Federal Register / Vol. 88, No. 144 / Friday, July 28, 2023 / Rules and Regulations 48725 

PART 998—MARINE AND AVIATION 

OPERATIONS 

■ 1. The authority citation for part 998 

continues to read as follows: 

Authority: 33 U.S.C. 3001 et seq. 

■ 2. Revise the heading for part 998 to 

read as set forth above. 

■ 3. Under authority of 33 U.S.C. 3001 

et seq., add subchapter H to read as 

follows: 

SUBCHAPTER H—REGULATIONS OF 

NOAA MARINE AND AVIATION 

OPERATIONS 

■ 4. Transfer part 998 to subchapter H. 

■ 5. Amend part 998 by adding subpart 

E, consisting of §§ 998.50 through 

998.54, to read as follows: 

Subpart E—Shore Leave 

Sec. 

998.50 Applicability. 

998.51 Definitions. 

998.52 Computation of shore leave. 

998.53 Granting shore leave. 

998.54 Pay for temporary promotion. 

Authority: 33 U.S.C. 3079b. 

Subpart E—Shore Leave 

§ 998.50 Applicability. 

This subpart applies to professional 

mariners as defined in section 3079b(c) 

of title 33, United States Code, and in 

§ 998.51, who are regularly assigned 

duties aboard a NOAA ship. An 

employee is considered to be regularly 

assigned when his or her continuing 

duties are such that all or a significant 

part of them require that he or she serve 

aboard a NOAA ship. Temporary 

assignments of a shore-based employee 

of the Administration, such as for 

limited work projects or for training, do 

not constitute a regular assignment. This 

subpart does not apply to commissioned 

officers of the NOAA Corps serving on 

NOAA ships. 

§ 998.51 Definitions. 

NOAA ship means a research or 

survey vessel owned or operated by 

NOAA as part of the NOAA fleet 

defined at 33 U.S.C. 891(2), but does not 

mean a vessel owned or operated by 

NOAA under the jurisdiction of the 

NOAA Small Boat Program. 

Professional mariner means an 

individual employed by the 

Administration on a NOAA ship who 

has the necessary expertise to serve in 

the engineering, deck, steward, 

electronic technician, or survey 

departments. 

Shore leave means a leave of absence, 

in addition to earned annual leave, that 

is earned by professional mariners 

serving aboard NOAA ships, as 

authorized by section 3079b of title 33, 

United States Code, and this subpart. 

§ 998.52 Computation of shore leave. 

(a) A professional mariner earns shore 

leave at the rate of one day of shore 

leave for each 3 and one-half 

consecutive days of assignment to a 

NOAA ship such that a total of up to 4 

days of shore leave may be earned in 

any given pay period. 

(b) For a professional mariner, an 

assignment begins either on the date he 

or she assumes their duties aboard a 

NOAA ship or on the date he or she 

comes aboard when a voyage is in 

progress. The assignment terminates on 

the date he or she ceases to be assigned 

to a NOAA ship or on the date on which 

he or she is released from assignment of 

their duties. 

(c) In computing days of assignment, 

the Administration shall also include: 

(1) The days a professional mariner 

spends traveling to join a NOAA ship to 

which assigned; 

(2) The days a professional mariner 

spends traveling between NOAA ships 

when the employee is assigned from one 

NOAA ship to another; and 

(3) The days on which the 

professional mariner is on sick leave 

when he or she becomes sick during an 

assignment (whether or not continued 

as a member of the crew) but not beyond 

the termination date of the assignment 

to the NOAA ship. 

(d) In computing days of assignment, 

the Administration shall not include 

days the professional mariner is on any 

kind of leave other than sick leave. 

§ 998.53 Granting shore leave. 

(a) Authority. (1) A professional 

mariner has an absolute right to use 

shore leave, subject to the right of the 

head of the agency to fix the time at 

which shore leave may be used. 

(2) A professional mariner shall 

submit his or her request for shore leave 

in writing and whenever such a request 

for shore leave is denied, the denial 

shall be in writing. 

(b) Accumulation. Shore leave for 

professional mariners may be 

accumulated for future use without 

limitation and is in addition to annual 

leave. 

(c) Charge for shore leave. The 

minimum charge for shore leave is one 

day and additional charges are in 

multiples thereof. 

(d) Lump-sum payment. Shore leave 

may not be the basis for lump-sum 

payment on separation from the 

Administration. 

(e) Terminal leave. (1) Except as 

provided by paragraph (e)(2) of this 

section, NOAA shall not grant shore 

leave to a professional mariner as 

terminal leave. For the purpose of this 

paragraph terminal leave means an 

approved absence immediately before 

an employee’s separation when an 

agency knows the employee will not 

return to duty before the date of his or 

her separation. 

(2) NOAA shall grant shore leave as 

terminal leave when the professional 

mariner’s inability to use shore leave 

was due to circumstances beyond his or 

her control and not due to his or her 

own act or omission. 

(f) Forfeiture of shore leave. Shore 

leave not granted before: 

(1) Separation from employment with 

the Administration, or 

(2) Official assignment (other than by 

temporary detail) to a position within 

NOAA in which the employee does not 

earn shore leave, is forfeited. When an 

official assignment will result in 

forfeiture of shore leave, NOAA, to the 

extent administratively practicable shall 

give an employee an opportunity to use 

the shore leave he or she has to his or 

her credit either before the reassignment 

or not later than 6 months after the date 

of his reassignment when the agency is 

unable to grant the shore leave before 

the reassignment. 

§ 998.54 Pay for temporary promotion. 

