency 

outside the Department. 

(b) If a bureau (other than the Office 

of Inspector General) receives a request 

for records in its possession that another 

bureau created or is substantially 

concerned with, it will either: 

(1) Consult with the other bureau 

before deciding whether to release or 

withhold the records; or 

(2) Refer the request, along with the 

records, to that other bureau for direct 

response. 

(c) The bureau that originally received 

the request will notify you of the referral 

in writing. When the bureau notifies 

you of the referral, it will tell you 

whether the referral was for part or all 

of your request and provide the name 

and contact information for the other 

bureau. 

(d) If, while responding to a request, 

the bureau locates records that 

originated with another Federal agency, 

it usually will refer the request and any 

responsive records to that other agency 

for a release determination and direct 

response. 

(e) If the bureau refers records to 

another agency, it will document the 


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referral and maintain a copy of the 

records that it refers and notify you of 

the referral in writing, unless the 

notification will itself disclose a 

sensitive, exempt fact. When the bureau 

notifies you of the referral, it will tell 

you whether the referral was for part or 

all of your request and provide the name 

and contact information for the other 

agency. You may treat such a response 

as a denial of records and file an appeal, 

in accordance with the procedures in 

§ 2.59 of this part. 

(f) If the bureau locates records that 

originated with another Federal agency 

while responding to a request, the 

bureau will make the release 

determination itself (after consulting 

with the originating agency) when: 

(1) The record is of primary interest 

to the Department (for example, a record 

may be of primary interest to the 

Department if it was developed or 

prepared according to the Department’s 

regulations or directives, or in response 

to a Departmental request); 

(2) The Department is in a better 

position than the originating agency to 

assess whether the record is exempt 

from disclosure; 

(3) The originating agency is not 

subject to the FOIA; or 

(4) It is more efficient or practical 

depending on the circumstances. 

(g) If the bureau receives a request for 

records that another Federal agency has 

classified under any applicable 

executive order concerning record 

classification, it must refer the request 

to that agency for response. 

(h) If the bureau receives a request for 

records not in its possession, but that 

the bureau believes may be in the 

possession of a Federal agency outside 

the Department, the bureau will return 

the request to you, may advise you to 

submit it directly to the agency, will 

notify you that the bureau cannot 

comply with the request, and will close 

the request. 

Subpart D—Timing of Responses to 

Requests 

§ 2.14 In what order are responses usually 

made? 

The bureau ordinarily will respond to 

requests according to their order of 

receipt within their processing track. 

§ 2.15 What is multitrack processing and 

how does it affect your request? 

(a) Bureaus use processing tracks to 

distinguish simple requests from more 

complex ones on the basis of the 

estimated number of workdays needed 

to process the request. 

(b) In determining the number of 

workdays needed to process the request, 

the bureau considers factors such as the 

number of pages involved in processing 

the request or the need for 

consultations. 

(c) The basic processing tracks are 

designated as follows: 

(1) Simple: requests in this track will 

take between one to five workdays to 

process; 

(2) Normal: requests in this track will 

take between six to twenty workdays to 

process; 

(3) Complex: requests in this track 

will take between twenty-one workdays 

and sixty workdays to process; or 

(4) Exceptional/Voluminous: requests 

in this track involve very complex 

processing challenges, which may 

include a large number of potentially 

responsive records, and will take over 

sixty workdays to process. 

(d) Bureaus also have a specific 

processing track for requests that are 

granted expedited processing under the 

standards in § 2.20 of this part. These 

requests will be processed as soon as 

practicable. 

(e) Bureaus must advise you of the 

track into which your request falls and, 

when appropriate, will offer you an 

opportunity to narrow your request so 

that it can be placed in a different 

processing track. 

(f) The use of multitrack processing 

does not alter the statutory deadline for 

a bureau to determine whether to 

comply with your FOIA request (see 

§ 2.16 of this part). 

§ 2.16 What is the basic time limit for 

responding to a request? 

(a) Ordinarily, the bureau has 20 

workdays after the date of receipt to 

determine whether to comply with (for 

example, grant, partially grant, or deny) 

a FOIA request, but unusual 

circumstances may allow the bureau to 

take longer than 20 workdays (see 

§ 2.19). 

(b) A consultation or referral under 

§ 2.13 of this part does not restart the 

statutory time limit for responding to a 

request. 

§ 2.17 When does the basic time limit 

begin for misdirected FOIA requests? 

The basic time limit for a misdirected 

FOIA request (see § 2.4(e) of this part) 

begins no later than ten workdays after 

the request is first received by any 

component of the Department that is 

designated to receive FOIA requests. 

§ 2.18 When can the bureau suspend the 

basic time limit? 

(a) The basic time limit in § 2.16 of 

this part may be temporarily suspended 

for the time it takes you to respond to 

one written communication from the 

bureau reasonably asking for clarifying 

information. 

(b) The basic time limit in § 2.16 may 

also repeatedly be temporarily 

suspended for the time it takes you to 

respond to written communications 

from the bureau that are necessary to 

clarify issues regarding fee assessment 

(see § 2.51 of this part). 

§ 2.19 When may the bureau extend the 

basic time limit? 

(a) The bureau may extend the basic 

time limit if unusual circumstances 

exist. Before the expiration of the basic 

20 workday time limit to respond, the 

bureau will notify you in writing of: 

(1) The unusual circumstances 

involved; and 

(2) The date by which it expects to 

complete processing the request. 

(b) If the processing time will extend 

beyond a total of 30 workdays, the 

bureau will: 

(1) Give you an opportunity to limit 

the scope of the request or agree to an 

alternative time period for processing; 

and 

(2) Make available its FOIA Public 

Liaison (see § 2.66 of this part) to assist 

in resolving any disputes between you 

and the bureau. 

(c) If the bureau extends the time limit 

under this section and you do not 

receive a response in accordance with 

§ 2.16(a) in that time period, you may 

consider the request denied and file an 

appeal in accordance with the 

procedures in § 2.59. 

(d) Your refusal to reasonably modify 

the scope of a request or arrange an 

alternative time frame for processing a 

request after being given the 

opportunity to do so may be considered 

for litigation purposes as a factor when 

determining whether exceptional 

circumstances exist. 

§ 2.20 When will expedited processing be 

provided and how will it affect your 

request? 

(a) The bureau will provide expedited 

processing upon request if you 

demonstrate to the satisfaction of the 

bureau that there is a compelling need 

for the records. The following 

circumstances demonstrate a 

compelling need: 

(1) Where failure to expedite the 

request could reasonably be expected to 

pose an imminent threat to the life or 

physical safety of an individual; or 

(2) Where there is an urgency to 

inform the public about an actual or 

alleged Federal Government activity and 

the request is made by a person 

primarily engaged in disseminating 

information. 

(i) In most situations, a person 

primarily engaged in disseminating 


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information will be a representative of 

the news media. 

(ii) If you are not a full time member 

of the news media, to qualify for 

expedited processing here, you must 

establish that your main professional 

activity or occupation is information 

dissemination, although it need not be 

your sole occupation. 

(iii) The requested information must 

be the type of information which has 

particular value that will be lost if not 

disseminated quickly; this ordinarily 

refers to a breaking news story of 

general public interest. 

(iv) Information of historical interest 

only or information sought for litigation 

or commercial activities would not 

qualify, nor would a news media 

deadline unrelated to breaking news. 

(b) If you seek expedited processing, 

you must submit a statement that: 

(1) Explains in detail how your 

request meets one or both of the criteria 

in paragraph (a) of this section; and 

(2) Certifies that your explanation is 

true and correct to the best of your 

knowledge and belief. 

(c) You may ask for expedited 

processing at any time by writing to the 

appropriate FOIA contact in the bureau 

that maintains the records requested. 

When making a request for expedited 

processing of an administrative appeal, 

submit the request to the FOIA Appeals 

Officer. 

(d) The bureau must notify you of its 

decision to grant or deny expedited 

processing within 10 calendar days of 

receiving an expedited processing 

request. 

(e) If expedited processing is granted, 

the request will be given priority, placed 

in the processing track for expedited 

requests, and be processed as soon as 

practicable. 

(f) If expedited processing is denied, 

the bureau will notify you of the right 

to appeal the decision on expedited 

processing in accordance with the 

procedures in subpart H of this part. 

