[Code of Federal Regulations]
[Title 43, Volume 1, Parts 1 to 999]
[Revised as of October 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR2]
[Page 8-20]
TITLE 43--PUBLIC LANDS: INTERIOR
Subtitle A--Office of the Secretary of the Interior
PART 2--RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT--Table of Contents
Subpart B--Requests for Records
Source: 52 FR 45586, Nov. 30, 1987, unless otherwise noted.
Sec. 2.11 Purpose and scope.
(a) This subpart contains the procedures for submission to and
consideration by the Department of the Interior of requests for records
under the Freedom of Information Act.
[[Page 9]]
(b) Before invoking the formal procedures set out below, persons
seeking records from the Department may find it useful to consult with
the appropriate bureau FOIA officer. Bureau offices are listed in
Appendix B to this part.
(c) The procedures in this subpart do not apply to:
(1) Records published in the Federal Register, opinions in the
adjudication of cases, statements of policy and interpretations, and
administrative staff manuals that have been published or made available
under subpart A of this part.
(2) Records or information compiled for law enforcement purposes and
covered by the disclosure exemption described in Sec. 2.13(c)(7) if--
(i) The investigation or proceeding involves a possible violation of
criminal law; and
(ii) There is reason to believe that--
(A) The subject of the investigation or proceeding is not aware of
its pendency, and
(B) Disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings.
(3) Informant records maintained by a criminal law enforcement
component of the Department under an informant's name or personal
identifier, if requested by a third party according to the informant's
name or personal identifier, unless the informant's status as an
informant has been officially confirmed.
Sec. 2.12 Definitions.
(a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552.
(b) Bureau refers to all constituent bureaus of the Department of
the Interior, the Office of the Secretary, and the other Departmental
offices. A list of bureaus is contained in Appendix B to this part.
(c) Working day means a regular Federal workday. It does not include
Saturdays, Sundays or public legal holidays.
Sec. 2.13 Records available.
(a) Department policy. It is the policy of the Department of the
Interior to make the records of the Department available to the public
to the greatest extent possible, in keeping with the spirit of the
Freedom of Information Act.
(b) Statutory disclosure requirement. The Act requires that the
Department, on a request from a member of the public submitted in
accordance with the procedures in this subpart, make requested records
available for inspection and copying.
(c) Statutory exemptions. Exempted from the Act's statutory
disclosure requirement are matters that are:
(1)(i) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and
(ii) Are in fact properly classified pursuant to such Executive
order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempted from disclosure by statute (other than the
Privacy Act), provided that such statute--
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information--
(i) Could reasonably be expected to interfere with enforcement
proceedings,
(ii) Would deprive a person of a right to a fair or an impartial
adjudication,
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy,
[[Page 10]]
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigtion, information furnished by a confidential
source,
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) Geological and geophysical information and data, including maps,
concerning wells.
(d) Decisions on requests. It is the policy of the Department to
withhold information falling within an exemption only if--
(1) Disclosure is prohibited by statute or Executive order or
(2) Sound grounds exist for invocation of the exemption.
(e) Disclosure of reasonably segregable nonexempt material. If a
requested record contains material covered by an exemption and material
that is not exempt, and it is determined under the procedures in this
subpart to withhold the exempt material, any reasonably segregable
nonexempt material shall be separated from the exempt material and
released.
Sec. 2.14 Requests for records.
(a) Submission of requests. (1) A request to inspect or copy records
shall be made to the installation where the records are located. If the
records are located at more than one installation or if the specific
location of the records is not known to the requester, he or she may
direct a request to the head of the appropriate bureau or to the
bureau's FOIA officer. Addresses for bureau heads and FOIA officers are
contained in Appendix B to this part.
(2) Exceptions. (i) A request for records located in all components
of the Office of the Secretary (other than the Office of Hearings and
Appeals) shall be submitted to: Director, Office of Administrative
Services, U.S. Department of the Interior, Washington, DC 20240. A
request for records located in the Office of Hearings and Appeals shall
be submitted to: Director, Office of Hearings and Appeals, 4015 Wilson
Boulevard, Arlington, Virginia 22203.
(ii) A request for records of the Office of Inspector General shall
be submitted to: Inspector General, Office of the Inspector General,
U.S. Department of the Interior, Washington, DC 20240.