Professional mariners serving in a 

position aboard a NOAA ship to which 

they have been temporarily promoted 

pursuant to 5 CFR 335.102(f) shall be 

paid the difference between their 

temporary and permanent rates of pay 

for leave accrued while serving in the 

temporary promotion position unless: 

(a) The professional mariner uses the 

leave before returning to their 

permanent position; or 

(b) The professional mariner is 

permanently promoted to the higher 

position without further competition. 

[FR Doc. 2023–15680 Filed 7–27–23; 8:45 am] 

BILLING CODE 3510–12–P 

OFFICE OF THE DIRECTOR OF 

NATIONAL INTELLIGENCE 

32 CFR Part 1700 

Procedures for Disclosure of Records 

Pursuant to the Freedom of 

Information Act 

AGENCY: Office of the Director of 

National Intelligence. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

Office of the Director of National 

Intelligence’s (ODNI) rules 

implementing the Freedom of 

Information Act (FOIA). 


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48726 Federal Register / Vol. 88, No. 144 / Friday, July 28, 2023 / Rules and Regulations 

DATES: 

Effective date: This rule is effective 

September 26, 2023. 

Comment date: Comments due on or 

before August 28, 2023. 

ADDRESSES: Submit electronic 

comments to DNI-FOIA-Liaison@

dni.gov. 

FOR FURTHER INFORMATION CONTACT: Erin 

Morrison, 703–275–3500, DNI-FOIALiaison@dni.gov. 

SUPPLEMENTARY INFORMATION: On August 

16, 2007, 32 CFR part 1700 ‘‘Procedures 

for Disclosure of Records Pursuant to 

the Freedom of Information Act’’ 

became effective for ODNI. The 

regulation addresses all aspects of FOIA 

processing, including how and where to 

submit FOIA requests, fees for record 

services, procedures for handling 

business information, requests for 

expedited processing, and the right to 

appeal denials of information. This 

amendment makes alterations due to 

organizational changes and subsequent 

amendments to the FOIA. 

Executive Order 12866 and 13563 

This final rule has been drafted and 

reviewed in accordance with Executive 

Order 12866, Regulatory Planning and 

Review, section 1, Statement of 

Regulatory Philosophy and Principles, 

and in accordance with Executive Order 

13563, Improving Regulation and 

Regulatory Review, section 1, General 

Principles of Regulation. Because this 

final rule does not constitute a 

significant regulatory action under 

section 3(f) of Executive Order 12866, it 

was not subject to mandatory prior 

review by the Office of Management and 

Budget Office of Information and 

Regulatory Affairs (OMB/OIRA) under 

section 6 of Executive Order 12866. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3507(d)) requires that ODNI 

consider the impact of paperwork and 

other burdens imposed on the public 

associated with the collection of 

information. There are no information 

collection requirements associated with 

this final rule and therefore no analysis 

of burden is required. 

Executive Order 12988 

This final rule meets the applicable 

standards set forth in Executive Order 

12988, Civil Justice Reform. 

Executive Order 13132 

Executive Order 13132 requires ODNI 

to examine the implications for the 

distribution of power and 

responsibilities among the various 

levels of government resulting from this 

final rule. ODNI concludes that the final 

rule does not affect the rights, roles and 

responsibilities of the States, involves 

no preemption of State law, and does 

not limit State policymaking discretion. 

This rule has no federalism implications 

as defined by the Executive Order. 

Regulatory Flexibility Act 

In accordance with the Regulatory 

Flexibility Act, 5 U.S.C. 605(b), ODNI 

has reviewed this final rule and certifies 

that it will not have a significant 

economic impact on a substantial 

number of small entities, and thus no 

regulatory flexibility analysis is 

required. This final rule pertains to 

ODNI’s policies and practices for 

processing FOIA requests, and does not 

impose any new requirements on small 

entities. 

Unfunded Mandates 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, 109 Stat. 48 (Mar. 22, 1995), 

requires Federal agencies to assess the 

effects of certain regulatory actions on 

State, local, and tribal governments, and 

the private sector. This final rule 

imposes no Federal mandate on any 

State, local, or Tribal government or on 

the private sector. Accordingly, no 

UMRA analysis of economic and 

regulatory alternatives is required. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This final rule will not result in an 

annual effect on the economy of $100 

million or more, a major increase in 

costs or prices, or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. Thus, it does not 

constitute major rules as defined by the 

Small Business Regulatory Enforcement 

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

Environmental Impact 

ODNI has reviewed this action for 

purposes of the National Environmental 

Policy Act of 1969 (NEPA), 42 U.S.C. 

4321–4347, and has determined that 

this action does not have a significant 

effect on the human environment. 

Energy Impact 

The energy impact of this action has 

been assessed in accordance with the 

Energy Policy and Conservation Act 

(EPCA), Public Law 94–163, as 

amended, 42 U.S.C. 6362. This 

rulemaking is not a major regulatory 

action under the provisions of the 

EPCA. 

This document revises part 1700. 

List of Subjects in 32 CFR Part 1700 

Administrative practice and 

procedure, Freedom of information. 

The Office of the Director of National 

Intelligence revises 32 CFR part 1700 to 

read as follows: 

PART 1700—PROCEDURES FOR 

DISCLOSURE OF RECORDS 

PURSUANT TO THE FREEDOM OF 

INFORMATION ACT 

Sec. 

1700.1 Authority and purpose. 

1700.2 Definitions. 

1700.3 Contact for general information and 

requests. 

1700.4 Requirements for making requests. 

1700.5 Processing of requests for records. 

1700.6 Time frames for ODNI responses. 

1700.7 Administrative appeals. 

1700.8 Procedures for requests implicating 

confidential commercial information. 