(g) If you appeal the decision on 

expedited processing, your appeal (if it 

is properly formatted under § 2.59 of 

this part) will be processed ahead of 

other appeals. 

(h) If the bureau has not responded to 

the request for expedited processing 

within 10 calendar days, you may file 

an appeal (for nonresponse in 

accordance with § 2.57(a)(8) of this 

part). 

Subpart E—Responses to Requests 

§ 2.21 How will the bureau respond to 

requests? 

(a) When the bureau informs you of 

its decision to comply with a request by 

granting, partially granting, or denying 

the request, it will do so in writing and 

in accordance with the deadlines in 

subpart D of this part. The bureau’s 

written response will include a 

statement about the services offered by 

the Office of Government Information 

Services (OGIS), using standard 

language that can be found at: http:// 

www.doi.gov/foia/news/guidance/ 

index.cfm. 

(b) If the bureau determines that your 

request will take longer than 10 

workdays to process, the bureau 

immediately will send you a written 

acknowledgment that includes the 

request’s individualized tracking 

number and processing track (see 

§ 2.15(e)). The acknowledgement may 

also include a brief description of the 

subject of your request. 

§ 2.22 How will the bureau grant requests? 

(a) Once the bureau makes a 

determination to grant a request in full 

or in part, it must notify you in writing. 

(b) The notification will inform you of 

any fees charged under subpart G of this 

part. 

(c) The bureau will release records (or 

portions of records) to you promptly 

upon payment of any applicable fees (or 

before then, in accordance with § 2.37(c) 

of this part). 

(d) If the records (or portions of 

records) are not included with the 

bureau’s notification, the bureau will 

advise you how, when, and where the 

records will be made available. 

§ 2.23 When will the bureau deny a request 

or procedural benefits? 

(a) A bureau denies a request when it 

makes a decision that: 

(1) A requested record is exempt, in 

full or in part; 

(2) The request does not reasonably 

describe the records sought; 

(3) A requested record does not exist, 

cannot be located, or is not in the 

bureau’s possession; or 

(4) A requested record is not readily 

reproducible in the form or format you 

seek. 

(b) A bureau denies a procedural 

benefit only, and not access to the 

underlying records, when it makes a 

decision that: 

(1) A fee waiver, or another fee-related 

issue, will not be granted; or 

(2) Expedited processing will not be 

provided. 

(c) The bureau must consult with the 

Office of the Solicitor before it denies a 

fee waiver request or withholds all or 

part of a requested record. 

§ 2.24 How will the bureau deny requests? 

(a)The bureau must notify you in 

writing of any denial of your request. 

(b) The denial notification must 

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 a reference to any 

FOIA exemption(s) applied by the 

bureau to withhold records in full or in 

part; 

(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, unless such an estimate 

would harm an interest protected by the 

exemption(s) used to withhold the 

records or information; 

(4) The name and title of the Office of 

the Solicitor attorney consulted (if the 

bureau is denying a fee waiver request 

or withholding all or part of a requested 

record); and 

(5) A statement that the denial may be 

appealed under subpart H of this part 

and a description of the requirements 

set forth therein. 

§ 2.25 What if the requested records 

contain both exempt and nonexempt 

material? 

If responsive records contain both 

exempt and nonexempt material, the 

bureau will consult with the Office of 

the Solicitor, as discussed in § 2.23(c). 

After consultation, the bureau will 

partially grant and partially deny the 

request by: 

(a) Segregating and releasing the 

nonexempt information, unless the 

nonexempt material is so intertwined 

with the exempt material that disclosure 

of it would leave only meaningless 

words and phrases; 

(b) Indicating on the released portion 

of the record the amount of information 

deleted and the FOIA exemption under 

which the deletion was made, unless 

doing so would harm an interest 

protected by the FOIA exemption used 

to withhold the information; and 

(c) If technically feasible, placing the 

information required by paragraph (b) of 

this section at the place in the record 

where the deletion was made. 

■ 5. Subparts F through I are added to 

read as follows: 

Subpart F—Handling Confidential 

Information 

Sec. 

2.26 How will the bureau interact with the 

submitter of possibly confidential 

information? 

2.27 When will the bureau notify a 

submitter of a request for their possibly 

confidential information? 

2.28 What information will the bureau 

include when it notifies a submitter of a 

request for their possibly confidential 

information? 


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2.29 When will the bureau not notify a 

submitter of a request for their possibly 

confidential information? 

2.30 How and when may a submitter object 

to disclosure of confidential 

information? 

2.31 What must a submitter include in a 

detailed Exemption 4 objection 

statement? 

2.32 How will the bureau consider the 

submitter’s objections? 

2.33 What if the bureau determines it will 

disclose information over the submitter’s 

objections? 

2.34 Will a submitter be notified of a FOIA 

lawsuit? 

2.35 Will you receive notification of 

activities involving the submitter? 

2.36 Can a bureau release information 

protected by Exemption 4? 

Subpart G—Fees 

2.37 What general principles govern fees? 

2.38 What are the requester fee categories? 

2.39 Does your requester category affect the 

fees you are charged? 

2.40 How will fee amounts be determined? 

2.41 What search fees will you have to pay? 

2.42 What duplication fees will you have to 

pay? 

2.43 What review fees will you have to pay? 

2.44 What fees for other services will you 

have to pay? 

2.45 When will the bureau waive fees? 

2.46 When may you ask the bureau for a fee 

waiver? 

2.47 How will the bureau notify you if it 

denies your fee waiver request? 

2.48 How will the bureau evaluate your fee 

waiver request? 

2.49 When will you be notified of 

anticipated fees? 

2.50 When will the bureau require advance 

payment? 

2.51 What if the bureau needs clarification 

about fee issues? 

2.52 How will you be billed? 

2.53 How will the bureau collect fees owed? 

2.54 When will the bureau combine or 

aggregate requests? 

2.55 What if other statutes require the 

bureau to charge fees? 

2.56 May the bureau waive or reduce your 

fees at its discretion? 

Subpart H—Administrative Appeals 

2.57 When may you file an appeal? 

2.58 How long do you have to file an 

appeal? 

2.59 How do you file an appeal? 

2.60 Who makes decisions on appeals? 

2.61 How are decisions on appeals issued? 

2.62 When can you expect a decision on 

your appeal? 

2.63 Can you receive expedited processing 

of appeals? 

2.64 Must you submit an appeal before 

seeking judicial review? 

Subpart I—General Information 

2.65 Where are records made available? 

2.66 What are public liaisons? 

2.67 When will the Department make 

records available without a FOIA 

request? 

2.68 How will FOIA materials be 

preserved? 

2.69 How will a bureau handle a request for 

federally-funded research data? 

2.70 What definitions apply to subparts A 

through I of this part? 

Subpart F—Handling Confidential 

Information 

§ 2.26 How will the bureau interact with the 

submitter of possibly confidential 

information? 

(a) The Department encourages, but 

does not require, submitters to designate 

confidential information in good faith at 

the time of submission. Such 

designations assist the bureau in 

determining whether information 

obtained from the submitter is 

confidential information, but will not 

always be determinative. 

(b) If, in the course of responding to 

a FOIA request, a bureau cannot readily 

determine whether information is 

confidential information, the bureau 

will: 

(1) Consult with the submitter under 

§§ 2.27 and 2.28; and 

(2) Provide the submitter an 

opportunity to object to a decision to 

disclose the information under §§ 2.30 

and 2.31 of this subpart. 

§ 2.27 When will the bureau notify a 

submitter of a request for their possibly 

confidential information? 

(a) Except as outlined in § 2.29 of this 

subpart, a bureau must promptly notify 

a submitter in writing when it receives 

a FOIA request if either: 

(1) The requested information has 

been designated in good faith by the 

submitter as information considered 

protected from disclosure under 

Exemption 4 of the FOIA, found at 5 

U.S.C. 552(b)(4); or 

(2) The bureau believes that requested 

information may be protected from 

disclosure under Exemption 4. 

(b) If a large number of submitters are 

involved, the bureau may publish a 

notice in a manner reasonably 

calculated to reach the attention of the 

submitters (for example, in newspapers 

or newsletters, the bureau’s Web site, or 

the Federal Register) instead of 

providing a written notice to each 

submitter. 

