53542 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations 

and the Office of Management and 

Budget regarding review of tax 

regulations. Pursuant to the Regulatory 

Flexibility Act (5 U.S.C. chapter 6), it is 

hereby certified that these regulations 

will not have a significant economic 

impact on a substantial number of small 

entities. The regulations, which 

prescribe a fee to obtain a particular 

service, affect decedents’ estates, which 

generally are not ‘‘small entities’’ as 

defined under 5 U.S.C. 601(6). In 

addition, the dollar amount of the fee 

($67 as currently determined) is not 

substantial enough to have a significant 

economic impact on any entities 

(including small entities) that could be 

affected by establishing such a fee. 

Accordingly, the Secretary of the 

Treasury’s delegate certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities. 

Pursuant to section 7805(f) of the 

Code, the proposed regulations (85 FR 

86871) preceding these regulations were 

submitted to the Chief Counsel for the 

Office of Advocacy of the Small 

Business Administration for comment 

on their impact on small business. No 

comments on the proposed regulations 

were received from the Chief Counsel 

for the Office of Advocacy of the Small 

Business Administration. 

Statement of Availability of IRS 

Documents 

IRS Revenue Procedures, Revenue 

Rulings, Notices, and other guidance 

cited in this document are published in 

the Internal Revenue Bulletin (or 

Cumulative Bulletin) and are available 

from the Superintendent of Documents, 

U.S. Government Publishing Office, 

Washington, DC 20402, or by visiting 

the IRS website at https://www.irs.gov. 

Drafting Information 

The principal author of these 

regulations is Juli Ro Kim of the Office 

of Associate Chief Counsel 

(Passthroughs and Special Industries). 

Other personnel from the Treasury 

Department and the IRS participated in 

the development of the regulations. 

List of Subjects in 26 CFR Part 300 

Estate taxes, Excise taxes, Gift taxes, 

Income taxes, Reporting and 

recordkeeping requirements, User fees. 

Adoption of Amendments to the 

Regulations 

Accordingly, 26 CFR part 300 is 

amended as follows: 

PART 300—USER FEES 

■ Paragraph 1. The authority citation 

for part 300 continues to read as 

follows: 

Authority: 31 U.S.C. 9701. 

■ Par. 2. Section 300.0 is amended by 

adding paragraph (b)(13) to read as 

follows: 

§ 300.0 User fees; in general. 

* * * * * 

(b) * * * 

(13) Requesting an estate tax closing 

letter. 

■ Par. 3. Section 300.13 is added to read 

as follows: 

§ 300.13 Fee for estate tax closing letter. 

(a) Applicability. This section applies 

to the request by a person described in 

paragraph (c) of this section for an estate 

tax closing letter from the IRS. 

(b) Fee. The fee for issuing an estate 

tax closing letter is $67. 

(c) Person liable for the fee. The 

person liable for the fee is the estate of 

the decedent or other person requesting, 

in accordance with applicable 

procedures and policies, an estate tax 

closing letter to be issued with respect 

to the estate. 

(d) Applicability date. This section 

applies to requests for estate tax closing 

letters received by the IRS on or after 

October 28, 2021. 

Douglas W. O’Donnell, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: September 22, 2021. 

Mark J. Mazur, 

Acting Assistant Secretary of the Treasury 

(Tax Policy). 

[FR Doc. 2021–21029 Filed 9–27–21; 8:45 am] 

BILLING CODE 4830–01–P 

FEDERAL MEDIATION AND 

CONCILIATION SERVICE 

29 CFR Part 1401 

RIN 3076–AA13 

Production or Disclosure of 

Information 

AGENCY: Federal Mediation and 

Conciliation Service. 

ACTION: Final rule. 

SUMMARY: The Federal Mediation and 

Conciliation Service (FMCS) issues a 

final rule amending its existing 

regulations under the Freedom of 

Information Act (‘‘FOIA’’) to reflect 

amendments to the FOIA by the 

Freedom of Information Improvement 

Act of 2016 (the ‘‘FOIA Improvement 

Act’’). 

DATES: This final rule is effective 

September 28, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Alisa Silverman, Attorney-Advisor, 

Office of General Counsel, Federal 

Mediation and Conciliation Service, 250 

E St. SW, Washington, DC 20427; 

Office/Fax/Mobile 202–606–5488; 

asilverman@fmcs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The FOIA was enacted to give the 

public a right to access records held by 

the executive branch that, although not 

classified, were not otherwise available 

to them. Since its enactment in 1966, 

the FOIA has been amended on a 

number of occasions to adapt to the 

times and changing priorities. On June 

30, 2016, President Obama signed the 

Freedom of Information (‘‘FOIA’’) 

Improvement Act of 2016 (the ‘‘FOIA 

Improvement Act’’). Among other 

things, the FOIA Improvement Act 

requires that agencies (i) make records 

that have been both released previously 

and requested three or more times 

available to the public in electronic 

format, (ii) establish a minimum of 

ninety days for requestors to appeal an 

adverse determination, and (iii) provide, 

or direct requestors to, dispute 

resolution services at various times 

throughout the FIOA process. The FOIA 

Improvement Act also updates how 

agencies may charge search duplication 

and review fees. After undertaking a 

review of its FOIA regulations in 

accordance with the FOIA Improvement 

Act, FMCS is revising its FOIA 

regulations, 29 CFR part 1401, subpart 

B, to incorporate the statutory mandates. 

II. Discussion of Amendments Section 

by Section 

The following paragraphs describe the 

specific changes adopted by this 

rulemaking. 

In § 1401.20, FMCS removes the 

current language to add language that 

ensures this section is read with the text 

of the FOIA and the Uniform Freedom 

of Information Act Fee Schedule and 

Guidelines published by the Office of 

Management and Budget (‘‘OMB 

Guidelines’’). The added language will 

also align with the Privacy Act of 1974, 

5 U.S.C. 552a, for requests made by 

individuals. 

In § 1401.21, FMCS removes the 

current language in paragraph (a) to add 

language to include requirements that 

will make requests available for public 

inspection on its website if the 

information has been requested for 3 or 

Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations 53543 

more times and to make the public 

aware that FMCS has a FOIA Public 

Liaison that will locate records for a 

request. FMCS removes language in 

paragraph (b) to add language to account 

for the foreseeable harm threshold 

standard that gives FMCS the ability to 

withhold information if FMCS 

‘‘reasonably foresees’’ the information 

would harm interest protected by an 

exemption or otherwise allowed by law. 

FMCS removes language in paragraph 

(c) to add language regarding partial 

disclosures, full disclosures, and 

inextricably intertwined records. FMCS 

removes paragraphs (d) and (e) becomes 

the new paragraph (d). 