1700.9 Fees. 

1700.10 Other rights and services. 

Authority: 5 U.S.C. 552; 50 U.S.C. 3023– 

3025; Pub. L. 108–458, 118 Stat. 3638. 

§ 1700.1 Authority and purpose. 

(a) This part is issued under the 

authority of the Freedom of Information 

Act, as amended, 5 U.S.C. 552; the 

National Security Act of 1947, as 

amended, 50 U.S.C. 3023–3025; and the 

Intelligence Reform and Terrorism 

Prevention Act of 2004, Public Law 

108–458, 118 Stat. 3638. 

(b) This part prescribes procedures 

for: 

(1) ODNI administration of the FOIA; 

(2) Requesting records from ODNI 

pursuant to the FOIA; and 

(3) Filing an administrative appeal 

with ODNI of an initial adverse decision 

under the FOIA. 

(c) This part contains the rules that 

ODNI follows in processing requests for 

records under the FOIA. The rules in 

this part should be read in conjunction 

with the text of the FOIA and the 

Uniform Freedom of Information Fee 

Schedule and Guidelines published by 

the Office of Management and Budget. 

§ 1700.2 Definitions. 

For purposes of this part, the 

following definitions apply: 

(a) Direct costs are those expenditures 

which ODNI actually incurs in the 

processing of a FOIA request. It 

includes, but is not limited to, the salary 

of the employee performing the work 

and costs associated with duplication. It 

does not include overhead factors such 

as space. 

(b) Fees are those direct costs which 

may be assessed considering the 

categories established by the FOIA. 

Requesters should submit information 


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to assist ODNI in determining the 

proper fee category. ODNI may draw 

reasonable inferences from the identity 

and activities of the requester in making 

fee determinations. The fee categories 

include: 

(1) Commercial use request. A request 

seeking information for a use or purpose 

that furthers the requester’s commercial, 

trade, or profit interests, including 

pursuit of those interests through 

litigation. 

(2) Educational institution. Any 

institution that operates a program or 

programs of scholarly research. To be in 

this category, a requester must show 

that the request is authorized by and is 

made under the auspices of a qualifying 

institution and that the records are not 

sought for a commercial use but are 

sought to further scholarly research. 

ODNI may seek assurance from the 

requester that the request is in 

furtherance of scholarly research and 

will advise requesters of their placement 

in this category. 

(3) Non-commercial scientific 

institution. An institution that is not 

operated on a commercial basis and that 

is operated solely for the purpose of 

conducting scientific research, the 

results of which are not intended to 

promote any particular product or 

industry. To be in this category, a 

requester must show that the request is 

authorized by and is made under the 

auspices of a qualifying institution and 

that the records are not sought for a 

commercial use but are sought to further 

scientific research. 

(4) Representative of the news media. 

Any person or entity that actively 

gathers information of potential interest 

to a segment of the public, uses editorial 

skills to turn the raw materials into a 

distinct work, and distributes that work 

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

information that concerns current 

events or that would be of interest to the 

public. 

(c) Freedom of Information Act, FOIA, 

or the Act is the statute as codified at 

5 U.S.C. 552, as amended. 

(d) FOIA Public Liaison is the 

individual designated by the Chief FOIA 

Officer to assist FOIA requesters with 

concerns about ODNI’s processing of 

their FOIA requests, including 

assistance in resolving disputes. 

(e) Information Review & Release 

Group (‘‘IRRG’’) Chief is the ODNI 

employee to whom the Chief of the 

ODNI Information Management Office 

(IMO) has delegated their responsibility 

for processing FOIA requests. 

(f) ODNI is the Office of the Director 

of National Intelligence and its 

component organizations. This does not 

include other members of the 

Intelligence Community as defined in 

50 U.S.C. 3003, or other federal entities 

subsequently designated in accordance 

with this authority, unless specifically 

designated and included in this part or 

in the notice of a system of records. 

(g) OGIS is the Office of Government 

Information Services within the 

National Archives and Records 

Administration. 

(h) Pages are paper copies of standard 

office size or the dollar value equivalent 

in other media. 

(i) Person is an individual, 

partnership, corporation, association, or 

public or private organization other than 

an agency. 

(j) Record is any document, 

irrespective of physical or electronic 

form, made or received by ODNI in 

pursuance of federal law or in 

connection with the transaction of 

public business and appropriate for 

preservation by ODNI as evidence of the 

organization, functions, policies, 

decisions, procedures, operations, or 

other activities of ODNI or because of 

the informational value of the data 

contained therein. 

(k) Reproduction is the generation of 

a copy of a requested record in a form 

appropriate for release. 

(l) Requester is a person, organization, 

or other entity who submits a written or 

electronic communication requesting 

information on or concerning the FOIA 

program, the availability of records from 

ODNI, or both. 

(m) Review means all time expended 

in examining a record to determine 

whether any portion must be withheld 

pursuant to law and in effecting any 

required deletions. This does not 

include personnel hours expended in 

resolving general legal or policy issues. 

(n) Search means all time expended 

in looking for and retrieving material 

that may be responsive to a request. 

§ 1700.3 Contact for general information 

and requests. 

For general information on this part, 

to inquire about the FOIA program at 

ODNI, or to file a FOIA request, a 

written submission should be sent, 

either by mail to the Office of the 

Director of National Intelligence, IRRG 

Chief, Information Management Office, 

Washington, DC 20511, or by email to 

DNI-FOIA@dni.gov. To check on the 

status of a pending case, an individual 

may either call the ODNI FOIA Office at 

(703) 275–1313 or email the ODNI FOIA 

Office at DNI-FOIA@dni.gov. 