(iii) A request for records of the Office of the Solicitor shall be
submitted to: Solicitor, Office of the Solicitor, U.S. Department of the
Interior, Washington, DC 20240.
(b) Form of requests. (1) Requests under this subpart shall be in
writing and must specifically invoke the Act.
(2) A request must reasonably describe the records requested. A
request reasonably describes the records requested if it will enable an
employee of the Department familiar with the subject area of the request
to locate the record with a reasonable amount of effort. If such
information is available, the request should identify the subject matter
of the record, the date when it was made, the place where it was made,
the person or office that made it, the present custodian of the record,
and any other information that will assist in locating the requested
record. If the request involves a matter known by the requester to be in
litigation, the request should also state the case name and court
hearing the case.
(3)(i) A request shall--
(A) Specify the fee category (commercial use, news media,
educational institution, noncommercial scientific institution, or other)
in which the requester claims the request to fall and the basis of this
claim (see Sec. 2.20(b) through (e) for definitions) and
[[Page 11]]
(B) State the maximum amount of fees that the requester is willing
to pay or include a request for a fee waiver.
(ii) Requesters are advised that, under Sec. 2.20 (f) and (g), the
time for responding to requests may be delayed--
(A) If a requester has not sufficiently identified the fee category
applicable to the request,
(B) If a requester has not stated a willingness to pay fees as high
as anticipated by the Department or
(C) If a fee waiver request is denied and the requester has not
included an alternative statement of willingness to pay fees as high as
anticipated by the Department.
(4) A request seeking a fee waiver shall, to the extent possible,
address why the requester believes that the criteria for fee waivers set
out in Sec. 2.21 are met.
(5) To ensure expeditious handling, requests should be prominently
marked, both the envelope and on the face of the request, with the
legend ``FREEDOM OF INFORMATION REQUEST.''
(c) Creation of records. A request may seek only records that are in
existence at the time the request is received. A request may not seek
records that come into existence after the date on which it is received
and may not require that new records be created in response to the
request by, for example, combining or compiling selected items from
manual files, preparing a new computer program, or calculating
proportions, percentages, frequency distributions, trends or
comparisons. In those instances where the Department determines that
creating a new record will be less burdensome than disclosing large
volumes of unassembled material, the Department may, in its discretion,
agree to creation of a new record as an alternative to disclosing
existing records.
Sec. 2.15 Preliminary processing of requests.
(a) Scope of requests. (1) Unless a request clearly specifies
otherwise, requests to field installations of a bureau may be presumed
to seek only records at that installation and requests to a bureau head
or bureau FOIA officer may be presumed to seek only records of that
bureau.
(2) If a request to a field installation of a bureau specifies that
it seeks records located at other installations of the same bureau, the
installation shall refer the request to the other installation(s) or the
bureau FOIA officer for appropriate processing. The time limit provided
in Sec. 2.17(a) does not start until the request is received at the
installation having the records or by the bureau FOIA officer.
(3) If a request to a bureau specifies that it seeks records of
another bureau, the bureau may return the request (or the relevant
portion thereof) to the requester with instructions as to how the
request may be resubmitted to the other bureau.
(b) Intradepartmental consultation and referral. (1) If a bureau
(other than the Office of Inspector General) receives a request for
records in its possession that originated with or are of substantial
concern to another bureau, it shall consult with that bureau before
deciding whether to release or withhold the records.
(2) As an alternative to consultation, a bureau may refer the
request (or the relevant protion thereof) to the bureau that originated
or is substantially concerned with the records. Such referrals shall be
made expeditiously and the requester shall be notified in writing that a
referral has been made. A referral under this paragraph does not restart
the time limit provided in Sec. 2.17.
(c) Records of other departments and agencies. (1) If a requested
record in the possession of the Department of the Interior originated
with another Federal department or agency, the request shall be referred
to that agency unless--
(i) The record is of primary interest to the Department,
(ii) The Department is in a better position than the originating
agency to assess whether the record is exempt from disclosure, or
(iii) The originating agency is not subject to the Act.
The Department has primary interest in a record if it was developed or
prepared pursuant to Department regulations, directives or request.
