63120 Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Proposed Rules 

creating the second largest financial 

exposure for the systemically important 

derivatives clearing organization in 

extreme but plausible market 

conditions. 

PART 140—ORGANIZATION, 

FUNCTIONS, AND PROCEDURES OF 

THE COMMISSION 

4. The authority citation for part 140 

continues to read as follows: 

Authority: 7 U.S.C. 2 and 12a. 

5. In § 140.94, revise paragraphs (a)(4) 

and (a)(5) and add a new paragraph 

(a)(6) to read as follows: 

§ 140.94 Delegation of authority to the 

Director of the Division of Clearing and 

Intermediary Oversight. 

(a) * * * 

(4) All functions reserved to the 

Commission in § 5.12 of this chapter, 

except for those relating to nonpublic 

treatment of reports set forth in § 5.12(i) 

of this chapter; 

(5) All functions reserved to the 

Commission in § 5.14 of this chapter; 

and 

(6) All functions reserved to the 

Commission in §§ 39.11(b)(1)(vi), 

(b)(2)(ii), (c)(1), (c)(2), (f)(1), and (f)(4) of 

this chapter. 

* * * * * 

Issued in Washington, DC, on October 1, 

2010, by the Commission. 

David A. Stawick, 

Secretary of the Commission. 

[FR Doc. 2010–25322 Filed 10–13–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 1 and 2 

RIN 2009–AN72 

Release of Information From 

Department of Veterans Affairs 

Records 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to amend its 

regulations governing the submission 

and processing of requests for 

information under the Freedom of 

Information Act (FOIA) in order to 

implement provisions of the E–FOIA 

Act and the Openness in Government 

Act, and to reorganize and clarify 

existing regulations. The proposed 

regulations would establish the 

procedures and rules necessary for VA 

to process requests for information 

under the FOIA, including matters such 

as how to file a request or appeal, how 

requests for business information are 

handled, and how issues regarding fees 

are resolved. The intended effect of 

these regulations is to implement 

legislative changes made to the FOIA, as 

noted above, and to provide the public 

clear instructions and useful 

information regarding the filing and 

processing of FOIA requests. 

DATES: Comments must be received on 

or before December 13, 2010. 

ADDRESSES: Written comments may be 

submitted through http:// 

www.Regulations.gov/; by mail or handdelivery to the Director, Regulations 

Management (02REG), Department of 

Veterans Affairs, 810 Vermont Avenue, 

NW., Room 1068, Washington, DC 

20420; or by fax to (202) 273–9026. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AN72, Release of Information from 

Department of Veterans Affairs 

Records.’’ Copies of comments received 

will be available for public inspection in 

the Office of Regulation Policy and 

Management, Room 1063B, between the 

hours of 8 a.m. and 4:30 p.m., Monday 

through Friday (except holidays). Please 

call (202) 461–4902 for an appointment. 

In addition, during the comment period, 

comments may be viewed online 

through the Federal Docket Management 

System (FDMS) at http:// 

www.Regulations.gov/. 

FOR FURTHER INFORMATION CONTACT: 

Catherine Nachmann, Staff Attorney, 

Office of the General Counsel (024), 

Department of Veterans Affairs, 810 

Vermont Avenue, NW., Washington, DC 

20420, (202) 461–7684. (This is not a 

toll free number.) 

SUPPLEMENTARY INFORMATION: The FOIA, 

codified at 5 U.S.C. 552, requires an 

agency to publish public guidance 

regarding its implementation of the 

statute, such as rules of procedure and 

substantive rules of general 

applicability. The Privacy Act of 1974, 

as amended, codified at 5 U.S.C. 552a, 

requires an agency to publish its rules 

and procedures implementing that 

statute. Section 501(a) of title 38, U.S.C., 

authorizes the Secretary of Veterans 

Affairs to prescribe rules and 

regulations to carry out the laws 

administered by VA, including when 

information may be released from 

claimant records under 38 U.S.C. 5701, 

what activities fall within 38 U.S.C. 

5705 regarding confidentiality of 

medical quality assurance records, 

whether and to whom information 

pertaining to those activities may be 

released, and when information may be 

released from records covered by 38 

U.S.C. 7332 regarding the identity, 

diagnosis, or treatment of drug abuse, 

alcoholism or alcohol abuse, infection 

with the human immunodeficiency 

virus, and sickle cell anemia. 

We propose to amend VA’s 

regulations pertaining to release of 

information under 5 U.S.C. 552. VA’s 

current FOIA regulations are codified at 

38 CFR 1.550 through 1.557, including 

reserved §§ 1.558 and 1.559. This 

proposed rule would implement the 

FOIA in §§ 1.550 through 1.562. The 

proposed rule would in large part cover 

the same issues as are covered in VA’s 

current regulations, such as how to 

submit a request for records, how VA 

addresses a request for records, and fees 

for addressing record requests under the 

FOIA. We propose to update these 

regulations to accommodate current 

means of communication with VA, 

streamline the existing procedures 

based on our experience administering 

the FOIA, incorporate changes in the 

procedural requirements of the FOIA 

since promulgation of current 

regulations, make VA’s procedures 

easier for the public to understand, and 

generally reorganize and renumber the 

applicable provisions. 

In addition, we propose to add new 

provisions to explicitly implement the 

E–FOIA Act, Public Law 104–231, and 

the Openness in Government Act, 

Public Law 110–175. For additional 

resources on any of the procedural 

requirements of the FOIA, E–FOIA Act, 

or Openness in Government Act in 

particular, see the detailed information 

available at the U.S. Department of 

Justice (DOJ) website. For example, a 

copy of the FOIA can be located at 

http://www.justice.gov/oip/amendedfoia-redlined.pdf. The current edition of 

the VA FOIA Reference Guide can be 

located at http://www.foia.va.gov/docs/ 

RequesterHandbook.pdf, and specific 

information about implementing the 

FOIA and its amendments can be found 

in guidance issued by DOJ through its 

FOIA Updates and FOIA Post 

publications, located at http:// 

www.usdoj.gov/oip/foi-upd.htm and 

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

mainpage.htm. 

Changes to 38 CFR Part 1 

1.550 Purpose 

Current § 1.550 is entitled ‘‘General’’ 

and provides a general statement of VA 

policy regarding disclosure of 

information to the extent permitted by 

law, including when VA would 

otherwise be authorized to withhold the 

information, if the disclosure is for a 

useful purpose or when disclosure will 

not affect the proper conduct of official 


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agency business or constitute an 

invasion of personal privacy. Current 

§ 1.550 does not provide all of the 

general information that may be useful 

to the public regarding a request for VA 

records, including information 

necessitated by recent FOIA 

amendments and VA policy updates. 

We propose to amend § 1.550 to 

generally provide more detail regarding 

VA’s FOIA program. Proposed § 1.550(a) 

would encourage requesters to read the 

VA FOIA regulations in conjunction 

with the FOIA. Based on our experience 

administering the FOIA, we believe that 

FOIA requesters will benefit from a 

greater awareness of the context in 

which their requests are addressed. In 

keeping with the legal and policy 

considerations associated with the 

administration of the FOIA, proposed 

§ 1.550(a) would authorize release of 

information on a discretionary basis and 

without regard to otherwise applicable 

restrictions in VA’s FOIA regulations 

when current law and governmental 

policy permit such disclosures. 

Proposed § 1.550(b) through (e) would 

advise requesters that other regulations 

also apply to requests for particular 

types of records, such as Privacy Act 

records. 

1.551 Definitions 

With the exception of current 

§ 1.554a, regarding pre-disclosure 

notification, and current § 1.555, 

regarding fees, VA’s current FOIA 

regulations do not contain definitions. 

Accordingly, we propose to add a 

definitions section in which we would 

consolidate all applicable definitions. 

By providing more definitions of terms 

commonly used in the FOIA process, 

proposed § 1.551(a) would clarify the 

regulations, provide greater 

understanding for requesters, and assist 

in the implementation of VA’s FOIA 

regulations. These definitions are 

proposed for clarification purposes 

only. No substantive effect is intended. 

1.552 General Provisions 

Proposed § 1.552(a) would create a 

section that would refer requesters to an 

Internet link through which they may 

obtain access to VA’s information that is 

electronically available under the FOIA 

and information regarding VA’s 

processing of FOIA requests. 

Section 552(a)(6)(B)(ii), as amended 

by the Openness in Government Act, 

requires Federal agencies to make 

available a Public Liaison to assist in 

disputes arising between the agency and 

individual requesters. Proposed 

§ 1.552(b) would identify VA’s Public 

Liaisons and provide contact 

information. 

Section 552(e)(1) through (3) requires 

agencies to prepare an Annual Report 

that provides details regarding the 

agency’s administration of its FOIA 

program. Proposed § 1.552(c) would 

advise the public of this requirement 

and provide information concerning the 

procedures for obtaining a copy of VA’s 

Annual Report. 

1.553 Public Reading Rooms 

Proposed § 1.553 would replace 

current § 1.552(a). Current § 1.552(a), in 

part, provides (1) that statements of 

policy and interpretations adopted by 

VA but not published in the Federal 

Register, and administrative staff 

manuals and staff instructions that 

affect any member of the public, unless 

promptly published and copies offered 

for sale, will be indexed by VA; (2) that 

such indexes will be published, 

quarterly or more frequently, and 

distributed or that VA will provide 

copies at a cost not to exceed the direct 

cost of duplication and both the index 

and the materials indexed will be made 

available to the public for inspection 

and copying; and (3) that public reading 

facilities will be maintained by VA 

Central Office and VA field facilities for 

this purpose. 

Proposed § 1.553(a) would advise the 

public that VA maintains a public 

reading room electronically at its FOIA 

home page on the Internet, which 

contains records and a current subject 

matter index of reading room records 

(updated quarterly or more frequently) 

that the FOIA requires to be regularly 

made available for public inspection 

and copying. In so doing, proposed 

§ 1.553(a) would implement section 

552(a)(2) of the FOIA, as amended by 

the E–FOIA Act, which requires that for 

records created after November 1, 1996, 

agencies make such information 

available by electronic means. Proposed 

§ 1.553(a) would also prescribe that each 

VA component is responsible for 

determining which of its records are 

required to be made available 

electronically. Proposed § 1.553(a) 

would generally update VA’s FOIA 

program with regard to public access to 

records by advising the public of the 

electronic availability of records. The 

information provided in this provision 

would be a useful starting point for an 

individual seeking access to VA records. 

Section 552(a)(2), requires agencies to 

make available certain documents for 

public inspection and copying. Current 

§ 1.552(b) implements 552(a)(2), stating 

that when publishing or making 

available to the public any opinion, 

order, statement of policy, 

interpretation, staff manual or 

instruction to staff, identifying details 

will be deleted, and the deletion 

justified in writing, to the extent 

required to prevent a clearly 

unwarranted invasion of personal 

privacy. Similarly, proposed § 1.553(b) 

would prescribe that VA may delete 

some of the information that it is 

making publicly available, including, 

for example, when its release would 

result in an unwarranted invasion of an 

individual’s privacy. In substance, 

proposed § 1.553(b) restates the 

provisions of current § 1.552(b). 

Proposed § 1.553(c) would implement 

§ 552(a)(2), which requires that the 

agency make public reading room 

material available for inspection and 

copying. It would provide that some VA 

components may maintain physical 

public reading rooms where individuals 

may obtain publicly available 

information. In part, current § 1.552(a) 

implements the same requirement, 

providing for the maintenance of public 

reading facilities. Proposed § 1.553(c), 

therefore, would replace that portion of 

current § 1.552(a) that implements this 

requirement. It would also provide that 

contact information regarding VA 

components having physical public 

reading rooms is available on VA’s 

Internet home page. Proposed § 1.553(c) 

would facilitate an individual’s access 

to a physical public reading room by 

providing easily accessible information 

regarding the availability of reading 

rooms within VA, thereby facilitating an 

individual’s access to reading room 

material. 

1.554 Requirements for Making 

Requests 

Proposed § 1.554 would replace 

current § 1.553. Current § 1.553(a) 

prescribes that except for records made 

publicly available, requests for records 

will be processed under current 

§ 1.553(b) (discussed below) and any 

other law applicable to the 

confidentiality of information. Current 

§ 1.553(a) also provides that VA will 

consider making records available that it 

is permitted to withhold under the 

FOIA if it determines that such 

disclosure could be in the public 

interest. 

Current § 1.553(b) prescribes the 

requirements for submitting a FOIA 

request, including that the request must 

be in writing over the signature of the 

requester, that it must contain a 

reasonable description of the record 

sought so that it may be located with 

relative ease, and that it should be made 

to the office having jurisdiction of the 

record desired. Proposed §§ 1.554(a) and 

1.554(b) would replace current 

§ 1.553(a) and (b) and clarify the 

procedure for submission of requests for 


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63122 Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Proposed Rules 

records under the FOIA. The proposed 

provisions would prescribe that VA will 

accept a facsimile (fax) or electronic 

mail (e-mail) FOIA request if it contains 

an image of the requester’s handwritten 

signature. These amendments are 

necessary to clearly identify the 

acceptable methods of submitting 

requests and expand the methods by 

which requests may be made. They 

would also provide more flexibility for 

individuals in submitting a FOIA 

request to VA and would authorize 

requests in keeping with updated 

technology. Proposed § 1.554(a) also 

would clarify other administrative 

details with respect to making a FOIA 

request, such as referring the requester 

to VA’s list of FOIA contacts, advising 

the requester to direct the request to the 

proper office, and referring the requester 

to VA’s FOIA Reference Guide. 

As a general rule, a record covered by 

the Privacy Act, 5 U.S.C. 552a, will only 

be released at the request of, or with the 

prior authorization by, the subject of the 

record. Proposed § 1.554(c) would add a 

provision advising requesters that if 

they wish to receive information about 

another individual, the requester should 

provide proof of his or her authorization 

to receive that information to cover 

instances where, after weighing 

personal privacy interest against the 

public interest under 5 U.S.C. 552(b)(6), 

FOIA does not require disclosure. Based 

on our experience in administering the 

FOIA, we believe that by providing 

more detailed information regarding the 

submission of FOIA requests and 

making such information available 

electronically, proposed § 1.554(a) 

through (c) would facilitate the 

submission of FOIA requests and would 

expedite the FOIA process, including by 

directing the request to the proper 

address. 

Section 552(a)(3)(A) provides that 

upon a request for records that 

‘‘reasonably describes’’ the records and 

is made in accordance with the agency’s 

rules and procedures, the agency shall 

make such records available. Proposed 

§ 1.554(d)(1) would clarify VA’s 

implementation of the requirement that 

the request reasonably describe the 

records sought. Specifically, proposed 

§ 1.554(d)(1) would expand current 

§ 1.553(b) by requiring that requesters 

provide, to the extent possible, 

sufficient detail in requests to allow VA 

to formulate a response. It would also 

advise requesters that requests that lack 

specificity may not be considered 

‘‘reasonably described.’’ Based on our 

experience in administering the FOIA, 

we believe these proposed amendments 

will make the FOIA process more 

efficient in that it would clarify for 

requesters the required level of detail for 

their requests, thereby allowing VA 

personnel to locate any responsive 

records more easily. The amendments 

would generally clarify the request 

process. 

Proposed § 1.554(d)(2) would advise 

the requester that requests for 

voluminous amounts of records may be 

considered ‘‘complex’’ or may meet the 

criteria for ‘‘unusual circumstances’’ as 

set forth in proposed § 1.556; both 

concepts are discussed in detail below 

regarding proposed § 1.556. 