§ 1700.4 Requirements for making 

requests. 

(a) FOIA requests must be submitted 

in writing. They may be sent to the 

Office of the Director of National 

Intelligence, IRRG Chief, Information 

Management Office, Washington, DC 

20511; by email to DNI-FOIA@dni.gov; 

or through the FOIA portal at https://

www.foia.gov. For the most expeditious 

handling, the request letter and 

envelope, or subject line of the 

electronic transmission, should be 

marked ‘‘Freedom of Information Act 

Request.’’ The requester shall provide 

contact information, such as a phone 

number, email address, or mailing 

address. 

(b) A requester who is making a 

request for records about themselves 

must comply with the verification of 

identity requirements provided in the 

ODNI Privacy Act regulations, 32 CFR 

1701.7(d). 

(c) Where a request for records 

pertains to a third party, a requester may 

receive greater access by submitting 

either a notarized authorization signed 

by that third party or a declaration made 

in compliance with the requirements set 

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

party. Such notarized authorization or 

declaration should authorize disclosure 

of the requested records to the requester. 

If the third party is deceased, the 

requester should submit proof of that 

fact (e.g., a copy of a death certificate or 

an obituary). As an exercise of 

administrative discretion, ODNI can 

require a requester to supply additional 

information to verify that a third party 

has consented to disclosure. 

(d) Requests must describe the records 

sought with sufficient detail to enable 

ODNI personnel to locate them with a 

reasonable amount of effort. In general, 

requesters should include as much 

detail as possible about the specific 

records or the types of records that they 

are seeking, such as the date, title, 

name, author, recipient, or subject 

matter of the record. Before or after 

submitting their requests, requesters 

may contact the FOIA Public Liaison to 

discuss the records they are seeking and 

to receive assistance in describing the 

records. If ODNI determines that a 

request does not reasonably describe the 

records sought, ODNI shall inform the 

requester what additional information is 

needed or why the request is otherwise 

insufficient. If a request does not 

reasonably describe the records sought, 

the agency’s response to the request may 

be delayed. 

(e) A request should specify the 

preferred format (including electronic) 

to convey the records requested. ODNI 

will accommodate a request for a 

specific format if the record is readily 

available in that format. When the 

format of the response is not specified, 


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ODNI will provide responsive records in 

the most convenient format. 

§ 1700.5 Processing of requests for 

records. 

(a) On receipt of a request, IMO’s 

IRRG staff will send an 

acknowledgement letter to the requester 

which will provide an assigned request 

number for future reference and, if fees 

will be charged, shall confirm the 

requester’s agreement to pay fees. 

(b) To determine which records are 

responsive to the request, IRRG staff 

will task relevant ODNI components to 

search all places likely to contain 

potentially responsive records. The 

ODNI components ordinarily will 

include records in their possession as of 

the date that they begin their search 

unless the request specifically included 

an end date for the search. If another 

date is used, the IRRG staff will inform 

the requester of the date used and the 

reason for its use. The potentially 

responsive records will be sent to IRRG 

staff for responsiveness review and 

application of relevant exemptions, if 

any. 

(c) When reviewing responsive 

records, ODNI will determine whether 

another agency of the Federal 

Government is better able to determine 

whether the record is exempt from 

disclosure under the FOIA. As to any 

such record, the agency will ordinarily 

proceed in one of the following ways: 

(1) When the record originates with 

ODNI but contains information of 

interest to another agency or other 

Federal Government office, ODNI will 

typically consult with that other agency 

or office prior to making a release 

determination. 

(2) When ODNI believes that a 

different agency is best able to 

determine whether to disclose the 

record, ODNI typically will refer the 

record to that agency and ask that 

agency to respond to the requester 

concerning that record (provided the 

other agency is subject to FOIA). 

(i) Ordinarily, the agency that 

originated the record will be presumed 

to be the best agency to make the 

disclosure determination. However, if 

ODNI and the originating agency jointly 

agree that ODNI is in the best position 

to respond regarding the record, then 

the record may be handled as a 

consultation. 

(ii) If another agency accepts 

responsibility for responding to a 

particular record, ODNI will notify the 

requester of the referral. When 

appropriate and available, the notice 

will include a point of contact for the 

other agency. 

(3) The standard referral procedure is 

not appropriate where disclosure of the 

identity of the agency to which the 

referral would be made could harm an 

interest protected by an applicable 

exemption, such as the exemptions that 

protect personal privacy or national 

security interests. For instance, if ODNI 

locates within its file’s materials 

originating with another Intelligence 

Community element, and the 

involvement of that element in the 

matter is classified and not publicly 

acknowledged, then disclosing or 

attributing the involvement of that 

Intelligence Community element could 

cause damage to the national security. 

In such an instance, and to avoid harm 

to an interest protected by an applicable 

exemption, ODNI will coordinate with 

the originating agency to seek its views 

on the disclosure of the record. ODNI 

will then inform the requester of the 

release determination. 

(d) When a request is made for 

information that is classified, ODNI 

must determine whether the 

information is currently and properly 

classified in accordance with applicable 

classification rules. When a request 

involves a record containing classified 

information that has been classified by 

another agency, ODNI will refer that 

portion of the request to the agency that 

originated the information, or has the 

primary interest in it, as appropriate. 

Similarly, when a record contains 

information that ODNI has derivatively 

classified (for example, when ODNI’s 

classification is based on information 

originally classified by another agency), 

ODNI must refer that portion of the 

request to the agency that originally 

classified the underlying information. 