§ 2.28 What information will the bureau 

include when it notifies a submitter of a 

request for their possibly confidential 

information? 

A notice to a submitter must include: 

(a) Either a copy of the FOIA request 

or the exact language of the request; 

(b) Either a description of the possibly 

confidential information located in 

response to the request or a copy of the 

responsive records, or portions of 

records, containing the information; 

(c) A description of the procedures for 

objecting to the release of the possibly 

confidential information under §§ 2.30 

and 2.31 of this subpart; 

(d) A time limit for responding to the 

bureau—no less than 10 workdays from 

receipt or publication of the notice (as 

set forth in § 2.27(b) of this subpart)— 

to object to the release and to explain 

the basis for the objection; 

(e) Notice that information contained 

in the submitter’s objections may itself 

be subject to disclosure under the FOIA; 

(f) Notice that the bureau, not the 

submitter, is responsible for deciding 

whether the information will be 

released or withheld; 

(g) A request for the submitter’s views 

on whether they still consider the 

information to be confidential if the 

submitter designated the material as 

confidential commercial or financial 

information 10 or more years before the 

request; and 

(h) Notice that failing to respond 

within the time frame specified under 

§ 2.28(d) of this subpart will create a 

presumption that the submitter has no 

objection to the disclosure of the 

information in question. 

§ 2.29 When will the bureau not notify a 

submitter of a request for their possibly 

confidential information? 

The notice requirements of § 2.28 of 

this subpart will not apply if: 

(a) The information has been lawfully 

published or officially made available to 

the public; or 

(b) Disclosure of the information is 

required by a statute other than the 

FOIA or by a regulation (other than this 

part) issued in accordance with the 

requirements of Executive Order 12600. 

§ 2.30 How and when may a submitter 

object to the disclosure of confidential 

information? 

(a) If a submitter has any objections to 

the disclosure of confidential 

information, the submitter should 

provide a detailed written statement to 

the bureau that specifies all grounds for 

withholding the particular information 

under any FOIA exemption (see § 2.31 

of this subpart for further discussion of 

Exemption 4 objection statements). 

(b) A submitter who does not respond 

within the time period specified under 

§ 2.28(d) of this subpart will be 

considered to have no objection to 

disclosure of the information. Responses 

received by the bureau after this time 

period will not be considered by the 

bureau unless the appropriate bureau 

FOIA contact determines, in his or her 

sole discretion, that good cause exists to 

accept the late response. 


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§ 2.31 What must a submitter include in a 

detailed Exemption 4 objection statement? 

(a) To rely on Exemption 4 as basis for 

nondisclosure, the submitter must 

explain why the information is 

confidential information. To do this, the 

submitter must give the bureau a 

detailed written statement. This 

statement must include a specific and 

detailed discussion of why the 

information is a trade secret or, if the 

information is not a trade secret, the 

following three categories must be 

addressed (unless the bureau informs 

the submitter that a response to one of 

the first two categories will not be 

necessary): 

(1) Whether the Government required 

the information to be submitted, and if 

so, how substantial competitive or other 

business harm would likely result from 

release; 

(2) Whether the submitter provided 

the information voluntarily and, if so, 

how the information fits into a category 

of information that the submitter does 

not customarily release to the public; 

and 

(3) A certification that the information 

is confidential, has not been disclosed 

to the public by the submitter, and is 

not routinely available to the public 

from other sources. 

(b) If not already provided, the 

submitter must include a daytime 

telephone number, an email and mailing 

address, and a fax number (if available). 

§ 2.32 How will the bureau consider the 

submitter’s objections? 

(a) The bureau must carefully 

consider a submitter’s objections and 

specific grounds for nondisclosure in 

deciding whether to disclose the 

requested information. 

(b) The bureau, not the submitter, is 

responsible for deciding whether the 

information will be released or 

withheld. 

§ 2.33 What if the bureau determines it will 

disclose information over the submitter’s 

objections? 

If the bureau decides to disclose 

information over the objection of a 

submitter, the bureau must notify the 

submitter by certified mail or other 

traceable mail, return receipt requested. 

The notification must be sent to the 

submitter’s last known address and 

must include: 

(a) The specific reasons why the 

bureau determined that the submitter’s 

disclosure objections do not support 

withholding the information; 

(b) Copies of the records or 

information the bureau intends to 

release; and 

(c) Notice that the bureau intends to 

release the records or information no 

less than 10 workdays after receipt of 

the notice by the submitter. 

§ 2.34 Will a submitter be notified of a 

FOIA lawsuit? 

If you file a lawsuit seeking to compel 

the disclosure of confidential 

information, the bureau must promptly 

notify the submitter. 

§ 2.35 Will you receive notification of 

activities involving the submitter? 

If any of the following occur, the 

bureau will notify you: 

(a) The bureau provides the submitter 

with notice and an opportunity to object 

to disclosure; 

(b) The bureau notifies the submitter 

of its intent to disclose the requested 

information; or 

(c) A submitter files a lawsuit to 

prevent the disclosure of the 

information. 

§ 2.36 Can a bureau release information 

protected by Exemption 4? 

If a bureau determines that the 

requested information is protected from 

release by Exemption 4 of the FOIA, the 

bureau has no discretion to release the 

information. Release of information 

protected from release by Exemption 4 

is prohibited by the Trade Secrets Act, 

a criminal provision found at 18 U.S.C. 

1905. 

Subpart G—Fees 

§ 2.37 What general principles govern 

fees? 

(a) The bureau will charge for 

processing requests under the FOIA in 

accordance with this subpart and with 

the OMB Fee Guidelines. 

(b) The bureau may contact you for 

additional information to resolve fee 

issues. 

(c) The bureau ordinarily will collect 

all applicable fees before sending copies 

of records to you. 

(d) You may usually pay fees by 

check, certified check, or money order 

made payable to the ‘‘Department of the 

Interior’’ or the bureau. 

(1) Where appropriate, the bureau 

may require that your payment be made 

in the form of a certified check. 

(2) You may also be able to pay your 

fees by credit card. You may contact the 

bureau to determine what forms of 

payment it accepts. 

(e) The bureau should ensure that it 

conducts searches, review, and 

duplication in the most efficient and the 

least expensive manner so as to 

minimize costs for both you and the 

bureau. 

(f) If the Department does not comply 

with any of the FOIA’s statutory time 

limits: 

(1) The bureau cannot assess search 

fees for your FOIA request, unless 

unusual or exceptional circumstances 

apply; and 

(2) Depending on your fee category, 

the bureau may not be able to assess 

duplication fees for your FOIA request, 

as discussed in § 2.39(b) of this subpart. 

§ 2.38 What are the requester fee 

categories? 

(a) There are four categories of 

requesters for the purposes of 

determining fees—commercial-use, 

educational and noncommercial 

scientific institutions, representatives of 

news media, and all others. 

(b) The bureau’s decision to place you 

in a particular fee category will be made 

on a case-by-case basis based on your 

intended use of the information and, in 

most cases, your identity. If you do not 

submit sufficient information in your 

FOIA request for the bureau to 

determine your proper fee category, the 

bureau may ask you to provide 

additional information (see § 2.51 of this 

subpart). 

(c) See § 2.70 of this part for the 

definitions of each of these fee 

categories. 

§ 2.39 How does your requester category 

affect the fees you are charged? 

(a) You will be charged as shown in 

the following table: 

Requester Category Search fees Review fees Duplication fees 

Commercial use requester .............................................. Yes .................................... Yes .................................... Yes. 

Educational and non-commercial scientific institutions ... No ...................................... No ...................................... Yes (first 100 pages, or 

equivalent volume, free). 

Representative of news media requester ....................... No ...................................... No ...................................... Yes (first 100 pages, or 

equivalent volume, free). 

All other requesters ......................................................... Yes (first 2 hours free) ...... No ...................................... Yes (first 100 pages, or 

equivalent volume, free). 


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(b) If you are in the fee category of a 

representative of the news media or an 

educational and noncommercial 

scientific institution and the 

Department does not comply with any 

of the FOIA’s statutory time limits, the 

Department cannot assess duplication 

fees for the FOIA request in question, 

unless unusual or exceptional 

circumstances apply to the processing of 

the request. 