[[Page 12]]
(2) In accordance with Execuctive Order 12356, a request for
documents that were classified by another agency shall be referred to
that agency.
(d) Consultation with submitters of commercial and financial
information. (1) If a request seeks a record containing trade secrets or
commercial or financial information submitted by a person outside of the
Federal government, the bureau processing the request shall provide the
submitter with notice of the request whenever--
(i) The submitter has made a good faith designation of the
information as commercially or financially sensitive, or
(ii) The bureau has reason to believe that disclosure of the
information may result in commercial or financial injury to the
submitter.
Where notification of a voluminous number of submitters is required,
such notification may be accomplished by posting or publishing the
notice in a place reasonably calculated to accomplish notification.
(2) The notice to the submitter shall afford the submitter a
reasonable period within which to provide a detailed statement of any
objection to disclosure. The submitter's statement shall explain the
basis on which the information is claimed to be exempt under the FOIA,
including a specification of any claim of competitive or other business
harm that would result from disclosure. The statement shall also include
a certification that the information is confidential, has not been
disclosed to the public by the submitter, and is not routinely available
to the public from other sources.
(3) If a submitter's statement cannot be obtained within the time
limit for processing the request under Sec. 2.17, the requester shall be
notified of the delay as provided in Sec. 2.17(f).
(4) Notification to a submitter is not required if:
(i) The bureau determines, prior to giving notice, that the request
for the record should be denied;
(ii) The information has previously been lawfully published or
officially made available to the public;
(iii) Disclosure is required by a statute (other than the FOIA) or
regulation (other than this subpart);
(iv) Disclosure is clearly prohibited by a statute, as described in
Sec. 2.13(c)(3);
(v) The information was not designated by the submitter as
confidential when it was submitted, or a reasonable time thereafter, if
the submitter was specifically afforded an opportunity to make such a
designation; however, a submitter will be notified of a request for
information that was not designated as confidential at the time of
submission, or a reasonable time thereafter, if there is substantial
reason to believe that disclosure of the information would result in
competitive harm.
(vi) The designation of confidentiality made by the submitter is
obviously frivolous; or
(vii) The information was submitted to the Department more than 10
years prior to the date of the request, unless the bureau has reason to
believe that it continues to be confidential.
(5) If a requester brings suit to compel disclosure of information,
the submitter of the information will be promptly notified.
Sec. 2.16 Action on initial requests.
(a) Authority. (1) Requests to field installations shall be decided
by the head of the installation or by such higher authority as the head
of the bureau may designate in writing.
(2) Requests to the headquarters of a bureau shall be decided only
by the head of the bureau or an official whom the head of the bureau has
in writing designated.
(3) Requests to the Office of the Secretary may be decided by the
Director of Administrative Services, an Assistant Secretary or Assistant
Secretary's designee, and any official whom the Secretary has in writing
designated.
(4) A decision to withhold a requested record, to release a record
that is exempt from disclosure, or to deny a fee waiver shall be made
only after consultation with the office of the appropriate associate,
regional, or field solicitor.
(b) Form of grant. (1) When a requested record has been determined
to be available, the official processing the request shall notify the
requester as to when and where the record is available for inspection
or, as the case may be,
[[Page 13]]
when and how copies will be provided. If fees are due, the official
shall state the amount of fees due and the procedures for payment, as
described in Sec. 2.20.
(2) If a requested record (or portion thereof) is being made
available over the objections of a submitter made in accordance with
Sec. 2.15(d), both the requester and the submitter shall be notified of
the decision. The notice to the submitter (a copy of which shall be made
available to the requester) shall be forwarded a reasonable number of
days prior to the date on which disclosure is to be made and shall
include:
(i) A statement of the reasons why the submitter's objections were
not sustained;
(ii) A specification of the portions of the record to be disclosed,
if the submitter's objections were sustained in part; and
(iii) A specified disclosure date.
(3) If a claim of confidentiality has been found frivolous in
accordance with Sec. 2.15(d)(4)(vi) and a determination is made to
release the information without consultation with the submitter, the
submitter of the information shall be notified of the decision and the
reasons therefor a reasonable number of days prior to the date on which
disclosure is to be made.