(e) ODNI will notify the requester of 

its determination to grant, deny, or refer 

the FOIA request. ODNI will release 

reasonably segregable, non-exempt 

information. For any adverse 

determination—including those 

regarding any disputed fee matter; a 

denial of a request for a fee waiver; a 

determination to withhold a record in 

whole or in part; a determination that a 

record does not exist or cannot be 

located; or a denial of a request for 

expedited processing—the notice will 

include the following information: 

(1) The name and title or position of 

the person responsible for the 

determination to deny the request in 

whole or in part; 

(2) A brief statement of the reasons for 

the denial, including any FOIA 

exemption applied in denying the 

request. The notice will indicate, if 

feasible, the amount of information 

deleted and the exemption under which 

a deletion is made on the released 

portion of the record, unless including 

that information would harm an interest 

protected by the exemption; 

(3) An estimate of the volume of 

information withheld, if applicable, 

such as the number of pages or some 

other reasonable form of estimation. 

Such an estimate is not required if the 

volume is otherwise indicated by 

deletions marked on records that are 

disclosed in part or if providing an 

estimate would harm an interest 

protected by an applicable FOIA 

exemption; 

(4) A statement that the adverse 

determination may be appealed and a 

description of the requirements for an 

appeal; and 

(5) A statement notifying the requester 

of the assistance available from the 

FOIA Public Liaison, and the dispute 

resolution services offered by OGIS. 

§ 1700.6 Time frames for ODNI responses. 

(a) ODNI will ordinarily respond to 

requests according to their order of 

receipt. 

(b) When evaluating requests, ODNI 

may use two or more processing tracks 

by distinguishing between simple and 

more complex requests based on the 

amount of work or time needed to 

process the request. 

(c) Subject to paragraphs (e) and (f) of 

this section, ODNI will respond to a 

FOIA request within 20 days after 

receipt of the request. A request is 

received by ODNI, for purposes of 

commencing the 20-day time frame for 

its response, on the day that the request 

is received by the IMO or, in any event, 

not later than ten days after the request 

is first received by any ODNI 

component. 

(d) ODNI must determine whether to 

grant or deny, in whole or in part, an 

administrative appeal submitted in 

accordance with § 1700.7 within 20 

days after receipt of the appeal, unless 

the time frame for a response to an 

appeal is extended in accordance with 

paragraph (e) of this section. 

(e) ODNI may toll the 20-day time 

frame set forth in paragraph (c) or (d) of 

this section for one of the two reasons 

cited below, as permitted by 5 U.S.C. 

552(a)(6)(A)(ii). If ODNI tolls the time 

frame, the tolling period ends upon 

receipt of the requester’s response. 

(1) Once, to await information that the 

ODNI has reasonably requested from the 

requester; or 

(2) As necessary, to clarify with the 

requester issues regarding the fee 

assessment. 

(f) Whenever the statutory time limit 

for processing a request cannot be met 

because of ‘‘unusual circumstances,’’ as 

defined in the FOIA, and ODNI extends 


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the time limit on that basis, ODNI will 

notify the requester in writing, before 

expiration of the 20-day period to 

respond, of the unusual circumstances 

involved and of the date by which 

processing of the request can be 

expected to be completed. Where the 

extension exceeds 10 days, ODNI shall, 

as described by the FOIA, provide the 

requester with an opportunity to modify 

the request or arrange an alternative 

time period for processing. ODNI shall 

make available its designated FOIA 

contact and its FOIA Public Liaison for 

this purpose and notify the requester of 

the dispute resolution services offered 

by OGIS. 

(g) For the purposes of satisfying 

unusual circumstances under the FOIA, 

ODNI may aggregate requests in cases 

where it reasonably appears that 

multiple requests, submitted either by a 

requester or by a group of requesters 

acting in concert, constitute a single 

request that would otherwise involve 

unusual circumstances. ODNI will 

notify the requester(s) of the decision to 

aggregate. 

(h) Requests and appeals shall be 

processed on an expedited basis 

whenever it is determined that they 

involve a compelling need. For this 

purpose, a ‘‘compelling need’’ involves 

either: 

(1) Circumstances in which the lack of 

expedited treatment could reasonably be 

expected to pose an imminent threat to 

the life or physical safety of an 

individual; or 

(2) An urgency to inform the public 

about an actual or alleged Federal 

Government activity, if made by a 

person who is primarily engaged in 

disseminating information. 

(i) A request for expedited processing 

must be in writing and may be made at 

any time. 

(j) A requester who seeks expedited 

processing must submit a statement, 

certified to be true and correct, 

explaining in detail the basis for making 

the request for expedited processing. 

Under this paragraph (h), a requester 

who is not a full-time member of the 

news media must establish that the 

requester is a person whose primary 

professional activity or occupation is 

information dissemination, though it 

need not be the requester’s sole 

occupation. Such a requester also must 

establish a particular urgency to inform 

the public about the government activity 

involved in the request—an urgency 

that extends beyond the public’s right to 

know about government activity 

generally. The existence of numerous 

articles published on a given subject can 

be helpful in establishing the 

requirement that there be an ‘‘urgency to 

inform’’ the public on the topic. As a 

matter of administrative discretion, 

ODNI may waive the formal certification 

requirement. 

(k) The IMO will decide within 10 

days of its receipt of a request for 

expedited processing of its decision 

whether to grant or deny such a request. 

If expedited processing is granted, the 

request shall be given priority, placed in 

the processing track for expedited 

requests, and shall be processed as soon 

as practicable. If a request for expedited 

processing is denied, any appeal of that 

decision shall be acted on 

expeditiously. 

§ 1700.7 Administrative appeals. 