Proposed § 1.554(d)(3) would expand 

current § 1.553(b) by prescribing an 

opportunity for requesters to modify 

their requests if they do not reasonably 

describe the records or otherwise do not 

meet the regulatory requirements for 

requests. Proposed § 1.554(d)(3) would 

allow VA to address a request even if 

the request does not initially meet 

regulatory requirements. Based on VA’s 

experience, handling any insufficiencies 

or ambiguities in the request at the 

outset would avoid delay in addressing 

the request and provide the requester an 

avenue for early resolution of the 

request. 

Under section 552(a)(3)(A), a FOIA 

request must reasonably describe the 

record sought. Upon receipt, VA must 

respond to the request, ordinarily, 

within 20 days (excepting Saturdays, 

Sundays, and Federal legal public 

holidays). Proposed § 1.554(d)(4) would 

prescribe that the time limit for 

addressing a FOIA request does not 

begin to run until VA determines that 

the requester has reasonably described 

the records and that, if clarification is 

sought and not received within ten 

business days, VA will close its file on 

the request. In our experience, the 

enforcement of this provision would 

assist in VA’s administration of the 

FOIA by clarifying VA’s process and 

providing a firm deadline by which an 

individual must respond to a request for 

clarifying information. In so doing, VA 

would place responsibility on the 

requester to follow request procedures, 

as required by section 552(a)(3)(A), and 

promptly reply to VA requests for 

clarifying information. VA cannot 

process a request that does not 

reasonably describe the records. 

Attempts to address such a request 

would be futile and may delay action on 

other requests that meet the 

requirements. It is imperative, therefore, 

that the requester reasonably describes 

the record that is the subject of the 

request. 

Section 552(a)(4)(A) sets forth the 

requirements regarding the payment of 

fees for processing record requests. 

Proposed § 1.554(e) would provide 

preliminary information regarding the 

payment of fees (fees are discussed in 

more detail in proposed § 1.561). It is 

included at an introductory level to 

notify requesters of the general fee 

guidelines. Proposed § 1.554(e) would 

restate current § 1.555(b)(2) regarding 

notification of an anticipated fee in 

excess of $25.00 or the amount that the 

requester has indicated a willingness to 

pay. It would also restate current 

§ 1.555(g)(4)(i) and (ii) regarding 

advance payment where the estimated 

fee is $250.00 or higher or the requester 

has previously failed to pay a fee in a 

timely manner. 

Proposed § 1.554(e) would also 

implement section 552(a)(6)(A)(ii), as 

amended by the Openness in 

Government Act, which authorizes an 

agency to toll the response due date if 

it is awaiting information from the 

requester or if clarification is being 

sought regarding fee issues. Proposed 

§ 1.554(e) would prescribe tolling of the 

time limit for responding to a FOIA 

request if necessary to clarify issues 

regarding a fee assessment. It would also 

amend the provisions in current § 1.555 

by advising requesters that the 

responding VA component has 

authority to require written assurance 

that the fee will be paid, and that if the 

component’s FOIA Officer does not 

receive a response either to a request for 

more information or, under certain 

circumstances, a request for an advance 

payment, he or she may close the file. 

Further, proposed § 1.554(e) would 

advise requesters that even if they are 

seeking a fee waiver, they may indicate 

a willingness to pay a fee up to a certain 

amount. These amendments are 

necessary to clarify VA policy regarding 

the assessment of FOIA processing fees 

and how fee issues may affect the 

processing of an individual’s request. 

Based on our experience, we believe 

that setting out the parameters of the 

FOIA process, including with respect to 

fees, will encourage resolution of 

administrative issues early in the 

processing of a request, thus 

streamlining the process and avoiding 

unnecessary delay. 

Proposed § 1.554(f) would prescribe 

that a request must meet the 

requirements of proposed § 1.554 in 

order to be considered a perfected 

request. We propose this amendment to 

ensure that FOIA requesters understand 

that VA requirements must be met 

before the Department devotes resources 

to processing any request. 

1.555 Responsibility for Responding to 

Requests 

Proposed § 1.555 would replace 

current § 1.553a. Proposed § 1.555(a) 


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would provide at the outset that the 

component’s FOIA Officer may process 

the request or refer it to the appropriate 

VA office, that office will provide the 

FOIA Officer with all documents in 

their possession, and that the search 

cut-off date generally is the date that the 

search begins, i.e., no documents 

created after that date will be 

considered responsive to the FOIA 

request. If another date is used, the 

requester will be advised. In our 

experience, this amendment is 

necessary to clarify the processing of 

requests within the agency. This 

amendment, for example, would resolve 

questions about the FOIA Officer’s 

authority to access records potentially 

responsive to a FOIA request and would 

establish a cut-off date for searches. 

Removing any ambiguity that exists 

with regard to the application of the 

FOIA or VA’s processing of FOIA 

requests would allow the system to 

operate more effectively and efficiently. 

Proposed § 1.555(b) would replace 

current § 1.553a(a) and provide that the 

individual in each component who will 

be responsible for granting or denying a 

request is the ‘‘FOIA Officer’’ rather than 

the ‘‘proper employee designated.’’ This 

amendment would clarify that the 

individual responsible for addressing 

FOIA requests is the FOIA Officer and 

is intended to encourage consistency 

throughout the agency in handling FOIA 

requests. 

Proposed § 1.555(c) and (d) would 

replace current § 1.553a and prescribe 

that the FOIA Officer will transfer to, or 

consult with, another component or 

agency regarding, a request, including a 

request that involves classified 

information, when another component 

or agency is better able to address the 

request. Proposed § 1.555(e) would 

provide that the FOIA Officer will notify 

the requester when all or part of the 

request has been referred to another 

component or agency. We propose this 

amendment to provide as much 

information as possible to requesters 

about the processing of their requests. 

Informing requesters of the 

administrative actions that may occur 

with respect to their requests will assist 

in the effective administration of the 

FOIA program. 

1.556 Timing of Responses to Requests 

Proposed § 1.556 would replace 

current provisions and add provisions 

regarding the treatment of FOIA 

requests. Proposed § 1.556(a) would add 

a provision stating generally that VA 

components will respond to FOIA 

requests according to their order of 

receipt. 

Proposed § 1.556(b)(1) would 

prescribe VA’s use of a multitrack 

processing system in which, once 

received, FOIA requests are placed in 

one of two tracks based upon the work 

and time required to process the 

request. Proposed § 1.556(b)(2) would 

require VA processors to advise 

requesters of the track to which their 

request is assigned (simple or complex). 

Under the proposed rule, VA would 

provide the requester the opportunity to 

discuss his or her request with the 

processing VA component in order to 

qualify for the faster processing track. 

These proposed provisions implement 

sections 552(a)(6)(D)(i) and (ii), which 

authorize agency rulemaking regarding 

multitrack processing of records 

requests and the opportunity to qualify 

for the faster track. Multitrack 

processing would enable VA to organize 

its FOIA request intake in such a way 

as to provide a greater understanding of 

the nature and extent of the work 

required to address various requests. In 

addition, it would allow personnel to 

organize their workload in accordance 

with varying degrees of complexity of 

the requests presented. Lastly, it would 

allow requesters to modify their 

requests to enable VA to address the 

request more expeditiously. In our 

experience, requesters often frame 

requests in a way that would include 

more material than may be necessary to 

answer their inquiry. Allowing 

requesters to work with VA to clarify a 

request before the agency expends 

resources on gathering documents that 

the requester does not want would 

allow a quicker resolution for the 

requester and would allow the agency to 

allocate resources to other requests. 

Proposed § 1.556(c) would amend 

current § 1.553a(d) in that it would set 

forth the circumstances under which 

VA may determine that unusual 

circumstances exist with regard to 

addressing a FOIA request. The 

definition of ‘‘unusual circumstances’’ is 

prescribed at 5 U.S.C. 552(a)(6)(B), and 

includes, for example, the need to 

collect records from a facility other than 

the office processing the request. 

Proposed § 1.556(c) would add a 

provision that if VA requires an 

extension of more than 10 business days 

to address the request, the requester 

may modify the request so that it may 

be processed within applicable time 

limits or arrange an alternative time 

period with the VA component that is 

processing the request. Similar to 

proposed § 1.556(b)(2), proposed 

§ 1.556(c) would prescribe consultation 

with the requester to allow for 

modification of the request or arrange an 

alternative time period within which 

VA must process the request. This 

provision encourages early clarification 

of the request and should promote 

expeditious processing. Our experience 

is that communication with the 

requester in cases such as this is 

beneficial to all parties, as it clarifies 

issues for the agency and notifies the 

requester that the agency is interested in 

processing the request as expeditiously 

as possible. 

Proposed § 1.556(c)(1)(i) through (iii) 

would replace current § 1.553a(d)(1) 

through (3) and incorporate statutory 

requirements in section 552(a)(6)(B)(i) 

through (iv) regarding the meaning of 

‘‘unusual circumstances.’’ 

Proposed § 1.556(c)(2) would 

authorize the aggregation of requests if 

VA determines that certain requests are 

from the same requester, or a group of 

requesters acting in concert, actually 

constitute the same request and that as 

such, the requests would otherwise 

meet the requirements for ‘‘unusual 

circumstances,’’ as defined in section 

552(a)(6)(B)(iii). This provision would 

allow VA to address the substance of a 

request rather than the form of the 

request; in other words, when a request, 

in substance, meets the unusual 

circumstances requirements, the agency 

would address it as such. The proposed 

revision in this regard would result in 

a more equitable distribution of FOIA 

requests and request workload as it 

would allow the agency to consider the 

nature of the request in determining 

how to characterize it. 

Section 552(a)(6)(E)(i) through (vi) 

requires VA rulemaking regarding the 

procedures for expedited processing of 

requests. We propose to implement 

these procedures in § 1.556(d). Proposed 

§ 1.556(d)(1) would prescribe the 

circumstances that represent a 

‘‘compelling need’’ for the information, a 

requirement that must be met in order 

to meet the requirement for expedited 

review under the FOIA. Proposed 

§ 1.556(d)(2) restates section 

552(a)(6)(E)(vi), which provides that a 

requester seeking expedited processing 

must submit a certified statement to the 

processing agency regarding the request 

for expedited review. Proposed 

§ 1.556(d)(3) restates section 

552(a)(6)(E)(ii), which requires agencies 

to make a determination regarding a 

request for expedited processing within 

10 days of the receipt of the request. 

1.557 Responses to Requests 

Proposed § 1.557(a) would require the 

processing VA component to 

acknowledge receipt of the request and 

assign a docket number to the request. 

This provision is intended as an 


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administrative tool that components 

would use to organize incoming 

requests and to provide the requester 

with pertinent information should he or 

she wish to contact VA for information. 

Proposed § 1.557(b) would implement 

the provisions of section 552(a)(3)(B) 

through (C) to the extent that the 

proposed rule would require a 

component properly in receipt of a 

request to conduct a reasonable search 

for records, including records in 

electronic form or format, and to 

provide those records in the form or 

format requested by the individual, if 

readily reproducible in that form or 

format. In this regard, proposed 

§ 1.557(b) would essentially restate the 

FOIA provisions. In addition, proposed 

§ 1.557(b) would clarify that any 

responsive records would be those in 

the component’s possession and control 

as of the date the search for responsive 

records begins and would provide for 

notification to the requester if a fee is 

due under proposed § 1.561. Adding 

this interpretation of the search date and 

initial fee assessment requirements 

would eliminate any ambiguity with 

regard to the time frame of the search 

and any resulting fee. 

Proposed § 1.557(b) also would 

implement section 552(b), which 

requires deletion of certain exempt 

portions of records and identification of 

the FOIA exemption under which the 

deletion is made. This proposed 

revision would also restate, in part, 

current § 1.554(a), which prescribes that 

records will be provided after deletion 

of material exempt under the FOIA, as 

discussed in current § 1.554(a). 

Proposed § 1.557(c) would restate 

section 552(a)(6)(A) and replace current 

§ 1.553a(b). The proposed rule would 

prescribe a 20-day deadline in which a 

VA component will act upon a request 

and a 10-day limit for referring a request 

to another component. 

Proposed § 1.557(d) would implement 

section 552(a)(6)(F), which requires 

agencies to provide requesters a 

statement regarding the amount of 

information withheld and the FOIA 

exemption under which information is 

withheld, unless providing such a 

statement would harm an interest 

protected by the applicable exemption, 

and would replace current § 1.557(a). 

The proposed rule would provide 

specific examples of the types of 

determinations that are adverse to 

requesters, restate the requirement to 

include the name of the individual 

responsible for the denial, and prescribe 

a statement of the reasons for the denial 

and notice regarding the right to appeal 

under proposed § 1.559. Placing the 

information that will be included in an 

adverse determination in one provision 

will clarify the FOIA process and 

benefit all parties involved. Our intent 

in proposing this provision is to provide 

VA components clear and consistent 

direction regarding the requirements for 

adverse determinations and to ensure 

that requesters receive notice 

concerning the reasons for the 

determination and their appeal options. 

1.558 Business Information 

Section 552(b)(4) exempts from 

release matters that are trade secrets and 

commercial or financial information 

obtained from a person that is privileged 

and confidential. Executive Order 

12,600 establishes the procedures to be 

followed when the agency believes that 

responsive records include such 

information. Ordinarily, these 

provisions apply when a request is 

received for information submitted by 

an individual doing business with VA 

who has provided to VA its business 

information, or information that he or 

she considers commercial or 

confidential; this individual is referred 

to as the ‘‘submitter’’ of the information. 

The ‘‘submitter’’ typically designates the 

information as protected, as discussed 

further below. 

Proposed § 1.558 would replace 

current § 1.554a in addressing the issues 

raised by business information; it would 

replace the term ‘‘confidential 

commercial’’ information used in 

current § 1.554a with ‘‘business’’ 

information. This revision would 

provide individuals specific information 

at the outset concerning whether their 

request would involve such 

information. Proposed § 1.558(a) would 

replace current § 1.554a(a) and provide 

an introductory statement regarding the 

consideration of business information 

pursuant to proposed § 1.558. Proposed 

§ 1.558(b) essentially would replace 

current § 1.554a(d), which outlines the 

requirements for a submitter to 

designate records as business 

information. Proposed § 1.558(b) varies 

from current § 1.554a(d) in that it would 

allow for the business information 

designation to take place within a 

reasonable time after submission of the 

information to VA. Current § 1.554a(d) 

contains the same language but qualifies 

the ‘‘reasonable time’’ as not later than 

60 days after receipt of the information 

by VA. In addition, proposed § 1.558(b) 

would add a provision stating that the 

designation will be considered by the 

VA component processing the request, 

but will not control the FOIA Officer’s 

determination. Based on VA’s 

experience in administering current 

FOIA provisions, VA believes that these 

revisions would allow flexibility with 

regard to the submitter’s designation 

and would clarify the role of the 

designation for the submitter, i.e., the 

submitter should understand at the 

outset that while records may be 

designated as business information, the 

designation itself does not necessarily 

determine the outcome of the VA 

component’s decision, which will be 

made in compliance with applicable 

laws. 

Proposed § 1.558(c)(1) would replace 

current § 1.554a(c) and prescribe the 

requirements for notice to a submitter of 

business information whenever a 

request for that information is being 

processed under the FOIA. Proposed 

§ 1.558(c)(1) would differ from current 

§ 1.554a(c) by requiring the submitter to 

provide objections to the disclosure 

within the ‘‘time period specified’’ in the 

notice, as opposed to within 10 working 

days, as prescribed in current 

§ 1.554a(c). This revision is repeated in 

proposed § 1.558(d). This revision 

would allow VA the flexibility to meet 

statutory time limits and/or change the 

number of days in which a response is 

required as a policy matter without 

requiring a change in its regulations. 

