Departmental Freedom of Information Act Regulations
| Published date | 21 October 2019 |
| Citation | 84 FR 56097 |
| Record Number | 2019-22896 |
| Section | Rules and Regulations |
| Court | Agriculture Department |
Federal Register, Volume 84 Issue 203 (Monday, October 21, 2019)
[Federal Register Volume 84, Number 203 (Monday, October 21, 2019)]
[Rules and Regulations]
[Pages 56097-56108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22896]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 84, No. 203 / Monday, October 21, 2019 /
Rules and Regulations
[[Page 56097]]
DEPARTMENT OF AGRICULTURE
7 CFR Part 1
RIN 0503-AA61
Departmental Freedom of Information Act Regulations
AGENCY: Office of the Chief Information Officer, USDA.
ACTION: Final rule.
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SUMMARY: This rule revises the U.S. Department of Agriculture (``USDA
or the Department'') Freedom of Information Act (``FOIA'') regulations.
The revisions clarify and update procedures for requesting information
from USDA, as well as procedures that USDA follows in responding to
requests from the public. The revisions also incorporate clarifications
and updates resulting from changes to the FOIA and case law.
DATES: Effective Date: This final rule is effective October 21, 2019.
FOR FURTHER INFORMATION CONTACT: Alexis R. Graves, Departmental FOIA
Officer, Office of the Chief Information Officer, United States
Department of Agriculture, 1400 Independence Avenue SW, South Building,
Room 4101, Washington, DC 20250. You may also contact the Departmental
FOIA Officer by phone at 202-690-3318 or [email protected].
SUPPLEMENTARY INFORMATION: On June 11, 2018, USDA proposed to revise
its regulations in order to incorporate changes of the FOIA Improvement
Act of 2016 and the OPEN Government Act of 2007, to streamline
processing procedures, and to incorporate the template published by the
Department of Justice Office of Information Policy (``Template''). The
proposed regulations were published in full and reflected these
substantive changes as well as a renumbering and reorganization of
USDA's existing regulations. USDA also removed language it identified
as obsolete, redundant, or inconsistent. In keeping with the
Department's long-standing commitment to provide improved service by
writing in plain language, USDA also revised some of the language to
make it more clear, understandable, and useful to our requester
community.
USDA invited public comment, and after carefully considering the
submissions, has determined to incorporate additional revisions. USDA
has also made minor clarifying and numbering corrections, made updates
to reflect administrative and organizational changes, and removed
duplicative language. USDA has also determined to revise the proposed
language in Sec. 1.7 to expand the component's discretion to determine
whether to voluntarily undertake the creation of new records.
Accordingly, this preamble addresses significant changes to USDA's
existing regulations and, where relevant, addresses significant public
comments.
In total, USDA received five public submissions to its proposed
rule. One commenter expressed general support for the proposed rule.
The remaining four submissions addressed a variety of issues to include
public reading rooms, affirmative disclosures, fee provisions,
treatment of confidential business information, and appeals.
Collectively, these comments afforded USDA an opportunity to improve
its final regulations and to reconsider the inclusion of language
proposed for deletion.
1. Comments on 1.2 (Public Reading Rooms)
Two commenters raised concerns with USDA's proposed regulations
concerning public reading rooms and the affirmative disclosure
requirements of 5 U.S.C. 552(a)(2). Specifically, one commenter
asserted that the proposed regulation fails to implement a process to
manage proactive disclosures for records requested three or more times,
because it fails to provide adequate guidance to components about when
and how to determine when records are likely to become the subject of
subsequent requests, because it removes existing guidance, and because
it fails to establish procedures to identify records of public interest
for disclosure in an electronic format.
Another commenter raised general concerns with USDA's past and
future handling of public reading rooms, including allegations that are
the subject of ongoing litigation. USDA declines to address comments
that extend beyond the scope of the proposed regulations in this forum.
With regard to comments about the proposed regulations, the commenter
stated that (i) the proposed regulations should require all USDA
components to post indices of frequently requested records with certain
functions and information, pursuant to 552(a)(2)(D); (ii) USDA must
promptly promulgate implementing regulations to provide ``a rational
approach to FOIA's affirmative disclosure mandate''; (iii) the
regulations provide no clear mechanism or guidance for submitting or
processing requests under 552(a)(2)(D); (iv) the regulations eliminate
existing guidance for components to determine whether records ``are
likely to become the subject of requests for substantially the same
records'' under 552(a)(2)(D)(ii)(I) and that such guidance should be
expanded; (v) the regulations eliminate, without explanation, existing
language that clarifies circumstances under which components will make
frequently requested records available and what records are required to
be posted online under 552(a)(2); (vi) USDA eliminates existing
requirements concerning indices, handbooks, access to formal
adjudication proceedings, and an index of information systems; (vii)
USDA should adopt and expand factors from its existing regulations with
regard to 552(a)(2)(D), e.g., USDA regulations should require agencies
to consider ``whether records fall into frequently requested categories
of information . . . without regard to whether any particular [ ]
record has actually been requested under (a)(3) of the statute'' and
components should be required to make a determination each time it
releases a record as to whether it is a ``frequently requested
record''; and (viii) USDA regulations should clarify the term
``released'' under 552(a)(2)(D)(i) to include ``making the information
available online or by responding to a FOIA request by referring the
requester to the agency's website.''
After consideration of the public comments, USDA has determined to
include language to assist components in making online publication
decisions pursuant to 552(a)(2). Specifically, USDA is keeping language
from its existing regulation that identifies the types of records that
are required to be
[[Page 56098]]
published under 552(a)(2) and that assists components in determining
what 552(a)(3) FOIA-processed records are ``likely to become the
subject of subsequent requests for substantially the same records.''