(a) A requester may appeal any 

adverse determination to a person 

designated by the Director of National 

Intelligence (the ‘‘Designee’’). The 

Designee will act on behalf of the 

Director of National Intelligence on all 

appeals under this section. 

(b) An appeal ordinarily will not be 

adjudicated if the request becomes 

subject to litigation. 

(c) The appeal must be transmitted if 

sent by email, or postmarked if sent by 

U.S. mail, within 90 days after the date 

of the adverse determination letter. The 

appeal shall clearly identify the ODNI 

determination that is being appealed, 

including the assigned ODNI case 

request number. For the most 

expeditious handling, the subject line of 

the electronic transmission, or appeal 

letter and envelope, should be marked 

‘‘Freedom of Information Act Appeal.’’ 

(d) On receipt of any appeal involving 

classified information, the Designee 

must take appropriate action to ensure 

compliance with applicable 

classification rules. 

(e) ODNI’s decision on an appeal shall 

be in writing. A decision upholding 

ODNI’s original determination will 

contain a statement that identifies the 

reasons for affirmance, including any 

FOIA exemptions applied. The decision 

will provide the requester with 

notification of the statutory right to file 

a lawsuit and will inform the requester 

of the mediation services offered by 

OGIS as a non-exclusive alternative to 

litigation. If ODNI’s decision is 

remanded or modified on appeal, the 

requester will be notified of that 

determination in writing. ODNI will 

thereafter further process the request in 

accordance with that appeal 

determination. 

§ 1700.8 Procedures for requests 

implicating confidential commercial 

information. 

(a) Definitions: 

(1) Confidential commercial 

information means commercial or 

financial information obtained by ODNI 

from a submitter that may be protected 

from disclosure under Exemption 4 of 

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

(2) Submitter means any person or 

entity, including a corporation, State, or 

foreign government, but not including 

another Federal Government entity, that 

provides information, either directly or 

indirectly, to the Federal Government. 

(b) A submitter of confidential 

commercial information must use good 

faith efforts to designate by appropriate 

markings, either at the time of 

submission or within a reasonable time 

thereafter, any portion of its submission 

that it considers to be protected under 

FOIA Exemption 4. These designations 

shall expire 10 years after the date of the 

submission unless the submitter 

requests and provides justification for a 

longer designation period. 

(c) ODNI will provide the submitter 

with prompt written notice of 

confidential commercial information 

when records containing such 

information are responsive to a FOIA 

request and ODNI determines that it 

may be required to disclose the records. 

The notice shall: 

(1) Give the submitter an opportunity 

to object to disclosure of the 

information, in whole or in part; 

(2) Describe the confidential 

commercial information requested or 

include copies of the requested record(s) 

or record portion(s) containing the 

information; and 

(3) Inform the submitter of the time 

frame in which it must respond to the 

notice. 

(d) ODNI will allow the submitter 

seven days to respond to the notice 

described in paragraph (b) of this 

section. If the submitter objects to the 

disclosure of the information, in whole 

or in part, they must provide ODNI with 

a detailed written statement of the 

objection. The statement must specify 

all grounds for withholding any portion 

of the information under any FOIA 

exemption and, when relying on FOIA 

Exemption 4, it must explain why the 

information is a trade secret, or 

commercial or financial information 

that is privileged and confidential. If the 

submitter fails to respond within the 

time frame specified in the notice or an 

extended time frame if requested by the 

submitter, ODNI will conclude that the 

submitter has no objection to disclosure 

of the information. ODNI will only 

consider information that it receives 

within the time frame specified in the 

notice or an extended time frame if 

requested by the submitter. Any 

information provided by a submitter 

under this Part may itself be subject to 

disclosure under the FOIA. 


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48730 Federal Register / Vol. 88, No. 144 / Friday, July 28, 2023 / Rules and Regulations 

(e) ODNI will consider the submitter’s 

objection and specific grounds for nondisclosure in deciding whether to 

disclose confidential commercial 

information. Whenever ODNI decides to 

disclose information over the 

submitter’s objection, it will provide 

written notice to the submitter that 

includes: 

(1) A statement of the reasons why 

each of the bases for withholding were 

not sustained in whole or in part; 

(2) A description of the information to 

be disclosed; and 

(3) A specified disclosure date, which 

shall be a reasonable time after the 

notice. 

(f) The notice requirements of 

paragraphs (c) and (d) of this section 

shall not apply if: 

(1) ODNI determines that the 

information is exempt under the FOIA; 

(2) The information has been lawfully 

published or has been officially made 

available to the public; 

(3) Disclosure of the information is 

required by statute other than the FOIA 

or by a regulation issued in accordance 

with the requirements of Executive 

Order 12600; or 

(4) The designation made by the 

submitter under paragraph (a) of this 

section appears obviously frivolous. In 

such a case, ODNI shall, within a 

reasonable time prior to the date the 

disclosure will be made, give the 

submitter written notice of the final 

decision to disclose the information. 

(g) Whenever ODNI provides a 

submitter with the notice described in 

paragraph (b) of this section, ODNI also 

will provide notice to the requester that 

notice and an opportunity to object to 

the disclosure are being provided to the 

submitter. ODNI also must notify the 

requester when it notifies the submitter 

of its intent to disclose the requested 

information, and whenever a submitter 

files a lawsuit to prevent the disclosure 

of the information. 

§ 1700.9 Fees. 

(a) Search, review, and reproduction 

fees will be charged in accordance with 

the provisions below relating to the 

schedule, limitations, and category of 

requester. Applicable fees will be due 

even if a subsequent search locates no 

responsive records or some or all of the 

responsive records must be denied 

under one or more of the exemptions of 

the FOIA. Requesters must pay fees by 

check or money order made payable to 

the Treasury of the United States. 