Proposed § 1.558(c)(1) also would delete 

the current requirement for the notice to 

be mailed by certified mail, return 

receipt requested. Our experience is that 

certified mail may unnecessarily delay 

the notification process when there are 

other suitable alternatives. Proposed 

§ 1.558(c)(1) would add a provision 

allowing the FOIA Officer to post the 

notification in a place reasonably likely 

to accomplish the required notice when 

the notice concerns a large number of 

submitters. This proposed provision 

would allow the FOIA Officer greater 

flexibility and expedite notice by 

allowing electronic or other public 

notification of multiple submitters 

simultaneously. 

Proposed § 1.558(d) would replace 

current § 1.554a(f) and eliminate ‘‘or 

designee’’ when referring to the 

submitter. We intend that this change 

will bring VA’s FOIA regulations into 

compliance with Executive Order 

12600, which established Federal policy 

regarding agency communication only 

with the submitter of information. 

Proposed § 1.558(d) would require 

that the submitter’s objections be 

contained in a single written response 

and that oral or multiple subsequent 

written responses ordinarily would not 

be considered. Based on our experience 

administering the FOIA with regard to 

business information, we believe that 

this revision would create a more 

efficient process by requiring a cohesive 

statement from the submitter rather than 

allowing continued or successive 


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submissions. Additionally, eliminating 

oral responses would better develop the 

administrative record for all parties. 

Proposed § 1.558(d) would also 

provide that if the submitter does not 

respond to VA’s notification within the 

specified time limit, the submitter will 

be considered to have no objection to 

the disclosure. This provision would 

impose a duty to respond within the 

time limit in order to ensure that the 

submitter’s objections, if any, can be 

properly considered in an efficient and 

timely manner. This proposed provision 

would also eliminate the requirement 

that the submitter provide objections 

within 10 days after receipt by the 

submitter of notification of a request for 

the submitter’s information. Instead, the 

proposed rule would allow the FOIA 

Officer to set forth a ‘‘specified time 

limit’’ within which to respond. 

Proposed § 1.558(d) would eliminate 

the language in current § 1.554a(f), 

which prescribes that information 

provided by the submitter would itself 

be subject to the FOIA. Our experience 

is that the existing notice in current 

§ 1.554a(f) has a chilling effect on 

submitters detailing their objections to 

disclosure and discussing the likelihood 

of disclosure causing substantial 

competitive harms. Additionally, any 

submission of information to the 

government may be subject to the FOIA, 

thus making that language superfluous. 

Proposed § 1.558(e) would replace 

current § 1.554a(f)(3) regarding the FOIA 

Officer’s consideration of the 

submitter’s objections in making a 

determination whether to release 

information. While current 

§ 1.554a(f)(3), for example, states that 

VA will consider a submitter’s 

comments if received within a 10-day 

time limit, proposed § 1.558(e) states 

that information provided by the 

submitter after the ‘‘specified time limit’’ 

will not be considered. While a specific 

time frame is not expressly stated in the 

proposed regulation, the regulation does 

provide for consideration of comments 

within a time frame specified by the 

FOIA Officer. 

Proposed § 1.558(e) also would 

replace current § 1.554a(f)(3) with 

regard to the information contained in 

the written notice to the submitter. The 

proposed regulation makes no 

substantive changes to this provision. 

Proposed § 1.558(f) would replace 

current § 1.554a(i)(1) through (3), 

identifying when the pre-disclosure 

notification requirements need not be 

followed. It would add to the provisions 

in current § 1.554a(i)(3) that predisclosure notification is not required if 

the disclosure is required by regulation 

issued in accordance with Executive 

Order 12600 or any other Executive 

Order. In this regard, the proposed rule 

would ensure that Executive Orders are 

included, as appropriate, as a basis for 

the disclosure of information. Proposed 

§ 1.558(f) would delete references to 

current § 1.554a(i)(4) through (6) 

because VA’s experience is that these 

provisions have not been utilized, and 

the revised provisions would, if 

necessary, cover the instances referred 

to in the referenced sections. 

Proposed § 1.558(g) would replace 

current § 1.554a(g)(1) and would make 

no change to that provision. Current 

§ 1.554a(g)(2) regarding notice to a 

requester when a submitter is given an 

opportunity to provide comments about 

the disclosure would be deleted because 

under the proposed rule requesters 

would be on notice regarding VA’s 

contacts with submitters. Proposed 

§ 1.558(g) would prescribe notice to a 

requester that the request is being 

processed under § 1.558, including the 

provisions in § 1.558(c) and (e) 

prescribing notice to submitters 

regarding opportunity to comment. 

Current § 1.554a(g)(3) regarding notice 

to a submitter and requester of a final 

decision on disclosure of business 

information would also be deleted as 

unnecessary. Submitters would instead 

be given notice of an impending agency 

decision on disclosure of business 

information under proposed § 1.558(e). 

The requester would be notified when a 

final agency decision is issued pursuant 

to proposed § 1.557. 

1.559 Appeals 

Section 552(a)(6)(A) provides that 

when an agency component responds to 

an initial request for records, it shall 

provide the requester with the right to 

appeal any adverse determination to the 

head of the agency. 

Proposed § 1.559 would replace 

current § 1.557(b). Current § 1.557(b) 

states only that the final agency 

decisions in appeals will be made by the 

VA General Counsel or Deputy General 

Counsel. Proposed § 1.559(a) would 

allow for an informal resolution of the 

request prior to an appeal in appropriate 

cases. We believe that in appropriate 

cases, requesters may benefit from 

contact with the FOIA Officer or VA 

component addressing the request and 

an attempt to resolve outstanding issues 

with regard to the request. The requester 

may seek informal resolution, for 

example, when he or she has not 

received a response to the request. 

Direct communication between the 

FOIA Officer and the requester could 

resolve the issue and therefore make an 

appeal unnecessary. 

Proposed § 1.559(b) would establish 

authority for the VA Office of Inspector 

General (OIG) to handle appeals related 

to OIG records. This would allow the 

OIG to establish its independence 

regarding its own records. 

Proposed § 1.559(b) through (c) would 

provide details regarding how to file an 

appeal and the form that an appeal may 

take and a reference to additional 

information available online. 

Proposed § 1.559(d) would establish a 

60-day time limit from the date of any 

adverse determination concerning the 

FOIA request for the requester to file an 

appeal. Current regulations do not 

address the timeliness of an appeal. 

Based upon our experience, we believe 

that prescribing a period within which 

an appeal may be filed provides an 

effective tool for establishing workload 

and allocating resources. We have 

determined that a 60-day time limit 

would be reasonable given the 

convenient means by which an 

individual may quickly file an appeal. 

We note that the proposed 60-day 

appeal period would be the same as the 

appeal period established by the 

Department of Justice for its FOIA 

appeals. We also believe that the 

requester should have the responsibility 

to follow through with the appeal if he 

or she wishes the request to be 

addressed and that the 60-day appeal 

period would provide ample time to 

exercise that responsibility. Further, the 

appeal process would be more seamless 

and effective if requesters included 

necessary information in their appeal 

notices, such as the information listed 

in proposed § 1.559(d). Based on our 

experience, we believe that encouraging 

requesters to initially provide as much 

information as possible would ease the 

administrative burdens of gathering 

relevant information and processing the 

appeal. Proposed § 1.559(d) would also 

provide that an appeal is not perfected 

until either the information requested is 

received or VA determines that the 

appeal is otherwise sufficiently defined. 

In our experience, appeals occasionally 

are so lacking in detail that it requires 

an excessive amount of time to identify 

the issues or records involved. 

Requesters would provide more clarity 

and therefore would require less laborintensive inquiries by VA if they 

initially provided the information that is 

necessary to process the appeal. 

Proposed § 1.559(d) would also delegate 

authority to decide appeals to the VA 

Assistant General Counsel who has 

jurisdiction over FOIA matters. This 

amendment would add the Assistant 

General Counsel that has jurisdiction 

over records disclosure matters to the 

list of individuals authorized to make 


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such final agency determinations thus 

streamlining the appeal process while 

continuing to provide the thorough legal 

analyses currently afforded FOIA 

appeals. 

Proposed § 1.559(e) would prescribe 

the content of a decision on appeal. 

Prescribing these requirements would 

facilitate consistency in decisionmaking and fully inform requesters 

regarding their right to a complete 

appellate decision from the agency. 

Proposed § 1.559(f) would require a 

requester to file an appeal prior to 

seeking court review. This provision 

would provide the opportunity for 

resolution of the requester’s concerns 

prior to initiating litigation and ensure 

that the matter is ready for judicial 

review. 

1.560 Maintenance and Preservation 

of Records 

The Federal Records Act, 44 U.S.C. 

chapter 31, addresses record 

preservation and destruction by Federal 

agencies. Section 3102 of title 44, 

U.S.C., requires that the head of an 

agency establish and maintain a records 

management system. 

Proposed § 1.560(a) would require 

that VA components maintain FOIA 

requests and copies of pertinent records 

in accordance with NARA’s General 

Records Schedule. 

Proposed § 1.560(b) would require 

that the FOIA Officer maintain copies of 

records that are the subject of a pending 

request, appeal, or lawsuit under the 

FOIA. It would also prescribe that a 

copy of the records shall be provided to 

the Office of the General Counsel upon 

request. 

These provisions would underscore 

the importance of maintaining records 

as appropriate and prescribe consistent 

compliance within VA. They would 

emphasize that administrative recordkeeping is an important function in the 

FOIA program and that in order for VA 

components to build an administrative 

record, if required, information must be 

preserved as appropriate. 

1.561 Fees 

In accordance with section 

552(a)(4)(A), an agency is required to 

promulgate regulations specifying the 

schedule of fees applicable to 

processing requests under the FOIA and 

establishing procedures and guidelines 

for determining when fees will be 

waived or reduced. In addition, agencies 

must implement the 1987 Fee Schedule 

and Guidelines published by the Office 

of Management and Budget (OMB). See 

The Freedom of Information Reform Act 

of 1986; Uniform FOIA Fee Schedule 

and Guidelines, 52 FR 59 (27 March 

1987). 

Proposed § 1.561 replaces current 

§ 1.555. In part, proposed § 1.561(a) 

would replace current § 1.555(b)(1) in 

providing a general introduction and 

rules regarding fees. Proposed § 1.561(a) 

would add that the VA component 

would collect prescribed fees before 

releasing copies of the information to 

the requester and would include a 

provision regarding payment of fees. 

Lastly, proposed § 1.561(a) would direct 

a requester’s attention to other VA 

statutes that contain provisions related 

to access to records and the fees for such 

access. These amendments would 

provide introductory comments 

regarding VA’s fee provisions and are 

intended to clarify and highlight VA’s 

general framework for the assessment of 

fees. 

Proposed § 1.561(b) would replace 

current § 1.555(a) and would contain the 

definitions of terms used regarding 

FOIA fees. Proposed § 1.561(b)(1) would 

restate that portion of current 

§ 1.555(d)(4) that defines ‘‘all other 

requesters’’ as any requester that does 

not fit within any other category; the 

proposed inclusion of this definition in 

this section would ensure that all 

pertinent definitions are included. 

Proposed § 1.561(b)(2) would replace 

current § 1.555(a)(1) and would restate 

the definition of ‘‘commercial use 

request.’’ The proposed regulation 

would make no substantive change to 

current § 1.555(a)(1). 

Proposed § 1.561(b)(3) would replace 

current § 1.555(a)(2) and would restate 

the definition of ‘‘direct costs.’’ The 

proposed regulation would make no 

substantive change to current 

§ 1.555(a)(2). 

Proposed § 1.561(b)(4) would replace 

current § 1.555(a)(3) and would restate 

the definition of ‘‘duplication.’’ The 

proposed regulation would make no 

substantive change to current 

§ 1.555(a)(3). 

Proposed § 1.561(b)(5) would replace 

current § 1.555(a)(4) and would restate 

the definition of ‘‘educational 

institution.’’ The proposed regulation 

would make no substantive change to 

current § 1.555(a)(4). 

Proposed § 1.561(b)(6) would replace 

current § 1.555(a)(5) and in large part, 

restate the definition of ‘‘noncommercial scientific institution.’’ The 

proposed regulation would make no 

substantive change to the provisions of 

current § 1.555(a)(5) with the exception 

of the addition that the requester must 

show that the request is authorized by 

and made under the auspices of a 

qualifying institution. This amendment 

would clarify the requirement for 

submitting such a request and would 

place responsibility on the requester to 

establish that it fits within this fee 

category. Our experience indicates that 

this requirement will assist in resolving 

the status of a fee requester at the outset 

and will clarify the requirements for 

such requesters. 

Proposed § 1.561(b)(7) would replace 

current § 1.555(a)(6). It would restate 

current § 1.555(a)(6), but also implement 

the change in the definition of news 

media in section 552(a)(4)(A)(ii), which 

defines ‘‘representative of the news 

media’’ as described immediately below. 

The proposed rule would prescribe that 

a member of the news media is one who 

gathers information of potential interest 

to the public, uses his or her editorial 

skills to turn the raw material into a 

distinct work, and distributes that work 

to an audience. We propose to add 

language that alternative media sources 

may be considered news media if they 

otherwise meet the definition of news 

media. We believe this proposed 

language would underscore that the 

entity seeking classification as a news 

media must also meet the other criteria 

set forth in the definition of news 

media. Proposed § 1.561(b)(7) would 

also delete a reference to freelance 

journalists’ option to seek a reduction or 

waiver of fees. We believe placing the 

reference here would be superfluous, as 

waiver or fee reduction is discussed in 

the introductory paragraph of proposed 

§ 1.561(b)(7). In accordance with section 

552(a)(4)(A)(ii), proposed § 1.561(b)(7) 

would add language that a 

representative of the news media must 

not be seeking records for a commercial 

use. 

Proposed § 1.561(b)(8) would replace 

current § 1.555(a)(7). The proposed rule 

would essentially restate current 

§ 1.555(a)(7) and would add examples of 

the types of records that are subject to 

review in a FOIA request. We believe 

that providing examples would provide 

more clarity for requesters concerning 

the potential assessment of fees. 

Proposed § 1.561(b)(9) would replace 

the definition of search in current 

§ 1.555(a)(8). The proposed rule would 

make no substantive change to current 

§ 1.555(a)(8) with the exception of the 

deletion of the last sentence in current 

§ 1.555(a)(8) regarding excluding review 

time. We believe that this language is 

unnecessary, as we have previously 

defined the term search in the context 

of the FOIA. 

Proposed § 1.561(c) would replace 

current § 1.555(d) regarding categories 

of requesters and fees charged each 

category. The introductory language of 

proposed § 1.561(c) and (c)(1) 

(commercial use requesters) restates the 


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introductory language of current 

§ 1.555(d) and(d)(1) (commercial use 

requesters), with the exception of 

adding language noting that the 

provisions apply unless a waiver or 

reduction of fees applies. We believe 

these proposed additions would clarify 

application of the fee provisions by 

directing the requester’s attention to the 

exceptions that apply to the assessment 

of fees. In addition, proposed 

§ 1.561(c)(1) would delete language from 

current § 1.559(d)(1) that states that a 

requester must reasonably describe the 

record requested. We believe that this 

language is superfluous in light of the 

full discussion of reasonably described 

records in proposed § 1.554(d). 