In § 1401.22, FMCS removes the 

current language to add the section 

titled Requirements for Making 

Requests. It adds paragraphs (a)(1), (2), 

and (3), (b), (c), and (d) to include 

FMCS’ contact information for making 

requests, requester requirements, 

requests from requesters seeking 

information pertaining to another 

individual, what information should be 

included in a request and the preferred 

format, and requester providing contact 

information for requests. 

In § 1401.23, FMCS removes the 

current language to add the section 

titled Responsibility for Responding to 

Requests. It adds paragraphs (a), (b), (c) 

introductory text, (c)(1), (2), and (3), (d), 

and (e) to include information regarding 

FMCS’ responsibilities in responding to 

requests. 

FMCS adds the following sections in 

accordance with the 2016 FOIA 

Improvement Act: 

• § 1401.24 Timing of responses to 

requests. 

• § 1401.25 Responses to requests. 

• § 1401.26 Confidential commercial 

information (‘‘CCI’’). 

• § 1401.27 Appeals. 

• § 1401.28 Preservation of records. 

• § 1401.29 Fees. 

In § 1401.30, FMCS removes the 

current language to add language that 

doesn’t entitle any person to service or 

disclosure of any records which a 

person isn’t entitled to under the FOIA. 

FMCS removes §§ 1401.31, 1401.32, 

1401.33, 1401.34, 1401.35, and 1401.36 

because the information in these 

sections was consolidated into other 

sections in revised subpart B. 

III. Rulemaking Procedure 

Under the Administrative Procedures 

Act (5 U.S.C. 553(b)), an agency may 

waive the normal notice and comment 

requirements if it finds, for good cause, 

that they are impracticable, 

unnecessary, or contrary to the public 

interest. As authorized by 5 U.S.C. 

553(b)(3)(B), FMCS finds good cause the 

waive notice and opportunity for 

comment on the amendments. Notice 

and opportunity for comment are 

unnecessary, because the FMCS is 

issuing this final rule for the limited 

purpose of complying with specific 

direction in the Act requiring agencies 

to update their FOIA regulations in 

accordance with the Act, and the final 

rule updates FMCS regulations only as 

necessary to bring them into compliance 

with the Act. 

IV. Plain Writing 

The Plain Writing Act of 2010 (Pub. 

L. 111–274) requires Federal agencies to 

write documents in a clear, concise, and 

well-organized manner. FMCS has 

written this document to be consistent 

with the Plain Writing Act as well as the 

Presidential Memorandum, ‘‘Plain 

language in Government Writing,’’ 

published June 10, 1998 (62 FR 31883). 

V. National Environmental Policy Act 

FMCS has determined that this final 

rule is the type of action described in 

categorical exclusion 10 CFR 

51.22(c)(1). Therefore, neither an 

environmental impact statement nor an 

environmental assessment has been 

prepared for this final rule. 

VI. Paperwork Reduction Act 

This final rule does not contain a 

collection of information as defined in 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 33501 et seq.) and, therefore, 

is not subject to the requirements of the 

Paperwork Reduction Act of 1995. 

VII. Congressional Review Act 

This final rule is a rule defined in the 

Congressional Review Act (5 U.S.C. 

801–808). However, the Office of 

Management and Budget has not found 

it to be a major rule as defined in the 

Congressional Review Act. 

List of Subjects in 29 CFR Part 1401 

Administrative practice and 

procedure, Fees, Freedom of 

information, Privacy. 

For the reasons discussed in the 

preamble, and under the authority 29 

U.S.C. 172 of the Taft Harley Act of 

1947 and the FOIA Improvement Act, 

FMCS amends 29 CFR part 1401 as 

follows: 

PART 1401—PUBLIC INFORMATION 

■ 1. The authority citation for part 1401 

continues to read as follows: 

Authority: Sec. 202, 61 Stat. 136, as 

amended; 5 U.S.C. 552. 

■ 2. Revise subpart B to read as follows: 

Subpart B—Production or Disclosure 

of Information 

Sec. 

1401.20 Purpose and scope. 

1401.21 Proactive disclosures and other 

disclosure requirements. 

1401.22 Requirements for making requests. 

1401.23 Responsibility for responding to 

requests. 

1401.24 Timing of responses to requests. 

1401.25 Responses to requests. 

1401.26 Confidential commercial 

information (‘‘CCI’’). 

1401.27 Appeals. 

1401.28 Preservation of records. 

1401.29 Fees. 

1401.30 Other rights and services. 

§ 1401.20 Purpose and scope. 

This subpart contains the rules that 

the Federal Mediation and Conciliation 

Service (‘‘FMCS’’ or ‘‘the Agency’’) 

follows in processing requests for 

records under the Freedom of 

Information Act (‘‘FOIA’’), 5 U.S.C. 552. 

The regulations in this subpart should 

be read in conjunction with the text of 

the FOIA and the Uniform Freedom of 

Information Act Fee Schedule and 

Guidelines published by the Office of 

Management and Budget (‘‘OMB 

Guidelines’’). Requests made by 

individuals for records about 

themselves under the Privacy Act of 

1974, 5 U.S.C. 552a, are processed in 

accordance with Privacy Act criteria as 

well as under this subpart. 

§ 1401.21 Proactive disclosures and other 

disclosure requirements. 

(a) The FMCS will make available for 

public inspection in an electronic 

format on the Agency’s website any 

record that has been requested 3 or more 

times. The Agency has a FOIA Public 

Liaison who can assist individuals in 

locating records particular to an agency. 

The FMCS FOIA Public Liaison’s 

contact information is available on the 

FMCS FOIA web page (www.fmcs.gov/ 

foia). 

(b) The FMCS will withhold 

information under FOIA only if the 

Agency ‘‘reasonably foresees’’ that 

disclosure would harm an interest 

protected by an exemption or as 

otherwise allowed by law. 

(c) Partial disclosures are appropriate 

for use by the FMCS when full 

disclosure is inappropriate or 

impossible. If a record contains both 

disclosable and exempt information, the 

exempt information will be redacted 

and the remaining record will be 

disclosed unless the two are so 

inextricably intertwined that it is not 

possible to separate them. Records 

disclosed in part shall be marked or 

annotated to show both the amount and 

53544 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations 

the location of the information redacted 

and the applicable exemption. 

(d) All existing FMCS records are 

subject to disposition according to 

Agency record retention schedules and 

the General Records Schedules 

promulgated by the National Archives 

and Records Administration. 

§ 1401.22 Requirements for making 

requests. 

(a) General information. (1) A 

requester can submit requests through 

one of the following ways: Submitting a 

request through the public portal on the 

FMCS FOIA website; sending an 

electronic request to the Office of 

General Counsel, foia@fmcs.gov; or 

writing directly to the FMCS FOIA 

office at 250 E Street SW, Washington, 

DC 20427. Any additional requirements 

for submitting a request to the Agency 

are listed in paragraphs (a)(2) and (3) of 

this section and in the submitted form 

available by selecting ‘‘FOIA’’ at the 

bottom of the FMCS website 

www.fmcs.gov/foia. 