(1) ODNI will charge fees that recoup 

the full allowable direct costs it incurs 

in processing a FOIA request. Fees may 

be charged for search, review or 

duplication. As a matter of 

administrative discretion, ODNI may 

release records without charge or at a 

reduced rate whenever ODNI 

determines that the interest of the U.S. 

Government would be served. ODNI 

will use the most efficient and least 

costly methods to comply with a 

request. ODNI may charge for search 

time even if no records are located or 

the records located are exempt from 

disclosure. If ODNI fails to comply with 

the FOIA’s time limits in which to 

respond to a request, it may not charge 

search fees, unless the circumstances 

outlined in paragraph (o) of this section 

are met. 

(2) [Reserved] 

manual searches for records, ODNI will 

charge the salary rate(s) (calculated as 

the basic rate of pay plus 16 percent of 

that basic rate to cover benefits) of the 

employee(s) performing the search. 

(c) In calculating charges for computer 

searches for records, ODNI will charge 

the actual direct cost of providing the 

service, including the cost of operating 

computers and other electronic 

equipment, such as photocopiers and 

scanners, directly attributable to 

searching for records potentially 

responsive to the FOIA request and the 

portion of the salary of the operators/ 

programmers performing the search. 

(d) ODNI may only charge requesters 

seeking records for commercial use for 

time spent reviewing records to 

determine whether they are exempt 

from mandatory disclosure. Charges 

may be assessed only for the initial 

review—that is, the review undertaken 

the first time IRRG staff analyzes the 

applicability of a specific exemption to 

a particular record or portion of a 

record. Records or portions of records 

withheld in full under an exemption 

that is subsequently determined not to 

apply may be reviewed again to 

determine the applicability of other 

exemptions not previously considered. 

ODNI may assess the costs for such 

subsequent review. No charge will be 

made for review at the administrative 

appeal stage of exemptions applied at 

the initial review stage. 

(e) Records will be duplicated at a rate 

of $.50 per page, except that ODNI may 

adjust this rate from time to time by rule 

published in the Federal Register. For 

copies prepared by computer, such as 

tapes, CDs, DVDs, or printouts, ODNI 

will charge the actual cost, including 

operator time, of production. For other 

methods of reproduction or duplication, 

ODNI will charge the actual direct costs 

of producing the document(s). If ODNI 

estimates that duplication charges are 

likely to exceed $25.00, it will notify the 

requester of the estimated amount of 

fees, unless the requester indicated in 

advance their willingness to pay fees as 

high as those anticipated. The notice 

will offer an opportunity to confer with 

IRRG staff to reformulate the request to 

meet the requester’s needs at a lower 

cost. If ODNI notifies a requester that 

the actual or estimated fees are in excess 

of $25.00, the request will not be 

considered received and further work 

will not be completed until the 

requester commits in writing to pay the 

actual or estimated total fee, or 

designate some amount of fees they are 

willing to pay, or in the case of a noncommercial use requester who has not 

yet been provided with their statutory 

entitlements, the requester designates 

that they seek only that which can be 

provided by the statutory entitlements. 

The ODNI’s IRRG staff or FOIA Public 

Liaison are available to assist requesters 

with reformulating requests to meet 

their needs at a lower cost. 

(f) ODNI will charge the requester the 

full costs of providing them with the 

following services: 

(1) Certifying that records are true 

copies; or 

(2) Sending records by special 

methods such as express mail. 

(g) ODNI may assess interest charges 

on an unpaid bill starting on the 31st 

calendar day following the day on 

which the bill was sent. Interest shall be 

at the rate prescribed in 31 U.S.C. 3717 

and will accrue from the date of the 

billing until payment is received by 

ODNI. 

(h) ODNI will not charge a search fee 

for requests by educational institutions, 

non-commercial scientific institutions, 

or representatives of the news media. A 

search fee will be charged for a 

commercial use request. 

(i) ODNI will not charge duplication 

fees for requests by educational 

institutions, non-commercial scientific 

institutions, or representatives of the 

news media for a non-commercial use 

request if ODNI fails to comply with the 

FOIA’s time limits in which to respond 

to a request. 

(j) Except for a commercial use 

request, ODNI will not charge for the 

first 100 pages of duplication and the 

first two hours of search. 

(k) A requester may not file multiple 

requests, each seeking portions of a 

record or records, solely for the purpose 

of avoiding payment of fees. When 

ODNI reasonably believes that a 

requester, or a group of requesters acting 

in concert, has submitted requests that 

constitute a single request involving 

clearly related matters, ODNI may 

aggregate those requests and charge 

accordingly. 

(l) ODNI may not require a requester 

to make payment before ODNI begins 


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Federal Register / Vol. 88, No. 144 / Friday, July 28, 2023 / Rules and Regulations 48731 

work to satisfy the request or to 

continue work on a request, unless: 

(1) ODNI estimates or determines that 

the allowable charges that the requester 

may be required to pay are likely to 

exceed $250.00; or 

(2) The requester has previously failed 

to pay a fee charged within 30 calendar 

days of the date of billing. 

(m) In cases in which ODNI requires 

advance payment, the request will not 

be considered received and further work 

will not be completed until the required 

payment is received. If the requester 

does not pay the advance payment 

within 30 calendar days after the date of 

ODNI’s fee determination, the request 

will be closed. 

(1) Upon completion of all required 

review and the receipt of accrued fees 

(or promise to pay fees), ODNI will 

promptly inform the requester in 

writing of those records or portions of 

records that will be released and those 

that will be denied. 