USDA declines proposals to expand certain language in contravention of
the FOIA statute. Specifically, USDA disagrees with the proposed
expansion of 552(a)(2)(D) to require components to consider categories
of records without regard to whether any record has actually been
requested and released under 552(a)(3). Such a suggestion is contrary
to the plain language of the FOIA 552(a)(2)(D)(i) which is limited to
records ``that have been released to any person under paragraph (3).''
Similarly, USDA disagrees with the comment that USDA regulations should
clarify the term ``released'' to include ``making the information
available online.'' Such a change would be contrary to the plain
language of the statute, which is limited to certain FOIA-processed
records that have previously been released to a person in response to a
request under (a)(3). With regard to the comment concerning the
indexing requirement of 552(a)(2), USDA notes that the requirement is
generally satisfied by providing a distinct link to each document that
is posted. More generally, beyond what is discussed above, USDA
believes it is not currently necessary or appropriate to elaborate or
expand upon the reading room requirements already set forth in the
statute with sufficient clarity and precision.
2. Comments on 1.3 (Requirements for Making a Records Request)
One commenter asserted that USDA's proposed regulations wrongfully
delete information regarding the titles and addresses of relevant
decision-making officials. This same commenter also contended that the
proposed regulations failed to assist the public in identifying where
records may be located. USDA disagrees with these comments. As
explained in Sec. 1.3(a) of the proposed regulations, USDA maintains a
dedicated FOIA website containing contact information for component
agencies and an online web portal for submitting requests. In addition,
Sec. 1.3(a) states that the public may submit requests to the
Departmental FOIA Officer who will route them to the component(s)
believed most likely to maintain the requested records. Additional
guidance about submitting requests to USDA agencies is contained in
Sec. 1.3.
3. Comments on 1.8 (Requirements for Processing Records Requests
Seeking Business Information)
On June 24, 2019, the Supreme Court issued an opinion in Food Mktg.
Inst. v. Argus Leader Media, 139 S. Ct. 915 (2019), concerning FOIA
Exemption 4 and the definition of the term ``confidential.'' USDA has
reviewed and updated the language of Sec. 1.8 based on the Argus
Leader opinion. The Argus Leader opinion renders moot the majority of
comments received on Sec. 1.8. For the reasons explained below, USDA
has determined to adopt the language of the Template, subject to some
customizations for USDA.
One commenter submitted several comments on Sec. 1.8 and raised
concerns with USDA's proposed handling of information which may be
determined to be confidential business information within the meaning
of Exemption 4. The commenter objected to (i) USDA's proposal to hold
in abeyance a FOIA request until any ``reverse FOIA'' lawsuits are
fully resolved. The commenter also argued that (ii) USDA omits the
former requirement that business submitters explain item-by-item why
disclosure would cause substantial harm to its competitive position;
(iii) USDA has attempted to improperly codify a test established in
Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d
871 (D.C. Cir. 1982); and (iv) USDA fails to establish a strict
timeline for submission of business submitter objections to disclosure.
The USDA's decision to adopt the Template language and the Argus
Leader decision render moot comments (i), (ii), (iii) and (iv).
4. Comments on 1.9 (Administrative Appeals)
One commenter suggested that USDA regulations improperly require
that an appeal be received within 90 days. USDA accepts that comment
and has revised the regulations to state that appeals must be
postmarked or transmitted by email no later than 90 calendar days from
the date of the adverse determination. This section is also revised to
include language regarding engaging in dispute resolution services
provided by the Office of Government Information Services (``OGIS'').
These revisions also implement changes of the FOIA Improvement Act of
2016.
5. Comments on 1.12 (Fees and Fee Schedules)
Two commenters asserted that USDA should not cite to Uniform
Freedom of Information Act Fee Schedule and Guidelines (``OMB Fee
Guidelines'') which are unreliable and no longer authoritative. USDA
has determined to include references to the OMB Fee Guidelines,
consistent with the Template. To the extent that the guidelines
conflict with the FOIA statute, USDA acknowledges that the statute
would control. For this reason, USDA declines to remove its citations.
One commenter objected to the removal of the provision which
allowed the agency in its discretion to waive or reduce fees regardless
of whether the requester had sought a waiver or reduction. The
commenter was concerned about the potential negative effect on
unsophisticated requesters or requesters who do not adequately
understand the requirement. USDA has determined that it will help
ensure the equal treatment of requesters by declining to include such
language in the revised regulations. Further, USDA's FOIA website
provides guidance to all requesters about things to consider before
submitting a FOIA request, including fee waiver requests.
One commenter asserted that USDA should eliminate the new provision
under which the agency will close a request if advance payment is not
received within 20 working days. USDA accepts this comment and has
deleted this new provision.
One commenter asserted USDA's proposed regulations improperly make
the fee waiver standard more stringent by requiring an ``identifiable''
operation of the government ``with a connection that is direct and
clear, not remote or attenuated.'' Also, the commenter stated that
USDA's proposed regulations improperly require that the information
``must be meaningfully informative'' and that ``disclosure of
information in the public domain in either the same or a substantially
identical form would not contribute such understanding.'' USDA declines
to accept comments concerning the fee waiver provision because it is
consistent with the FOIA statute and the language comes from the
Template.
One commenter suggested that USDA has deviated from the six-factor
test for determining whether disclosure is in the public interest for
fee waiver purposes and places the burden on the requester exclusively
to demonstrate there is no commercial interest. USDA disagrees with
these comments. USDA's updates do not substantively change the analysis
but instead present the factors in a way that is clearer to both
components and requesters. Rather than six factors, the revised section
establishes three factors that address substantively the same issues
formerly set forth in six factors.
[[Page 56099]]
Specifically, a requester should be granted a fee waiver if the
requested information (1) sheds light on the activities and operations
of the government; (2) is likely to contribute significantly to public
understanding of those operations and activities; and (3) is not
primarily in the commercial interest of the requester. This streamlined
description facilitates easier understanding and application of the
statutory standard.