(2) A requester who is making a 

request for records about the requester 

must comply with the verification of 

identity requirements as determined by 

the FMCS to include providing 

documentation and completing a 

verification of identity form. 

(3) Where a request for records 

pertains to another individual, a 

requester may receive greater access by 

submitting either a notarized 

authorization signed by that individual 

or a declaration made in compliance 

with the requirements set forth in 28 

U.S.C. 1746 by that individual 

authorizing disclosure of the records to 

the requester, or by submitting proof 

that the individual is deceased (e.g., a 

copy of a death certificate or an 

obituary). As an exercise of 

administrative discretion, the Agency 

can require a requester to supply 

additional information, if necessary, to 

verify that a particular individual has 

consented to disclosure. 

(b) Description of records sought. 

Requesters must describe the records 

sought in sufficient detail to enable 

agency personnel to locate them with a 

reasonable amount of effort. To the 

extent possible, requesters should 

include specific information that may 

help the Agency identify the requested 

records, such as the date, title or name, 

author, recipient, subject matter of the 

record, case number, file designation, or 

reference number. Before submitting 

requests, requesters may contact the 

Agency’s FOIA Public Liaison, as 

identified at www.fmcs.gov/foia, to 

discuss the records they seek and to 

receive assistance in describing the 

records. If after receiving a request the 

FMCS determines that it does not 

reasonably describe the records sought, 

the FMCS will 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 FMCS’s response to the request may 

be delayed. 

(c) Format for requests. Requests may 

specify the preferred form or format 

(including electronic formats) for the 

records. The FMCS will accommodate 

the request if the record is readily 

reproducible in that form or format. 

(d) Content of requests. Requesters 

must provide contact information, such 

as their full name, organization, phone 

number, email address, and/or mailing 

address, to assist the Agency in 

communicating with them and 

providing released records. 

§ 1401.23 Responsibility for responding to 

requests. 

(a) In general. Where the FMCS first 

receives a request for a record and 

maintains that record, it is responsible 

for responding to the request. In 

determining which records are 

responsive to a request, the Agency 

ordinarily will include only records in 

its possession as of the date that it 

begins its search. If any other date is 

used, the Agency must inform the 

requester of that date. If the FMCS uses 

any other date due to needing to clarify 

the request or obtain a fee agreement, it 

must inform the requester of that date. 

A record that is excluded from the 

requirements of the FOIA, pursuant to 5 

U.S.C. 552(c), is not considered 

responsive to a request. 

(b) Authority to grant or deny 

requests. The Director of FMCS or 

designee is authorized to grant or to 

deny any requests for records that are 

maintained by the Agency. 

(c) Consultation, referral, and 

coordination. When reviewing records 

in response to a request, the Agency 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 must 

proceed in one of the following ways: 

(1) Consultation. When records 

originated with the agency processing 

the request but contain information of 

interest to another agency or other 

Federal Government office, the FMCS 

will generally consult with that other 

entity prior to making a release 

determination. 

(2) Referral. (i) Ordinarily, when the 

FMCS is the originating agency, it is 

presumed to be in the best position to 

make the disclosure determination. 

When the FMCS believes that a different 

agency is best able to determine whether 

to disclose the record, the FMCS 

typically will request the other agency 

make the final response to the requester. 

(ii) Whenever the FMCS refers any 

part of the responsibility for responding 

to a request to another agency, it will 

document the referral, maintain a copy 

of the record that it refers, and notify the 

requester of the referral, informing the 

requester of the name(s) of the agency to 

which the record was referred, 

including that agency’s FOIA contact 

information. 

(3) Coordination. The standard 

referral procedure in paragraph (c)(2) of 

this section will not be followed 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. In 

such instances, FMCS would coordinate 

with the originating agency to seek its 

views on whether the records should be 

exempt from disclosure. FMCS will 

issue the final response to the requester. 

(d) Classified information. On receipt 

of any request involving classified 

information, the FMCS will determine 

whether the information is currently 

and properly classified in accordance 

with applicable classification rules. 

Whenever a request involves a record 

containing information that has been 

classified or may be appropriate for 

classification by another agency under 

any applicable executive order 

concerning the classification of records, 

FMCS must refer the responsibility for 

responding to the request regarding that 

information to the agency that classified 

the information, or that should consider 

the information for classification. 

Whenever the FMCS’s record contains 

information that has been derivatively 

classified (for example, when it contains 

information classified by another 

agency), the FMCS must refer the 

responsibility for responding to that 

portion of the request to the agency that 

classified the underlying information. 

(e) Timing of responses to 

consultations and referrals. All 

consultations and referrals received by 

the FMCS will be handled according to 

the date that the first agency received 

the perfected FOIA request. 

§ 1401.24 Timing of responses to 

requests. 

(a) In general. The FMCS ordinarily 

will respond to requests according to 

their order of receipt. A request may be 

made directly to the FMCS by referring 

to procedures described on 

Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations 53545 

www.fmcs.gov or by email to foia@

fmcs.gov. 

(b) Timing of response. The obligation 

to respond to a request for records arises 

on the first business day when the 

request is received by the Office of 

General Counsel. 

(c) Multi-track processing. FMCS 

designates a specific track for requests 

that are granted expedited processing, in 

accordance with the standards set forth 

in paragraph (e) of this section. FMCS 

may also designate additional 

processing tracks that distinguish 

between simple and more complex 

requests based on the estimated amount 

of work or time needed to process the 

request. Among the factors an agency 

may consider are the number of records 

requested, the number of pages involved 

in processing the request, and the need 

for consultations or referrals. FMCS 

must advise requesters of the track into 

which their request falls and, when 

appropriate, should offer the requesters 

an opportunity to narrow or modify 

their request so that it can be placed in 

a different processing track. 

(d) Unusual circumstances. Whenever 

the FMCS cannot meet the statutory 

time limit for processing a request 

because of ‘‘unusual circumstances,’’ as 

defined in the FOIA, and the FMCS 

extends the time limit on that basis, the 

FMCS must, before expiration of the 20- 

day response period, notify the 

requester in writing of the unusual 

circumstances involved and of the date 

by which the Agency estimates it will 

complete processing of the request. 

Where the extension exceeds 10 

working days, the FMCS will provide 

the requester with an opportunity to 

modify the request or arrange an 

alternative time period for processing 

the original or modified request. The 

FMCS will make available its designated 

FOIA contact or its FOIA Public Liaison 

for this purpose. The name and contact 

information for the FMCS’s FOIA Public 

Liaison is available at www.fmcs.gov by 

selecting FOIA at the bottom of the 

screen. FMCS will also alert requesters 

to the availability of the Office of 

Government Information Services to 

provide dispute resolution services. 