(2) For records to be released, ODNI 

will provide paper copies or records on 

electronic media, if requested and 

available. 

(3) For records not released or 

partially released, ODNI shall explain 

the reasons for any denial and give 

notice of a right of administrative 

appeal. For partial releases, redactions 

will be applied to ensure requesters can 

see the placement and general length of 

withholdings with the applicable 

exemption(s) clearly with respect to 

each withholding. 

(n) Fee waiver requests and appeals. 

Upon written request, ODNI may waive 

or reduce fees that are otherwise 

chargeable under this part. If a fee 

waiver or reduction in fees is requested, 

the requester must demonstrate that a 

waiver or reduction in fees is in the 

public interest because disclosure of the 

requested records is likely to contribute 

significantly to the public 

understanding of the operations or 

activities of the government and is not 

primarily in the requester’s commercial 

interest. After processing, actual fees 

must exceed $25.00 for ODNI to require 

payment of fees. Appeals should be 

resolved prior to the initiation of 

processing and the incurring of costs. 

However, fee waiver requests will be 

accepted at any time prior to ODNI’s 

decision regarding the request, except 

when processing has been initiated. 

(o) If the ODNI has determined that 

unusual circumstances, as defined by 

the FOIA, apply and more than 5,000 

pages are necessary to respond to the 

request, the ODNI may charge search 

fees, or, in the case of requesters 

described in paragraph (h) of this 

section, may charge duplication fees, if 

the following steps are taken. 

(1) The ODNI must have provided 

timely written notice of unusual 

circumstances to the requester in 

accordance with the FOIA and ODNI 

must have discussed with the requester 

via written mail, email, or telephone (or 

made not less than three good-faith 

attempts to do so) how the requester 

could effectively limit the scope of the 

request in accordance with 5 U.S.C. 

552(a)(6)(B)(ii). 

(2) If this exception is satisfied, the 

ODNI may charge all applicable fees 

incurred in the processing of the 

request. 

§ 1700.10 Other rights and services. 

Nothing in this part shall be 

construed so as to enlarge, diminish, 

modify, or alter the powers or authority 

of the ODNI; or construed to entitle any 

person, as of right, to any service or to 

the disclosure of any record to which 

such person is not entitled under the 

FOIA. 

Dated: July 7, 2023. 

Gregory M. Koch, 

Director, Information Management Office, 

Chief Operating Officer, Office of the Director 

of National Intelligence. 

[FR Doc. 2023–15512 Filed 7–27–23; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2023–0605] 

Security Zones; Seattle’s Seafair Fleet 

Week Moving Vessels, Puget Sound, 

WA 

AGENCY: Coast Guard, DHS. 

ACTION: Notification of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

Seattle’s Seafair Fleet Week Moving 

Vessels security zones from August 1 

through August 7, 2023, to ensure the 

security of the vessels from sabotage or 

other subversive acts during Seafair 

Fleet Week Parade of Ships. Our 

regulation for marine events within the 

Thirteenth Coast Guard District 

identifies the regulated area for this 

event in Seattle, WA. During the 

enforcement period, no person or vessel 

may enter or remain in the security 

zones without the permission of the 

Captain of the Port (COTP), Puget Sound 

or his designated representative. The 

COTP has granted general permission 

for vessels to enter the outer 400 yards 

of the security zones as long as those 

vessels within the outer 400 yards of the 

security zones operate at the minimum 

speed necessary to maintain course 

unless required to maintain speed by 

the navigation rules. 

DATES: The regulations in 33 CFR 

165.1333 will be enforced for the 

security zones identified in the 

SUPPLEMENTARY INFORMATION section 

below for the dates and times specified. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this 

notification of enforcement, call or 

email MST1 Steve Barnett, Sector Puget 

Sound Waterways Management 

Division, U.S. Coast Guard; telephone 

206–217–6051, email 

SectorPugetSoundWWM@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce the security zones 

for Seattle’s Seafair Fleet Week Moving 

Vessels in 33 CFR 165.1333 for the 

regulated areas in the Elliott Bay from 

11:30 a.m. on August 1, 2023, through 

5 p.m. on August 7, 2023. This action 

is being taken to ensure the security of 

the vessels from sabotage or other 

subversive acts during this event. Our 

regulation for marine events within the 

Thirteenth Coast Guard District, 

§ 165.1333, specifies the location of the 

regulated area in the Puget Sound 

around the participating vessels 

designated in this notice. 

During the enforcement period, as 

reflected in § 165.1333, no person or 

vessel may enter or remain in the 

security zones without the permission 

of the COTP or a designated 

representative. The COTP may be 

assisted by other federal, state or local 

agencies with the enforcement of the 

security zones. For 2023, the following 

areas are § 165.1333 security zones: all 

navigable waters within 500 yards of 

USS JOHN S. McCAIN (CG–56), USCGC 

HENRY BLAKE (WLM–563), USCGC 

ROBERT WARD (WPC–1130), USCGC 

WAHOO (WPB–87345), HMCS 

YELLOWKNIFE (MM–706), HMCS 

EDMONTON (MM–703), HMCS 

NANAIMO (MM–702), while each such 

vessel is in the Sector Puget Sound 

COTP Zone. 

The COTP has granted general 

permission for vessels to enter the outer 

400 yards of the security zones as long 

as those vessels within the outer 400 

yards of the security zones operate at 

the minimum speed necessary to 

maintain course unless required to 

maintain speed by the navigation rules. 

All vessel operators who desire to enter 

the inner 100 yards of the security zones 

or transit the outer 400 yards at greater 


lotter on DSK11XQN23PROD with RULES1