6. Comments on Appendix A (Fee Schedule)
Two commenters asserted that the proposed regulations included
language that was inconsistent with the OPEN Government Act of 2007
which amended the statutory definition of representative of the news
media to eliminate the ``organized and operated'' factor. USDA agrees
with this comment and revises App. A (2)(b)(4)(i) accordingly.
One commenter asserted that USDA should consider the nature of the
requester, not the nature of the request, in determining eligibility
for news media fee category status. The commenter further contended
that, while case-by-case inquiry may be appropriate for new entities
without a track record, the FOIA focuses on the requester not on the
request for this purpose. USDA's proposed language is consistent with
the FOIA statute; therefore USDA declines to accept this comment.
One commenter suggested that USDA should use a broader standard for
determining whether a product meets the ``distinct work'' standard, to
include a ``simple press release commenting on records'' or ``editorial
comment.'' USDA declines to accept this comment proposing to articulate
a broader ``distinct work'' standard. USDA disagrees that the language
of the proposed regulation is narrow and notes that it is consistent
with the statutory definition and the Template.
One commenter suggested that USDA should indicate that any examples
of news media entities in its regulations are non-exhaustive, in order
to accommodate evolving news media formats. USDA agrees with this
comment and added clarifying language to make clear that the list of
examples is not exhaustive.
One commenter suggested that USDA should clarify its regulations to
make clear that litigation itself is not strictly a commercial activity
because the reference to litigation in the ``commercial requesters''
definition could adversely affect public interest groups and nonprofits
that engage in litigation. USDA declines to accept this comment. USDA
considers fee determinations on a case-by-case basis.
USDA also received a few comments regarding the definition of an
educational institution. USDA agrees with the comment that teachers and
students may qualify for reduced fees and therefore has elected to
revise its definition accordingly.
One commenter suggested that the proposed cost of authentication
and certification of records is exorbitant. USDA accepts the comment
regarding the potential for increased costs for authentication and
certification of records. Accordingly, USDA has determined to use the
language of the existing regulations. Another comment proposed that
authentication and certification services should be eligible for fee
waivers automatically if a fee waiver is otherwise granted to the FOIA
requester or if the requester qualifies for a fee waiver under the same
conditions as FOIA requests. USDA disagrees with this proposal because
those services are outside of the FOIA and because of the potential
impact on processing times and agency resources.
7. Miscellaneous Comments
One commenter asserted that the proposed regulations eliminate any
discussion of the annual reports. USDA prepares and posts online its
reports in accordance with the requirements of the FOIA.
One commenter objected to the elimination of language requiring
USDA components to provide requesters a date by which the component
expects to issue a determination in the event that the component misses
a FOIA deadline. USDA accepts this comment and has added language from
the Template.
One commenter suggested that USDA include the foreseeable harm
standard in its regulations. USDA declines to accept this comment as
the foreseeable harm standard is codified in the FOIA statute.
One commenter asserted that USDA's proposed regulations eliminate a
provision concerning routing misdirected requests outside of USDA. USDA
has elected to omit this language because agency employees are not
necessarily familiar with the missions of other federal agencies and
such a provision risks further delay by misdirecting requests.
Executive Orders 12866 and 13771
This rule has been drafted and reviewed in accordance with
Executive Order 12866, 58 FR 51735 (Sept. 30, 1993), section 1(b),
Principles of Regulation, and Executive Order 13563, 76 FR 3821
(January 18, 2011), Improving Regulation and Regulatory Review. The
rule is not a ``significant regulatory action'' under section 3(f) of
Executive Order 12866. Accordingly, the rulemaking has not been
reviewed by the Office of Management and Budget. This rule is not an
Executive Order 13771 regulatory action because this rule is not
significant under Executive Order 12866. Pursuant to the Congressional
Review Act (5 U.S.C. 801 et seq.), the Office of Information and
Regulatory Affairs designated this rule as not a major rule, as defined
by 5 U.S.C. 804(2).
Unfunded Mandates Reform Act of 1995
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. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Regulatory Flexibility Act
USDA, in accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), has reviewed this regulation and, by approving it, certifies
that this regulation will not have a significant economic impact on a
substantial number of small entities. Under the FOIA, agencies may
recover only the direct costs of searching for, reviewing, and
duplicating the records processed for requesters, and only for certain
classes of requesters and when particular conditions are satisfied.
Thus, fees assessed by the USDA are nominal.
Small Business Regulatory Enforcement Fairness Act of 1995
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996 (as
amended), 5 U.S.C. 804. This rule will not result in an annual effect
on the economy of $100,000,000 or more; a major increase in costs or
prices; or significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based companies to compete with foreign-based companies in
domestic and export markets.
List of Subjects in 7 CFR Part 1
Administrative practice and procedure, Freedom of information act,
Confidential business information.
[[Page 56100]]
0
For the reasons stated in the preamble, USDA amends 7 CFR part 1 by
revising subpart A to read as follows:
PART 1--ADMINISTRATIVE REGULATIONS
Subpart A--Official Records
Sec
1 General Provisions
1.2 Public Reading Rooms
1.3 Requirements for Making a Records Request
1.4 Requirements for Responding to Records Requests
1.5 Responses to Records Requests
1.6 Timing of Responses to Perfected Records Requests
1.7 Records Responsive to Records Requests
1.8 Requirements for Processing Records Requests Seeking Business
Information
1.9 Administrative Appeals
1.10 Authentication Under Departmental Seal and Certification of
Records
1.11 Preservation of Records
1.12 Fees and Fee Schedule
Appendix A to Subpart A of Part 1--Fee Schedule
Authority: 5 U.S.C. 301, 552; 31 U.S.C. 9701; and 7 CFR
2.28(a).
Subpart A--Official Records
Sec. 1.1 General provisions.