(c) Form of denial. (1) A decision withholding a requested record
shall be in writing and shall include:
(i) A reference to the specific exemption or exemptions authorizing
the withholding;
(ii) If neither a statute or an Executive order requires
withholding, the sound ground for withholding;
(iii) A listing of the names and titles or positions of each person
responsible for the denial; and
(iv) A statement that the denial may be appealed to the Assistant
Secretary--Policy, Budget and Administration and a description of the
procedures in Sec. 2.18 for appeal.
(2) A decision denying a request for failure to reasonably describe
requested records or for other procedural deficiency or because
requested records cannot be located shall be in writing and shall
include:
(i) A description of the basis of the decision;
(ii) A list of the names and titles or positions of each person
responsible; and
(iii) A statement that the matter may be appealed to the Assistant
Secretary--Policy, Budget and Administration and a description of the
procedures in Sec. 2.18 for appeal.
Sec. 2.17 Time limits for processing initial requests.
(a) Basic limit. Requests for records shall be processed promptly. A
determination whether to grant or deny a request shall be made within no
more than 10 working days after receipt of a request. This determination
shall be communicated immediately to the requester.
(b) Running of basic time limit. (1) The 10 working day time limit
begins to run when a request meeting the requirements of Sec. 2.14(b) is
received at a field installation or bureau headquarters designated in
Sec. 2.14(a) to receive the request.
(2) The running of the basic time limit may be delayed or tolled as
explained in Sec. 2.20 (f), (g) and (h) if a requester--
(i) Has not stated a willingnes to pay fees as high as are
anticipated and has not sought and been granted a full fee waiver, or
(ii) Has not made a required advance payment.
(c) Extensions of time. In the following unusual circumstances, the
time limit for acting on an initial request may be extended to the
extent reasonably necessary to the proper processing of the request, but
in no case may the time limit be extended for more than 10 working days:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
installation processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records demanded in a single
request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or
[[Page 14]]
more components of the Department having substantial subject-matter
interest therein.
(d) Notice of extension. A requester shall be notified in writing of
an extension under paragraph (c) of this section. The notice shall state
the reason for the extension and the date on which a determination on
the request is expected to be made.
(e) Treatment of delay as denial. If no determination has been
reached at the end of the 10 working day period for deciding an initial
request, or an extension thereof under paragraph (c) of this section,
the requester may deem the request denied and may exercise a right of
appeal in accordance with Sec. 2.18.
(f) Notice of delay. When a determination cannot be reached within
the time limit, or extension thereof, the requester shall be notified of
the reason for the delay, of the date on which a determination may be
expected, and of the right to treat the delay as a denial for purposes
of appeal to the Assistant Secretary--Policy, Budget and Administration,
including a description of the procedures for filing an appeal in
Sec. 2.18.
Sec. 2.18 Appeals.
(a) Right of appeal. A requester may appeal to the Assistant
Secretary--Policy, Budget and Administration when--
(1) Records have been withheld,
(2) A request has been denied for failure to describe requested
records or for other procedural deficiency or because requested records
cannot be located,
(3) A fee waiver has been denied, or
(4) A request has not been decided within the time limits provided
in Sec. 2.17.
(b) Time for appeal. An appeal must be received no later than 20
working days after the date of the initial denial, in the case of a
denial of an entire request, or 20 working days after records have been
made available, in the case of a partial denial.
(c) Form of appeal. (1) An appeal shall be initiated by filing a
written notice of appeal. The notice shall be accompanied by copies of
the original request and the initial denial and should, in order to
expedite the appellate process and give the requester an opportunity to
present his or her arguments, contain a brief statement of the reasons
why the requester believes the initial denial to have been in error.
(2) The appeal shall be addressed to the Freedom of Information Act
Appeals Officer, Office of the Assistant Secretary--Policy, Budget and
Administration, U.S. Department of the Interior, Washington, DC 20240.
(3) To expedite processing, both the envelope containing a notice of
appeal and the face of the notice should bear the legend ``FREEDOM OF
INFORMATION APPEAL.''
Sec. 2.19 Action on appeals.
(a) Authority. Appeals shall be decided by the Assistant Secretary--
Policy, Budget and Administration, or the Assistant Secretary's
designee, after consultation with the Solicitor, the Director of Public
Affairs and the appropriate program Assistant Secretary.