Whenever the FMCS extends the time 

limits by more than ten additional 

working days, the FMCS must notify the 

requester of the right to seek dispute 

resolution services from the Office of 

the Government Information Services 

(OGIS). 

(e) Aggregating requests. To satisfy 

unusual circumstances under the FOIA, 

agencies 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. Agencies cannot 

aggregate multiple requests that involve 

unrelated matters. 

(f) Expedited processing. (1) The 

Agency will process requests and 

appeals on an expedited basis whenever 

it is determined that they involve: 

(i) Circumstances in which the lack of 

expedited processing could reasonably 

be expected to pose an imminent threat 

to the life or physical safety of an 

individual; or 

(ii) An urgency to inform the public 

about an actual or alleged Federal 

Government activity, if made by a 

person who is primarily engaged in 

disseminating information. 

(2) A request for expedited processing 

may be made at any time. When making 

a request for expedited processing of an 

administrative appeal, the request 

should be submitted to the FMCS’s 

Office of the Director via foia@fmcs.gov 

or through the online portal located at 

www.fmcs.gov/foia. 

(3) A requester who seeks expedited 

processing must submit a statement, 

certified to be true and correct, 

explaining in detail the basis for making 

the request for expedited processing. 

For example, under paragraph (c) of this 

section, a requester who is not a fulltime member of the news media must 

establish that the requester is a person 

whose primary professional activity or 

occupation is information 

dissemination, though it need not be the 

requester’s sole occupation. Such a 

requester also must establish a 

particular urgency to inform the public 

about the government activity involved 

in the request—one that extends beyond 

the public’s right to know about 

government activity generally. The 

existence of numerous articles 

published on a given subject can be 

helpful in establishing the requirement 

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

public on the topic. As a matter of 

administrative discretion, the FMCS 

may waive the formal certification 

requirement in this paragraph (f)(3). 

(4) The FMCS must notify the 

requester within 10 calendar days of the 

receipt of a request for expedited 

processing of its decision whether to 

grant or deny expedited processing. If 

expedited processing is granted, the 

request must be given priority, placed in 

the processing track for expedited 

requests, and must be processed as soon 

as practicable. If a request for expedited 

processing is denied, the FMCS must act 

on any appeal of that decision 

expeditiously. 

§ 1401.25 Responses to requests. 

(a) In general. To the extent 

practicable, the FMCS will 

communicate electronically with 

requesters. 

(b) Acknowledgments of requests. The 

FMCS will acknowledge a request in 

writing and assign it an individualized 

tracking number if it will take longer 

than 10 working days to process. 

(c) Estimated dates of completion and 

interim responses. Upon request, the 

Agency will provide an estimated date 

by which it expects to provide a 

response to the requester. If a request 

involves a voluminous amount of 

material, or searches in multiple 

locations, the FMCS may provide 

interim responses, releasing the records 

on a rolling basis. 

(d) Grants of requests (fees). Once the 

Agency determines it will grant a 

request in full or in part, it will notify 

the requester in writing. The Agency 

will also inform the requester of any 

fees charged under § 1401.30 and will 

disclose the requested records to the 

requester promptly upon payment of 

any applicable fees. The Agency will 

inform the requester of the availability 

of its FOIA Public Liaison to offer 

assistance. 

(e) Adverse determinations of 

requests. If the Agency makes an 

adverse determination denying a request 

in any respect, it must notify the 

requester of that determination in 

writing. Adverse determinations, or 

denials of requests, include decisions 

that: The requested record is exempt, in 

whole or in part; the request does not 

reasonably describe the records sought; 

the information requested is not a 

record subject to the FOIA; the 

requested record does not exist, cannot 

be located, or has been destroyed; or the 

requested record is not readily 

reproducible in the form or format 

sought by the requester. Adverse 

determinations also include denials 

involving fees or fee waiver matters or 

denials of requests for expedited 

processing. 

(f) Content of denial. The denial must 

be signed by the head of the Agency or 

designee and 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 any FOIA 

exemption applied by the Agency in 

denying the request; 

(3) An estimate of the volume of any 

records or information withheld, such 

as the number of pages or some other 

reasonable form of estimation, although 

such an estimate is not required if the 

volume is otherwise indicated by 

deletions marked on records that are 

53546 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations 

disclosed in part or if providing an 

estimate would harm an interest 

protected by an applicable exemption; 

(4) A statement that the denial may be 

appealed under § 1401.27, and a 

description of the appeal requirements; 

and 

(5) A statement notifying the requester 

of the assistance available from the 

Agency’s FOIA Public Liaison, and the 

dispute resolution services offered by 

Office of Government Information 

Services. 

(g) Markings on released documents. 

Records disclosed in part must be 

marked clearly to show the amount of 

information redacted and the exemption 

under which the redaction was made 

unless doing so would harm an interest 

protected by an applicable exemption. 

The location of the information redacted 

must also be indicated on the record, if 

technically feasible. 

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

event the FMCS identifies records that 

may be subject to exclusion from the 

requirements of the FOIA pursuant to 5 

U.S.C. 552(c), the Agency will confer 

with Department of Justice, Office of 

Information Policy (OIP), to obtain 

approval to apply the exclusion. 

(2) In the event the FMCS applies an 

exclusion, it will maintain an 

administrative record of the process of 

invocation and approval of the 

exclusion by OIP. 

§ 1401.26 Confidential commercial 

information (‘‘CCI’’). 

(a) Definitions. For purposes of this 

section: 

Confidential commercial information 

means information obtained by the 

FMCS from a submitter that may be 

protected from disclosure under 

Exemption 4 of the FOIA, 5 U.S.C. 

552(b)(4). 

Submitter means any person or entity, 

including a corporation, State, or foreign 

government, but not including another 

Federal Government entity, that 

provides confidential commercial 

information, either directly or indirectly 

to the Federal Government. 

(b) Designation of confidential 

commercial information. A submitter of 

confidential commercial information 

must use good faith efforts to designate 

by appropriate markings, at the time of 

submission, any portion of its 

submission that it considers to be 

protected from disclosure under 

Exemption 4. These designations expire 

10 years after the date of the submission 

unless the submitter requests and 

provides justification for a longer 

designation period. 

(c) When notice to submitters is 

required. (1) The FMCS will promptly 

notify the submitter in writing 

whenever such confidential commercial 

information is requested under the 

FOIA and the Agency determines that it 

may be required to disclose the 

information, provided: 

(i) The requested information has 

been designated in good faith by the 

submitter as information considered 

protected from disclosure under 

Exemption 4; or 

(ii) The FMCS has a reason to believe 

that the requested information may be 

protected from disclosure under 

Exemption 4, but has not yet made that 

determination. 