§ 2.40 How will fee amounts be 

determined? 

(a) The bureau will charge the types 

of fees discussed below unless a waiver 

of fees is required under § 2.39 of this 

subpart or has been granted under § 2.45 

or § 2.56. 

(b) Because the types of fees discussed 

below already account for the overhead 

costs associated with a given fee type, 

the bureau should not add any 

additional costs to those charges. 

§ 2.41 What search fees will you have to 

pay? 

(a) The bureau will charge search fees 

for all requests, subject to the 

restrictions of §§ 2.37(f), 2.39, and 

2.40(a) of this subpart. The bureau may 

charge you for time spent searching 

even if it does not locate any responsive 

records or if it determines that the 

records are entirely exempt from 

disclosure. 

(b) For each quarter hour spent by 

personnel searching for requested 

records, including electronic searches 

that do not require new programming, 

the fees will be the average hourly 

General Schedule (GS) base salary, plus 

the District of Columbia locality 

payment, plus 16 percent for benefits, of 

employees in the following three 

categories, as applicable: 

(1) Clerical—Based on GS–6, Step 5, 

pay (all employees at GS–7 and below 

are classified as clerical for this 

purpose); 

(2) Professional—Based on GS–11, 

Step 7, pay (all employees at GS–8 

through GS–12 are classified as 

professional for this purpose); and 

(3) Managerial—Based on GS–14, Step 

2, pay (all employees at GS–13 and 

above are classified as managerial for 

this purpose). 

(c) You can review the current fee 

schedule for the categories discussed 

above in paragraph (b) of this section at 

http://www.doi.gov/foia/feeswaivers.cfm. 

(d) Some requests may require 

retrieval of records stored at a Federal 

records center operated by the National 

Archives and Records Administration. 

For these requests, bureaus will charge 

additional costs in accordance with the 

Transactional Billing Rate Schedule 

established by the National Archives 

and Records Administration. 

§ 2.42 What duplication fees will you have 

to pay? 

(a) The bureau will charge duplication 

fees, subject to the restrictions of 

§§ 2.37(f), 2.39, and 2.40(a) of this 

subpart. 

(b) If photocopies or scans are 

supplied, the bureau will provide one 

copy per request at the cost determined 

by the table in appendix A to this part. 

(c) For other forms of duplication, the 

bureau will charge the actual costs of 

producing the copy, including the time 

spent by personnel duplicating the 

requested records. For each quarter hour 

spent by personnel duplicating the 

requested records, the fees will be the 

same as those charged for a search 

under § 2.41(b) of this subpart. 

(d) If the bureau must scan paper 

records to accommodate your preference 

to receive records in an electronic 

format, you will pay both the per page 

amount noted in Appendix A to this 

part and the time spent by personnel 

scanning the requested records. For 

each quarter hour spent by personnel 

scanning the requested records, the fees 

will be the same as those charged for a 

search under § 2.41(b) of this subpart. 

§ 2.43 What review fees will you have to 

pay? 

(a) The bureau will charge review fees 

if you make a commercial-use request, 

subject to the restrictions of §§ 2.37(f), 

2.39, and 2.40(a) of this subpart. 

(b) The bureau will assess review fees 

in connection with the initial review of 

the record (the review conducted by the 

bureau to determine whether an 

exemption applies to a particular record 

or portion of a record). 

(c) The Department will not charge for 

reviews at the administrative appeal 

stage of exemptions applied at the 

initial review stage. However, if the 

appellate authority determines that an 

exemption no longer applies, any costs 

associated with the bureau’s re-review 

of the records to consider the use of 

other exemptions may be assessed as 

review fees. 

(d) The bureau will charge review fees 

at the same rates as those charged for a 

search under § 2.41(b) of this subpart. 

(e) The bureau can charge review fees 

even if the record(s) reviewed ultimately 

is not disclosed. 

§ 2.44 What fees for other services will you 

have to pay? 

(a) Although not required to provide 

special services, if the bureau chooses to 

do so as a matter of administrative 

discretion, it will charge you the direct 

costs of providing the service. 

(b) Examples of these services include 

certifying that records are true copies 

under subpart L of this part, providing 

multiple copies of the same record, 

converting records to a requested 

format, obtaining research data under 

§ 2.69 of this part, or sending records by 

means other than first class mail. 

(c) The bureau will notify you of these 

fees before they accrue and will obtain 

your written assurance of payment or an 

advance payment before proceeding. 

See §§ 2.49 and 2.50 of this subpart. 

§ 2.45 When will the bureau waive fees? 

(a) The bureau will release records 

responsive to a request without charge 

(in other words, it will give you a full 

fee waiver) or at a reduced charge (in 

other words, it will give you a partial fee 

waiver, as discussed further in 

paragraph (b) of this section) if the 

bureau determines, based on all 

available information, that you have 

demonstrated (under the factors listed 

in § 2.48 of this subpart) that disclosing 

the information is: 

(1) In the public interest because it is 

likely to contribute significantly to 

public understanding of government 

operations or activities, and 

(2) Not primarily in your commercial 

interest. 

(b) A partial fee waiver may be 

appropriate if some but not all of the 

requested records are likely to 

contribute significantly to public 

understanding of the operations and 

activities of the government. 

(c) When deciding whether to waive 

or reduce fees, the bureau will rely on 

the fee waiver justification submitted in 

your request letter. If the letter does not 

include sufficient justification, the 

bureau will deny the fee waiver request. 

The bureau may, at its discretion, 

request additional information from you 

(see § 2.51 of this subpart). 

(d) The burden is on you to justify 

entitlement to a fee waiver. Requests for 

fee waivers are decided on a case-bycase basis under the criteria discussed 

above in paragraph (a) of this section 

and § 2.48 of this subpart. If you have 

received a fee waiver in the past, that 

does not mean you are automatically 

entitled to a fee waiver for every request 

submitted. 

(e) Discretionary fee waivers are 

addressed in § 2.56 of this subpart. 

(f) The bureau must not make value 

judgments about whether the 

information at issue is ‘‘important’’ 

enough to be made public; it is not the 

bureau’s role to attempt to determine 

the level of public interest in requested 

information. 


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§ 2.46 When may you ask the bureau for a 

fee waiver? 

(a) You should request a fee waiver 

when your request is first submitted to 

the bureau (see § 2.6 of this part). 

(b) You may submit a fee waiver 

request at a later time if the underlying 

record request is still either pending or 

on administrative appeal. 

§ 2.47 How will the bureau notify you if it 

denies your fee waiver request? 

If the bureau denies your request for 

a fee waiver, it will notify you, in 

writing, of the following: 

(a) The basis for the denial, including 

a full explanation of why the fee waiver 

request does not meet the Department’s 

fee waiver criteria in § 2.48 of this 

subpart. 

(b) The name and title or position of 

each person responsible for the denial; 

(c) The name and title of the Office of 

the Solicitor attorney consulted; and 

(d) Your right to appeal the denial to 

the FOIA Appeals Officer, under the 

procedures in § 2.57 of this part, within 

30 workdays after the date of the fee 

waiver denial letter. 

§ 2.48 How will the bureau evaluate your 

fee waiver request? 

(a) In deciding whether your fee 

waiver request meets the requirements 

of § 2.45(a)(1) of this subpart, the bureau 

will consider the criteria listed in 

paragraphs one through four below. You 

must address each of these criteria. 

(1) How the records concern the 

operations or activities of the Federal 

government. 

(2) How disclosure is likely to 

contribute to public understanding of 

those operations or activities, including: 

(i) How the contents of the records are 

meaningfully informative; 

(ii) The logical connection between 

the content of the records and the 

operations or activities; 

(iii) How disclosure will contribute to 

the understanding of a reasonably broad 

audience of persons interested in the 

subject, as opposed to your individual 

understanding; 

(iv) Your identity, vocation, 

qualifications, and expertise regarding 

the requested information and 

information that explains how you plan 

to disclose the information in a manner 

that will be informative to the 

understanding of a reasonably broad 

audience of persons interested in the 

subject, as opposed to your individual 

understanding 

(v) Your ability and intent to 

disseminate the information to a 

reasonably broad audience of persons 

interested in the subject (for example, 

how and to whom do you intend to 

disseminate the information). 