Proposed § 1.561(c)(2) and (3) would 

replace current § 1.555(d)(2) and (3), 

respectively. Proposed § 1.561(c)(2) and 

(3) would refer the requester to the 

potential waiver or reduction of fees and 

would reiterate the charges assessed to 

an educational institution and a 

representative of the news media. It 

would delete language in current 

§ 1.559(d)(2) and (3) regarding the 

requirements that must be met to be 

categorized as an educational and noncommercial scientific institution or a 

representative of the news media. The 

criteria for classification of these types 

of requesters would be clearly set forth 

in the definitions section. 

Proposed § 1.561(c)(4) would replace 

current § 1.555(d)(4). Proposed 

§ 1.561(c)(4) essentially restates the 

provisions of current § 1.555(d)(4) as to 

the charges that are assessed for an all 

other requester and its reference to the 

waiver or reduction of fees. Proposed 

§ 1.561(c)(4) would delete language from 

current § 1.555(d)(4) that refers to 

requests for records retrievable by 

personal identifiers and the treatment of 

such requests. In doing so, the proposed 

rule would more clearly distinguish 

between requests made under the FOIA 

and requests made under other 

authority. Based on our experience, we 

believe that such distinctions are 

helpful in that requesters can determine 

which procedures are applicable to their 

requests and will be able to more clearly 

identify the action that is required. In 

addition, proposed § 1.550 provides 

information concerning the various 

disclosure statutes and the distinctions 

between those statutes. Including that 

information here would be superfluous. 

Proposed § 1.561(d) would clarify the 

types of fees that VA may charge for 

processing requests. The introductory 

paragraph in proposed § 1.561 would 

provide a general statement notifying 

requesters that the fees to be charged are 

defined in proposed § 1.561. Proposed 

§ 1.561(d)(1)(i) would clarify how a 

search fee is assessed and would advise 

that fees are charged in quarter hour 

increments. This provision would better 

advise requesters concerning the 

potential for a fee assessment and how 

VA will assess the fee. This information 

may also be helpful to requesters 

seeking to identify more precisely the 

records that are the subject of their 

request. 

Proposed § 1.561(d)(1)(ii), in part, 

would replace current § 1.555(c)(2). It 

would reiterate how fees are assessed in 

cases requiring a computer search and 

make no substantive change in that 

regard. As an administrative matter, it 

would add a reference to the proposedrule provisions that discuss when a fee 

would not be charged and when 2 hours 

of free search time would be granted. 

Proposed § 1.561(d)(2) and (3) would 

add provisions clarifying when 

duplication and review fees, 

respectively, apply, and how such fees 

are calculated. These provisions would 

provide VA and requesters clear rules 

for determining the level of fees that 

may be assessed, depending upon the 

request submitted. Proposed 

§ 1.561(d)(3), for example, would 

prescribe in detail when a fee may be 

charged for consideration of an 

exemption and when it may not. We 

believe that this type of detail would be 

useful to requesters as a means of 

explaining why certain charges are 

made or not made and accordingly, 

would potentially assist in VA’s 

administration of the FOIA. 

Proposed § 1.561(e)(1) and (2) would 

implement administrative provisions 

regarding the assessment of fees. In 

accordance with proposed § 1.561(e)(2), 

for example, more than half of a quarterhour period must be spent on search 

and review for the requester to be 

charged for that quarter-hour. This 

proposed provision represents VA’s 

determination that it is administratively 

worthwhile only to collect a fee 

representing more than one half of a 

quarter-hour increment. 

Proposed § 1.561(e)(3) would 

implement section 552(a)(4)(A)(viii) by 

prescribing that certain fees may not be 

charged to various types of requesters if 

the agency fails to meet the time limits 

set forth in agency regulations. The 

proposed provision clarifies that 

duplication fees may still be charged to 

commercial use requesters and ‘‘all 

other’’ requesters. 

Proposed § 1.561(e)(4), in part, would 

replace current § 1.555(c) and prescribe 

that the agency will provide the first 100 

one-sided pages and the first 2 hours of 

search time without charge. We do not 

intend any substantive change to this 

provision. 

Proposed § 1.561(e)(5), in part, would 

replace current § 1.555(c), which 

provides that no fee will be charged if 

the cost of collecting the fee is equal to 

or greater than the fee itself. Proposed 

§ 1.561(e)(5) would clarify that if the 

total fee calculated is less than $25.00, 

no fee will be charged. Prescribing a 

dollar amount in this provision should 

clarify the regulation for requesters and 

remove any ambiguity that may exist in 

current regulations regarding 

permissible fees. 

Proposed § 1.561(e)(6) would 

prescribe that VA may provide free 

copies of records or free services in 

response to requests from other 

government agencies or congressional 

offices when to do so would assist in 

providing medical care to a patient or to 

further VA’s mission. This provision 

would allow the agency the flexibility to 

respond to certain requests promptly 

without addressing issues that may arise 

with regard to fees. 

Proposed § 1.561(f) would add a chart 

that contains the categories of fee 

requesters and a summary of the types 

of fees that VA may charge. Proposed 

§ 1.561(f) would provide a convenient 

administrative tool for VA officials and 

requesters, which would summarize 

information previously set forth in the 

proposed regulations and would not 

make any substantive changes. 

Proposed § 1.561(g) would replace 

current § 1.555(e). Current § 1.555(e) 

consists of a schedule of fees in chart 

form. Proposed § 1.561(g) would add an 

introductory paragraph regarding the 

assessment of fees and would restate 

generally when the payment of fees is 

required. The proposed provision, for 

example, notes that VA would charge 

for special services used in responding 

to a FOIA request, that the fee schedule 

applies to requests under the Privacy 

Act as well, and that in cases in which 

the processing fee is less than $25.00, or 

in cases in which the requirements for 

a waiver have been met, the fee would 

be waived. 

Section 552(a)(4)(A)(i) requires 

agencies to promulgate regulations 

prescribing a schedule of fees applicable 

to processing FOIA requests. The fees 

must conform to OMB guidelines 

regarding a uniform schedule of fees for 

all agencies. Proposed § 1.561(g)(1) 

would implement the OMB guidance 

and prescribe the criteria that VA would 

use to calculate search and review fees 

when such fees are based upon VA 

employees’ salaries. 

Proposed § 1.561(g)(2) would also 

provide a fee schedule in chart form that 

describes the type of activity for which 

the fee is being assessed and the 

composition of the fee being assessed. 


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Proposed § 1.561(h), in part, would 

replace current § 1.555(b)(2) and would 

add that the requester will be notified of 

the assessment of a fee over $25.00 or 

the amount set by OMB fee guidelines, 

whichever is higher. This provision 

would allow VA flexibility with regard 

to notifying requesters of fee 

assessments should the limit be changed 

in the future. It would also advise 

requesters of the potential for such a 

change. Proposed § 1.561(h) would add 

that any agreement made by the 

requester to pay a fee on a later date 

shall be in writing. Based on our 

experience, we believe that this 

requirement would help to avoid any 

ambiguity with regard to fee issues. 

Proposed § 1.561(h) would also expand 

the language in current § 1.555(b)(2) and 

authorize the FOIA Officer’s contact 

with the requester regarding 

clarification of fee issues. Proposed 

§ 1.561(h) would provide that the 

timeline for responding to the request 

shall be tolled until the fee issue is 

resolved. This proposed provision 

would implement section 

552(a)(6)(A)(ii)(II), which authorizes 

tolling of the time limit if necessary to 

clarify issues regarding fee assessment. 

Proposed § 1.561(h) would also provide 

that if VA does not receive a response 

regarding a request for clarification of 

the fee issue within 10 days, it will 

close the file on the records request. We 

believe that setting a clear limit on the 

response time will avoid delay that 

results when a requester’s intentions are 

unclear. Such a limit will also prevent 

VA from having to maintain cases on its 

docket that the requester has no interest 

in pursuing. Thus, it would be 

reasonable to place responsibility on the 

requester to follow through with the 

request that he or she initiated if the 

records sought are still desired. 

Section 552 authorizes recovery of 

direct costs of search, duplication, and 

review in certain cases. Proposed 

§ 1.561(i) would add a provision that 

when the agency chooses to provide a 

special service sought by the requester, 

such as certifying records, the direct 

cost of that service will be charged to 

the requester. This provision would 

allow the agency the flexibility to work 

with the requester to grant special 

services of this nature if possible, but 

allows the agency to recoup the costs of 

those services. This proposed provision 

would be promulgated pursuant to 31 

U.S.C. 9701, which permits agencies to 

prescribe regulations establishing a 

charge for things of value provided by 

the agency. 

Proposed § 1.561(j) would restate the 

provisions of current § 1.555(g) in all 

pertinent respects with regard to 

charging interest on an unpaid bill. It 

also would replace current § 1.555(g)(5) 

regarding application of the Debt 

Collection Act of 1982 (Pub. L. 97–365). 

It would delete the requirement that the 

determination to charge interest will be 

made by a VA Central Office official or 

field facility head or designee. Based on 

our experience, we believe that this 

requirement does not make the process 

more efficient. By deleting the current 

delegation of authority provision, we 

intend to provide flexibility for other 

individuals to make the determination 

to charge interest but only according to 

the criteria prescribed in VA’s 

regulations. The proposed rule would 

also delete references to VA procedures 

that ensure that a requester who has 

remitted payment is credited with the 

payment. We believe this provision to 

be superfluous, as any payment would 

ordinarily be credited as a matter of 

administrative regularity. 

Proposed § 1.561(k) would restate the 

provisions of current § 1.555(g)(3) in all 

pertinent respects with regard to 

aggregating requests. Proposed 

§ 1.561(k) would use the term 

‘‘component’’ rather than ‘‘responsible 

Central Office official or field facility 

head or designee.’’ Based on our 

experience, we believe that this 

requirement would allow more 

flexibility in determining whether a 

request should be aggregated according 

to the criteria in VA’s regulations. It also 

would allow those most familiar with 

the FOIA process to make the 

determination, which we believe would 

add more administrative regularity to 

the process. 

Proposed § 1.561(l)(1) would restate 

the introductory language set forth in 

current § 1.555(g)(4). Proposed 

§ 1.561(l)(1) would add that payment for 

work already completed is not an 

advance payment. This language is an 

administrative provision intended to 

clarify what constitutes an advance 

payment. 

Proposed § 1.561(l)(2) would restate 

the provisions of current § 1.555(g)(4)(i) 

in all pertinent respects with regard to 

advance payments. It would delete 

current provisions providing an option 

for the VA to notify the requester of the 

likely fee and obtain satisfactory 

assurance of full payment. Based on our 

experience, deleting this language 

would avoid any ambiguity with regard 

to the fee and would clarify that the 

component may require payment in 

advance. We believe this would assist in 

the administration of this provision. 

Proposed § 1.561(l)(3) would 

generally restate the provisions in 

current § 1.555(g)(4)(ii). However, 

proposed § 1.561(l)(3) would delete the 

option that a requester may demonstrate 

that a fee owed has been paid in order 

to allow VA to process the request. In 

our experience, the circumstances under 

which fee issues arise do not concern a 

requester who has already paid the fee. 

Typically, unresolved fee issues occur 

in the context of a fee that has not been 

paid. In order to address the typical 

situations in this regard, we propose the 

deletion of the language above as 

unnecessary. 

Proposed § 1.561(l)(4) would add a 

provision that if a requester has a 

history of prompt payment, the FOIA 

Officer may accept assurance of full 

payment from the requester rather than 

require an advance payment. 

Proposed § 1.561(l)(5) would restate 

current § 1.555(g)(4)(iii) with no 

substantive change. 

Proposed § 1.561(m) would replace 

and restate current § 1.555(b)(4). 

Proposed § 1.561(m) would make no 

substantive change to current 

§ 1.555(b)(4). 

Proposed § 1.561(n)(1) would add 

language regarding the waiver or 

reduction of fees in general. It would 

direct the requester’s attention to the 

requirements for fee waiver requests, 

and would require that the requester 

submit adequate justification for the fee 

waiver request and advise that without 

adequate justification, the waiver 

request will be denied. Proposed 

§ 1.561(n)(1) also would provide the 

opportunity for the FOIA Officer to 

request additional information from the 

requester regarding the fee waiver 

request and close the file on the records 

request if VA does not receive the 

requested information within 10 days. 

This provision would advise the 

requester that it is important to submit 

adequate justification for the fee waiver 

request, which would avoid delay and 

fee waiver denials based simply on lack 

of adequate data. It would also provide 

for consistency in the administrative 

decision-making process by establishing 

a firm deadline for the submission of 

additional support. These provisions 

essentially would create a more efficient 

fee waiver request process, which 

would benefit both VA in its 

administration of the FOIA and 

requesters seeking records. In addition, 

proposed § 1.561(n)(1) would prescribe 

that fee waiver requests are determined 

on a case-by-case basis. This provision 

would clarify that each request for a fee 

waiver will be analyzed in its own right. 

A requester’s history of having received 

a fee waiver in the past would have no 

bearing on future requests. We believe 

that this provision will also provide for 

greater administrative consistency in 

addressing fee waiver requests. 


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Proposed § 1.561(n)(2) through (4) 

would replace and restate the provisions 

of current § 1.555(f)(2). No substantive 

changes would be made in the 

provisions regarding the requirements to 

receive a fee waiver. Proposed 

§ 1.561(n)(2) through (4) would also add 

clarifying language to each criterion 

considered in a fee waiver 

determination. The proposed rule 

would expand the fee waiver 

information provided in VA’s 

regulations and should be helpful to 

requesters seeking waivers. 

Proposed § 1.561(n)(5) would add a 

provision that if some of the records 

being released in response to a request 

meet the criteria for a fee waiver, then 

the assessment of a fee would be waived 

with regard to that portion of the 

records. This provision is administrative 

in nature and would advise requesters 

that it is possible to be provided a 

partial fee waiver. We intend that this 

provision would provide requesters as 

much information as possible regarding 

the parameters of fee waivers. 

Proposed § 1.561(n)(6) is an 

administrative provision that requires 

requesters to provide the information 

requested by VA and provides notice 

regarding the administrative factors that 

enter into a component’s fee waiver 

determination. It underscores that the 

component has some degree of 

discretion to consider such factors with 

regard to fee waiver requests. We 

believe that this addition would provide 

requesters with a more comprehensive 

understanding of the fee waiver process. 

Proposed § 1.561(n)(7) would replace 

and restate current § 1.555(f)(4) 

regarding appeals from adverse fee 

waiver determinations. Proposed 

§ 1.561(n)(7) makes no substantive 

change to the provision. 

Proposed § 1.561(n)(8) would add a 

provision that when considering a fee 

waiver request, VA may require proof of 

identity. This provision would provide 

flexibility for components addressing 

fee waiver requests by allowing them to 

ensure that the proper party is providing 

the necessary information. This is an 

administrative provision and is 

intended to provide components with 

the flexibility to exercise options such 

as verification of identity in appropriate 

cases. 

1.562 Other Rights and Services 

Proposed § 1.562 would add a 

provision to advise requesters that 

nothing in this section shall be 

construed to entitle an individual to 

information to which the individual 

would not be entitled under the FOIA. 

This provision is an administrative 

addition, intended to underscore that 

these regulations govern release of 

information under the FOIA and should 

be construed in that context only. 

Changes to 38 CFR Part 2 

2.6 Secretary’s Delegations of 

Authority to Certain Officials (38 U.S.C. 