(a) This subpart contains the rules that the United States
Department of Agriculture (USDA) and its components follow in
processing requests for records under the Freedom of Information Act
(FOIA), 5 U.S.C. 552. These rules should be read together with the
FOIA, which provides additional information about access to records
maintained by the USDA. Requests made by individuals for records about
themselves under the Privacy Act of 1974, 5 U.S.C. 552a, and 7 CFR
Subpart G are also processed under this subpart.
(b) The terms ``component'' or ``components'' are used throughout
this subpart and in appendix A of this subpart to include both USDA
program agencies and staff offices.
(c) Unless otherwise stated, references to number of days indicates
business days, excluding Saturdays, Sundays, and legal holidays.
(d) Supplemental regulations for FOIA requests and appeals relating
to records of USDA's Office of Inspector General are set forth in 7 CFR
part 2620.
Sec. 1.2 Public reading rooms.
(a) Components within the USDA maintain public reading rooms
containing the records that the FOIA requires to be made regularly
available for public inspection in an electronic format. Each component
is responsible for determining which of its records are required to be
made publicly available, as well as identifying additional records of
interest to the public that are appropriate for public disclosure, and
for posting and indexing such records. Each component shall ensure that
its reading room and indices are reviewed and updated on an ongoing
basis.
(b) A link to USDA Electronic Reading Rooms can be found on the
USDA public FOIA website.
(c) In accordance with 5 U.S.C. 552(a)(2), each component within
the Department shall make the following materials available for public
inspection and copying (unless they are promptly published and copies
offered for sale):
(1) Final opinions, including concurring and dissenting opinions,
as well as orders, made in the adjudication of cases;
(2) Those statements of policy and interpretation which have been
adopted by the agency and are not published in the Federal Register;
(3) Administrative staff manuals and instructions to staff that
affect a member of the public;
(4) Copies of all records, regardless of form or format, which have
been released to a person pursuant to a FOIA request under 5 U.S.C.
552(a)(3), and have been requested three or more times; and
(5) Copies of all records, regardless of form or format, which have
been released to a person pursuant to a FOIA request under 5 U.S.C.
552(a)(3), and which because of the nature of their subject matter,
have become or are likely to become the subject of subsequent requests
for substantially the same records. Components shall decide on a case
by case basis whether records meet these requirements, based on the
following factors:
(i) Previous experience with similar records;
(ii) The particular characteristics of the records involved,
including their nature and the type of information contained in them;
and
(iii) The identity and number of requesters and whether there is
widespread media, historical, academic, or commercial interest in the
records.
Sec. 1.3 Requirements for making a records request.
(a) Where and how to submit a request. (1) A requester may submit a
request in writing and address the request to the designated component
within the USDA that maintains the records requested. The Departmental
FOIA Officer will maintain a list of contact information for component
FOIA offices and make this list available on the USDA public FOIA
website. Filing a FOIA request directly with the component that
maintains the records will facilitate the processing of the request. If
responsive records are likely to reside within more than one USDA
component, the requester should submit the request to the USDA
Departmental FOIA office.
(2) Alternatively, a requester may submit a request electronically
via USDA's online web portal or via the National FOIA portal. USDA
components also accept requests submitted to the email addresses of
component FOIA offices as listed on the USDA public FOIA website.
(3) If a requester cannot determine where within the USDA to send a
request, he or she should consult the USDA public FOIA website to
determine where the records might be maintained. Alternatively, he or
she may send the request to the Departmental FOIA Officer, who will
route the request to the component(s) believed most likely to maintain
the records requested.
(4) To facilitate the processing of a request, a requester should
place the phrase ``FOIA REQUEST'' in capital letters on the front of
their envelope, the cover sheet of their facsimile transmittal, or the
subject line of their email.
(b) What to include in a request. (1) A requester seeking access to
USDA records should provide sufficient information about himself or
herself to enable components to resolve, in a timely manner, any issues
that might arise as to the subject and scope of the request, and to
deliver the response and, if appropriate, any records released in
response to the request. Generally, this includes the name of the
requester, name of the institution on whose behalf the request is being
made, a phone number at which the requester might be contacted, an
email address and/or postal mailing address, and a statement indicating
willingness to pay any applicable processing fees.
(2) A requester seeking access to USDA records must also provide a
reasonable description of the records requested, as discussed in
paragraph (c)(1) of this section.
(3) A requester who is making a request for records about himself
or herself may receive greater access if the request is accompanied by
a signed declaration of identity that is either notarized or includes a
penalty of perjury statement pursuant to 28 U.S.C. 1746.
(4) Where a request for records pertains to another individual, a
requester may receive greater access by submitting either a notarized
authorization signed by that individual
[[Page 56101]]
or a declaration made in compliance with the requirements set forth in
28 U.S.C. 1746 by that individual authorizing disclosure of the records
to the requester, or by submitting proof that the individual is
deceased. As an exercise of administrative discretion, the component
can require a requester to supply additional information if necessary,
in order to verify that a particular individual has consented to
disclosure.
(c) How to describe the requested records. (1) A FOIA request must
reasonably describe the requested records. This means a request must be
described in such a way as to enable component personnel familiar with
the subject of the request to locate them with reasonable effort. In
general, requesters should include as much detail as possible about the
specific records or types of records that they are seeking. To the
extent possible, supply specific information regarding dates, titles,
names of individuals, names of offices, locations, names of agencies or
other organizations, and contract or grant numbers that may help in
identifying the records requested. If the request relates to pending
litigation, the requester should identify the court and its location in
addition to a case number.
(2) If a component determines that a request is incomplete, or that
it does not reasonably describe the records sought, the component will
inform the requester of this fact and advise as to what additional
information is needed or why the request is otherwise insufficient.
Sec. 1.4 Requirements for responding to records requests.
(a) In general. Except for the instances described in paragraphs
(c) and (d) of this section, the component that first receives a
request for a record is responsible for responding to or referring the
request.
(b) Authority to grant or deny requests. The head of a component or
his or her designee is authorized to grant or to deny any requests for
records originating with or maintained by that component.
(c) Handling of misdirected requests. When a component's FOIA
office receives and determines that a request was misdirected within
the Department's components or should be directed to additional
Department component(s), the receiving component's FOIA office will
route the request to the FOIA office of the proper component(s).
(d) Coordination of requests involving multiple components. When a
component becomes aware that a requester has sent a request for records
to multiple USDA components, the component will notify the Departmental
FOIA Officer to determine if some form of coordination is warranted.
(e) Consultations and referrals in the process of records review.
(1) Consultation. When records originated with the component processing
the request but contain within them information of interest to another
USDA component or other Federal Government office, the component
processing the request should consult with that other entity prior to
making a release determination.
(2) Referral. When the component processing the request believes
that another USDA component or Federal Government office is best able
to determine whether to disclose the record, the component typically
should refer the responsibility for responding to the request regarding
that record to that USDA component or Federal Government office.
Ordinarily, the component or agency that originated the record is
presumed to be the best able to make the disclosure determination.
However, if the component processing the request and the originating
component or agency jointly agree that the former is in the best
position to respond regarding the record, then the record may be
handled as a consultation.
(3) Coordination. The standard referral procedure is not
appropriate where disclosure of the identity of the component or agency
to which the referral would be made could harm an interest protected by
an applicable exemption, such as the exemptions that protect personal
privacy or national security interests. For example, if a non-law
enforcement component or agency responding to a request for records on
a living third party locates within its files records originating with
a law enforcement component or agency, and if the existence of that law
enforcement interest in the third party was not publicly known, then to
disclose that law enforcement interest could cause an unwarranted
invasion of the personal privacy of the third party. Similarly, if a
component or agency locates within its file's material originating with
an Intelligence Community agency, and the involvement of that agency in
the matter is classified and not publicly acknowledged, then to
disclose or give attribution to the involvement of that Intelligence
Community agency could cause national security harms. In such
instances, in order to avoid harm to an interest protected by an
applicable exemption, the component that received the request should
coordinate with the originating component or agency to seek its views
on the disclosability of the record. The release determination for the
record that is the subject of the coordination should then be conveyed
to the requester by the component that originally received the request.
Sec. 1.5 Responses to records requests.
(a) In general. Components should, to the extent practicable,
communicate with requesters having access to the internet by electronic
means, such as email, in lieu of first-class U.S. mail.
(b) Acknowledgements of requests. On receipt of a request, the
processing component will send an acknowledgement to the requester and
provide an assigned request tracking number for further reference.
Components should include in the acknowledgement a brief description of
the records sought, or attach a copy of the request, to allow
requesters to more easily keep track of their requests.
(c) Grants of requests. When a component makes a determination to
grant a request in whole or in part, it will notify the requester in
writing. The component will also inform the requester of any fees
charged, pursuant to Sec. 1.12, in the processing of the request.
Except in instances where advance payment of fees is required,
components may issue bills for fees charged at the same time that they
issue a determination. The component will include a statement advising
the requester that he or she has the right to seek dispute resolution
services from the component's FOIA Public Liaison.
(d) Specifying the format of records. Generally, requesters may
specify the preferred form or format (including electronic formats) for
the records sought. Components will accommodate the request if the
records are readily reproducible in that form or format.
(e) Exemptions and discretionary release. All component records,
except those specifically exempted from mandatory disclosure by one or
more provisions of 5 U.S.C. 552(a) and (b), will be made available to
any person submitting a records request under this subpart. Components
are authorized, in their sole discretion, to make discretionary
releases of their records when such releases are not otherwise
specifically prohibited by Executive Order, statute, or regulation.
(f) Reasonable segregation of records. If a requested record
contains portions that are exempt from mandatory disclosure and other
portions that are not exempt, the processing component will ensure that
all reasonably segregable nonexempt portions are disclosed, and that
all exempt portions
[[Page 56102]]
are identified according to the specific exemption(s) that are
applicable.
(g) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect will notify the
requester of that determination in writing. The written communication
to the requester will include the name and title of the person
responsible for the adverse determination, if other than the official
signing the letter; a brief statement of the reason(s) for the
determination, including any exemption(s) applied in denying the
request; an estimate of the volume of records or information withheld,
such as the number of pages or some other reasonable form of
estimation; a statement that the determination may be appealed,
followed by a description of the requirements to file an appeal; and a
statement advising the requester that he or she has the right to seek
dispute resolution services from the component's FOIA Public Liaison or
the Office of Government Information Services (``OGIS''). An adverse
determination includes:
(1) A determination to withhold any requested record in whole or in
part;
(2) A determination that a requested record does not exist or
cannot be found, when no responsive records are located and released;
(3) A determination that a record is not readily reproducible in
the format sought by the requester;
(4) A determination on any disputed fee matter; or
(5) A denial of a request for expedited treatment.
(h) Upon request, the component will provide an estimated date by
which the agency expects to provide a response to the requester. If a
request involves a voluminous amount of material, or searches in
multiple locations, the component may provide interim responses,
releasing the records on a rolling basis.
Sec. 1.6 Timing of responses to perfected records requests.
(a) In general. Components ordinarily will respond to requests
according to their order of receipt. In instances involving misdirected
requests that are re-routed pursuant to Sec. 1.4(c), the response time
will commence on the date that the request is received by the proper
component's office that is designated to receive requests, but in any
event not later than 10-working days after the request is first
received by any component's office that is designated to receive
requests.
(b) Response time for responding to requests. Components ordinarily
will inform requesters of their determination concerning requests
within 20 working days of the date of receipt of the requests, plus any
extension authorized by paragraph (d) of this section.
(c) Multitrack processing and how it affects requests. All
components must designate a specific track for requests that are
granted expedited processing in accordance with the standards set forth
in paragraph (f) of this section. A component also may designate
additional processing tracks that distinguish between simple and more
complex requests based on the estimated amount of work or time needed
to process the request. Among the factors a component may consider are
the number of pages involved in processing the request and the need for
consultations or referrals. Upon request, components will advise
requesters of the track into which their request falls and, when
appropriate, will offer the requesters an opportunity to narrow their
request so that it can be placed in a different processing track in
order to decrease the processing time.
(d) Circumstances for extending the response time. Whenever the
component cannot meet the statutory time limit for processing a request
because of ``unusual circumstances,'' as defined in the FOIA, and the
component extends the time limit on that basis, the component must,
before expiration of the 20-day period to respond, notify the requester
in writing of the unusual circumstances involved and of the date by
which the component estimates processing of the request will be
completed. Where the extension exceeds 10 working days, the component
must, as described by the FOIA, provide the requester with an
opportunity to modify the request or arrange an alternative time period
for processing the original or modified request. The component must
make available its designated FOIA contact or its FOIA Public Liaison
for this purpose. The component also must alert requesters to the
availability of the OGIS to provide dispute resolution services.
(e) Procedures for requesting expedited processing. A requester who
seeks expedited processing must submit 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.
(1) Requests and appeals will be processed on an expedited basis
whenever it is determined by the component that they involve:
(i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person who is primarily
engaged in disseminating information.
(2) Requests for expedited processing may be made at any time.
Requests based on paragraphs (e)(1)(i) or (ii) of this section must be
submitted to the component that maintains the records requested.
Components receiving requests for expedited processing will decide
whether to grant them within 10 calendar days of their receipt of these
requests and will notify the requesters accordingly. If a request for
expedited treatment is granted, the request or appeal will be given
priority, placed in the processing track for expedited requests or
appeals, 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.
Sec. 1.7 Records responsive to records requests.
(a) In determining which records are responsive to a request, a
component ordinarily will include only records in its possession as of
the date that the component begins its search.
(b) A component is not required to create a new record in order to
fulfill a request for records. The FOIA does not require agencies to do
research, to analyze data, or to answer written questions in response
to a request.
(c) Creation of records may be undertaken voluntarily.
(d) A component will provide a record in the format specified by a
requester, if the record is readily reproducible by the component in
the format requested.
Sec. 1.8 Requirements for processing records requests seeking
business information.
(a) In general. Each component is responsible for making the final
determination with regard to the disclosure or nondisclosure of
business information in records submitted by an outside entity.
(b) Definitions. For purposes of this section:
(1) Confidential commercial information means commercial or
financial information obtained by the USDA from a submitter that may be
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
(2) Submitter means any person or entity, including a corporation,
State, or foreign government, or Tribe, but not including another
Federal Government
[[Page 56103]]
entity, that provides confidential commercial information, either
directly or indirectly, to the Federal Government.
(c) Designation of confidential commercial information. A submitter
of confidential commercial information must use good-faith efforts to
designate by appropriate markings, at the time of submission, any
portion of its submission that it considers to be protected from
disclosure under Exemption 4. These designations expire 10 years after
the date of the submission unless the submitter requests and provides
justification for a longer designation period.
(d) When notice to the submitter is required. (1) The component
must promptly provide written notice to the submitter of confidential
commercial information whenever records containing such information are
requested under the FOIA if the component determines that it may be
required to disclose the records, provided:
(i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
(ii) The component has a reason to believe that the requested
information may be protected from disclosure under Exemption 4 but has
not yet determined whether the information is protected from
disclosure.
(2) The notice must either describe the commercial information
requested or include a copy of the requested records or portions of
records containing the information. In cases involving a voluminous
number of submitters, the component may post or publish a notice in a
place or manner reasonably likely to inform the submitters of the
proposed disclosure, instead of sending individual notifications.
(e) Exceptions to submitter notice requirements. The notice
requirements of this section do not apply if:
(1) The component determines that the information is exempt under
the FOIA and therefore will not be disclosed;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other
than the FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12,600.
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous. In such case, the component
must give the submitter written notice of any final decision to
disclose the information within a reasonable number of days prior to a
specified disclosure date.
(f) Submitter's opportunity to object to disclosure. (1) The
component must specify a reasonable time period within which the
submitter must respond to the notice referenced in paragraph (d) of
this section.
(2) If a submitter objects to disclosure of any portion of the
records, the submitter must provide the component with a detailed
written statement that specifies all grounds for withholding the
particular information. The submitter must show why the information is
a trade secret or commercial or financial information that is
privileged or confidential.
(3) A submitter who fails to respond within the time period
specified in the notice will be considered to have no objection to
disclosure of the information. The component is not required to
consider any information received after the date of any disclosure
decision. Any information provided by a submitter under this subpart
may itself be subject to disclosure under the FOIA.
(g) Notice of intent to disclose over submitter's objection. If a
component decides to disclose confidential commercial information over
the objection of a submitter, the component will give the submitter
written notice, which will include:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of
the records as the component intends to release them; and
(3) A disclosure date subsequent to the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial
information, the component will promptly notify the submitter.
(i) Corresponding notice to requester. The component must notify
the requester whenever it provides the submitter with notice and an
opportunity to object to disclosure; whenever it notifies the submitter
of its intent to disclose the requested information; and whenever a
submitter files a lawsuit to prevent the disclosure of the information.
Sec. 1.9 Administrative appeals.
(a) Appeals of adverse determinations. If a requester is
dissatisfied with a component's response to his or her request, the
requester may submit a written appeal of that component's adverse
determination denying the request in any respect.