(3) How disclosure is likely to 

significantly contribute to the 

understanding of a reasonably broad 

audience of persons interested in the 

subject, as opposed to your individual 

understanding, including: 

(i) Whether the information being 

requested is new; 

(ii) Whether the information would 

confirm or clarify data that has been 

released previously; 

(iii) How disclosure will increase the 

level of public understanding of the 

operations or activities of the 

Department or a bureau that existed 

prior to disclosure; and 

(iv) Whether the information is 

already publicly available. If the 

Government previously has published 

the information you are seeking or it is 

routinely available to the public in a 

library, reading room, through the 

Internet, or as part of the administrative 

record for a particular issue, it is less 

likely that there will be a significant 

contribution from release. 

(4) How the public’s understanding of 

the subject in question will be enhanced 

to a significant extent by the disclosure. 

(b) In deciding whether the fee waiver 

meets the requirements in § 2.45(a)(2) of 

this subpart, the bureau will consider 

any commercial interest of yours that 

would be furthered by the requested 

disclosure. 

(1) You are encouraged to provide 

explanatory information regarding this 

consideration. 

(2) The bureau will not find that 

disclosing the requested information 

will be primarily in your commercial 

interest where the public interest is 

greater than any identified commercial 

interest in disclosure. 

(3) If you do have a commercial 

interest that would be furthered by 

disclosure, explain how the public 

interest in disclosure would be greater 

than any commercial interest you or 

your organization may have in the 

documents. 

(i) Your identity, vocation, and 

intended use of the requested records 

are all factors to be considered in 

determining whether disclosure would 

be primarily in your commercial 

interest. 

(ii) If you are a representative of a 

news media organization seeking 

information as part of the news 

gathering process, we will presume that 

the public interest outweighs your 

commercial interest. 

(iii) If you represent a business/ 

corporation/association or you are an 

attorney representing such an 

organization, we will presume that your 

commercial interest outweighs the 

public interest unless you demonstrate 

otherwise. 

§ 2.49 When will you be notified of 

anticipated fees? 

(a) The bureau will notify you under 

this section unless: 

(1) The anticipated fee is less than $50 

(you will not be charged if the fee for 

processing your request is less than $50, 

unless multiple requests are aggregated 

under § 2.54 of this subpart). 

(2) You have been granted a full fee 

waiver; or 

(3) You have previously agreed to pay 

all the fees associated with the request. 

(b) If none of the above exceptions 

apply, the bureau will: 

(1) Promptly notify you of the 

estimated costs for search, review, and/ 

or duplication; 

(2) Ask you to provide written 

assurance within 20 workdays that you 

will pay all fees or fees up to a 

designated amount; 

(3) Notify you that it will not be able 

to comply with your FOIA request 

unless you provide the written 

assurance requested; and 

(4) Give you an opportunity to reduce 

the fee by modifying the request. 

(c) If the bureau does not receive your 

written assurance of payment under 

paragraph (b)(2) of this section within 

20 workdays, the request will be closed. 

(d) After the bureau begins processing 

a request, if it finds that the actual cost 

will exceed the amount you previously 

agreed to pay, the bureau will: 

(1) Stop processing the request; 

(2) Promptly notify you of the higher 

amount and ask you to provide written 

assurance of payment; and 

(3) Notify you that it will not be able 

to fully comply with your FOIA request 

unless you provide the written 

assurance requested; and 

(4) Give you an opportunity to reduce 

the fee by modifying the request. 

(e) If you wish to modify your request 

in an effort to reduce fees, the bureau’s 

FOIA Public Liaison can assist you. 

§ 2.50 When will the bureau require 

advance payment? 

(a) The bureau will require advance 

payment before starting further work 

when it finds the estimated fee is over 

$250 and: 

(1) You have never made a FOIA 

request to the Department requiring the 

payment of fees; or 

(2) You did not pay a previous FOIA 

fee within 30 calendar days of the date 

of billing. 

(b) If the bureau believes that you did 

not pay a previous FOIA fee within 30 

calendar days of the date of billing, the 

bureau will require you to either: 


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(1) Demonstrate you paid prior fee 

within 30 calendar days of the date of 

billing; or 

(2) Pay any unpaid amount of the 

previous fee, plus any applicable 

interest penalties (see § 2.53 of this 

subpart), and pay in advance the 

estimated fee for the new request. 

(c) When the bureau notifies you that 

an advance payment is due, it will give 

you an opportunity to reduce the fee by 

modifying the request. 

(d) The bureau may require payment 

before records are sent to you; such a 

payment is not considered an ‘‘advance 

payment’’ under § 2.50(a) of this 

subpart. 

(e) If the bureau requires advance 

payment, it will start further work only 

after receiving the advance payment. It 

will also notify you that it will not be 

able to comply with your FOIA request 

unless you provide the advance 

payment. Unless you pay the advance 

payment within 20 workdays after the 

date of the bureau’s fee letter, the 

bureau will presume that you are no 

longer interested and will close the file 

on the request. 

§ 2.51 What if the bureau needs 

clarification about fee issues? 

(a) If your FOIA request does not 

contain sufficient information for the 

bureau to determine your proper fee 

category or leaves another fee issue 

unclear, the bureau may ask you to 

provide additional clarification. If it 

does so, the bureau will notify you that 

it will not be able to comply with your 

FOIA request unless you provide the 

clarification requested. 

(b) If the bureau asks you to provide 

clarification, the 20-workday statutory 

time limit for the bureau to respond to 

the request is temporarily suspended. 

(1) If the bureau hears from you 

within 20 workdays, the 20-workday 

statutory time limit for processing the 

request will resume (see § 2.16 of this 

part). 

(2) If you still have not provided 

sufficient information to resolve the fee 

issue, the bureau may ask you again to 

provide additional clarification and 

notify you that it will not be able to 

comply with your FOIA request unless 

you provide the additional information 

requested within 20 workdays. 

(3) If the bureau asks you again for 

additional clarification, the statutory 

time limit for response will be 

temporarily suspended again and will 

resume again if the bureau hears from 

you within 20 workdays. 

(c) If the bureau asks for clarification 

about a fee issue and does not receive 

a written response from you within 20 

workdays, it will presume that you are 

no longer interested and will close the 

file on the request. 

§ 2.52 How will you be billed? 

If you are required to pay a fee 

associated with a FOIA request, the 

bureau processing the request will send 

a bill for collection. 

§ 2.53 How will the bureau collect fees 

owed? 

(a) The bureau may charge interest on 

any unpaid bill starting on the 31st day 

following the billing date. 

(b) The bureau will assess interest 

charges at the rate provided in 31 U.S.C. 

3717 and implementing regulations and 

interest will accrue from the billing date 

until the bureau receives payment. 

(c) The bureau 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 to collect 

overdue amounts and interest. 

(d) This section does not apply if you 

are a state, local, or tribal government. 

§ 2.54 When will the bureau combine or 

aggregate requests? 

(a) The bureau may aggregate requests 

and charge accordingly when it 

reasonably believes that you, or a group 

of requesters acting in concert with you, 

are attempting to avoid fees by dividing 

a single request into a series of requests 

on a single subject or related subjects. 

(1) The bureau may presume that 

multiple requests of this type made 

within a 30-day period have been made 

to avoid fees. 

(2) The bureau may aggregate requests 

separated by a longer period only where 

there is a reasonable basis for 

determining that aggregation is 

warranted in view of all the 

circumstances involved. 

(b) The bureau will not aggregate 

multiple requests involving unrelated 

matters. 

§ 2.55 What if other statutes require the 

bureau to charge fees? 

(a) The fee schedule in appendix A to 

this part does not apply to fees charged 

under any statute that specifically 

requires the bureau to set and collect 

fees for particular types of records. 

(b) If records otherwise responsive to 

a request are subject to a statutorilybased fee schedule, the bureau will 

inform you whom to contact to obtain 

the records. 

§ 2.56 May the bureau waive or reduce 

your fees at its discretion? 