512) 

Proposed § 2.6(e)(10) would add the 

Assistant General Counsel that has 

jurisdiction over FOIA matters to the list 

of those individuals authorized to make 

final Departmental decisions on appeals 

under the FOIA, the Privacy Act, and 38 

U.S.C. 5701, 5705, and 7332. This 

proposed amendment would allow for 

greater flexibility in addressing and 

processing appeals under the FOIA. At 

a time when requests and appeals filed 

under various confidentiality statutes 

are expanding, additional signature 

authority would enable VA to process 

more appeals and expedite the appeals 

process. 

Paperwork Reduction Act 

This document contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3501–3521). 

The Regulatory Flexibility Act 

The Secretary of Veterans Affairs 

hereby certifies this proposed rule 

would not have a significant economic 

impact on a substantial number of small 

entities as they are defined in the 

Regulatory Flexibility Act, 5 U.S.C. 601– 

612. This proposed rule generally 

pertains to requests for information 

submitted by individuals. Further, it 

would be extremely rare, if ever, that a 

request for information by a small entity 

would have a significant impact on the 

business of the small entity. Therefore, 

pursuant to 5 U.S.C. 605(b), this 

proposed rule is exempt from the initial 

and final regulatory flexibility analyses 

requirements of sections 603 and 604. 

Executive Order 12866 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety, and other advantages; 

distributive impacts; and equity). The 

Executive Order classifies a ‘‘significant 

regulatory action,’’ requiring review by 

the Office of Management and Budget, 

as any regulatory action that is likely to 

result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

The economic, interagency, 

budgetary, legal, and policy 

implications of this proposed rule have 

been examined and it has been 

determined not to be a significant 

regulatory action under Executive Order 

12866. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

year. This proposed rule would have no 

such effect on State, local, and tribal 

governments, or on the private sector. 

Catalog of Federal Domestic Assistance 

There is no Catalog of Federal 

Domestic Assistance number for the 

program affected by this proposed rule. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. John 

R. Gingrich, Chief of Staff, Department 

of Veterans Affairs, approved this 

document on September 9, 2010, for 

publication. 

List of Subjects 

38 CFR Part 1 

Administrative practice and 

procedure, Archives and records, 

Cemeteries, Claims, Courts, Crime, 

Flags, Freedom of information, 

Government contracts, Government 

employees, Government property, 

Infants and children, Inventions and 

patents, Parking, Penalties, Privacy, 

Reporting and recordkeeping 

requirements, Seals and insignia, 

Security measures, Wages. 


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38 CFR Part 2 

Authority delegations (Government 

agencies). 

Dated: October 4, 2010. 

Robert C. McFetridge, 

Director, Regulation Policy and Management, 

Office of the General Counsel, Department 

of Veterans Affairs. 

For the reasons stated in the 

preamble, VA proposes to amend 38 

CFR parts 1 and 2 as follows: 

PART 1—GENERAL PROVISIONS 

1. The authority citation for part 1 

continues to read as follows: 

Authority: 38 U.S.C. 501(a), and as noted 

in specific sections. 

2. In Part 1, revise the undesignated 

center heading immediately preceding 

§ 1.550 to read as follows: 

Procedures for Disclosure of Records 

Under the Freedom of Information Act 

2a. In Part 1, following the newly 

revised undesignated center heading 

remove the Note and authority citation 

preceding § 1.550. 

3. Revise § 1.550 to read as follows: 

§ 1.550 Purpose. 

(a) Sections 1.550 through 1.562 

contain the rules followed by VA in 

processing requests for records under 

the Freedom of Information Act (FOIA), 

5 U.S.C. 552. These regulations should 

be read together with the FOIA, which 

provides the underlying legal basis for 

the regulations and other information 

regarding requests for records in the 

custody of a Federal agency. 

Information routinely provided to the 

public (press releases, for example) may 

be provided without following these 

sections. In addition, as a matter of 

policy, VA may make discretionary 

releases of records or information 

exempt from disclosure under the FOIA 

when permitted to do so in accordance 

with current law and governmental 

policy. 

(b) Requests for records about an 

individual protected by the Privacy Act, 

5 U.S.C. 552a, including one’s own 

records and records that pertain to an 

individual and that may be sensitive, 

will be processed under the FOIA and 

the Privacy Act. In addition to the 

following FOIA regulations, see §§ 1.575 

through 1.584 for regulations applicable 

to Privacy Act records. 

(c) Requests for records relating to a 

claim administered by VA pursuant to 

38 U.S.C. 5701 will be processed under 

the FOIA and 38 U.S.C. 5701. In 

addition to the following FOIA 

regulations, see §§ 1.500 through 1.527 

for regulations implementing 38 U.S.C. 

5701. 

(d) Requests for records relating to 

healthcare quality assurance reviews 

pursuant to 38 U.S.C. 5705 will be 

processed under the FOIA and 38 U.S.C. 

5705. In addition to the following FOIA 

regulations, see 38 CFR 17.500 through 

17.511 for regulations implementing 38 

U.S.C. 5705. 

(e) Requests for records relating to 

treatment for the conditions specified in 

38 U.S.C. 7332, such as drug abuse, 

alcoholism or alcohol abuse, infections 

with the Human Immunodeficiency 

Virus (HIV), or sickle cell anemia, will 

be processed under the FOIA and 38 

U.S.C. 7332. In addition to the following 

FOIA regulations, see §§ 1.460 through 

1.499 of this part for regulations 

implementing 38 U.S.C. 7332. 

Authority: Sections 1.550 to 1.562 issued 

under 72 Stat. 1114; 38 U.S.C. 501, 552, 552a, 

5701, 5705, 7332. 

4. Add § 1.551 to read as follows: 

§ 1.551 Definitions. 

As used in §§ 1.550 through 1.562, the 

following definitions apply: 

Agency means any executive 

department, military department, 

government corporation, government 

controlled corporation, or other 

establishment in the executive branch of 

the Federal government, or independent 

regulatory entity. 

Appeal means a requester’s written 

disagreement with an adverse 

determination under the FOIA. 

Beneficiary means a veteran or other 

individual who has received benefits 

(including medical benefits) or has 

applied for benefits pursuant to title 38, 

United States Code. 

Benefits records means an 

individual’s records, which pertain to 

programs under any of the benefits laws 

administered by the Secretary of 

Veterans Affairs. 

Business day means the time during 

which typical Federal government 

offices are open for normal business. It 

does not include Saturdays, Sundays, or 

Federal legal public holidays. The term 

‘‘day’’ means business day unless 

otherwise specified. 

Business information means 

confidential or privileged commercial or 

financial information obtained by VA 

from a submitter that may be protected 

from disclosure under Exemption 4 of 

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

Component means each distinct VA 

entity, including Administrations, staff 

offices, services, or facilities. 

Expedited processing means giving a 

FOIA request priority for processing 

ahead of other pending requests because 

VA has determined that the requester 

has shown an exceptional need or 

urgency for the records as provided in 

these regulations. 

Fees. For fees and fee-related 

definitions, see § 1.561(b). 

FOIA Officer means the individual 

within a VA component whose 

responsibilities include addressing and 

granting or denying requests for records 

under the FOIA. 

Perfected request means a written 

FOIA request that meets the 

requirements set forth in § 1.554 of this 

part and for which there are no 

remaining issues about the payment of 

applicable fees or any other matter that 

requires resolution prior to processing. 

Reading room means space made 

available, as needed, in VA components 

where records are available for review 

pursuant to 5 U.S.C. 552(a)(2). 

Ordinarily, the VA component 

providing a public reading room space 

will be the component that maintains 

the record. 

Record means a document, a portion 

of a document, and information 

contained within a document, and can 

include information derived from a 

document or a database. Such 

documents may be maintained in paper, 

electronic, and other forms, but do not 

include objects, such as tissue slides, 

blood samples, or computer hardware. 

Request means a demand for records 

under the FOIA as described below. The 

term request includes any action 

emanating from the initial demand for 

records, including an appeal related to 

the initial demand. 

Requester means, generally, any 

individual, partnership, corporation, 

association, or foreign or state or local 

government, which has made a demand 

to see or receive a copy of an agency 

record. 

Sensitive medical or mental health 

records mean documents containing 

information that, with a reasonable 

degree of medical certainty, are likely to 

have a serious adverse effect on an 

individual’s mental or physical health if 

revealed to him or her. 

Submitter means any person or entity 

(including corporations, state, local and 

tribal governments and foreign 

governments) from whom VA obtains 

trade secrets or confidential commercial 

or financial information either directly 

or indirectly. 

VA means the Department of Veterans 

Affairs. 

VA Central Office (VACO) means the 

headquarters of the Department of 

Veterans Affairs. The mailing address is 

810 Vermont Avenue, NW., 

Washington, DC 20420. 


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Written or in writing means 

communications such as letters, 

photocopies of letters, electronic mail, 

and facsimiles (faxes), and does not 

include any form of oral 

communication. 

5. Revise §§ 1.552 and 1.553 to read 

as follows: 

§ 1.552 General provisions. 

(a) Additional information. The 

following Internet link will provide 

access to VA’s information that is 

electronically available under the FOIA: 

http://www.foia.va.gov/. 

(b) Public Liaisons. VA has made 

available to the requester FOIA Public 

Liaisons to assist in the resolution of 

disputes between the agency and the 

requester. Contact information for VA’s 

FOIA Public Liaisons can be found on 

VA’s FOIA homepage. See § 1.552(a) for 

the pertinent Internet address. 

(c) FOIA Annual Report. Under 5 

U.S.C. 552(e), VA is required to prepare 

an annual report regarding its FOIA 

activities. The report includes 

information about FOIA requests and 

appeals. Copies of VA’s annual FOIA 

report may be obtained from the 

Department’s Chief FOIA Officer or by 

visiting VA’s FOIA Web site. See 

§ 1.552(a) for the pertinent Internet 

address. 

§ 1.553 Public reading rooms. 

(a) VA maintains a public reading 

room electronically at its FOIA home 

page on the Internet, which contains the 

records that the FOIA requires to be 

regularly made available for public 

inspection and copying. See § 1.552(a) 

for the pertinent Internet address. Each 

VA component is responsible for 

determining which of its records are 

required to be made available and for 

making its records available 

electronically. VA also makes available 

for public inspection and copying 

current subject-matter indices of its 

reading room records that are available 

electronically. Each index shall be 

updated regularly, at least quarterly, 

with respect to newly included records. 

(b) VA may delete some of the 

information in the records that it is 

making publicly available. Information 

in a public reading room record will be 

redacted, for example, if its release 

would be a clearly unwarranted 

invasion of an individual’s personal 

privacy. 

(c) Some VA components may also 

maintain physical public reading rooms. 

Information regarding these components 

and their contact information is 

available on VA’s FOIA home page on 

the Internet. See § 1.552(a) for the 

pertinent Internet address. If you do not 

have access to the Internet and wish to 

obtain information regarding publicly 

available information or components 

that have a physical reading room, you 

may write the Department’s Chief FOIA 

Officer at the following address: 

Department of Veterans Affairs, FOIA 

Service (005R1C), 810 Vermont Avenue, 

NW., Washington, DC 20420. 

§ 1.553a [Removed] 

6. Remove § 1.553a. 

7. Revise § 1.554 to read as follows: 

§ 1.554 Requirements for making requests. 

(a) Requests by letter and facsimile 

(fax). The FOIA request must be in 

writing. VA accepts facsimiles (faxes) as 

written FOIA requests. If the request 

concerns documents protected by 

records to which another confidentiality 

statute applies, the request must contain 

an image of the requester’s handwritten 

signature. To make a request for VA 

records, write directly to the FOIA 

Officer for the VA component that 

maintains the records. If requesting 

records from a particular medical 

facility or regional office, for example, 

the request should be sent to the FOIA 

Office at the address listed for that 

component. If seeking records from a 

component within VA’s Central Office, 

the request should be sent to the Central 

Office address of the FOIA Office listed 

for that component. A list of FOIA 

contacts is available on the Internet. A 

legible return address must be included 

with your FOIA request; you may wish 

to include other contact information as 

well, such as a telephone number and 

an electronic mail (e-mail) address. If 

you are not sure where to send your 

request, you should seek assistance from 

the FOIA Contact for the office that you 

believe manages the programs whose 

records you are requesting or send the 

request to the Director, FOIA Service 

(005R1C), 810 Vermont Avenue, NW., 

Washington, DC 20420, who will refer it 

for action to the FOIA contact at the 

appropriate component. For the 

quickest possible handling, the request 

letter and the envelope of any FOIA 

request should be marked ‘‘Freedom of 

Information Act Request.’’ You may find 

it helpful to refer to VA’s FOIA home 

page on the Internet when making your 

request; available reference material 

includes VA’s FOIA Reference Guide 

and the text of the FOIA. See § 1.552(a) 

for the pertinent Internet address. 

(b) Requests by e-mail. VA will accept 

an e-mail request. If the request 

concerns documents protected by 

records to which another confidentiality 

statute applies, the email transmission 

must contain an image of the requester’s 

handwritten signature, such as an 

attachment that shows the individual’s 

handwritten signature. In order to 

assure prompt processing, e-mail FOIA 

requests must be sent to official VA 

FOIA mailboxes established for the 

purpose of receiving FOIA requests. An 

e-mail FOIA request that is sent to an 

individual VA employee’s mailbox, or 

to any other entity, will not be 

considered a perfected FOIA request. 

Mailbox addresses designated to receive 

e-mail FOIA requests are available on 

VA’s FOIA home page. See § 1.552(a) for 

the pertinent Internet address. 

(c) Making a request for another 

individual’s records. If you are 

requesting records about another 

individual, it will be helpful under 

certain circumstances to provide proof 

that you are authorized to obtain the 

records, such as a legally sufficient prior 

written authorization for the release of 

information signed by that individual, 

proof that the individual is deceased 

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

proof that the requester is the 

authorized representative of the 

individual or the individual’s estate. 

This information will assist in 

determining whether and to what degree 

the records may be released. 

(d) Description of records sought. (1) 

You must describe the records that you 

seek in enough detail to allow VA 

personnel to locate them with a 

reasonable amount of effort. To the 

extent possible, you should include 

specific information about each record 

sought, such as the date, title or name, 

author, recipient, and subject matter of 

the document. Generally, the more 

information you provide about the 

record you are seeking, the more likely 

VA personnel will be able to locate any 

responsive records. Wide-ranging 

requests that lack specificity, or contain 

descriptions of very general subject 

matters, with no description of specific 

records, may be considered ‘‘not 

reasonably described’’ and thus not 

subject to further processing. 

(2) Requests for voluminous amounts 

of records may be placed in a complex 

track of a multitrack processing system 

pursuant to § 1.556(b); such requests 

also may meet the criteria for ‘‘unusual 

circumstances,’’ which are processed in 

accordance with § 1.556(c) and may 

require more than twenty (20) business 

days to process despite the agency’s 

exercise of due diligence. 

(3) If the FOIA Officer determines that 

your request does not reasonably 

describe the records sought, the FOIA 

Officer will tell you why the request is 

insufficient. The FOIA Officer will also 

provide an opportunity to discuss your 

request by documented telephonic 

communication or written 


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correspondence in order to modify it to 

meet the requirements of this section 

and place your request into a more 

expedient track. 

(4) The time limit for VA to process 

your FOIA request will not start it 

determines that you have reasonably 

described the records that you seek in 

the FOIA request. If VA seeks additional 

clarification regarding your request and 

does not receive your written response 

within thirty (30) calendar days of the 

date of its communication with you, VA 

will conclude that you are no longer 

interested in pursuing your request and 

will close its files on your request. 