(b) Time limit. A final determination shall be made within 20
working days after receipt of an appeal meeting the requirements of
Sec. 2.18(c).
(c) Extensions of time. (1) If the time limit for responding to the
initial request for a record was not extended under the provisions of
Sec. 2.17(c) or was extended for fewer than 10 working days, the time
for processing of the appeal may be extended to the extent reasonably
necessary to the proper processing of the appeal, but in no event may
the extension, when taken together with any extension made during
processing of the initial request, result in an aggregate extension with
respect to any one request of more than 10 working days. The time for
processing of an appeal may be extended only if one or more of the
unusual circumstances listed in Sec. 2.17(c) requires an extension.
(2) The appellant shall be advised in writing of the reasons for the
extension and the date on which a final determination on the appeal is
expected to be dispatched.
(3) If no determination on the appeal has been reached at the end of
the 20 working day period, or the extension thereof, the requester is
deemed to have exhausted his administrative remedies, giving rise to a
right of review in a district court of the United States, as specified
in 5 U.S.C. 552(a)(4).
[[Page 15]]
When no determination can be reached within the applicable time limit,
the appeal will nevertheless continue to be processed. On expiration of
the time limit, the requester shall be informed of the reason for the
delay, of the date on which a determination may be reached to be
dispatched and of the right to seek judicial review.
(d) Form of decision. (1) The final determination on an appeal shall
be in writing and shall state the basis for the determination. If the
determination is to release the requested records or portions thereof,
the Assistant Secretary--Policy, Budget and Administration shall
immediately make the records available or instruct the appropriate
bureau to make them immediately available. If the determination upholds
in whole or part the initial denial of a request for records, the
determination shall advise the requester of the right to obtain judicial
review in the U.S. District Court for the district in which the withheld
records are located, or in which the requester resides or has his or her
principal place of business or in the U.S. District Court for the
District of Columbia, and shall set forth the names and titles or
positions of each person responsible for the denial.
(2) If a requested record (or portion thereof) is being made
available over the objections of a submitter made in accordance with
Sec. 2.15(d), the submitter shall be provided notice as described in
Sec. 2.16(b)(2).
Sec. 2.20 Fees.
(a) Policy. (1) Unless waived pursuant to the provisions of
Sec. 2.21, fees for responding to FOIA requests shall be charged in
accordance with the provisions of this section and the schedule of
charges contained in Appendix A to this part.
(2) Fees shall not be charged if the total amount chargeable does
not exceed $15.00.
(3) Where there is a reasonable basis to conclude that a requester
or group of requesters acting in concert has divided a request into a
series of requests on a single subject or related subjects to avoid
assessment of fees, the requests may be aggregated and fees charged
accordingly.
(b) Commercial use requests. (1) A requester seeking records for
commercial use shall be charged fees for costs incurred in document
search, duplication and review.
(2) A commercial use requester may not be charged fees for time
spent resolving legal and policy issues affecting access to requested
records.
(3) A commercial use request is a request from or on behalf of a
person who seeks information for a use or purpose that further the
commercial, trade or profit interests of the requester or the person on
whose behalf the request is made. The intended use of records may be
determined on the basis of information submitted by a requester and from
reasonable inferences based on the identity of the requester and any
other available information.
(c) Educational and noncommercial scientific institution requests.
(1) A requester seeking records under the auspices of an educational
institution in furtherance of scholarly research or a noncommercial
scientific institution in furtherance of scientific research shall be
charged for document duplication, except that the first 100 pages of
paper copies (or the equivalent cost thereof if the records are in some
other form) shall be provided without charge.
(2) Such requesters may not be charged fees for costs incurred in--
(i) Searching for requested records,
(ii) Examining requested records to determine whether they are
exempt from mandatory disclosure,
(iii) Deleting reasonably segregable exempt matter,
(iv) Monitoring the requesters' inspection of agency records, or
(v) Resolving legal and policy issues affecting access to requested
records.
(3) An ``educational institution'' is a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education, which operates a program or programs of scholarly research.
(4) A ``noncommercial scientific institution'' is an institution
that is not operated for commerce, trade or profit
[[Page 16]]
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.