(a) The bureau may waive or reduce 

fees at its discretion if a request involves 

furnishing: 

(1) A copy of a record that the bureau 

has reproduced for free distribution; 

(2) One copy of a personal document 

(for example, a birth certificate) to a 

person who has been required to furnish 

it for retention by the Department; 

(3) One copy of the transcript of a 

hearing before a hearing officer in a 

grievance or similar proceeding to the 

employee for whom the hearing was 

held; 

(4) Records to donors with respect to 

their gifts; 

(5) Records to individuals or private 

nonprofit organizations having an 

official, voluntary, or cooperative 

relationship with the Department if it 

will assist their work with the 

Department; 

(6) A reasonable number of records to 

members of the U.S. Congress; state, 

local, and foreign governments; public 

international organizations; or Indian 

tribes, when to do so is an appropriate 

courtesy, or when the recipient is 

carrying on a function related to a 

Departmental function and the waiver 

will help accomplish the Department’s 

work; 

(7) Records in conformance with 

generally established business custom 

(for example, furnishing personal 

reference data to prospective employers 

of current or former Department 

employees); or 

(8) One copy of a single record to 

assist you in obtaining financial benefits 

to which you may be entitled (for 

example, veterans or their dependents, 

employees with Government employee 

compensation claims). 

(b) You cannot appeal the denial of a 

discretionary fee waiver or reduction. 

Subpart H—Administrative Appeals 

§ 2.57 When may you file an appeal? 

(a) You may file an appeal when: 

(1) The bureau withholds records, or 

parts of records; 

(2) The bureau informs you that your 

request has not adequately described the 

records sought; 

(3) The bureau informs you that it 

does not possess or cannot locate 

responsive records and you have reason 

to believe this is incorrect or that the 

search was inadequate; 

(4) The bureau did not address all 

aspects of the request for records; 

(5) You believe there is a procedural 

deficiency (for example, fees are 

improperly calculated); 

(6) The bureau denied a fee waiver; 

(7) The bureau did not make a 

decision within the time limits in § 2.16 

or, if applicable, § 2.18; or 

(8) The bureau denied, or was late in 

responding to, a request for expedited 


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processing filed under the procedures in 

§ 2.20 of this part. 

(b) An appeal under paragraph (a)(8) 

of this section relates only to the request 

for expedited processing and does not 

constitute an appeal of the underlying 

request for records. Special procedures 

apply to requests for expedited 

processing of an appeal (see § 2.63 of 

this subpart). 

(c) Before filing an appeal, you may 

wish to communicate with the contact 

person listed in the FOIA response, the 

bureau’s FOIA Officer, and/or the FOIA 

Public Liaison to see if the issue can be 

resolved informally. However, appeals 

must be received by the FOIA Appeals 

Officer within the time limits in § 2.58 

of this subpart or they will not be 

processed. 

§ 2.58 How long do you have to file an 

appeal? 

(a) Appeals covered by § 2.57(a)(1) 

through (5) of this subpart must be 

received by the FOIA Appeals Officer 

no later than 30 workdays from the date 

of the final response. 

(b) Appeals covered by § 2.57(a)(6) of 

this subpart must be received by the 

FOIA Appeals Officer no later than 30 

workdays from the date of the letter 

denying the fee waiver. 

(c) Appeals covered by § 2.57(a)(7) of 

this subpart may be filed any time after 

the time limit for responding to the 

request has passed. 

(d) Appeals covered by § 2.57(a)(8) of 

this subpart should be filed as soon as 

possible. 

(e) Appeals arriving or delivered after 

5 p.m. Eastern Time, Monday through 

Friday, will be deemed received on the 

next workday. 

§ 2.59 How do you file an appeal? 

(a) You must submit the appeal in 

writing by mail, fax or email to the 

FOIA Appeals Officer (using the address 

available at http://www.doi.gov/foia/ 

appeals.cfm). Your failure to send an 

appeal directly to the FOIA Appeals 

Officer may delay processing. 

(b) The appeal must include: 

(1) Copies of all correspondence 

between you and the bureau concerning 

the FOIA request, including the request 

and the bureau’s response (if there is 

one); and 

(2) An explanation of why you believe 

the bureau’s response was in error. 

(c) The appeal should include your 

name, mailing address, daytime 

telephone number (or the name and 

telephone number of an appropriate 

contact), email address, and fax number 

(if available) in case the Department 

needs additional information or 

clarification. 

(d) An appeal concerning a denial of 

expedited processing or a fee waiver 

denial should also demonstrate fully 

how the criteria in § 2.20 or §§ 2.45 and 

2.48 of this part are met. 

(e) All communications concerning an 

appeal should be clearly marked with 

the words: ‘‘FREEDOM OF 

INFORMATION APPEAL.’’ 

(f) The Department will reject an 

appeal that does not attach all 

correspondence required by paragraph 

(b)(1) of this section, unless the FOIA 

Appeals Officer determines, in his or 

her sole discretion, that good cause 

exists to accept the defective appeal. 

The time limits for responding to an 

appeal will not begin to run until the 

correspondence is received. 

§ 2.60 Who makes decisions on appeals? 

(a) The FOIA Appeals Officer is the 

deciding official for FOIA appeals. 

(b) When necessary, the FOIA 

Appeals Officer will consult other 

appropriate offices, including the Office 

of the Solicitor for denials of records 

and fee waivers. 

(c) The FOIA Appeals Officer 

normally will not make a decision on an 

appeal if the request becomes a matter 

of FOIA litigation. 

§ 2.61 How are decisions on appeals 

issued? 

(a) A decision on an appeal must be 

made in writing. 

(b) A decision that upholds the 

bureau’s determination will notify you 

of the decision and your statutory right 

to file a lawsuit. 

(c) A decision that overturns, 

remands, or modifies the bureau’s 

determination will notify you of the 

decision. The bureau then must further 

process the request in accordance with 

the appeal determination. 

§ 2.62 When can you expect a decision on 

your appeal? 

(a) The basic time limit for responding 

to an appeal is 20 workdays after receipt 

of an appeal meeting the requirements 

of § 2.59 of this subpart. 

(b) The FOIA Appeals Officer may 

extend the basic time limit, if unusual 

circumstances exist. Before the 

expiration of the basic 20-workday time 

limit to respond, the FOIA Appeals 

Officer will notify you in writing of the 

unusual circumstances involved and of 

the date by which he or she expects to 

complete processing of the appeal. 

(c) If the Department is unable to 

reach a decision on your appeal within 

the given time limit for response, the 

FOIA Appeals Officer will notify you of: 

(1) The reason for the delay; and 

(2) Your statutory right to seek review 

in a United States District Court. 

§ 2.63 Can you receive expedited 

processing of appeals? 

(a) To receive expedited processing of 

an appeal, you must demonstrate to the 

Department’s satisfaction that the 

appeal meets one of the criteria under 

§ 2.20 of this part and include a 

statement that the need for expedited 

processing is true and correct to the best 

of your knowledge and belief. 

(b) The FOIA Appeals Officer will 

advise you whether the Department will 

grant expedited processing within 10 

calendar days of receiving the appeal. 

(c) If the FOIA Appeals Officer 

decides to grant expedited processing, 

he or she will give the appeal priority 

over other pending appeals and process 

it as soon as practicable. 

§ 2.64 Must you submit an appeal before 

seeking judicial review? 

Before seeking review by a court of 

the bureau’s adverse determination, you 

generally must first submit a timely 

administrative appeal. 

Subpart I—General Information 

§ 2.65 Where are records made available? 

Records that are required by the FOIA 

to be made proactively available for 

public inspection and copying are 

accessible on the Department’s Web site, 

http://www.doi.gov/foia/libraries.cfm. 

They may also be available at bureau 

office locations. 

§ 2.66 What are public liaisons? 

(a) Each bureau has a FOIA Public 

Liaison that can assist individuals in 

locating bureau records. 

(b) FOIA Public Liaisons report to the 

Department’s Chief FOIA Officer and 

you can raise concerns to them about 

the service you have received. 

(c) FOIA Public Liaisons are 

responsible for assisting in reducing 

delays, increasing transparency and 

understanding of the status of requests, 

and assisting in resolving disputes. 

(d) A list of the Department’s FOIA 

Public Liaisons is available at http:// 

doi.gov/foia/servicecenters.cfm. 

§ 2.67 When will the Department make 

records available without a FOIA request? 

(a) Each bureau must: 

(1) Determine which of its records 

must be made publicly available under 

the FOIA (for example, certain 

frequently requested records); 

(2) Identify additional records of 

interest to the public that are 

appropriate for public disclosure; and 

(3) Post those records in FOIA 

libraries. 