(e) Agreement to pay fees. The time 

limit for processing your request will be 

tolled while any fee issue is unresolved. 

If the FOIA Officer anticipates that the 

fees for processing your request will 

exceed the amount that you that you 

have stated that you are willing to pay 

or will amount to more than $25.00 or 

the amount set by OMB fee guidelines, 

whichever is higher, the FOIA Officer 

will notify you. In such cases, the FOIA 

Officer may require you to agree in 

writing to pay the estimated fee. In 

addition, if the estimated fee amount 

exceeds $250.00 or you previously have 

failed to pay a FOIA fee in a timely 

manner, the FOIA Officer may require 

you to pay the FOIA fee in advance, 

before beginning to process your FOIA 

request. If the FOIA Officer does not 

receive your written response within ten 

(10) business days of the date of the 

FOIA Officer’s communication with 

you, she or he will conclude that you 

are no longer interested in pursuing 

your request and will close your 

request. If you request a fee waiver 

under § 1.561, you nonetheless may 

state your willingness to pay a fee up to 

an identified amount in the event that 

the fee waiver is denied; this will allow 

the component to process your FOIA 

request while considering your fee 

waiver request. If you are required to 

pay a fee in advance, and you paid the 

fee, and if VA later determines that you 

overpaid or that you are entitled to a full 

or partial fee waiver, a refund will be 

made. (For more information on the 

collection of fees under the FOIA, see 

§ 1.561.) 

(f) You must meet all of the 

requirements of this section in order for 

your request to be perfected. 

§ 1.554a [Removed] 

8. Remove § 1.554a. 

9. Revise §§ 1.555 through 1.557 to 

read as follows: 

§ 1.555 Responsibility for responding to 

requests. 

(a) General. Except as stated in 

paragraphs (c) and (d) of this section, 

the FOIA Officer of the component that 

first receives a request for records is 

responsible for either processing the 

request or referring it to the designated 

FOIA Officer for the appropriate 

component. Offices within the 

component that is responsible for 

processing the FOIA request shall 

provide the FOIA Officer all documents 

responsive to the request that are in 

their possession as of the date the search 

for responsive records begins. 

(b) Authority to grant or deny 

requests. Each component shall 

designate a FOIA Officer who is 

responsible for making determinations 

pursuant to the FOIA. 

(c) Consultations and referrals. When 

a component receives a request for a 

record, the FOIA Officer shall determine 

whether the request would be more 

properly addressed by another 

component of VA or by another entity 

within the Federal government. If the 

FOIA Officer of the component that 

receives the request determines that the 

component is best able to address the 

request, then the component shall do so. 

If the FOIA Officer determines that the 

component that receives the FOIA 

request is not best able to process the 

request, then she or he shall: 

(1) Process the request after 

consulting with the component or 

agency best able to determine whether 

to disclose the record and with any 

other component or agency that has a 

substantial interest in it; or 

(2) Refer the request for the record 

and the responsibility for responding to 

that request to the VA component or 

Federal agency best able to address the 

request. Ordinarily, VA will presume 

that the component or agency that 

created the record is best able to 

determine whether to disclose it. 

(d) Classified information. The FOIA 

Officer will refer requests for records 

containing classified information to the 

component or agency that classified the 

information for processing. 

(e) Notice of referral. Whenever a 

FOIA Officer refers all or part of a 

request and responsibility for processing 

the request to another component or 

agency, the FOIA Officer will notify the 

requester in writing of the referral and 

provide the requester the name and 

contact information of the entity to 

which the request has been referred, 

after consulting with the entity to which 

the request is to be referred to ensure 

that the request is being referred to the 

correct entity. If only part of the request 

was referred, the FOIA Officer will 

inform the requester and identify the 

referred part at the time of the referral 

or in the final response. 

§ 1.556 Timing of responses to requests. 

(a) General. Components ordinarily 

shall respond to requests according to 

their order of receipt and within the 

time frames established under the FOIA. 

(b) Multitrack processing. (1) VA will 

use two processing tracks to distinguish 

between the complexity of a request for 

records: Simple and complex, based 

upon the amount of work and/or time 

needed to process the request, including 

consideration of the number of pages 

involved. 

(2) The FOIA Officer shall advise the 

requester of the track into which the 

request has been placed and of the 

criteria of the faster track. The FOIA 

Officer will provide requesters in the 

slower track the opportunity to limit the 

scope of their requests in order to 

qualify for processing in the faster track. 

The FOIA Officer may contact the 

requester either by telephone or in 

writing, whichever the FOIA Officer 

determines is most efficient and 

expeditious; telephonic communication 

will be documented. 

(c) Unusual circumstances. (1) FOIA 

Officers may encounter ‘‘unusual 

circumstances,’’ where it is not possible 

to meet the statutory time limits for 

processing the request. In such cases, 

the FOIA Officer will extend the twenty 

(20)-business day time limit for ten (10) 

more business days and notify the 

requester in writing of the unusual 

circumstances and of the date by which 

it expects to complete processing of the 

request. Where the extension is for more 

than ten (10) business days, the FOIA 

Officer will provide the requester with 

an opportunity to either modify the 

request so that it may be processed 

within the time limits or to arrange an 

alternative time period with the FOIA 

Officer for processing the request or a 

modified request. Unusual 

circumstances consist of the following: 

(i) The need to search for and collect 

the requested records from field 

facilities or other components other 

than the office processing the request; 

(ii) The need to search for, collect and 

examine a voluminous amount of 

separate and distinct records that are the 

subject of a single request; or 

(iii) The need for consultation with 

two or more components or another 

agency having a substantial interest in 

the subject matter of a request. 

(2) Where the FOIA Officer reasonably 

believes that certain requests from the 

same requester, or a group of requesters 

acting in concert, actually constitute the 

same request that would otherwise 


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satisfy the unusual circumstances 

specified in this paragraph, and the 

requests involve clearly related matters, 

the FOIA Officer may aggregate those 

requests. Multiple requests involving 

unrelated matters will not be aggregated. 

(d) Expedited processing. (1) Requests 

will be processed out of the order in 

which they were received by the 

component responsible for processing 

the FOIA request and given expedited 

treatment when VA determines that 

there is a compelling need to process 

the FOIA request promptly and out of 

order. A compelling need exists when 

VA determines that: 

(i) The failure to obtain the requested 

records on an expedited basis could 

reasonably be expected to pose an 

imminent threat to the life or physical 

safety of an individual; 

(ii) There is an urgency to inform the 

public concerning actual or alleged 

Federal government activity, if the 

request is made by a person primarily 

engaged in disseminating information; 

(iii) In the discretion of the FOIA 

Officer, the regulations warrant such 

treatment; or 

(iv) Where there is widespread and 

exceptional interest in which possible 

questions exist about the government’s 

integrity which affect public confidence. 

(2) A requester who is seeking 

expedited processing must submit a 

statement, certified to be true to the best 

of that person’s knowledge and belief, 

providing a detailed basis for how there 

is a compelling need. VA may waive the 

requirement for certification of the 

statement of compelling need as a 

matter of administrative discretion. 

(3) Within ten (10) calendar days of its 

receipt of a request for expedited 

processing, the FOIA Officer shall 

determine whether to grant the request 

and will provide the requester written 

notice of the decision. If the FOIA 

Officer grants a request for expedited 

processing, the FOIA Officer shall give 

the request priority and process it as 

soon as practicable. If the FOIA Officer 

denies the request for expedited 

processing, the requester may appeal the 

denial, which appeal shall be addressed 

expeditiously. 

§ 1.557 Responses to requests. 

(a) Acknowledgement of requests. 

When a request for records is received 

by a component designated to receive 

requests, the component’s FOIA Officer 

will assign a request number for future 

reference and send the requester a 

written acknowledgement of receipt. 

(b) Processing of requests. Upon 

receipt of a perfected request by the 

appropriate component, the FOIA 

Officer will make a reasonable effort to 

search for records responsive to the 

request. The FOIA Officer ordinarily 

will include as responsive those records 

in its possession and control as of the 

date the search for responsive records 

began. This includes searching for 

records in electronic form or format, 

unless to do so would interfere 

significantly with the agency’s 

automated information systems. If fees 

for processing the request are due under 

§ 1.561, the FOIA Officer shall inform 

the requester of the amount of the fee as 

provided in § 1.554(e) and § 1.561. 

Where a FOIA Officer grants the request 

in part, the FOIA shall mark, redact, or 

annotate the records to be released to 

show the amount of information deleted 

and the exemption under which the 

deletion is made unless doing so would 

harm an interest protected by an 

applicable exemption. The location of 

the information deleted also will be 

indicated on the record, if technically 

feasible. The FOIA Officer will also 

provide the records in the form or 

format requested by the individual, if 

readily reproducible in that form or 

format. 

(c) Time limits for processing 

requests. Ordinarily, a component will 

have twenty (20) business days from the 

date of VA’s receipt of the request to 

make a determination whether to grant 

a request in its entirety, grant in part, or 

deny a request in its entirety. If the 

request must be referred to another 

component, it will be referred as quickly 

as possible, but no later than ten (10) 

business days after the referring office 

receives the FOIA request. 

(d) Adverse determinations of 

requests. Whenever a component makes 

an adverse determination denying a 

request in any respect, the component 

FOIA Officer shall promptly notify the 

requester of the adverse determination 

in writing. Adverse determinations 

include the following: A determination 

to withhold a requested record in whole 

or in part; a determination that the 

requested record does not exist or 

cannot be located; a determination that 

a record is not readily reproducible in 

the form or format sought by the 

requester; a determination that what has 

been sought is not a record subject to 

the FOIA; a determination on any 

disputed fee matter, including the 

denial of a fee waiver; and a denial of 

a request for expedited treatment. The 

adverse determination notice must be 

signed by the component head or the 

component’s FOIA Officer, and will 

include the following: 

(1) The name and title or position of 

the person responsible for the adverse 

determination; 

(2) A brief statement of the reason(s) 

for the denial, including any FOIA 

exemptions applied by the FOIA Officer 

in denying the request; 

(3) The amount of information 

withheld in number of pages or other 

reasonable form of estimation; an 

estimate is not necessary if the volume 

is indicated on redacted pages disclosed 

in part or if providing an estimate 

would harm an interest provided by an 

applicable exemption; and 

(4) Notice that the requester may 

appeal the adverse determination and a 

description of the requirements for an 

appeal under § 1.559 of this part. 

10. Add §§ 1.558 through 1.562 to 

read as follows: 

* * * * * 

Sec. 

1.558 Business information. 

1.559 Appeals. 

1.560 Maintenance and preservation of 

records. 

1.561 Fees. 

1.562 Other rights and services. 

* * * * * 

§ 1.558 Business information. 

(a) General. Business information 

received by VA from a submitter will be 

considered under the FOIA pursuant to 

this section and in accordance with the 

requirements set forth in § 1.557 of this 

part. 

(b) Designation of business 

information. A submitter of business 

information may designate that specific 

records or portions of records submitted 

are business information, at the time of 

submission or within a reasonable time 

thereafter. The submitter must use good 

faith efforts in designating records that 

the submitter claims could be expected 

to cause substantial competitive harm 

and thus warrant protection under 

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

552(b)(4). The submitter may mark the 

record submission as confidential or use 

the words ‘‘business information’’ or 

describe the specific records that 

contain business information. Such 

designation will be considered, but will 

not control, the FOIA Officer’s decision 

on disclosing the material. A 

designation will remain in effect for a 

period of not more than 10 years after 

receipt by VA, unless the submitter 

provides acceptable justification for a 

longer period. A submitter may 

designate a shorter period by including 

an expiration date. 

(c) Notices to submitters. (1) The 

FOIA Officer shall promptly notify a 

submitter in writing of a FOIA request 

seeking the submitter’s business 

information whenever the FOIA Officer 

has reason to believe that the 

information may be protected under 


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

regarding business information. The 

written notice will provide the 

submitter an opportunity to object to 

disclosure of any specified portion of 

the records within the time period 

specified in the notice. The notice will 

either describe in detail the business 

information requested (e.g., an entire 

contract identified by a unique number) 

or shall provide copies of the requested 

record(s) or record portions containing 

the business information. When 

notification of a voluminous number of 

submitters is required, the FOIA Officer 

may notify the submitters by posting or 

publishing the notice in a place 

reasonably likely to accomplish 

notification. 

(2) If the FOIA Officer determines to 

release business information over the 

objection(s) of a submitter, the FOIA 

Officer will notify the submitter 

pursuant to paragraph (e) of this section. 

(3) Whenever the FOIA Officer 

notifies a requester of a final decision, 

the FOIA Officer will also notify the 

submitter by separate correspondence. 

This notification may be contained in 

VA’s FOIA decision. 

(4) Exceptions to this notice provision 

are contained in paragraph (f) of this 

section. 

(d) Opportunity to object to 

disclosure. When notification to a 

submitter is made pursuant to paragraph 

(c)(1) of this section, the submitter may 

object to the disclosure of any specified 

portion(s) of the record(s). The 

submitter’s objection(s) must be in 

writing, addressed to the FOIA Officer, 

and must be received by the reasonable 

date specified in the FOIA Officer’s 

notice in order for VA to consider such 

objections. If the submitter has any 

objection to disclosure of the record(s) 

requested, or any specified portion(s) 

thereof, the submitter must identify the 

specific record(s) or portion(s) of 

records for which objection(s) are made. 

The objection will specify in detail all 

grounds for withholding any record(s) 

or portion(s) of the record(s) upon 

which disclosure is opposed under any 

exemption of the FOIA. In particular, if 

the submitter is asserting that the record 

is protected under Exemption 4, 5 

U.S.C. 552(b)(4), it must show why the 

information is a trade secret or 

commercial or financial information 

that is privileged or confidential. The 

submitter must explain in detail how 

and why disclosure of the specified 

records would likely cause substantial 

competitive harm in the case of a 

required submission or state whether 

the records would customarily be 

disclosed by the submitter upon a 

request from the public in the case of a 

voluntary submission. The submitter’s 

objections must be contained within a 

single written response; oral responses 

or subsequent, multiple responses 

generally will not be considered. If a 

submitter does not respond to the notice 

described in paragraph (c)(1) of this 

section within the specified time limit, 

the submitter will be considered to have 

no objection to disclosure of the 

information. 

(e) Consideration of objection(s) and 

notice of intent to disclose. The FOIA 

Officer will consider all pertinent 

factors, including but not limited to a 

submitter’s timely objection(s) to 

disclosure and the specific grounds 

provided by the submitter for nondisclosure in deciding whether to 

disclose business information. 

Information provided by the submitter 

after the specified time limit and after 

the component has made its disclosure 

decision generally will not be 

considered. In addition to meeting the 

requirements of § 1.557, when a FOIA 

Officer decides to disclose business 

information over the objection of a 

submitter, the FOIA Officer will provide 

the submitter with written notice, which 

includes: 

(1) A statement of the reason(s) why 

each of the submitter’s disclosure 

objections were not sustained; 

(2) A description of the business 

information to be disclosed; and 

(3) A specified disclosure date of not 

less than ten (10) days from the date of 

the notice (to allow the submitter time 

to take necessary legal action). 

(f) Exceptions to notice requirements. 

The notice requirements set forth in 

paragraphs (c) and (g) of this section 

will not apply if: 

(1) The FOIA Officer determines that 

the information should not be disclosed; 

(2) The information lawfully has been 

published or has been officially made 

available to the public; or 

(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 any other Executive 

Order. 