(2) The notice must either describe 

the commercial information requested 

or include a copy of the requested 

records or portions of records 

containing the information. In cases 

involving a voluminous number of 

submitters, the Agency may post or 

publish a notice in a place or manner 

reasonably likely to inform the 

submitters of the proposed disclosure, 

instead of sending individual 

notifications. 

(d) Exceptions to submitter notice 

requirements. The notice requirements 

of this section do not apply if: 

(1) The Agency determines that the 

information is exempt under the FOIA, 

or the information has been lawfully 

published or has been officially made 

available to the public; 

(2) Disclosure of the information is 

required by a statute other than the 

FOIA or by a regulation issued in 

accordance with the requirements of 

Executive Order 12600 of June 23, 1987; 

or 

(3) The designation made by the 

submitter appears obviously frivolous. 

(e) Opportunity to object to disclosure. 

(1) The FMCS must specify a reasonable 

time period within which the submitter 

must respond to the notice referenced in 

paragraph (c) of this section. 

(2) If a submitter has any objections to 

disclosure, it should provide the Agency 

a detailed written statement that 

specifies all grounds for withholding the 

particular information under any 

exemption of the FOIA. In order to rely 

on Exemption 4 as the basis for 

nondisclosure, the submitter must 

explain why the information constitutes 

a trade secret or commercial or financial 

information that is privileged or 

confidential. 

(3) A submitter who fails to respond 

within the time period specified in the 

notice will be considered to have no 

objection to disclosure of the 

information. The FMCS is not required 

to consider any information received 

after the date of any disclosure decision. 

Any information provided by a 

submitter under this subpart may itself 

be subject to disclosure under the FOIA. 

(f) Analysis of objections. The Agency 

must consider a submitter’s objections 

and specific grounds for nondisclosure 

in deciding whether to disclose the 

requested information. 

(g) Notice of intent to disclose. 

Whenever the FMCS decides to disclose 

information over the objection of a 

submitter, it must provide the submitter 

written notice, which must include: 

(1) A statement of the reasons why 

each of the submitter’s disclosure 

objections was not sustained; 

(2) A description of the information to 

be disclosed or copies of the records as 

the Agency intends to release them; and 

(3) A specified disclosure date, which 

must be within a reasonable time after 

the notice. 

(h) Notice of FOIA lawsuit. Whenever 

a requester files a lawsuit seeking to 

compel the disclosure of confidential 

commercial information, the Agency 

must promptly notify the submitter. 

(i) Requester notification. The Agency 

must notify the requester whenever it 

provides the submitter with notice and 

an opportunity to object to disclosure; 

whenever it notifies the submitter of its 

intent to disclose the requested 

information; and whenever a submitter 

files a lawsuit to prevent the disclosure 

of the information. 

§ 1401.27 Appeals. 

(a) Requirements for making an 

appeal. A requester may appeal any 

adverse determinations to the Agency’s 

Deputy Director, FOIA Appeal, Federal 

Mediation and Conciliation Service, 250 

E Street SW, Washington, DC 20427; 

foia@fmcs.gov. Requesters can submit 

appeals by mail, email, or via the online 

portal at www.fmcs.gov/foia. The 

requester must make the appeal in 

writing, clearly identifying the grounds 

therefore and providing any supporting 

documentation. To be considered timely 

it must be postmarked or, in the case of 

electronic submissions, transmitted 

within 90 calendar days after the date of 

the response. The appeal should clearly 

identify the determination that is being 

appealed and the assigned request 

number, if known. To facilitate 

handling, the requester should mark 

both the appeal letter and envelope, or 

subject line of the electronic 

transmission, ‘‘Freedom of Information 

Act Appeal.’’ 

(b) Adjudication of appeals. An 

appeal ordinarily will not be 

adjudicated if the request becomes a 

matter of FOIA litigation. 

(c) Decisions on appeals. The Deputy 

Director of the FMCS or designee will 

provide a decision on an appeal. A 

Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations 53547 

decision that upholds the FMCS’s 

determination in whole or in part must 

contain a statement that identifies the 

reasons for the affirmance, including 

any FOIA exemptions applied. The 

decision must provide the requester 

with notification of the statutory right to 

file a lawsuit and will inform the 

requester of the dispute resolution 

services offered by the OGIS as a nonexclusive alternative to litigation. If the 

decision is remanded or modified on 

appeal, the Deputy Director will notify 

the requester of that determination in 

writing. The Office of General Counsel 

will then further process the request in 

accordance with that appeal 

determination and will respond directly 

to the requester. Alternatively, the 

Deputy Director may decide to modify 

the decision and decide the appeal on 

its merits in a single step. 

(d) Engaging in dispute resolution 

services provided by OGIS. Dispute 

resolution is a voluntary process. If the 

Agency agrees to participate in the 

dispute resolution services provided by 

OGIS, the Deputy Director or designee 

will participate on behalf of the FMCS. 

(e) When appeal is required. Before 

seeking review by a court of the 

Agency’s adverse determination, a 

requester generally must first submit a 

timely administrative appeal. 

§ 1401.28 Preservation of records. 

The FMCS must preserve all 

correspondence pertaining to the 

requests that it receives under this 

subpart, as well as copies of all 

requested records, until final 

disposition of the ‘‘request’’ case: No 

sooner than 91 days after the final 

response is sent to the requester to allow 

for a timely appeal. The Agency must 

not dispose of or destroy records while 

they are the subject of a pending 

request, appeal, or lawsuit under the 

FOIA. 

§ 1401.29 Fees. 

(a) In general. (1) The FMCS will 

charge for processing requests under the 

FOIA in accordance with the provisions 

of this section and with the OMB 

Guidelines. For purposes of assessing 

fees, the FOIA establishes three 

categories of requesters: 

(i) Commercial use requesters; 

(ii) Non-commercial scientific or 

educational institutions or news media 

requesters; and 

(iii) All other requesters. 

(2) Different fees are assessed 

depending on the category. Requesters 

may seek a fee waiver. The Agency will 

consider requests for fee waivers in 

accordance with the requirements in 

subsection (k) of the FOIA. To resolve 

any fee issues that arise under this 

section, the FMCS may contact a 

requester for additional information. 

The Agency is to conduct searches, 

review, and duplication in an efficient 

and cost-effective manner. The FMCS 

ordinarily will collect all applicable fees 

before sending copies of records to a 

requester. Requesters must pay fees by 

check or money order made payable to 

the Treasury of the United States, or by 

another method as determined by the 

Agency. 

(b) Definitions. For purposes of this 

section: 

Commercial use request is a request 

that asks for information for a use or a 

purpose that furthers a commercial, 

trade, or profit interest, which can 

include furthering those interests 

through litigation. The FMCS’s decision 

to place a requester in the commercial 

use category will be made on a case-bycase basis based on the requester’s 

intended use of the information. The 

Agency will notify requesters of their 

placement in this category. 