(b) Because of these proactive 

disclosures, you are encouraged to 

review the Department’s FOIA libraries 


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before filing a FOIA request. The 

material you seek may be immediately 

available electronically at no cost. 

§ 2.68 How will FOIA materials be 

preserved? 

(a) Each bureau must preserve all 

correspondence pertaining to the 

requests that it receives under subpart B 

of this part, as well as copies of all 

requested records, until disposition or 

destruction is authorized by the General 

Records Schedule 14 of the National 

Archives and Records Administration 

(NARA) or another NARA-approved 

records schedule. 

(b) Materials that are identified as 

responsive to a FOIA request will not be 

disposed of or destroyed while the 

request or a related appeal or lawsuit is 

pending. This is true even if they would 

otherwise be authorized for disposition 

or destruction under the General 

Records Schedule 14 of NARA or 

another NARA-approved records 

schedule. 

§ 2.69 How will a bureau handle a request 

for federally-funded research data? 

(a) If you request research data that 

were used by the Federal Government in 

developing certain kinds of agency 

actions, and the research data relate to 

published research findings produced 

under an award, in accordance with 

OMB Circular A–110: 

(1) If the bureau was the awarding 

agency, it will request the research data 

from the recipient; 

(2) The recipient must provide the 

research data within a reasonable time; 

and 

(3) The bureau will review the 

research data to see if it can be released 

under the FOIA. 

(b) If the bureau obtains the research 

data solely in response to your FOIA 

request, the bureau may charge you a 

reasonable fee equaling the full 

incremental cost of obtaining the 

research data. 

(1) This fee should reflect costs 

incurred by the agency, the recipient, 

and applicable subrecipients. 

(2) This fee is in addition to any fees 

the agency may assess under the FOIA. 

(c) The bureau will forward a copy of 

the request to the recipient, who is 

responsible for searching for and 

reviewing the requested information in 

accordance with these FOIA regulations. 

The recipient will forward a copy of any 

responsive records that are located, 

along with any recommendations 

concerning the releasability of the data, 

and the total cost incurred in searching 

for, reviewing, and providing the data. 

(d) The bureau will review and 

consider the recommendations of the 

recipient regarding the releasability of 

the requested research data. However, 

the bureau, not the recipient, is 

responsible for deciding whether the 

research data will be released or 

withheld. 

§ 2.70 What definitions apply to subparts 

A through I of this part? 

For the purposes of subparts A 

through I of this part, the following 

definitions apply: 

Bureau means any major component 

of the Department administering its own 

FOIA program. A list of these 

components is available at: http:// 

www.doi.gov/foia/contacts.cfm. 

Commercial interest means a 

commercial, trade, or profit interest as 

these terms are commonly understood. 

Your status as profitmaking or nonprofitmaking is not the deciding factor 

in determining whether you have a 

commercial interest. 

Commercial use means a use that 

furthers your commercial, trade or profit 

interests or that of the person on whose 

behalf the request is made. 

Confidential information means trade 

secrets or commercial or financial 

information (that is privileged or 

confidential and obtained by the 

Department from a person) that may be 

protected from disclosure under 

Exemption 4 of the FOIA. 

Department means the Department of 

the Interior. 

Direct costs means those resources 

that the bureau expends in searching for 

and duplicating (and, in the case of 

commercial-use requests, reviewing) 

records to respond to a FOIA request. 

For example, direct costs include the 

salary of the employee performing the 

work (the basic rate of pay for the 

employee plus 16 percent of that rate to 

cover benefits) and the cost of operating 

duplicating machinery, 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. 

Duplication means 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. 

Educational institution means any 

school that operates a program of 

scholarly research. In order to fall 

within this category, you must show 

that the request is authorized by and 

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. 

Exceptional circumstances means a 

delay that does not result from a 

predictable workload of requests (unless 

the bureau demonstrates reasonable 

progress in reducing its backlog of 

pending requests). 

Exempt means the record in question, 

or a portion thereof, is not subject to 

disclosure due to one or more of the 

FOIA’s nine statutory exemptions, 

found at 5 U.S.C. 552(b)(1)–(9). 

Exemption means one or more of the 

FOIA’s nine statutory exemptions, 

found at 5 U.S.C. 552(b)(1)–(9). 

Expedited processing means giving a 

FOIA request priority and processing it 

ahead of other requests pending in the 

bureau because you have shown a 

compelling need for the records. 

Fee category means one of the four 

categories, discussed in §§ 2.38 and 

2.39, that agencies place you in for the 

purpose of determining whether you 

will be charged fees for search, review, 

and duplication. 

FOIA means the Freedom of 

Information Act, 5 U.S.C. 552, as 

amended. 

FOIA libraries means a physical or 

electronic compilation of records 

required to be made available to the 

public for inspection and copying under 

5 U.S.C. 552(a)(2). It also includes a 

physical or electronic compilation of 

records that the bureau, at its discretion, 

makes available to the public for 

inspection and copying. 

Frequently requested records means 

records that have been released to any 

person in response to a FOIA request 

and that have been requested, or that the 

bureau anticipates will be requested, at 

least two more times under the FOIA. 

Multitrack processing means placing 

simple requests, requiring relatively 

minimal review, in one processing track 

and more voluminous and complex 

requests in one or more other tracks. 

Requests in each track are processed on 

a first-in/first-out basis. 

Noncommercial scientific institution 

means an institution that is not operated 

for commerce, trade or profit, and that 

is operated solely for the purpose of 

conducting scientific research the 

results of which are not intended to 

promote any particular product or 

industry. To be in this category, you 

must show that the request is authorized 

by and is made under the auspices of a 

qualifying institution and that the 

records are not sought for a commercial 

use but are sought to further scientific 

research. 

OMB Fee Guidelines means the 

Uniform Freedom of Information Fee 

Schedule and Guidelines published by 

the Office of Management and Budget at 

52 FR 10012 (Mar. 27, 1987). 

Published means, for the purposes of 

§ 2.69 of this subpart only, when: 


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(1) Research findings are published in 

a peer-reviewed scientific or technical 

journal; or 

(2) A Federal agency publicly and 

officially cites the research findings in 

support of an agency action that has the 

force and effect of law. 

Recipient means, for the purposes of 

§ 2.69 of this subpart only, an 

organization receiving financial 

assistance directly from Federal 

awarding agencies to carry out a project 

or program. The term includes public 

and private institutions of higher 

education, public and private hospitals, 

and other quasi-public and private nonprofit organizations. The term may 

include commercial organizations, 

foreign or international organizations 

(such as agencies of the United Nations) 

which are recipients, subrecipients, or 

contractors or subcontractors of 

recipients or subrecipients at the 

discretion of the Federal awarding 

agency. The term does not include 

government-owned contractor-operated 

facilities or research centers providing 

continued support for mission-oriented, 

large-scale programs that are 

government-owned or controlled, or are 

designated as federally-funded research 

and development centers. 

Record means an agency record that is 

either created or obtained by an agency 

and is under agency possession and 

control at the time of the FOIA request, 

or is maintained by an entity under 

Government contract for the purposes of 

records management. 

Representative of the news media 

means any person or entity that 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 as used 

in this definition means information 

that is about current events or that 

would be of current interest to the 

public. Examples of news media entities 

are newspapers, television, Web sites, or 

radio stations broadcasting to the public 

at large, and publishers of periodicals 

(but only if such entities qualify as 

disseminators of news) who make their 

products available for purchase by or 

subscription by or free distribution to 

the general public. These examples are 

not all inclusive. As methods of news 

delivery evolve, alternative 

representatives of news media may 

come into being. A freelance journalist 

will qualify as a news-media entity if he 

or she can demonstrate a solid basis for 

expecting publication through that 

entity, whether or not the journalist is 

actually employed by that entity (for 

example, a publication contract would 

present a solid basis for such an 

expectation). 

Research data means, for the 

purposes of § 2.69 of this subpart only, 

the recorded factual material commonly 

accepted in the scientific community as 

necessary to validate research findings, 

but not any of the following: 

preliminary analyses, drafts of scientific 

papers, plans for future research, peer 

reviews, or communications with 

colleagues. The term recorded as used 

in this definition excludes physical 

objects (e.g., laboratory samples). 