(g) Notice to requesters. When VA 

receives a request for records that may 

contain confidential commercial 

information protected by FOIA 

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

regarding business information, the 

requester will be notified that the 

request is being processed under the 

provisions of this regulation and, as a 

consequence, there may be a delay in 

receiving a response. The notice to the 

requester will not include any of the 

specific information contained in the 

records being requested. 

§ 1.559 Appeals. 

(a) Informal resolution prior to 

appeal. Before filing an appeal, you may 

wish to communicate with the contact 

person listed in the FOIA response or 

the component’s FOIA Officer to see if 

the issue can be resolved informally. 

Informal resolution of your concerns 

may be appropriate, for example, where 

the agency has not responded to your 

request or where you believe the search 

conducted was not adequate; in this 

example, additional information may 

assist in resolving the matter. 

(b) How to file and address a written 

appeal. You may appeal an adverse 

determination denying your request, in 

any respect, to the VA Office of the 

General Counsel (024), 810 Vermont 

Avenue, NW., Washington, DC, 20420. 

Any appeals concerning any Office of 

Inspector General records should be 

referred to the VA Office of Inspector 

General, Office of Counselor (50), 810 

Vermont Avenue, NW., Washington, DC 

20420. The FOIA appeal must be in 

writing. VA accepts facsimiles (faxes) as 

written FOIA appeals. If the appeal 

concerns documents protected by 

records to which another confidentiality 

statute applies, the appeal must contain 

an image of the requester’s handwritten 

signature, such as an attachment that 

shows the individual’s handwritten 

signature. Information regarding where 

to fax your FOIA appeal is available on 

VA’s FOIA home page on the Internet. 

See § 1.552(a) for the pertinent Internet 

address. A legible return address must 

be included with your FOIA appeal; you 

may include other contact information 

as well, such as a telephone number and 

an electronic mail (e-mail) address. 

(c) How to file an e-mail appeal. VA 

will accept a FOIA appeal by e-mail. If 

the request concerns documents 

protected by records to which another 

confidentiality statute applies, the email 

transmission must contain an image of 

the requester’s handwritten signature, 

such as an attachment that shows the 

individual’s handwritten signature. In 

order to assure prompt processing, email FOIA appeals must be sent to 

official VA FOIA mailboxes established 

for the purpose of receiving FOIA 

appeals; an e-mail FOIA appeal that is 

sent to an individual VA employee’s 

mailbox, or to any other entity, will not 

be considered a perfected FOIA appeal. 

Mailbox addresses designated to receive 

e-mail FOIA appeals are available on 

VA’s FOIA home page. See § 1.552(a) for 

the pertinent Internet address. 

(d) Time limits and content of appeal. 

Your appeal to the VA OGC (024), or VA 

Office of Inspector General (50), as 

appropriate, must be postmarked no 

later than sixty (60) calendar days of the 


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date of the adverse determination. Your 

appeal must clearly identify the 

determination that you are appealing, 

including any assigned request number. 

Other information should also be 

included, such as the name of the FOIA 

officer, the address of the component, 

the date of component’s determination, 

if any, and the precise subject matter of 

your appeal. If you are appealing only 

a portion of the component’s 

determination, you must specify which 

part of the determination you are 

appealing. You should include copies of 

your request and VA’s response, if any. 

An appeal is not perfected until VA 

either receives the information 

identified above or the appeal is 

otherwise sufficiently defined. Appeals 

should be marked ‘‘Freedom of 

Information Act Appeal.’’ The General 

Counsel, Deputy General Counsel, or 

Assistant General Counsel with 

jurisdiction over information disclosure 

matters (024) will act on behalf of the 

Secretary on all appeals under this 

section, except those pertaining to the 

Office of Inspector General. The 

designated official in the Office of 

Inspector General will act on all appeals 

pertaining to Office of Inspector General 

records. A determination by the General 

Counsel, Deputy General Counsel, or 

Assistant General Counsel, or 

designated official within the Office of 

Inspector General, will be the final VA 

action. 

(e) Responses to appeals. The Office 

of the General Counsel or the Office of 

Inspector General, as appropriate, will 

provide you a decision on your appeal 

in writing that includes a brief 

statement of the reasons for its 

determination, including, if applicable, 

any FOIA exemptions applied. 

(f) Court review. You must first appeal 

the adverse determination in accordance 

with this section before seeking review 

by a court. 

§ 1.560 Maintenance and preservation of 

records. 

(a) Each component will preserve all 

correspondence pertaining to FOIA 

requests as well as copies of pertinent 

records, until disposition is authorized 

under title 44, U.S.C., or the National 

Archives and Records Administration’s 

General Records Schedule 14. 

(b) The FOIA Officer must maintain 

copies of records that are the subject of 

a pending request, appeal, or lawsuit 

under the FOIA. A copy of all records 

shall be provided promptly to the Office 

of the General Counsel upon request. 

§ 1.561 Fees. 

(a) General. Components will charge 

for processing requests under the FOIA 

in accordance with paragraph (c) of this 

section, except where fees are limited 

under paragraph (e) of this section or 

where a waiver or reduction of fees is 

granted under paragraph (n) of this 

section. The FOIA Officer will collect 

all applicable fees before releasing 

copies of requested records to a 

requester. Requesters must pay fees by 

check or money order made payable to 

the Treasury of the United States. Note 

that fees associated with requests from 

VA beneficiaries, applicants for VA 

benefits, or other individuals, for 

records retrievable by their names or 

individual identifiers processed under 

38 U.S.C. 5701 (records associated with 

claims for benefits) and 5 U.S.C. 552a 

(the Privacy Act), will be assessed fees 

in accordance with the applicable 

regulatory fee provisions relating to VA 

benefits and VA Privacy Act records. 

(b) Definitions. For purposes of 

assessing or determining fees, the 

following definitions apply: 

(1) All other requests means a request 

that does not fit into any of the 

categories in this section. 

(2) Commercial use request means a 

request from or on behalf of one who 

seeks information for a use or purpose 

that furthers his or her commercial, 

trade, or profit interests, to include 

furthering those interests through 

litigation. To the extent possible, the 

FOIA Officer shall determine the use to 

which a requester will put the requested 

records. When the intended use of the 

records is unclear from the request or 

when there is reasonable cause to doubt 

the use to which the requester will put 

the records sought, the FOIA Officer 

will provide the requester a reasonable 

opportunity to submit further 

clarification. 

(3) Direct costs mean expenses that 

VA incurs in responding to a FOIA 

request, including searching for and 

duplicating (and in the case of 

commercial use requesters, reviewing) 

records to respond to a FOIA request. 

Direct costs include, for example, the 

salary of the employee performing the 

work (the basic rate of pay for the 

employee, plus 16 percent of that rate to 

cover benefits costs) and the cost of 

operating duplication machinery. Direct 

costs do not include overhead expenses, 

such as the costs of space or heating and 

lighting of the facility where the records 

are kept. 

(4) Duplication means making a copy 

of a record necessary to respond to a 

FOIA request; copies may take the form 

of paper, microform, audiovisual 

materials or machine readabledocumentation (e.g., magnetic tape or 

disk), among others. The copy provided 

must be in a form that is reasonably 

usable by requesters. 

(5) Educational institution means a 

pre-school, a public or private 

elementary or secondary school, an 

institution of undergraduate or graduate 

higher education, an institution of 

professional education, or an institution 

of vocational education, which operates 

a program or programs of scholarly 

research. To be in this category, the 

FOIA Officer must make a 

determination that the request is 

authorized by and made under the 

auspices of a qualifying institution and 

that the records are sought to further a 

scholarly research goal of the institution 

and not the individual goal of the 

requester or a commercial goal of the 

institution. 

(6) Non-commercial scientific 

institution means an institution that is 

not operated on a ‘‘commercial’’ basis (as 

that term is defined in paragraph (b)(2) 

of this section) and that is operated 

solely for the purpose of conducting 

scientific research, the results of which 

are not intended to promote any 

particular product or industry. 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 

sought to further scientific research and 

are not sought for a commercial use. 

(7) Representative of the news media 

means any person or entity that gathers 

information of potential interest to a 

segment of the public, uses its editorial 

skills to turn the raw materials into a 

distinct work, and distributes that work 

to an audience. The term news 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 broadcasting to the public at 

large and publishers of periodicals (but 

only if such entities qualify as 

disseminators of ‘‘news’’) who make 

their products available for purchase or 

subscription or free distribution to the 

general public. These examples are not 

all-inclusive. As methods of news 

delivery evolve (for example, the 

adoption of the electronic dissemination 

of newspapers through 

telecommunications services), such 

alternative media that otherwise meet 

the criteria for news media shall be 

considered to be news-media entities. 

Freelance journalists may be regarded as 

working for a news-media entity if they 

can demonstrate a solid basis for 

expecting publication through that 

entity, even though not actually 

employed by it. A publication contract 

would be the clearest proof, but the 

requester’s publication history may also 


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be considered. To be in this category, a 

requester must not be seeking the 

requested records for a commercial use; 

a records request supporting the 

requester’s news-dissemination function 

shall not be considered to be for a 

commercial use. 

(8) Review means examining a record 

including audiovisual, electronic mail, 

data bases, documents and the like in 

response to a commercial use request to 

determine whether any portion of it is 

exempt from disclosure. Review 

includes the deletion of exempt material 

or other processing necessary to prepare 

the record(s) for disclosure. Review time 

includes time spent contacting any 

submitter and considering or 

responding to any objections to 

disclosure made by a submitter under 

§ 1.558(d) but does not include time 

spent resolving general legal or policy 

issues regarding the application of 

exemptions. Review costs are 

recoverable even if, after review, a 

record is not disclosed. 

(9) Search means the process of 

looking for and retrieving records that 

are responsive to a request, including 

line-by-line or page-by-page 

identification of responsive information 

within records. Search also includes 

reasonable efforts to locate and retrieve 

information from records maintained in 

electronic form or format. The 

component will conduct searches in the 

most efficient and least expensive 

manner reasonably possible. For 

example, line-by-line searches will not 

be conducted when duplicating an 

entire document is a less expensive and 

quicker method of complying with a 

request. 

(c) Categories of requesters and fees to 

be charged each category. 

There are four categories of FOIA 

requesters: Commercial use requesters, 

educational and non-commercial 

scientific institutional requesters, 

representatives of the news media, and 

all other requesters. Unless a waiver or 

reduction of fees is granted under 

paragraph (n) of this section or is 

limited in accordance with paragraph 

(e) of this section, specific levels of fees 

will be charged for each category as 

follows: 

(1) Commercial use requesters. 

Subject to the limitations in paragraph 

(e) of this section, commercial use 

requesters will be charged the full direct 

costs of the search, review, and 

duplication of records sought. 

Commercial use requesters are not 

entitled to 2 hours of free search time or 

the first 100 pages of reproduced 

documents free of charge. The FOIA 

Officer may charge a commercial use 

requester for time spent searching even 

if they do not locate any responsive 

record(s) or if they withhold the 

record(s) located as entirely exempt 

from disclosure. 

(2) Educational and non-commercial 

scientific institution requesters. Subject 

to the limitations in paragraph (e) of this 

section, educational and noncommercial scientific institution 

requesters will be charged for the cost 

of reproduction only, excluding charges 

for the first 100 pages. 

(3) Representative of the news media. 

Subject to the limitations in paragraph 

(e) of this section, representatives of the 

news media will be charged for the cost 

of reproduction only, excluding charges 

for the first 100 pages. 

(4) All other requesters. Subject to the 

limitations in paragraph (e) of this 

section, a requester who does not fit into 

any of the categories in this section will 

be charged fees to recover the full, 

reasonable direct cost of searching for 

and reproducing records responsive to a 

request, except that the first 2 hours of 

search time and the first 100 pages of 

reproduction will be furnished without 

cost. The FOIA Officer may charge all 

other requesters for time spent searching 

even if the component does not locate 

any responsive record(s) or if they 

withhold the record(s) located as 

entirely exempt from disclosure. 

(d) Fees to be charged. The following 

fees will be used when calculating the 

fee owed pursuant to a request or 

appeal. The fees also apply to making 

documents available for public 

inspection and copying under § 1.553 of 

this part. 

(1) Search. (i) Search fees. When a 

FOIA Officer determines that a search 

fee applies, the fee will be based on the 

hourly salary of VA personnel 

performing the search, plus 16 percent 

of the salary. The type and number of 

personnel involved in addressing the 

request or appeal depends on the nature 

and complexity of the request and 

responsive records. Fees are charged in 

quarter hour increments. 

(ii) Computer search. In cases where 

a computer search is required, the 

requester will be charged the direct 

costs of conducting the search, although 

certain requesters (as provided in 

paragraph (e)(1) of this section) will be 

charged no search fee and certain other 

requesters (as provided in paragraph 

(e)(4) of this section) will be entitled to 

the cost of 2 hours of employee search 

time without charge. When a computer 

search is required, VA will combine the 

hourly cost of operating the computer 

with the employee’s salary, plus 16 

percent of the salary. When the cost of 

the search (including the employee 

time, to include the cost of developing 

a search methodology, and the cost of 

the computer to process a request) 

equals the dollar amount of 2 hours of 

the salary of the employee performing 

the search, VA will begin to assess 

charges for a computer search. 

(2) Duplication. When a duplication 

fee applies, the FOIA Officer will charge 

a fee of 15 cents per one-sided page for 

a paper photocopy of a record; no more 

than one copy will be provided. For 

copies produced by computer, such as 

tapes and discs, the FOIA Officer will 

charge the direct costs of producing the 

copy, including employee time. For 

other forms of duplication, the FOIA 

Officer will charge the direct costs of 

that duplication. 

(3) Review. When review fees apply, 

review fees will be charged at the initial 

level of review only, when the 

component responsible for processing 

the request determines whether an 

exemption applies to a record or portion 

of a record. For review at the appeal 

level, no fee will be charged for an 

exemption that has already been applied 

and is determined to still apply. 

However, record or record portions 

withheld under an exemption that is 

subsequently determined not to apply 

may be reviewed again to determine 

whether any other exemption not 

previously considered applies; the costs 

of that review are chargeable. Review 

fees will be charged at the same rates as 

those charged for search under 

paragraph (d)(1) of this section. 

(e) Limitations on charging fees. 

(1) No search fee will be charged for 

requests by educational institutions, 

non-commercial scientific institutions, 

or representatives of the news media. 

(2) No search or review fee will be 

charged for a quarter hour period unless 

more than half of that period is required 

for search or review. 

(3) No search fee (or duplication fee, 

when records are not sought for 

commercial use and the request is made 

by an educational or noncommercial 

scientific institution whose purpose is 

scholarly or scientific research, or a 

representative of the news media) will 

be charged in accordance with this 

section if the agency fails to comply 

with the time limit under § 1.556(a), and 

if no unusual or exceptional 

circumstances apply to the processing of 

the request pursuant to § 1.556(c). 

Duplication and search fees may still be 

charged to commercial use requesters. 

Duplication fees may still be charged for 

‘‘all other’’ requesters. 

(4) Except for requesters seeking 

records for a commercial use, the 

following will be provided without 

charge: 


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(i) The first 100 pages of duplication 

(or the cost equivalent). 

(ii) The first 2 hours of search time (or 

the cost equivalent). 

(5) Whenever a total fee calculated 

under paragraph (d) of this section is 

less than $25.00, no fee will be charged. 