Direct costs are those expenses that an 

agency incurs in searching for and 

duplicating (and, in the case of 

commercial use requests, reviewing) 

records in order to respond to a FOIA 

request. For example, direct costs 

include the salary of the employee 

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

of pay for the employee, plus 16 percent 

of that rate to cover benefits) and the 

cost of operating electronic equipment, 

such as photocopiers and scanners. 

Direct costs do not include overhead 

expenses such as the costs of space, and 

of heating or lighting a facility. 

Duplication is reproducing a copy of 

a record, or of the information contained 

in it, necessary to respond to a FOIA 

request. Copies can take the form of 

paper, audiovisual materials, or 

electronic records, among others. 

Educational institution is any school 

that operates a program of scholarly 

research. A requester in this fee category 

must show that the request is made in 

connection with the requester’s role at 

the educational institution. The FMCS 

may seek verification from the requester 

that the request is in furtherance of 

scholarly research and will advise 

requesters of their placement in this 

category. 

Noncommercial scientific institution 

is an institution that is not operated on 

a ‘‘commercial’’ basis, as defined in this 

paragraph (b) and that is operated solely 

for the purpose of conducting scientific 

research the results of which are not 

intended to promote any particular 

product or industry. A requester in this 

category must show that the request is 

authorized by and is made under the 

auspices of a qualifying institution and 

that the records are sought to further 

scientific research and are not for a 

commercial use. The FMCS will advise 

requesters of their placement in this 

category. 

Representative of the news media is 

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’’ means 

information that is about current events 

or that would be of current interest to 

the public. Examples of news media 

entities include television or radio 

stations that broadcast news to the 

public at large and publishers of 

periodicals that disseminate news and 

make their products available through a 

variety of means to the general public, 

including news organizations that 

disseminate solely on the internet. A 

request for records supporting the newsdissemination function of the requester 

will not be considered to be for a 

commercial use. Freelance journalists 

who demonstrate a solid basis for 

expecting publication through a news 

media entity will be considered as a 

representative of the news media. A 

publishing contract would provide the 

clearest evidence that publication is 

expected. However, the Agency can also 

consider a requester’s past publication 

record in making this determination. 

The Agency will advise requesters of 

their placement in this category. 

Review is the examination of a record 

located in response to a request in order 

to determine whether any portion of it 

is exempt from disclosure. Review time 

includes processing any record for 

disclosure, such as doing all that is 

necessary to prepare the record for 

disclosure, including the process of 

redacting the record and marking the 

appropriate exemptions. Review costs 

are properly charged even if a record 

ultimately is not disclosed. Review time 

also includes time spent both obtaining 

and considering any formal objection to 

disclosure made by a confidential 

commercial information submitter 

under § 1401.26, but it does not include 

time spent resolving general legal or 

policy issues regarding the application 

of exemptions. 

Search is the process of looking for 

and retrieving records or information 

responsive to a request. Search time 

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

identification of information within 

records and the reasonable efforts 

expended to locate and retrieve 

information from electronic records. 

(c) Charging fees. In responding to 

FOIA requests, the Agency will charge 

53548 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations 

the following fees unless a waiver or 

reduction of fees has been granted under 

paragraph (k) of this section. Because 

the fee amounts provided in paragraphs 

(c)(1) through (3) of this section already 

account for the direct costs associated 

with a given fee type, the FMCS will not 

add any additional costs to charges 

calculated under this section. 

(1) Search. (i) Requests made by 

educational institutions, noncommercial 

scientific institutions, or representatives 

of the news media are not subject to 

search fees. The FMCS will charge 

search fees for all other requesters, 

subject to the restrictions of paragraph 

(d) of this section. The Agency may 

properly charge for time spent searching 

even if it does not locate any responsive 

records or if the Agency determines that 

the records are entirely exempt from 

disclosure. 

(ii) For each quarter hour spent by 

personnel searching for requested 

records, including electronic searches 

that do not require new programming, 

the fees will be charged as follows: 

(A) The Agency will charge the direct 

costs associated with conducting any 

search that requires the creation of a 

new computer program to locate the 

requested records. The Agency will 

notify the requester of the costs 

associated with creating such a program, 

and the requester must agree to pay the 

associated costs before the costs may be 

incurred. 

(B) For requests that require the 

retrieval of records stored by the Agency 

at a Federal records center operated by 

the National Archives and Records 

Administration (NARA), the Agency 

will charge additional costs in 

accordance with the Transactional 

Billing Rate Schedule established by 

NARA. 

(2) Duplication. The FMCS will 

charge duplication fees to all requesters, 

subject to the restrictions of paragraph 

(d) of this section. The Agency must 

honor a requester’s preference for 

receiving a record in a particular form 

or format where the Agency can readily 

reproduce it in the form or format 

requested. Where photocopies are 

supplied, the Agency will provide one 

copy per request at cost ($0.05 per 

page). For copies of records produced 

on tapes, disks, or other media, the 

FMCS will charge the direct costs of 

producing the copy, including operator 

time. Where paper documents must be 

scanned in order to comply with a 

requester’s preference to receive the 

records in an electronic format, the 

requester must also pay the direct costs 

associated with scanning those 

materials. For other forms of 

duplication, the Agency will charge the 

direct costs. 

(3) Review. The Agency will charge 

review fees to requesters who make 

commercial use requests. Review fees 

will be assessed in connection with the 

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

review conducted to determine whether 

an exemption applies to a particular 

record or portion of a record. No charge 

will be made for review at the 

administrative appeal stage of 

exemptions applied at the initial review 

stage. However, if a particular 

exemption is deemed to no longer 

apply, any costs associated with the 

Agency’s re-review of the records in 

order to consider the use of other 

exemptions may be assessed as review 

fees. Review fees will be charged at the 

same rates as those charged for a search 

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

(d) Restrictions on charging fees. (1) 

When the FMCS determines that a 

requester is an educational institution, 

non-commercial scientific institution, or 

representative of the news media, and 

the records are not sought for 

commercial use, it will not charge 

search fees. 

(2) FMCS cannot charge fees: 

(i) If the Agency fails to comply with 

the FOIA’s time limits in which to 

respond to a request, it may not charge 

search fees or, in the instances of 

requests from requesters described in 

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

charge duplication fees, except as 

described in paragraphs (d)(2)(ii) 

through (iv) of this section. 

(ii) If the Agency has determined that 

unusual circumstances as defined by the 

FOIA apply and the Agency provided 

timely written notice to the requester in 

accordance with the FOIA, a failure to 

comply with the time limit shall be 

excused for an additional 10 days. 