(d) News media requests. (1) A representative of the new media shall
be charged for document duplication, except that the first 100 pages of
paper copies (or the equivalent cost thereof if the records are in some
other form) shall be provided without charge.
(2) Representatives of the news media may not be charged fees for
costs incurred in--
(i) Searching for requested records,
(ii) Examining requested records to determine whether they are
exempt from mandatory disclosure,
(iii) Deleting reasonably segregable exempt matter,
(iv) Monitoring the requester's inspection of agency records, or
(v) Resolving legal and policy issues affecting access to requested
records.
(3)(i) A ``representative of the news media'' is any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that is (or would be) of current
interest to the public. Examples of news media entities include, but are
not limited to, television or radio stations broadcasting to the public
at large, and publishers of periodicals (but only in those instances
when they can qualify as disseminators of ``news'') who make their
products available for purchase or subscription by the general public.
As traditional methods of news delivery evolve (e.g., electronic
dissemination of newspapers through telecommunications services), such
alternative media would be included in this category.
(ii) Free-lance journalists may be considered ``representatives of
the news media'' if they demonstrate a solid basis for expecting
publication through a news organization, even though not actually
employed by it. A publication contract or past record of publication, or
evidence of a specific free-lance assignment from a news organization
may indicate a solid basis for expecting publication.
(e) Other requests. (1) A requester not covered by paragraphs (b),
(c) or (d) of this section shall be charged fees for document search and
duplication, except that the first two hours of search time and the
first 100 pages of paper copies (or the equivalent cost thereof if the
records are in some other form) shall be provided without charge.
(2) Such requesters may not be charged for costs incurred in--
(i) Examining requested records to determine whether they are exempt
from disclosure,
(ii) Deleting reasonably segregable exempt matter,
(iii) Monitoring the requester's inspection of agency records, or
(iv) Resolving legal and policy issues affecting access to requested
records.
(f) Requests for clarification. Where a request does not provide
sufficient information to determine whether it is covered by paragraph
(b), (c), (d) or (e) of this section, the requester should be asked to
provide additional clarification. If it is necessary to seek such
clarification, the request may be deemed to have not been received for
purposes of the time limits established in Sec. 2.17 until the
clarification is received. Requests to requesters for clarification
shall be made promptly.
(g) Notice of anticipated fees. Where a request does not state a
willingness to pay fees as high as anticipated by the Department, and
the requester has not sought and been granted a full waiver of fees
under Sec. 2.21, the request may be deemed to have not been received for
purposes of the time limits established in Sec. 2.17 until the requester
has been notified of and agrees to pay the anticipated fee. Advice to
requesters with respect to anticipated fees shall be provided promptly.
(h) Advance payment. (1) Where it is anticipated that allowable fees
are likely to exceed $250.00 and the requester does not have a history
of prompt payment of FOIA fees, the requester may be required to make an
advance payment of the entire fee before processing of his or her
request.
(2) Where a requester has previously failed to pay a fee within 30
calendar days of the date of billing, processing of any new request from
that requester shall ordinarily be suspended until the
[[Page 17]]
requester pays any amount still owed, including applicable interest, and
makes advance payment of allowable fees anticipated in connection with
the new request.
(3) Advance payment of fees may not be required except as described
in paragraphs (h) (1) and (2) of this section.
(4) Issuance of a notice requiring payment of overdue fees or
advance payment shall toll the time limit in Sec. 2.17 until receipt of
payment.
(i) Form of payment. Payment of fees should be made by check or
money order payable to the Department of the Interior or the bureau
furnishing the information. The term United States or the initials
``U.S.'' should not be included on the check or money order. Where
appropriate, the official responsible for handling a request may require
that payment by check be made in the form of a certified check.
(j) Billing procedures. A bill for collection, Form DI-1040, shall
be prepared for each request that requires collection of fees. The
requester shall be provided the first sheet of the DI-1040. This
Accounting Copy of the Form shall be transmitted to the agency's finance
office for entry into accounts receivable records. Upon receipt of
payment from the requester, the recipient shall forward the payment
along with a copy of the DI-1040 to the finance office.
(k) Collection of fees. The bill for collection or an accompanying
letter to the requester shall include a statement that interest will be
charged in accordance with the Debt Collection Act of 1982, 31 U.S.C.