(6) VA may provide free copies of 

records or free services in response to an 

official request from other government 

agencies and Congressional offices and 

when a component head or designee 

determines that doing so will assist in 

providing medical care to a VA patient 

or will otherwise assist in the 

performance of VA’s mission. 

(f) The following table summarizes 

the chargeable fees for each category of 

requester. 

Category Search fees Review fees Duplication fees 

(1) Commercial Use ........................................................ Yes .................................... Yes .................................... Yes. 

(2) Educational Institution ................................................ No ...................................... No ...................................... Yes (100 pages free). 

(3) Non-Commercial Scientific Institution ........................ No ...................................... No ...................................... Yes (100 pages free). 

(4) News Media ............................................................... No ...................................... No ...................................... Yes (100 pages free). 

(5) All other ...................................................................... Yes (2 hours free) ............. No ...................................... Yes (100 pages free). 

(g) Fee schedule. If it is determined 

that a fee will be charged for processing 

your FOIA request, VA will charge you 

to search for, review, and duplicate the 

requested records according to your fee 

category (see § 1.561(c)) and the 

following fee schedule. In addition, VA 

will charge you for any special handling 

or services performed in connection 

with processing your request and/or 

appeal. The following fees will be used 

by VA; these fees apply to services 

performed in making documents 

available for public inspection and 

copying under § 1.553 as well. The 

duplicating fees also are applicable to 

records provided in response to requests 

made under the Privacy Act. Fees will 

not be charged under either the FOIA or 

the Privacy Act where the total amount 

of fees for processing the request is 

$25.00 or less or where the requester has 

met the requirements for a statutory fee 

waiver. 

(1) Search and review (review applies 

to commercial-use requesters only). Fees 

are based on the average hourly salary 

(base salary plus DC locality payment), 

plus 16 percent for benefits, of 

employees in the following three 

categories. Fees will be increased 

annually consistent with 

Congressionally approved pay increases. 

Fees are charged in quarter-hour 

increments. 

(i) Clerical—Based on GS–6, Step 5, 

pay (all employees at GS–7 and below). 

(ii) Professional—Based on GS–11, 

Step 7, pay (all employees at GS–8 

through GS–12). 

(iii) Managerial—Based on GS–14, 

Step 2, pay (all employees at GS–13 and 

above). 

Note: Fees for the current fiscal year are 

posted on VA’s FOIA home page (see 

§ 1.552(a) for the pertinent Internet address). 

(2) Schedule of fees: 

Activity Fees 

(i) Duplication of standard size (81⁄2′′ × 11′′; 81⁄2′′ × 14′′; 11′′ × 14′′) paper records $0.15 per page 

(ii) Duplication of non-paper items (e.g., x-rays), paper records which are not of a 

standard size (e.g., architectural drawings/construction plans or EKG tracings), 

or other items which do not fall under category (1), in paragraph (c)(1) of this 

section.

Direct cost to VA. 

(iii) Record search by manual (non-automated) methods ........................................ Basic hourly salary rate of the employee(s), plus 16 percent 

* Note—If a component uses a single class of personnel for 

a search, e.g., all clerical or professional, an average rate 

for the grades of employees involved in the search may be 

used. 

(iv) Record search using automated methods, such as by computer ...................... Direct cost to perform search. 

(v) Record review (for Commercial Use Requesters only) ....................................... Basic hourly rate of employees performing review to determine whether to release records and to prepare them for 

release, plus 16 percent. 

(vi) Other activities, such as: Attesting under seal or certifying that records are 

true copies; sending records by special methods; forwarding mail; compiling 

and providing special reports, drawings, specifications, statistics, lists, abstracts 

or other extracted information; generating computer output; providing files 

under court process where the federal government is not a party to, and does 

not have an interest in, the litigation.

Direct cost to VA. 

(h) Notification of fee estimate or 

other fee issues. (1) Threshold for 

charging fees: Except for situations 

covered by § 1.556(k), VA will not 

charge you if the fee is $25.00 or less. 

(2) When a FOIA Officer determines 

or estimates that the fees to be charged 

under this section will amount to more 

than $25.00 or the amount set by OMB 

fee guidelines, whichever is higher, the 

FOIA Officer will notify you in writing 

of the actual or estimated amount of the 

fees, and ask you to provide written 

assurance of the payment of all fees or 

fees up to a designated amount, unless 

you have indicated a willingness to pay 

fees as high as those anticipated. Any 

such agreement to pay the fees shall be 

memorialized in writing. In addition, 

when a requester does not provide 

sufficient information upon which VA 

can identify a fee category (see 

paragraphs (c)(1) through (4) of this 

section), or an issue otherwise arises 

regarding fee assessment, the FOIA 

Officer may seek clarification from the 

requester. In either case, the timeline for 

responding to the request will be tolled 

and no further work will be done on it 

until the fee issue has been resolved. If 

VA does not receive a written response 

from you within ten (10) days after 

contacting you regarding a fee issue, it 

will assume that you no longer wish to 

pursue the request and will close the 

file on your request. 

(i) Charges for other services. Apart 

from the other provisions of this section, 

when special service, such as certifying 


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that records are true copies or sending 

them by other than ordinary mail, is 

requested, and the FOIA Officer chooses 

to provide such a service as a matter of 

administrative discretion, the direct 

costs of providing the service ordinarily 

will be charged. 

(j) Charging interest. The FOIA Officer 

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 until payment is received by the 

component. Components 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. 

(k) Aggregating requests. Whenever a 

FOIA Officer reasonably believes that a 

requester or group of requesters acting 

together is attempting to divide a 

request into a series of requests for the 

purpose of avoiding fees, the FOIA 

Officer may aggregate those requests and 

charge accordingly. FOIA Officers may 

presume that multiple requests of this 

type made within a 30-day period have 

been made in order to avoid fees. Where 

requests are separated by a longer 

period, the FOIA Officer will aggregate 

them only where there exists a solid 

basis for determining that aggregation is 

warranted under all the circumstances 

involved. Multiple requests involving 

unrelated matters will not be aggregated. 

(l) Advance payments. (1) For 

requests other than those described in 

paragraphs (l)(2) and (l)(3) of this 

section, a FOIA Officer shall not require 

the requester to make an advance 

payment—in other words, a payment 

made before work is begun or continued 

on a request. Payment owed for work 

already completed (i.e., a prepayment 

before copies are sent to a requester) is 

not an advance payment. 

(2) Where a FOIA Officer determines 

or estimates that a total fee to be charged 

under this section will be more than 

$250.00, it may require the requester to 

make an advance payment of an amount 

up to the amount of the entire 

anticipated fee before beginning to 

process the request. 

(3) Where a requester has previously 

failed to pay a properly charged FOIA 

fee to any component within thirty (30) 

days of the date of billing, a FOIA 

Officer may require the requester to pay 

the full amount due, plus any applicable 

interest as specified in this section, and 

to make an advance payment of the full 

amount of any anticipated fee, before 

the FOIA Officer begins to process a 

new request or continues to process a 

pending request from that requester. 

(4) When a requester has a history of 

prompt payment, the FOIA Officer may 

accept a satisfactory assurance of full 

payment from a requester rather than an 

advance payment. 

(5) In cases in which a FOIA Officer 

requires advance payment or payment is 

due under this section, the timeline for 

responding to the request will be tolled 

and further work will not be done on it 

until the required payment is received. 

(m) 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. Where records responsive to 

requests are maintained for distribution 

by agencies operating such statutorilybased fee schedule programs, the FOIA 

Officer will inform requesters of the 

steps for obtaining records from those 

sources so that they may do so most 

economically. 

(n) Requirements for waiver or 

reduction of fees. (1) Waiving or 

reducing fees. Fees for processing your 

request may be waived if the requester 

meets the criteria listed in this section. 

The requester must submit adequate 

justification for a fee waiver; without 

adequate justification, the request will 

be denied. The FOIA Officer may, at the 

FOIA Officer’s discretion, communicate 

with you to request additional 

information if necessary regarding your 

fee waiver request. If such additional 

information is not received within ten 

(10) business days, VA will assume that 

the requester does not agree to pay the 

required fees and the file will be closed 

pending receipt of your notice that you 

will pay the required fee. Requests for 

fee waivers are decided on a case-bycase basis; receipt of a fee waiver in the 

past does not establish entitlement to a 

fee waiver each time a request is 

submitted. 

(2) Records responsive to a request 

will be furnished without charge or at 

a charge reduced below that established 

under paragraph (d) of this section 

where a FOIA Officer determines, based 

on all available evidence, that the 

requester has demonstrated that: 

(i) Disclosure of the requested 

information is in the public interest 

because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

government, and 

(ii) Disclosure of the information is 

not primarily in the commercial interest 

of the requester. 

(3) To determine whether the first fee 

waiver requirement is met, the FOIA 

Officer will consider the following 

factors: 

(i) The subject of the request: Whether 

the subject of the requested records 

concerns ‘‘the operations or activities of 

the government.’’ The subject of the 

requested records must concern 

identifiable operations or activities of 

the federal government, with a 

connection that is direct and clear, not 

remote or attenuated. 

(ii) The informative value of the 

information to be disclosed: Whether 

the disclosure is ‘‘likely to contribute’’ to 

an understanding of government 

operations or activities. The disclosable 

portions of the requested records must 

be meaningfully informative about 

government operations or activities in 

order to be ‘‘likely to contribute’’ to an 

increased public understanding of those 

operations or activities. The disclosure 

of information that already is in the 

public domain, in either a duplicative or 

a substantially identical form, would 

not be as likely to contribute to such 

understanding where nothing new 

would be added to the public’s 

understanding. 

(iii) The contribution to an 

understanding of the subject by the 

public likely to result from disclosure: 

Whether disclosure of the requested 

information will contribute to ‘‘public 

understanding.’’ 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 and ability and intention to 

effectively convey information to the 

public shall be considered. It shall be 

presumed that a representative of the 

news media will satisfy this 

consideration. 

(iv) The significance of the 

contribution to public understanding: 

Whether the disclosure is likely to 

contribute ‘‘significantly’’ to public 

understanding of government 

operations or activities. The public’s 

understanding of the subject in 

question, as compared to the level of 

public understanding existing prior to 

the disclosure, must be enhanced by the 

disclosure to a significant extent. The 

FOIA Officer will not make value 

judgments about whether information 

that would contribute significantly to 

public understanding of the operations 

or activities of the government is 

important enough to be made public. 

(4) To determine whether the second 

fee waiver requirement is met, the FOIA 

Officer will consider the following 

factors: 

(i) The existence and magnitude of a 

commercial interest: Whether the 


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Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Proposed Rules 63139 

requester has a commercial interest that 

would be furthered by the requested 

disclosure. The FOIA Officer shall 

consider any commercial interest of the 

requester (with reference to the 

definition of ‘‘commercial use’’ in 

paragraph (b)(2) of this section), or of 

any person on whose behalf the 

requester may be acting, that would be 

furthered by the requested disclosure. 

Requesters shall be given an 

opportunity in the administrative 

process to provide explanatory 

information regarding this 

consideration. 

(ii) The primary interest in disclosure: 

Whether any identified commercial 

interest of the requester is sufficiently 

large, in comparison with the public 

interest in disclosure, that disclosure is 

‘‘primarily in the commercial interest of 

the requester.’’ A fee waiver or reduction 

is justified where the public interest 

standard is satisfied and that public 

interest is greater in magnitude than that 

of any identified commercial interest in 

disclosure. The FOIA Officer ordinarily 

shall presume that where a news media 

requester has satisfied the public 

interest standard, the public interest 

will be the interest primarily served by 

disclosure to that requester. Disclosure 

to data brokers or others who merely 

compile and market government 

information for direct economic return 

will not be presumed to primarily serve 

the public interest. 

(5) Where only some of the records to 

be released satisfy the requirements for 

a waiver of fees, a fee waiver will be 

granted only for those records which so 

qualify. 

(6) Requests for the waiver or 

reduction of fees should address the 

factors listed in paragraph (n)(3) and (4) 

of this section, insofar as they apply to 

each request. FOIA Officers will 

exercise their discretion to consider the 

cost-effectiveness of their investment of 

administrative resources in this 

decision-making process, however, in 

deciding to grant waivers or reductions 

of fees. 

(7) An appeal from an adverse fee 

determination will be processed in 

accordance with § 1.559. 

(8) When considering a request for fee 

waiver, VA may require proof of 

identity. 

§ 1.562 Other rights and services. 

Nothing in this part 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. 

(Authority: Sections 1.550 to 1.562 issued 

under 72 Stat. 1114; 38 U.S.C. 501) 

PART 2—DELEGATIONS OF 

AUTHORITY 

11. The authority citation for part 2 

continues to read as follows: 

Authority: 5 U.S.C. 302, 552a; 38 U.S.C. 

501, 512, 515, 1729, 1729A, 5711; 44 U.S.C. 

3702, and as noted in specific sections 

noted.) 

12. Revise paragraph (e)(10) of § 2.6 to 

read as follows: 

§ 2.6 Secretary’s delegations of authority 

to certain officials (38 U.S.C. 512). 

* * * * * 

(e) * * * 

(10) The General Counsel, Deputy 

General Counsel, and the Assistant 

General Counsel for Professional Staff 

Group IV are authorized to make final 

Departmental decisions on appeals 

under the Freedom of Information Act, 

the Privacy Act, and 38 U.S.C. 5701, 

5705 and 7332. 

Authority: 38 U.S.C. 512 

* * * * * 

[FR Doc. 2010–25362 Filed 10–13–10; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2010–0715; FRL–9214–3] 

Approval and Promulgation of 

Implementation Plans—Maricopa 

County (Phoenix) PM–10 

Nonattainment Area; Serious Area Plan 

for Attainment of the 24-Hour PM–10 

Standard; Clean Air Act Section 189(d) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule; extension of 

comment period. 

SUMMARY: On September 9, 2010 (75 FR 

54806), EPA published a proposed rule 

proposing to approve in part and 

disapprove in part State implementation 

plan (SIP) revisions submitted by the 

State of Arizona to meet, among other 

requirements, section 189(d) of the 

Clean Air Act (CAA) for the serious 

Maricopa County (Phoenix) 

nonattainment area (Maricopa area). 

Specifically, EPA proposed to 

disapprove provisions of the 189(d) plan 

because they do not meet applicable 

CAA requirements for emissions 

inventories as well as for attainment, 

five percent annual emission 

reductions, reasonable further progress 

and milestones, and contingency 

measures. EPA also proposed to 

disapprove the 2010 motor vehicle 

emission budget in the 189(d) plan as 

not meeting the requirements of CAA 

section 176(c) and 40 CFR 93.118(e)(4). 

EPA also proposed a limited approval 

and limited disapproval of State 

regulations for the control of PM–10 

from agricultural sources. Finally, EPA 

proposed to approve various provisions 

of State statutes relating to the control 

of PM–10 emissions in the Maricopa 

area. 

EPA is extending the comment period 

on the proposed rule from October 12, 

2010 to October 20, 2010. 

DATES: Any comments must arrive by 

October 20, 2010. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2010–0715, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions. 

2. E-mail: nudd.gregory@epa.gov. 

3. Mail or deliver: Gregory Nudd (Air2), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

http://www.regulations.gov or e-mail. 

http://www.regulations.gov is an 

‘‘anonymous access’’ system, and EPA 

will not know your identity or contact 

information unless you provide it in the 

body of your comment. If you send 

e-mail directly to EPA, your e-mail 

address will be automatically captured 

and included as part of the public 

comment. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. 

Docket: The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region IX, 75 Hawthorne 

Street, San Francisco, California. While 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS