ABMC FOIA Regulation
| Published date | 18 February 2020 |
| Citation | 85 FR 8783 |
| Record Number | 2020-03016 |
| Section | Proposed rules |
| Court | American Battle Monuments Commission |
Federal Register, Volume 85 Issue 32 (Tuesday, February 18, 2020)
[Federal Register Volume 85, Number 32 (Tuesday, February 18, 2020)]
[Proposed Rules]
[Pages 8783-8789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03016]
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AMERICAN BATTLE MONUMENTS COMMISSION
36 CFR Part 404
RIN 3263-AA01
ABMC FOIA Regulation
AGENCY: American Battle Monuments Commission.
ACTION: Proposed rule.
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SUMMARY: The American Battle Monuments Commission (ABMC) is proposing
to revise its procedures and guidelines for compliance with the Freedom
of Information Act (FOIA) to incorporate changes required by the FOIA
Improvement Act of 2016 and applicable Department of Justice Office of
Information Policy guidance.
DATES: Comments must be received by March 19, 2020.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) and title, by any of the following
methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments. All submissions
received must include the agency name and docket number or RIN for this
document. The general policy for comments and other submissions from
members of the public is to make these submissions available for public
viewing at http://www.regulations.gov as they are received without
change, including any personal identifiers or contact information.
[[Page 8784]]
FOR FURTHER INFORMATION CONTACT: Edwin L. Fountain, General Counsel,
American Battle Monuments Commission, 2300 Clarendon Boulevard, Suite
500, Arlington VA 22201, [email protected].
SUPPLEMENTARY INFORMATION: The authority for this rulemaking is Section
3 of the FOIA Improvement Act of 2016, Public Law 114-185, 5 U.S.C. 552
note, which requires agencies to issue regulations on procedures for
the disclosure of records under FOIA in accordance with that Act.
Changes Proposed By ABMC in This Rulemaking
This action updates and revises ABMC's procedures and guidelines
for compliance with FOIA. The revisions to the rule:
Update the description of and contact information for ABMC
and the ABMC FOIA Office.
Require ABMC to make available for public inspection in an
electronic format records that have been requested three or more times.
Set forth verification of identity requirements for
requesters making a request for records about himself or another
individual.
Outline procedures for consultation, referral, and
coordination with other agencies when appropriate.
Update procedures and time periods for appeals of denials
of requests.
Notify requesters of their right to seek dispute
resolution services from the Office of Government Information Services.
Regulatory Procedures
Executive Order 12866, Regulatory Planning and Review, and Executive
Order 13563, Improving Regulation and Regulatory Review
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule benefits the public and the United States
Government by providing clear procedures for members of the public,
contractors, and employees to follow with regard to the ABMC privacy
program. This rule is not a significant regulatory action under E.O.
12866.
Executive Order 13771, Reducing Regulations and Controlling Regulatory
Costs
This proposed rule is not expected to be subject to the
requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this
proposed rule is not significant under E.O. 12866.
Unfunded Mandates Reform Act
This rule will not result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments.
Public Law 96-354, Regulatory Flexibility Act
The ABMC certifies this proposed rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. Ch. 6) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities. Therefore, the Regulatory Flexibility Act, as
amended, does not require ABMC to prepare a regulatory flexibility
analysis.
Executive Order 13132, Federalism
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. This rule will not have a substantial effect on the
States; the relationship between the National Government and the
States; or the distribution of power and responsibilities among the
various levels of Government.
Public Law 96-511, Paperwork Reduction Act
It has been determined that this rule does not impose reporting or
record keeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. Chapter 35).
Dated: February 10, 2020.
Robert J. Dalessandro,
Deputy Secretary, ABMC.
List of Subjects in 36 CFR Part 404
Freedom of Information Act.
For the reasons stated in the preamble, ABMC proposes to revise 36
CFR part 404 to read as follows:
Title 36: Parks, Forests, and Public Property
PART 404--PROCEDURES AND GUIDELINES FOR COMPLIANCE WITH THE FREEDOM
OF INFORMATION ACT
Sec
404.1 General.
404.2 Authority and functions.
404.3 Organization.
404.4 Access to information.
404.5 Inspection and copying.
404.6 Definitions.
404.7 Fees to be charged--general.
404.8 Fees to be charged--categories of requesters.
404.9 Miscellaneous fee provisions.
404.10 Waiver or reduction of charges.
Authority: FOIA Improvement Act of 2016, Pub. L. 114-185, 5
U.S.C. 552 note.
Sec. 404.1 General.
This information is furnished for the guidance of the public and in
compliance with the requirements of the Freedom of Information Act
(FOIA), 5 U.S.C. 552, as amended. Nothing in this subpart shall be
construed to entitle any person to any service or to the disclosure of
any record to which such person is not entitled under the FOIA. These
rules should be read in conjunction with the text of the FOIA and the
Uniform Freedom of Information Fee Schedule and Guidelines published by
the Office of Management and Budget (``OMB Guidelines'').
Sec. 404.2 Authority and functions.
The general functions of the American Battle Monuments Commission
(ABMC or Commission), as provided by statute, 36 U.S.C. 2101 et seq.,
are to build and maintain suitable memorials commemorating the service
of American Armed Forces and to maintain permanent American military
cemeteries in foreign countries.
Sec. 404.3 Organization.
(a) Personnel. (1) The Commission is composed of not more than 11
members appointed by the President.
(2) The day to day operation of the Commission is under the
direction of a Secretary appointed by the President.
(3) Principal officials subordinate to the Secretary include the
Deputy Secretary, Chief Operating Officer, Chief of Staff, Executive
Officer, Chief Financial Officer, Chief of Human Resources and
Administration, Chief Information Officer, Director of Cemetery
Operations, Executive Engineer, General Counsel, and Public Affairs
Officer.
(4) The Commission also creates temporary offices when tasked with
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major additional responsibilities not of a permanent nature.
(b) Locations. (1) The principal office of the American Battle
Monuments Commission is located at 2300 Clarendon Boulevard, Suite 500,
Arlington, VA 22201, (703) 696-6900.
(2) The American Battle Monuments Commission maintains an overseas
field office in Paris, France, and cemetery offices at 25 locations in
Belgium, France, Italy, Luxembourg, Mexico, the Netherlands, Panama,
the Philippines, Tunisia, and the United Kingdom.
Sec. 404.4 Access to information.
(a) Contact information. (1) Individuals wishing to file a request
under the Freedom of Information Act (FOIA) should address their
request in writing to the FOIA Office, American Battle Monuments
Commission, 2300 Clarendon Boulevard, Suite 500, Arlington, VA 22201,
or to [email protected], or via https://www.foia.gov.
(2) The American Battle Monuments Commission makes available
information pertaining to Commission matters within the scope of 5
U.S.C. 552(a)(2), including records that have been requested three or
more times, by publishing them electronically at the ABMC home page at
https://www.abmc.gov/foia. Additional information may be found on the
National FOIA Portal at https://www.foia.gov. Note: The ABMC.gov site
provides all of the information the Commission has regarding burials at
its cemeteries. ABMC does not have service records, casualty lists, or
information on burials within the United States.
(b) Requests. (1) Requesters must provide contact information, such
as their phone number, email address, and/or mailing address, to assist
ABMC in communicating with them and providing released records.
(2)(A) Requests for records must reasonably describe the records
sought. Requesters must describe the records sought in sufficient
detail to enable agency personnel to locate them with a reasonable
amount of effort. To the extent possible, requesters should include
specific information that may help ABMC identify the requested records,
such as the date, title or name, author, recipient, subject matter,
case number, file designation, or reference number. Before submitting
their requests, requesters may contact the ABMC FOIA Assistant or FOIA
Public Liaison to discuss the records they seek and to receive
assistance in describing the records.
(B) If a request does not reasonably describe the records sought,
response to the request may be delayed. If, after receiving a request,
ABMC determines that the request does not reasonably describe the
records sought, ABMC must inform the requester what additional
information is needed or why the request is otherwise insufficient.
Requesters who are attempting to reformulate or modify such a request
may discuss their request with the FOIA Assistant or FOIA Public
Liaison.
(3) Requests may specify the preferred form or format (including
electronic formats) for the records sought. ABMC will accommodate the
request if the record is readily reproducible in that form or format.
(c) Responses to requests. (1) The ABMC FOIA Office is responsible
for responding to FOIA requests. Upon receipt of any perfected request
for records, the FOIA Office will determine within 20 days (excepting
Saturdays, Sundays and legal public holidays) of the date the request
is received in the FOIA Office whether it is appropriate to grant the
request and will immediately provide written notification to the person
making the request.
(2) ABMC responds to requests in the order of receipt, using
multitrack processing. Tracks include simple, and complex, based on
whether unusual circumstances apply (see paragraph (d) of this
section), the volume of potential records, the need for consultation or
referral, and the amount of work or time needed to process the request.
(3) ABMC will acknowledge requests with a tracking number, summary
of the request, estimated completion dates, track information, the
opportunity to narrow or modify the scope, and contact information for
the FOIA Public Liaison.
(4) In determining which records are responsive to a request, ABMC
ordinarily will include only records in its possession as of the date
that it begins its search. If any other date is used, ABMC must inform
the requester of that date.
(d) Extending time limits. If the ABMC FOIA Office determines that
unusual circumstances apply to the processing of a request, and
provides timely written notice to the requester, ABMC may extend the
time limits prescribed in paragraphs (c) and (h) of this section for
not more than 10 days (excepting Saturdays, Sundays, or legal public
holidays). Where unusual circumstances merit an extension of more than
10 working days, ABMC will provide the requester with an opportunity to
modify the request or arrange an alternative time period for processing
the original or modified request.
(1) As used herein, but only to the extent reasonably necessary to
the proper processing of the particular request, the term unusual
circumstances means:
(A) The need to search for and collect the requested records from
establishments that are separated from the office processing the
request;
(B) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(C) 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 more components of the
agency which have a substantial subject matter interest therein.
(2) Extensions will be by written notice to the persons making the
request. The notice of extension will set forth the reasons for the
extension and the date the determination is expected, and will notify
the requester of the right to seek assistance from ABMC's FOIA Public
Liaison to resolve any disputes between the requester and ABMC, or to
seek dispute resolution services from the Office of Government
Information Services.
(3) Modification and aggregation of requests. Before issuing a
written notice extending time limits, the agency shall provide the
person an opportunity to limit the scope of the request so that it may
be processed within that time limit or an opportunity to arrange with
the agency an alternative time frame for processing the request or a
modified request.
(4) When ABMC reasonably believes that a requester, or a group of
requestors acting in concert, has submitted requests that constitute a
single request, involving clearly related matters, ABMC may aggregate
those requests for purposes of this paragraph. One element to be
considered in determining whether a belief would be reasonable is the
time period over which the requests have occurred.
(5) If ABMC fails to comply with the extended time limit, it may
not charge search fees (or for requesters with preferred fee status,
may not charge duplication fees), except if unusual circumstances apply
and more than 5000 pages are necessary to respond to the request, ABMC
may charge search fees (or, for requesters in preferred fee status, may
charge duplication fees) if timely written notice has been made to the
requester and ABMC has discussed with the requester (or made not less
than 3 good-faith attempts to do so) how the requester could
effectively limit the scope of the request.
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(6) If a court determines that exceptional circumstances exist,
ABMC's failure to comply with a time limit shall be excused for the
length of time provided by the court order. Refusal by the person to
reasonably modify the request or arrange such an alternative time frame
shall be considered as a factor in determining whether exceptional
circumstances exist.
(e) Consultation, referral, and classified information. When
reviewing records located in response to a request, ABMC will determine
whether another agency of the Federal Government is better able to
determine whether the record is exempt from disclosure under the FOIA.
As to any such record, the ABMC must proceed in one of the following
ways:
(1) Consultation. When ABMC records contain within them information
of interest to another agency, ABMC should typically consult with that
other agency prior to making a release determination.
(2) Referral. When an ABMC record originated with a different
agency or contains significant information that originated with a
different agency, or when ABMC believes that a different agency is best
able to determine whether to disclose a record, ABMC typically should
refer the responsibility for responding to the request regarding that
record to that agency. When ABMC refers any part of the responsibility
for responding to a request to another agency, it must document and
maintain a copy of the record, and notify the requester of the
referral, informing the requester of the name of the agency and FOIA
contact information.
(3) Classified information. On receipt of any request involving
classified information, ABMC must determine whether the information is
currently and properly classified in accordance with applicable
classification rules. ABMC must refer the responsibility for responding
to the request regarding that information to the agency that classified
the information, or that should consider the information for
classification.
(f) Expedited processing. (1) Requests and appeals will be taken
out of order and given expedited treatment whenever it is determined
that they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
federal government activity, beyond the public's right to know about
government activity generally, if made by a person primarily engaged in
disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which
there exist possible questions about the government's integrity which
affect public confidence.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. A request must
include a statement, certified to be true and correct to the best of
that person's knowledge and belief, explaining in detail the basis for
requesting expedited processing.
(3) Within 10 days of receipt of a request for expedited
processing, ABMC will decide whether to grant it and will notify the
requester of the decision. If a request for expedited treatment is
granted, the request will be given priority and will be processed as
soon as practicable. If a request for expedited processing is denied,
any appeal of that decision will be acted on expeditiously.
(g) Grants and denials of requests. (1) Once ABMC determines it
will grant a request in full or in part, it shall notify the requester
in writing. ABMC must also inform the requester of any fees charged
under Sec. 10 of this subpart and must disclose the requested records
to the requester promptly upon payment of any applicable fees. ABMC
must inform the requester of the availability of its FOIA Public
Liaison to offer assistance.
(2) ABMC may provide interim releases for voluminous requests.
(3) If ABMC determines that a full disclosure of a requested record
is not possible, it will consider whether partial disclosure of
information is possible. Records disclosed in part will be marked
clearly to show the amount of information deleted and the exemption
under which the deletion was made, unless doing so would harm an
interest protected by an applicable exemption. The location of the
information deleted will also be indicated on the record, if
technically feasible.]
(4) If the request is denied, in part or in full, the written
notification to the requester shall include the reasons for the denial
and the estimated volume withheld (unless indicated via markings, or if
providing such an estimate would harm an interest protected by an
exemption). The notification must inform the requester of:
(i) The requester's right to seek assistance from ABMC's FOIA
Public Liaison;
(2) The requester's right to lodge an appeal with ABMC within 90
days after the date of the denial; and
(3) The requester's right to seek dispute resolution services from
the Office of Government Information Services (OGIS).
(h) Appeals. Appeals shall be set forth in writing within 90 days
of receipt of a denial and addressed to the FOIA Office at the address
specified in paragraph (a) of this section. The appeal should clearly
identify the agency determination that is being appealed and the
assigned request number. To facilitate handling, the requester should
mark both the appeal letter and envelope, or subject line of the
electronic transmission, ``Freedom of Information Act Appeal.'' The
appeal shall include a statement explaining the basis for the appeal.
Appeals will be adjudicated by the ABMC Secretary, or his designee, and
the adjudication will be set forth in writing within 20 days of receipt
of the appeal in the ABMC FOIA Office (excepting Saturdays, Sundays,
and legal public holidays). If, on appeal, the denial is upheld in
whole or in part, the written determination will also contain a
notification of the provisions for judicial review and contact
information for OGIS dispute resolution services. An appeal ordinarily
will not be adjudicated if the request becomes a matter of FOIA
litigation.
Sec. 404.5 Inspection and copying.
When a request for information has been approved pursuant to Sec.
404.4, the person making the request may make an appointment to inspect
or copy the materials requested during regular business hours by
writing or telephoning the FOIA Officer at the address or telephone
number listed in Sec. 404.4(b). Such materials may be copied and
reasonable facilities will be made available for that purpose. Copies
of individual pages of such materials will be made available at the
price per page specified in Sec. 404.7(d); however, the right is
reserved to limit to a reasonable quantity the copies of such materials
which may be made available in this manner when copies also are offered
for sale by the Superintendent of Documents.
Sec. 404.6 Definitions.
For the purpose of these regulations:
(a) All the terms defined in the Freedom of Information Act apply.
(b) The term direct costs means those expenditures that ABMC
actually incurs in searching for and duplicating (and in the case of
commercial requesters, reviewing) documents to respond to a FOIA
request. Direct costs include, for
[[Page 8787]]
example, the salary of the employee performing work (the basic rate of
pay for the employee plus 16 percent of that rate to cover benefits)
and the cost of operating duplicating machinery. Not included in direct
costs are overhead expenses such as costs of space, and heating or
lighting the facility in which the records are stored.
(c) The term search means the process of looking for and retrieving
records or information responsive to a request. It includes page-by-
page or line-by-line identification of information within records and
also includes reasonable efforts to locate and retrieve information
from records maintained in electronic form or format. ABMC employees
should ensure that searching for material is done in the most efficient
and least expensive manner so as to minimize costs for both the agency
and the requester. For example, employees should not engage in line-by-
line search when merely duplicating an entire document would prove the
less expensive and quicker method of complying with a request. Search
should be distinguished, moreover, from review of material in order to
determine whether the material is exempt from disclosure (see paragraph
(f) of this section).
(d) The term duplication means the making of a copy of a document,
or of the information contained in it, necessary to respond to a FOIA
request. Such copies can take the form of paper, microform, audio-
visual materials, or electronic records (e.g., magnetic tape or disk),
among others. The requester's specified preference of form or format of
disclosure will be honored if the record is readily reproducible in
that format.
(e) The term review refers to the process of examining documents
located in response to a request to determine whether any portion of
any document located is permitted to be withheld. It also includes
processing any documents for disclosure, e.g., doing all that is
necessary to excise them and otherwise prepare them for release. Review
does not include time spent resolving general legal or policy issues
regarding the application of exemptions.
(f) The term commercial use request refers to a request from or on
behalf of one who seeks information for a use or purpose that furthers
the commercial, trade, or profit interests of the requester or the
person on whose behalf the request is made. In determining whether a
requester properly belongs in this category, ABMC must determine the
use to which a requester will put the documents requested. Moreover,
where an ABMC employee has reasonable cause to doubt the use to which a
requester will put the records sought, or where that use is not clear
from the request itself, the employee should seek additional
clarification before assigning the request to a specific category.
(g) The term educational institution refers to a school that
operates a program of scholarly research. A requester in this fee
category must show that the request is made in connection with his or
her role at the educational institution. Agencies may seek verification
from the requester that the request is in furtherance of scholarly
research and agencies will advise requesters of their placement in this
category.
(h) The term non-commercial scientific institution refers to an
institution that is not operated on a commercial basis (as that term is
referenced in paragraph (g) 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.
(i) The term representative of the news media refers to any person
or entity that gathers information of potential interest to a segment
of the public, uses its editorial skills to turn the raw materials into
a distinct work, and distributes that work to an audience. The term
``news'' means information that is about current events or that would
be of current interest to the public. Examples of news media entities
include television or radio stations that broadcast news to the public
at large, and publishers of periodicals that disseminate ``news'' and
make their products available through a variety of means to the general
public, including news organizations that disseminate solely on the
internet. ``Freelance'' journalists who demonstrate a solid basis for
expecting publication through a news media entity will be considered as
a representative of the news media. A publishing contract would provide
the clearest evidence that publication is expected; however, agencies
can also consider a requester's past publication record in making this
determination. Agencies will advise requesters of their placement in
this category. A request for records supporting the news-dissemination
function of the requester will not be considered to be for a commercial
use.
Sec. 404.7 Fees to be charged--general.
ABMC shall charge fees that recoup the full allowable direct costs
it incurs. ABMC will collect all applicable fees before sending copies
of records to the requester. Moreover, it shall use the most efficient
and least costly methods to comply with requests for documents made
under the FOIA. ABMC may recover the cost of searching for and
reviewing records even if there is ultimately no disclosure of records.
(a) Manual searches for records. ABMC will charge at the salary
rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the
search.
(b) Computer searches for records. ABMC will charge at the salary
rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the
search. Before assessing fees associated with creating a new computer
program, ABMC will ensure that requester is first notified and agrees
to pay such fees, pursuant to sub-paragraph (g)(3) of this section.
(c) Review of records. Only requesters who are seeking documents
for commercial use may be charged for time spent reviewing records to
determine whether they are exempt from mandatory disclosure. Charges
may be assessed only for the initial review; i.e., the review
undertaken the first time ABMC analyzes the applicability of a specific
exemption to a particular record or portion of a record. Records or
portions of records withheld in full under an exemption that is
subsequently determined not to apply may be reviewed again to determine
the applicability of other exemptions not previously considered. The
costs for such a subsequent review is assessable.
(d) Duplication of records. Records will be duplicated at a rate of
$.10 per page. For copies prepared by computer, such as tapes or
printouts, ABMC shall charge the actual cost, including operator time,
of production of the tape or printout. For other methods of
reproduction or duplication, ABMC will charge the actual direct costs
of producing the document(s). If ABMC estimates that duplication
charges are likely to exceed $25, it shall notify the requester of the
estimated amount of fees, unless the requester has indicated in advance
his willingness to pay fees as high as those anticipated. Such a notice
shall offer a requester the opportunity to confer with agency personnel
with the object of reformulating the request to meet his or her needs
at a lower cost.
(e) Other charges. (1) When it elects to charge them, ABMC will
recover the full costs of providing services such as certifying that
records are true copies or sending records by special methods such as
express mail.
(2) For requests that require the retrieval of records stored by an
agency at a Federal records center operated by the National Archives
and Records Administration (NARA), ABMC will
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charge additional costs in accordance with the Transactional Billing
Rate Schedule established by NARA.
(f) Payment of fees. Remittances shall be in the form either of a
personal check or bank draft drawn on a bank in the United States, or a
postal money order. Remittances shall be made payable to the order of
the Treasury of the United States and mailed to the FOIA Officer,
American Battle Monuments Commission, 2300 Clarendon Blvd., Suite 500,
Arlington, VA 22201. A receipt for fees paid will be given upon
request.
(g) Restrictions on assessing fees. With the exception of
requesters seeking documents for a commercial use, ABMC will provide
the first 100 pages of duplication and the first 2 hours of search time
without charge. Moreover, ABMC will not charge fees to any requester,
including commercial use requesters, if the cost of collecting a fee
would be equal to or greater than the fee itself.
(1) The elements to be considered in determining the cost of
collecting a fee are the administrative costs of receiving and
recording a requester's remittance, and processing the fee for deposit
in the Treasury Department's special account.
(2) For purposes of these restrictions on assessment of fees, the
word pages refers to paper copies of 8\1/2\ x 11 or 11 x 14. Thus,
requesters are not entitled to 100 microfiche or 100 computer disks,
for example. A microfiche containing the equivalent of 100 pages or 100
pages of computer printout, does meet the terms of the restriction.
(3) Similarly, the term search time in this context has as its
basis, manual search. To apply this term to searches made by computer,
ABMC will determine the hourly cost of operating the central processing
unit and the operator's hourly salary plus 16 percent. When the cost of
search equals the equivalent dollar amount of two hours of the salary
of the person performing the search, i.e., the operator, ABMC will
begin assessing charges.
Sec. 404.8 Fees to be charged--categories of requesters.
For purposes of assessing fees, the FOIA establishes four
categories of requesters: Commercial use requesters, educational and
non-commercial scientific institution requesters; news media
requesters, and all other requesters.
(a) Commercial use requesters. When ABMC receives a request for
documents for commercial use, it will assess charges that recover the
full direct costs of searching for, reviewing for release, and
duplicating the records sought. Commercial use requesters are not
entitled to 2 hours of free search time nor 100 free pages of
reproduction of documents.
(b) Educational and noncommercial scientific institution
requesters. Requesters in this category who meet the criteria in Sec.
404.6(g) or (h) are entitled to two free hours of search time and the
first 100 pages of duplication without charge. To be eligible for
inclusion in this category, a requester must show that the request is
authorized by and under the auspices of a qualifying institution and
that the records are not sought for a commercial use, but are sought in
furtherance of scholarly (if the request is from an educational
institution) or scientific (if the request is from a non-commercial
scientific institution) research.
(c) Requesters who are representatives of the news media.
Requesters in this category who meet the criteria in Sec. 404.6(i) are
entitled to two free hours of search time and the first 100 pages of
duplication without charge. To be eligible for inclusion in this
category, a requester must show that the records are not sought for a
commercial use, but are sought in furtherance of the news dissemination
function of the requester.
(d) All other requesters. ABMC shall charge requesters who do not
fit into any of the categories above fees that recover the full
reasonable direct cost of searching for and reproducing records that
are responsive to the request, except that the first 100 pages of
reproduction and the first 2 hours of search time shall be furnished
without charge.
Sec. 404.9 Miscellaneous fee provisions.
(a) Charging interest--notice and rate. ABMC may begin assessing
interest charges on an unpaid bill starting on the 31st day following
the day on which the billing was sent. The fact that the fee has been
received by ABMC within the 30-day grace period, even if not processed,
will suffice to stay the accrual of interest. Interest will be at the
rate prescribed in 31 U.S.C. 3717 and will accrue from the date of the
billing.