3717, and implementing regulations, 4 CFR 102.13, if the fees are not
paid within 30 calendar days of the date of the bill for collection is
mailed or hand-delivered to the requester. This requirement does not
apply if the requester is a unit of state or local government. Other
authorities of the Debt Collection Act of 1982 shall be used, as
appropriate, to collect the fees (see 4 CFR parts 101-105).
Sec. 2.21 Waiver of fees.
(a) Statutory fee waiver. (1) Documents shall be furnished without
charge or at a charge reduced below the fees chargeable under Sec. 2.20
and appendix A to this part if disclosure of the information is in the
public interest because it--
(i) Is likely to contribute significantly to public understanding of
the operations or activities of the government and
(ii) Is not primarily in the commercial interest of the requester.
(2) Factors to be considered in determining whether disclosure of
information ``is likely to contribute significantly to public
understanding of the operations or activities of the government'' are
the following:
(i) Does the record concern the operations or activities of the
government? Records concern the operations or activities of the
government if they relate to or will illuminate the manner in which the
Department or a bureau is carrying out identifiable operations or
activities or the manner in which an operation or activity affects the
public. The connection between the records and the operations and
activities to which they are said to relate should be clear and direct,
not remote and attenuated. Records developed outside of the government
and submitted to or obtained by the Department may relate to the
operations and activities of the government if they are informative on
how an agency is carrying out its regulatory, enforcement, procurement
or other activities that involve private entities.
(ii) If a record concerns the operations or activities of the
government, is its disclosure likely to contribute to public
understanding of these operations and activities? The likelihood of a
contribution to public understanding will depend on consideration of the
content of the record, the identity of the requester, and the
interrelationship between the two. Is there a logical connection between
the content of the requested record and the operations or activities in
which the requester is interested? Are the disclosable contents of the
record meaningfully informative on the operations or activities? Is the
focus of the requester on contribution to public understanding, rather
than on the individual understanding of the requester or a narrow
segment of interested persons? Does the requester have expertise in the
subject area and the ability and intention to disseminate
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the information to the general public or otherwise use the information
in a manner that will contribute to public understanding of government
operations or activities? Is the requested information sought by the
requester because it may be informative on government operations or
activities or because of the intrinsic value of the information
independent of the light that it may shed on government operations or
activities?
(iii) If there is likely to be a contribution to public
understanding, will that contribution be significant? A contribution to
public understanding will be significant if the information disclosed is
new, clearly supports public oversight of Department operations,
including the quality of Department activities and the effect of policy
and regulations on public health and safety, or otherwise confirms or
clarifies data on past or present operations of the Department. A
contribution will not be significant if disclosure will not have a
positive impact on the level of public understanding of the operations
or activities involved that existed prior to the disclosure. In
particular, a significant contribution is not likely to arise from
disclosure of information already in the public domain because it has,
for example, previously been published or is routinely available to the
general public in a public reading room.
(3) Factors to be considered in determining whether disclosure ``is
primarily in the commercial interest of the requester'' are the
following:
(i) Does the requester have a commercial interest that would be
furthered by the requested disclosure? A commercial interest is a
commercial, trade or profit interest as these terms are commonly
understood. An entity's status is not determinative. Not only profit-
making corporations, but also individuals or other organizations, may
have a commercial interest to be served by disclosure, depending on the
circumstances involved.
(ii) If the requester has a commercial interest, will disclosure be
primarily in that interest? The requester's commercial interest is the
primary interest if the magnitude of that interest is greater than the
public interest to be served by disclosure. Where a requester is a
representative of a news media organization seeking information as part
of the news gathering process, it may be presumed that the public
interest outweighs the organization's commercial interest.
(4) Notice of denial. If a requested statutory fee waiver or
reduction is denied, the requester shall be notified in writing. The
notice shall include:
(i) A statement of the basis on which the waiver or reduction has
been denied.
(ii) A listing of the names and titles or positions of each person
responsible for the denial.
(iii) A statement that the denial may be appealed to the Assistant
Secretary--Policy, Budget and Administration and a description of the
procedures in Sec. 2.18 for appeal.