(b) Deadline for submitting an appeal. Requesters must make the
appeal in writing. To be considered timely, the appeal must be
postmarked, or in the case of electronic submissions transmitted,
within 90 calendar days of the date of the adverse determination.
Components adjudicating appeals will issue a decision on an appeal,
within 20-working days of its date of receipt, plus any extension
authorized by Sec. 1.6(d).
(c) Appeals officials. Each component will provide for review of
appeals by an official different from the official who made the initial
determination(s).
(d) Components' responses to appeals. The decision on an appeal
will be made in writing.
(1) If the component grants the appeal in part or in whole, it will
inform the requester of any conditions surrounding the granting of the
request (e.g., payment of fees). If the component grants only a portion
of the appeal, it will treat the portion not granted as a denial.
(2) If the component denies the appeal, either in part or in whole,
it will inform the requester of that decision and of the following:
(i) The reasons for denial, including any FOIA exemptions asserted;
(ii) The name and title or position of each official responsible
for denial of the appeal;
(iii) The availability of mediation services offered by the OGIS of
the National Archives and Records Administration as a non-exclusive
alternative to litigation; and
(iv) The right to judicial review of the denial in accordance with
5 U.S.C. 552(a)(4)(B).
(e) Legal sufficiency review of an appeal. If a component makes the
determination to deny an appeal in part or whole, that component will
send a copy of all records to the Assistant General Counsel, General
Law and Research Division, that the Office of the General Counsel
(``OGC'') would need to examine to provide a legal sufficiency review
of the component's decision.
(1) Frequently, these records will include a copy of the unredacted
records requested, a copy of the records marked to indicate information
the component proposes to withhold, all correspondence relating to the
request, and a proposed determination letter. When the volume of
records is so large as to make sending a copy impracticable, the
component will enclose an informative summary and representative sample
of those records. The component will not deny an appeal
[[Page 56104]]
until it receives concurrence from the Assistant General Counsel.
(2) With regard to appeals involving records of OIG, the records in
question will be referred to the OIG Office of Counsel, which will
coordinate all necessary reviews.
(f) Submission of an appeal before judicial review. Before seeking
review by a court of a component's adverse determination, a requester
generally must first submit a timely administrative appeal.
Sec. 1.10 Authentication under Departmental Seal and certification
of records.
(a) In general. Requests seeking either authenticated or certified
copies of records will generally be processed under the FOIA. FOIA
search, review, and duplication fees, where applicable, may also apply.
However, because the costs for authenticated and certified copies are
outside of the FOIA, the provisions of Sec. 1.12 that call for the
automatic waiver of FOIA fees under $25.00 do not apply.
(b) Authentication of records. (1) Authentication provides
confirmation by a USDA officer that a certified copy of a record is
what it purports to be, an accurate duplicate of the original record.
(2) When a request is received for an authenticated copy of a
record that the component determines may be made available, under the
FOIA, each component will send an authentic (i.e., correct) copy of the
record to the Assistant General Counsel in the OGC Division responsible
for the applicable component program or other designee of the Secretary
of Agriculture. The Assistant General Counsel for the applicable
component program or other designee of the Secretary of Agriculture
will confirm the authenticity of the record and affix the seal of the
USDA to it.
(3) The Hearing Clerk in the Office of Administrative Law Judges
may authenticate copies of records for the Hearing Clerk. The Director
of the National Appeals Division may authenticate copies of records for
the National Appeals Division. The Inspector General is the official
who authenticates copies of records for OIG.
(4) When any component determines that a record for which
authentication is requested may be made available only in part, because
certain portions of it are exempt from release under the FOIA, the
component will process the record under the FOIA and make any needed
redactions, including notations on the record as to the FOIA
exemption(s) which require(s) the removal of the information redacted.
In such an instance, the component will supply a copy of the record
both in its unredacted state and in its redacted state to the party
authorized to perform authentication, along with a copy of the proposed
determination letter regarding the withholding of the information
redacted.
(5) The cost for authentication of records is $10.00 each.
(c) Certification of records. (1) Certification is the procedure by
which a USDA official confirms that a copy of a record is a true
reproduction of the original.
(2) When a request is received for a certified copy of a record
that the component determines may be made available under the FOIA,
each component will prepare a correct copy and a statement attesting
that the copy is a true and correct copy.
(3) When any component determines that a record for which a
certified copy is requested may be made available only in part, because
certain portions of it are exempt from release under the FOIA, the
component will process the record under the FOIA and make any needed
redactions, including notations on the record as to the FOIA
exemption(s) which require(s) the removal of the information redacted.
(4) The cost for certification of records is $5.00 each.
Sec. 1.11 Preservation of records.
Components will preserve all correspondence and records relating to
requests and appeals received under this subpart, as well as copies of
all requested records, until disposition or destruction of such
correspondence and records is authorized pursuant to title 44 of the
United States Code or the General Records Schedule 4.2 of the NARA.
Agency records will not be disposed of, or destroyed, while they are
the subject of a pending request, appeal, or lawsuit under the FOIA.
Sec. 1.12 Fees and fee schedule.
(a) Authorization to set FOIA fees. The Chief Financial Officer is
delegated authority to promulgate regulations providing for a uniform
fee schedule applicable to all components of the USDA regarding
requests for records under this subpart. The regulations providing for
a uniform fee schedule are found in appendix A of this subpart.
(b) In general. Components will charge for processing requests
under the FOIA in accordance with the provisions of appendix A of this
subpart and the Uniform Freedom of Information Act Fee Schedule and
Guidelines published by the Office of Management and Budget (``OMB Fee
Guidelines'').
(c) Guidance for lowering FOIA fees. Components will ensure that
searches, review, and duplication are conducted in the most efficient
and least expensive manner practicable.
(d) Communicating with requesters on fee issues. In order to
resolve any fee issues that arise under this subpart, a component may
contact a requester for additional information.