(b) Charges for unsuccessful search. ABMC may assess charges for
time spent searching, even if it fails to locate the records or if
records located are determined to be exempt from disclosure. If ABMC
estimates that search charges are likely to exceed $25, it shall notify
the requester of the estimated amount of fees, unless the requester has
indicated in advance his willingness to pay fees as high as those
anticipated. Such a notice shall offer the requester the opportunity to
confer with agency personnel with the object of reformulating the
request to meet his or her needs at a lower cost.
(c) Aggregating requests. A requester may not file multiple
requests at the same time, each seeking portions of a document or
documents, solely in order to avoid payment of fees. When ABMC
reasonably believes that a requester, or a group of requestors acting
in concert, has submitted requests that constitute a single request,
involving clearly related matters, ABMC may aggregate those requests
and charge accordingly. One element to be considered in determining
whether a belief would be reasonable is the time period over which the
requests have occurred.
(d) Advance payments. ABMC may not require a requester to make an
advance payment, i.e., payment before work is commenced or continued on
a request, unless:
(1) ABMC estimates or determines that allowable charges that a
requester may be required to pay are likely to exceed $250. Then, ABMC
will notify the requester of the likely cost and obtain satisfactory
assurance of full payment where the requester has a history of prompt
payment of FOIA fees, or require an advance payment of an amount up to
the full estimated charges in the case of requesters with no history of
payment; or
(2) A requester has previously failed to pay a fee charged in a
timely fashion (i.e., within 30 days of the date of the billing). Then,
ABMC may require the requester to pay the full amount owed plus any
applicable interest as provided above or demonstrate that he or she
has, in fact, paid the fee, and to make an advance payment of the full
amount of the estimated fee before the agency begins to process a new
request or a pending request from that requester.
(3) When ABMC acts under paragraph (d)(1) or (2) of this section,
the administrative time limits prescribed in the FOIA, 5 U.S.C.
552(a)(6) (i.e., 20 working days from receipt of initial requests and
20 working days from receipt of appeals from initial denial, plus
permissible extensions of these time limits), will begin only after
ABMC has received fee payments described in paragraphs (d)(1) and (2)
of this section.
(e) Effect of the Debt Collection Act. ABMC will comply with
provisions of the Debt Collection Act of 1982 (Pub. L. 97-365),
including disclosure to consumer reporting agencies and use of
collection agencies, where appropriate, to encourage repayment.
(e) Tolling. If the requester has indicated a willingness to pay
some designated amount of fees, but the ABMC estimates that the total
fee will exceed that amount, ABMC will toll the
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processing of the request when it notifies the requester of the
estimated fees in excess of the amount the requester has indicated a
willingness to pay. The agency will inquire whether the requester
wishes to revise the amount of fees the requester is willing to pay or
modify the request. Once the requester responds, the time to respond
will resume from where it was at the date of the notification.
(f) Reducing costs. At any time a request may contact the ABMC FOIA
Public Liaison or other FOIA professional to assist in reformulating a
request to meet the requester's needs at a lower cost.
Sec. 404.10 Waiver or reduction of charges.
Requesters may seek a waiver of fees by submitting a written
application demonstrating how disclosure of the requested information
is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities
of the government and is not primarily in the commercial interest of
the requester.
(a) ABMC will waive its fees in whole or in part when it
determines, based on all available information, that the following
factors are satisfied:
(1) Disclosure of the requested information will shed light on
identifiable operations or activities of the Federal Government with a
connection that is direct and clear, not remote or attenuated.
(2) The disclosure will contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. ABMC will
consider the requester's expertise in the subject area as well as the
requester's ability and intention to effectively convey information to
the public. ABMC will presume that a representative of the news media
satisfies this consideration.
(3) The disclosure is not primarily in the commercial interest of
the requester. Requesters will be given an opportunity to provide
explanatory information regarding this consideration. ABMC ordinarily
will presume that when a news media requester has satisfied factors in
paragraphs (a)(1) and (a)(2) of this section, the request is not
primarily in the commercial interest of the requester.
(b) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver must be granted for those
records.
(c) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the agency and should address the
criteria referenced above. A requester may submit a fee waiver request
at a later time so long as the underlying record request is pending or
on administrative appeal. When a requester who has committed to pay
fees subsequently asks for a waiver of those fees and that waiver is
denied, the requester must pay any costs incurred up to the date the
fee waiver request was received.
[FR Doc. 2020-03016 Filed 2-14-20; 8:45 am]
BILLING CODE 6120-01-P