Research data also do not include: 

(1) Trade secrets, commercial 

information, materials necessary to be 

held confidential by a researcher until 

they are published, or similar 

information which is protected under 

law; and 

(2) Personnel and medical 

information and similar information the 

disclosure of which would constitute a 

clearly unwarranted invasion of 

personal privacy, such as information 

that could be used to identify a 

particular person in a research study. 

Review means the examination of a 

record located in response to a request 

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 time 

also includes time spent both obtaining 

and considering any formal objection to 

disclosure made by a confidential 

information submitter under subpart G 

of this part, but it excludes time spent 

resolving general legal or policy issues 

regarding the application of FOIA 

exemptions. 

Search means the process of looking 

for and retrieving records responsive to 

a request. Search time includes page-bypage or line-by-line identification of 

information within records; and the 

reasonable efforts expended to locate 

and retrieve electronic records. 

Submitter means any person or entity 

outside the Federal Government from 

whom the Department obtains 

confidential information, directly or 

indirectly. The term includes, but is not 

limited to individuals, corporations, and 

state, local, tribal, and foreign 

governments. 

Unusual circumstances means the 

need to search for and collect requested 

records from field facilities or other 

establishments that are separate from 

the office processing the request; the 

need to search for, collect, and examine 

a voluminous amount of separate and 

distinct records which are demanded in 

a single request; or the need for 

consultation, which shall be conducted 

with all practicable speed, with another 

agency, or among two or more 

components of the Department, having 

a substantial interest in the 

determination of the request. 

Workday means a regular Federal 

workday. It excludes Saturdays, 

Sundays, or Federal legal public 

holidays. Items arriving or delivered 

after 5 p.m. Eastern Time will be 

deemed received on the next workday. 

You means a person requesting 

records, or filing an appeal, under the 

FOIA. 

Appendix A to Part 2 [Removed] 

■ 6. Appendix A to Part 2 is removed. 

Appendix B to Part 2 [Removed] 

■ 7. Appendix B to Part 2 is removed. 

Appendix C to Part 2 [Redesignated as 

Appendix A to Part 2] 

■ 8. Appendix C to Part 2 is 

redesignated as Appendix A to Part 2 

and revised to read as follows. 

Appendix A to Part 2—Fee Schedule 

Types of Records Fee 

(1) Physical records: 

Pages no larger than 8.5 × 14 inches, when reproduced by standard 

office copying machines or scanned into an electronic format 

$.15 per page ($.30 for double-sided copying). 

Color copies of pages no larger than 8.5 × 11 inches ............................ $.90 per page. 

Pages larger than 8.5 × 14 inches ........................................................... Direct cost to DOI. 

Color copies of pages no larger than 11 × 17 inches ............................. $1.50 per page. 

Photographs and records requiring special handling (for example, because of age, size, or format).Direct cost to DOI. 

(2) Electronic records: 

Charges for services related to processing requests for electronic 

records.

Direct cost to DOI. 


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Types of Records Fee 

(3) Certification Fee. 

Each certificate of verification attached to authenticate copies of 

records.

$.25 

(4) Postage: 

Charges that exceed the cost of first class postage, such as express 

mail or overnight delivery.

Postage or delivery charge. 

(5) Other Services: 

Cost of special services or materials, other than those provided for by 

this fee schedule, when requester is notified of such costs in advance and agrees to pay them.

Direct cost to DOI. 

Appendix D to Part 2 [Removed] 

■ 9. Appendix D to Part 2 is removed. 

Appendix E to Part 2 [Removed] 

■ 10. Appendix E to Part 2 is removed. 

Appendix F to Part 2 [Redesignated as 

Appendix B to Part 2] 

■ 11. Appendix F to Part 2 is 

redesignated as Appendix B to Part 2. 

[FR Doc. 2012–31117 Filed 12–28–12; 8:45 am] 

BILLING CODE 4310–10–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 65 

[Docket ID FEMA–2012–0003] 

Changes in Flood Elevation 

Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: Modified Base (1% annualchance) Flood Elevations (BFEs) are 

finalized for the communities listed 

below. These modified BFEs will be 

used to calculate flood insurance 

premium rates for new buildings and 

their contents. 

DATES: The effective dates for these 

modified BFEs are indicated on the 

following table and revise the Flood 

Insurance Rate Maps (FIRMs) in effect 

for the listed communities prior to this 

date. 

ADDRESSES: The modified BFEs for each 

community are available for inspection 

at the office of the Chief Executive 

Officer of each community. The 

respective addresses are listed in the 

table below. 

FOR FURTHER INFORMATION CONTACT: Luis 

Rodriguez, Chief, Engineering 

Management Branch, Federal Insurance 

and Mitigation Administration, Federal 

Emergency Management Agency, 500 C 

Street SW., Washington, DC 20472, 

(202) 646–4064, or (email) 

Luis.Rodriguez3@fema.dhs.gov. 

SUPPLEMENTARY INFORMATION: The 

Federal Emergency Management Agency 

(FEMA) makes the final determinations 

listed below of the modified BFEs for 

each community listed. These modified 

BFEs have been published in 

newspapers of local circulation and 

ninety (90) days have elapsed since that 

publication. The Deputy Associate 

Administrator for Mitigation has 

resolved any appeals resulting from this 

notification. 

The modified BFEs are not listed for 

each community in this notice. 

However, this final rule includes the 

address of the Chief Executive Officer of 

the community where the modified BFE 

determinations are available for 

inspection. 

The modified BFEs are made pursuant 

to section 206 of the Flood Disaster 

Protection Act of 1973, 42 U.S.C. 4105, 

and are in accordance with the National 

Flood Insurance Act of 1968, 42 U.S.C. 

4001 et seq., and with 44 CFR part 65. 

For rating purposes, the currently 

effective community number is shown 

and must be used for all new policies 

and renewals. 

The modified BFEs are the basis for 

the floodplain management measures 

that the community is required either to 

adopt or to show evidence of being 

already in effect in order to qualify or 

to remain qualified for participation in 

the National Flood Insurance Program 

(NFIP). 

These modified BFEs, together with 

the floodplain management criteria 

required by 44 CFR 60.3, are the 

minimum that are required. They 

should not be construed to mean that 

the community must change any 

existing ordinances that are more 

stringent in their floodplain 

management requirements. The 

community may at any time enact 

stricter requirements of its own or 

pursuant to policies established by other 

Federal, State, or regional entities. 

These modified BFEs are used to meet 

the floodplain management 

requirements of the NFIP and also are 

used to calculate the appropriate flood 

insurance premium rates for new 

buildings built after these elevations are 

made final, and for the contents in those 

buildings. The changes in BFEs are in 

accordance with 44 CFR 65.4. 

National Environmental Policy Act. 

This final rule is categorically excluded 

from the requirements of 44 CFR part 

10, Environmental Consideration. An 

environmental impact assessment has 

not been prepared. 

Regulatory Flexibility Act. As flood 

elevation determinations are not within 

the scope of the Regulatory Flexibility 

Act, 5 U.S.C. 601–612, a regulatory 

flexibility analysis is not required. 

Regulatory Classification. This final 

rule is not a significant regulatory action 

under the criteria of section 3(f) of 

Executive Order 12866 of September 30, 

1993, Regulatory Planning and Review, 

58 FR 51735. 

Executive Order 13132, Federalism. 

This final rule involves no policies that 

have federalism implications under 

Executive Order 13132, Federalism. 

Executive Order 12988, Civil Justice 

Reform. This final rule meets the 

applicable standards of Executive Order 

12988. 

List of Subjects in 44 CFR Part 65 

Flood insurance, Floodplains, 

Reporting and recordkeeping 

requirements. 

Accordingly, 44 CFR part 65 is 

amended to read as follows: 

PART 65—[AMENDED] 

■ 1. The authority citation for part 65 

continues to read as follows: 

Authority: 42 U.S.C. 4001 et seq.; 

Reorganization Plan No. 3 of 1978, 3 CFR, 

1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 

3 CFR, 1979 Comp., p.376. 

§ 65.4 [Amended] 

■ 2. The tables published under the 

authority of § 65.4 are amended as 

follows: 


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