(b) Discretionary waivers. Fees otherwise chargeable may be waived
at the discretion of a bureau if a request involves:
(1) Furnishing unauthenticated copies of documents reproduced for
gratuitous distribution;
(2) Furnishing one copy of a personal document (e.g., a birth
certificate) to a person who has been required to furnish it for
retention by the Department;
(3) Furnishing one copy of the transcript of a hearing before a
hearing officer in a grievance or similar proceeding to the employee for
whom the hearing was held.
(4) Furnishing records to donors with respect to their gifts;
(5) Furnishing records to individuals or private non-profit
organizations having an official voluntary or cooperative relationship
with the Department to assist the individual or organization in its work
with the Department;
(6) Furnishing records to state, local and foreign governments,
public international organizations, and Indian tribes, when to do so
without charge is an appropriate courtesy, or when the recipient is
carrying on a function related to that of the Department and to do so
will help to accomplish the work of the Department;
(7) Furnishing a record when to do so saves costs and yields income
equal to the direct cost of providing the records
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(e.g., where the Department's fee for the service would be included in a
billing against the Department);
(8) Furnishing records when to do so is in conformance with
generally established business custom (e.g., furnishing personal
reference data to prospective employers of former Department employees);
(9) Furnishing one copy of a record in order to assist the requester
to obtain financial benefits to which he or she is entitled (e.g.,
veterans or their dependents, employees with Government employee
compensation claims or persons insured by the Government).
Sec. 2.22 Special rules governing certain information concerning coal
obtained under the Mineral Leasing Act.
(a) Definitions. As used in the section:
(1) Act means the Mineral Leasing Act of February 25, 1920, as
amended by the Act of August 4, 1976, Pub. L. 94-377, 90 Stat. 1083 (30
U.S.C. 181 et seq.), and the Mineral Leasing Act for Acquired Lands, as
amended (30 U.S.C. 351 et seq.)
(2) Exploration license means a license issued by the Secretary of
the Interior to conduct coal exploration operations on land subject to
the Act pursuant to the authority in section 2(b) of the Act, as amended
(30 U.S.C. 201(b)).
(3) Fair-market value of coal to be leased means the minimum amount
of a bid the Secretary has determined he is willing to accept in leasing
coal within leasing tracts offered in general lease sales or reserved
and offered for lease to public bodies, including Federal agencies,
rural electric cooperatives, or non-profit corporations, controlled by
any of such entities pursuant to section 2(a) of the Act (30 U.S.C.
201(a)(1)).
(4) Information means data, statistics, samples and other facts,
whether analyzed or processed or not, pertaining to Federal coal
resources, which fit within an exemption to the Freedom of Information
Act, 5 U.S.C. 552(b).
(b) Applicability. This section applies to the following categories
of information:
(1) Category A. Information provided to or obtained by a bureau
under section 2(b)(3) of the Act from the holder of an exploration
license;
(2) Category B. Information acquired from commercial or other
sources under service contract with Geological Survey pursuant to
section 8A(b) of the Act, and information developed by the Geological
Survey under an exploratory program authorized by section 8A of the Act;
(3) Category C. Information obtained from commercial sources which
the commercial source acquired while not under contract with the United
States Government;
(4) Category D. Information provided to the Secretary by a federal
department or agency pursuant to section 8A(e) of the Act; and
(5) Category E. The fair-market value of coal to be leased and
comments received by the Secretary with respect to such value.
(c) Availability of information. Information obtained by the
Department from various sources will be made available to the public as
follows:
(1) Category A--Information. Category A information shall not be
disclosed to the public until after the areas to which the information
pertains have been leased by the Department, or until the Secretary
determines that release of the information to the public would not
damage the competitive position of the holder of the exploration
license, whichever comes first.
(2) Category B--Information. Category B information shall not be
withheld from the public; it will be made available by means of and at
the time of open filing or publication by Geological Survey.
(3) Category C--Information. Category C information shall not be
made available to the public until after the areas to which the
information pertains have been leased by the Department.
(4) Category D--Information. Category D information shall be made
available to the public under the terms and conditions to which, at the
time he or she acquired it, the head of the department or agency from
whom the Secretary later obtained the information agreed.
(5) Category E--Information. Category E information shall not be
made public until the lands to which the information pertains have been
leased, or until the Secretary has determined that its
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release prior to the issuance of a lease is in the public interest.