(iii) If the Agency 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 Agency may charge search 

fees or, in the case of requesters 

described in paragraph (d)(1) of this 

section, may charge duplication fees, if 

the following steps are taken. The 

Agency must have provided timely 

written notice of unusual circumstances 

to the requester in accordance with the 

FOIA, and the Agency 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). If the exception in this paragraph 

(d)(2)(iii) is satisfied, the Agency may 

charge all applicable fees incurred in 

the processing of the request. 

(iv) If a court has determined that 

exceptional circumstances exist as 

defined by the FOIA, a failure to comply 

with the time limits shall be excused for 

the length of time provided by the court 

order. 

(3) No search or review fees will be 

charged for a quarter-hour period unless 

more than half of that period is required 

for search or review. 

(4) Except for requesters seeking 

records for a commercial use, the FMCS 

will provide without charge: 

(i) The first 100 pages of duplication 

(or the cost equivalent for other media); 

and 

(ii) The first two hours of search. 

(5) No fee will be charged when the 

total fee, after deducting the 100 free 

pages (or its cost equivalent) and the 

first two hours of search, is equal to or 

less than $25.00. 

(e) Notice of anticipated fees in excess 

of $25.00. (1) When the FMCS 

determines or estimates that the fees to 

be assessed in accordance with this 

section will exceed $25.00, the Agency 

must notify the requester of the actual 

or estimated amount of the fees, 

including a breakdown of the fees for 

search, review, or duplication, unless 

the requester has indicated a 

willingness to pay fees as high as those 

anticipated. If only a portion of the fee 

can be estimated readily, the Agency 

will advise the requester accordingly. If 

the request is for noncommercial use, 

the notice will specify that the requester 

is entitled to the statutory entitlements 

of 100 pages of duplication at no charge 

and, if the requester is charged search 

fees, two hours of search time at no 

charge, and the notice will advise the 

requester whether those entitlements 

have been provided. 

(2) If the Agency notifies the 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 

designates some amount of fees the 

requester is willing to pay, or in the case 

of a noncommercial use requester who 

has not yet been provided with the 

requester’s statutory entitlements, 

designates that the requester seeks only 

that which can be provided by the 

statutory entitlements. The requester 

must provide the commitment or 

designation in writing and must, when 

applicable, designate an exact dollar 

amount the requester is willing to pay. 

The FMCS is not required to accept 

payments in installments. 

Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations 53549 

(3) If the requester has indicated a 

willingness to pay some designated 

amount of fees, but the Agency 

estimates that the total fee will exceed 

that amount, the Agency will toll the 

processing of the request when it 

notifies the requester of the estimated 

fees in excess of the amount the 

requester has indicated a willingness to 

pay. The Agency will inquire whether 

the requester wishes to revise the 

amount of fees the requester is willing 

to pay or modify the request. Once the 

requester responds, the time to respond 

will resume from where it was at the 

date of the notification. 

(4) The FMCS will make available its 

FOIA Public Liaison or other FOIA 

professional to assist any requester in 

reformulating a request to meet the 

requester’s needs at a lower cost. 

(f) Charges for other services. 

Although not required to provide 

special services, if the Agency chooses 

to do so as a matter of administrative 

discretion, the direct costs of providing 

the service will be charged. Examples of 

such services include certifying that 

records are true copies, providing 

multiple copies of the same document, 

or sending records by means other than 

first class mail. 

(g) Charging interest. The Agency may 

charge interest on any unpaid bill 

starting on the 31st day following the 

date of billing the requester. Interest 

charges will be assessed at the rate 

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

accrue from the billing date until 

payment is received by the Agency. The 

Agency will follow the provisions of the 

Debt Collection Act of 1982 (Pub. L. 97– 

365, 96 Stat. 1749), as amended, and its 

administrative procedures, including 

the use of consumer reporting agencies, 

collection agencies, and offset (see 29 

CFR part 1450). 

(h) Aggregating requests. When the 

FMCS reasonably believes that a 

requester or a group of requesters acting 

in concert is attempting to divide a 

single request into a series of requests 

for the purpose of avoiding fees, the 

Agency may aggregate those requests 

and charge accordingly. The Agency 

may presume that multiple requests of 

this type made within a 30-day period 

have been made in order to avoid fees. 

For requests separated by a longer 

period, the Agency will aggregate them 

only where there is a reasonable basis 

for determining that aggregation is 

warranted in view of all the 

circumstances involved. Multiple 

requests involving unrelated matters 

cannot be aggregated. 

(i) Advance payments. (1) For 

requests other than those described in 

paragraph (i)(2) or (3) of this section, the 

Agency cannot require the requester to 

make an advance payment before work 

on a request starts or continues. 

Payment owed for work already 

completed (i.e., payment before copies 

are sent to a requester) is not an advance 

payment. 

(2) When the Agency determines or 

estimates that a total fee to be charged 

under this section will exceed $250.00, 

it may require that the requester make 

an advance payment up to the amount 

of the entire anticipated fee before 

beginning to process the request. The 

Agency may elect to process the request 

prior to collecting fees when it receives 

a satisfactory assurance of full payment 

from a requester with a history of 

prompt payment. 

(3) Where a requester has previously 

failed to pay a properly charged FOIA 

fee to the Agency within 30 calendar 

days of the billing date, the Agency may 

require that the requester pay the full 

amount due, plus any applicable 

interest on that prior request, and the 

Agency may require that the requester 

make an advance payment of the full 

amount of any anticipated fee before the 

Agency begins to process a new request 

or continues to process a pending 

request or any pending appeal. Where 

the Agency has a reasonable basis to 

believe that a requester has 

misrepresented the requester’s identity 

in order to avoid paying outstanding 

fees, it may require that the requester 

provide proof of identity. 

(4) In cases in which the Agency 

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 the Agency’s fee 

determination, the request will be 

closed. 

(j) Other statutes specifically 

providing for fees. The fee schedule of 

this section does not apply to fees 

charged under any statute that 

specifically requires an agency to set 

and collect fees for particular types of 

records. In instances where records 

responsive to a request are subject to a 

statutorily-based fee schedule program, 

the Agency must inform the requester of 

the contact information for that 

program. 

(k) Requirements for waiver or 

reduction of fees. (1) Requesters may 

seek a waiver of fees by submitting a 

written application demonstrating how 

disclosure of the requested information 

is in the public interest because it is 

likely to contribute significantly to 

public understanding of the operations 

or activities of the government and is 

not primarily in the commercial interest 

of the requester. 

(2) The Agency must furnish records 

responsive to a request without charge 

or at a reduced rate when it determines, 

based on all available information, that 

the factors described in paragraphs 

(k)(2)(i) through (iii) of this section are 

satisfied: 

(i) Disclosure of the requested 

information would shed light on the 

operations or activities of the 

government. The subject of the request 

must concern identifiable operations or 

activities of the Federal Government 

with a connection that is direct and 

clear, not remote or attenuated. 

(ii) Disclosure of the requested 

information is likely to contribute 

significantly to public understanding of 

those operations or activities. This 

factor is satisfied when the following 

criteria are met: 

(A) Disclosure of the requested 

records must be meaningfully 

informative about government 

operations or activities. The disclosure 

of information that already is in the 

public domain, in either the same or a 

substantially identical form, would not 

be meaningfully informative if nothing 

new would be added to the public’s 

understanding. 

(B) The disclosure must contribute to 

the understanding of a reasonably broad 

audience of persons interested in the 

subject, as opposed to the individual 

understanding of the requester. A 

requester’s expertise in the subject area 

as well as the requester’s ability and 

intention to effectively convey 

information to the public must be 

considered. The FMCS will presume 

that a representative of the news media 

will satisfy this consideration. 

(iii) The disclosure must not be 

primarily in the commercial interest of 

the requester. To determine whether 

disclosure of the requested information 

is primarily in the commercial interest 

of the requester, the Agency will 

consider the following criteria: 

(A) The FMCS must identify whether 

the requester has any commercial 

interest that would be furthered by the 

requested disclosure. A commercial 

interest includes any commercial, trade, 

or profit interest. Requesters must be 

given an opportunity to provide 

explanatory information regarding this 

consideration. 

(B) If there is an identified 

commercial interest, the Agency must 

determine whether that is the primary 

interest furthered by the request. A 

waiver or reduction of fees is justified 

when the requirements of paragraphs 

(k)(2)(i) and (ii) of this section are 

satisfied and any commercial interest is 

53550 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations 

not the primary interest furthered by the 

request. The Agency ordinarily will 

presume that when a news media 

requester has satisfied paragraphs 

(k)(2)(i) and (ii), the request is not 

primarily in the commercial interest of 

the requester. Disclosure to data brokers 

or others who merely compile and 

market government information for 

direct economic return will not be 

presumed to primarily serve the public 

interest. 

(3) Where only some of the records to 

be released satisfy the requirements for 

a waiver of fees, a waiver must be 

granted for those records. 

(4) Requests for a waiver or reduction 

of fees should be made when the request 

is first submitted to the Agency and 

should address the criteria referenced in 

paragraphs (k)(1) and (2) of this section. 

A requester may submit a fee waiver 

request at a later time so long as the 

underlying record request is pending or 

on administrative appeal. When a 

requester who has committed to pay 

fees subsequently asks for a waiver of 

those fees and that waiver is denied, the 

requester must pay any costs incurred 

up to the date the fee waiver request 

was received. 

§ 1401.30 Other rights and services. 

Nothing in this subpart shall be 

construed to entitle any person, as of 

right, to any service or to the disclosure 

of any record to which such person is 

not entitled under the FOIA. 

Dated: September 10, 2021. 

Sarah Cudahy, 

General Counsel. 

[FR Doc. 2021–19906 Filed 9–27–21; 8:45 am] 

BILLING CODE 6732–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2019–0215; FRL–8999–02– 

R5] 

Air Plan Approval; Michigan; Partial 

Approval and Partial Disapproval for 

Infrastructure SIP Requirements for 

the 2015 Ozone NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is partially approving and 

partially disapproving elements of a 

State Implementation Plan (SIP) 

submission from Michigan regarding the 

infrastructure requirements of section 

110 of the Clean Air Act (CAA) for the 

2015 ozone National Ambient Air 

Quality Standards (NAAQS). The 

infrastructure requirements are designed 

to ensure that the structural components 

of each state’s air quality management 

program are adequate to meet the state’s 

responsibilities under the CAA. The 

disapproval portion of this action does 

not begin a new Federal Implementation 

Plan (FIP) clock, because the FIPs are 

already in place. EPA proposed to 

approve this action on Friday, July 2, 

2021 and received no adverse 

comments. 

DATES: This final rule is effective on 

October 28, 2021. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2019–0215. All 

documents in the docket are listed on 

the www.regulations.gov website. 

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either through 

www.regulations.gov or at the 

Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays and 

facility closures due to COVID–19. We 

recommend that you telephone Olivia 

Davidson, Environmental Scientist, at 

(312) 886–0266 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Olivia Davidson, Environmental 

Scientist, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 886–0266, 

davidson.olivia@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

I. Background Information 

On July 2, 2021, EPA proposed to 

approve most elements and disapprove 

an element of a submission from the 

Michigan Department of Environment, 

Great Lakes, and Energy (EGLE) 

certifying that its current SIP is 

sufficient to meet the required 

infrastructure elements under sections 

110(a)(1) and (2) for the 2015 ozone 

NAAQS (86 FR 35247). An explanation 

of the CAA requirements, a detailed 

analysis of the revisions, and EPA’s 

reasons for proposing approval were 

provided in the notice of proposed 

rulemaking (NPRM) and will not be 

restated here. The public comment 

period for this proposed rule ended on 

August 2, 2021. 

During the comment period, EPA 

received two comments on the proposed 

rule. The first comment was in support 

of the action, and a second comment 

was submitted by the New Jersey 

Department of Environmental Protection 

(NJDEP) pertaining to the prong 4 

visibility requirements portion of which 

EPA is disapproving. EPA does not 

believe the comment received from 

NJDEP pertains to this action. At the 

time of submittal, EGLE referenced their 

five-year progress report from the first 

planning period approved on June 1, 

2018 (83 FR 25375) which cites the 

regional haze FIP currently in place to 

show compliance with the Regional 

Haze Program, approved April 12, 2016 

(81 FR 21672). The comment addressed 

an emission source affecting a Federal 

Class I area in New Jersey and asked 

that EPA consider the source’s 

contribution to visibility degradation in 

future actions. Further, EPA received an 

email identifying a small typographical 

error in the table at the end of the 

proposed rulemaking identifying which 

elements we are approving, 

disapproving, or not taking action on. 

The table incorrectly stated that EPA 

was approving 110(a)(2)(D)(1)–(2), 

referred to as prong 1 and prong 2, 

interstate transport with significant 

contribution to nonattainment and 

interference with maintenance, 

respectively. The table is corrected in 

this action to reflect taking no action on 

said transport requirements. EPA will 

take action on those portions in a 

separate rulemaking. All of the 

comments received are included in the 

docket for this action. 

We do not consider these comments 

to be germane or relevant to this action 

and therefore not adverse to this action. 

The comments lack the required 

specificity to the proposed SIP revision 

and the relevant requirements of CAA 

section 110. Moreover, none of the 

comments address a specific regulation 

or provision in question, or recommend 

a different action on the SIP submission 

from what EPA proposed. Therefore, we 

are finalizing our action as proposed. 

II. Final Action 

EPA is approving most elements and 

disapproving an element of a March 8, 

2019 submission from EGLE certifying 

that its current SIP is sufficient to meet