(e) Notifying requesters of estimated fees. When a component
determines or estimates that the processing of a FOIA request will
incur chargeable FOIA fees, in accordance with appendix A of this
subpart and the OMB Fee Guidelines, the component will notify the
requester in writing of the actual or estimated amount of the fees,
including a breakdown of the fees for search, review, or duplication,
unless the requester has indicated a willingness to pay fees as high as
those anticipated.
(f) Requester commitment to pay estimated fees. In cases in which a
requester has been notified that the processing of his or her request
will incur chargeable FOIA fees, the component providing such
notification will not begin processing the request until the requester
commits in writing to pay the actual or estimated total fee, or
designates the amount of fees that he or she is willing to pay, or in
the case of a requester who has not yet been provided with his or her
statutory entitlements, designates that he or she seeks only that which
can be provided by these statutory entitlements. The requester must
provide the commitment or designation in writing, and must, when
applicable, designate an exact dollar amount he or she is willing to
pay.
(g) Tolling of request for fee issues. If the requester has
indicated a willingness to pay some designated amount of fees, but the
component estimates that the total fee will exceed that amount, the
component will toll the processing of the request when it notifies the
requester of the estimated fees in excess of the amount the requester
is willing to pay. Once the requester responds, the time to respond
will resume from where it was at the date of the notification.
(h) Assisting requesters wishing to lower fees. Components will
make available their FOIA Public Liaison or other FOIA professional to
assist any requester in reformulating a request to meet the requester's
needs at a lower cost.
(i) Timing of Bills for Collection. Except in instances where
advance payment is required, or where requesters have previously failed
to pay a properly charged FOIA fee within 30
[[Page 56105]]
calendar days of the billing date, components may issue Bills for
Collection for FOIA fees owed at the same time that they issue their
responses to FOIA requests.
(j) Advance payment of FOIA fees when estimated fees exceed
$250.00. When a component determines or estimates that a total fee to
be charged for the processing of a FOIA request is likely to exceed
$250.00, it may require the requester to make an advance payment up to
the amount of the entire anticipated fee before beginning to process
the request. However, a component may elect to process a request prior
to collecting fees exceeding $250.00 when it receives a satisfactory
assurance of full payment from a requester with a history of prompt
payment.
(k) Special services. For services not covered by the FOIA or by
appendix A of this subpart, as described in Sec. 1.10, components may
set their own fees in accordance with applicable law. Although
components are not required to provide special services, such as
providing multiple copies of the same record, or sending records by
means other than first class mail, if a component chooses to do so as a
matter of administrative discretion, the direct costs of these services
will be charged.
(l) Aggregating requests. When a component reasonably believes that
a requester or a group of requesters acting in concert is attempting to
divide a single request into a series of requests for the purpose of
avoiding fees, the component may aggregate those requests and charge
accordingly. Components may presume that multiple requests of this type
made within a 30 calendar day period have been made in order to avoid
fees. For requests separated by a longer period, components will
aggregate them only where there is a reasonable basis for determining
that aggregation is warranted in view of all the circumstances
involves. Multiple requests involving unrelated matters will not be
aggregated for fee purposes.
(m) Payment of FOIA fees. Requesters must pay FOIA fees by check or
money order made payable to the Treasury of the United States.
Components are not required to accept payments in installments.
(n) Failure to pay properly charged fees. When a requester has
previously failed to pay a properly charged FOIA fee to any component
within 30 calendar days of the billing date, a component may require
that the requester pay the full amount due, plus any applicable
interest on that prior request, and the component may require that the
requester make an advance payment of the full amount of any anticipated
fee before the component begins to process a new request or continues
to process a pending request or any pending appeal. Where a component
has a reasonable basis to believe that a requester has misrepresented
the requester's identity in order to avoid paying outstanding fees, it
may require that the requester provide proof of identity.
(o) Restrictions on charging fees. (1) If a component fails to
comply with the statutory time limits in which to respond to a request,
as provided in Sec. 1.6(b), and if unusual circumstances, as that term
is defined by the FOIA, apply to the processing of the request, as
discussed in Sec. 1.6(d), it may not charge search fees for the
processing of the request, or duplication fees for the processing of
the request if the requester is classified as an educational
institution requester, a noncommercial scientific institution
requester, or a representative of the news media, as defined in
appendix A of this subpart, unless:
(i) The component notifies the requester, in writing, within the
statutory 20-working day time period, that unusual circumstances, as
that term is defined by the FOIA, apply to the processing of the
request;
(ii) More than 5,000 pages are necessary to respond to the request;
and
(iii) The component has discussed with the requester by means of
written mail, electronic mail, or by telephone (or has made not less
than three good-faith attempts to do so) how the requester could
effectively limit the scope of the request.
(2) If a court has determined that exceptional circumstances exist,
as defined by the FOIA, a failure to comply with the time limits shall
be excused for the length of time provided by the court order.
(p) Waivers of chargeable fees. (1) In general. Records responsive
to a request will be furnished without charge or at a reduced rate
below that established in Table 1 of appendix A of this subpart, where
a component determines, based on available evidence, that the requester
has demonstrated that:
(i) Disclosure of the requested information is in the public
interest as defined in paragraph (p)(3) of this section, 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 as defined in paragraph (p)(4) of
this section.
(2) Adjudication of fee waivers. Each fee waiver request is judged
on its own merit.
(3) Factors for consideration of public interest. In deciding
whether 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,
components will consider all four of the following factors:
(i) The subject of the request must concern identifiable operations
or activities of the Federal government, with a connection that is
direct and clear, not remote or attenuated.
(ii) Disclosure of the requested records must be meaningfully
informative about government operations or activities 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 the same or a substantially identical form,
would not contribute to such understanding where nothing new would be
added to the public's understanding.
(iii) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the requester's individual understanding. A requester's
expertise in the subject area as well as his or her ability and
intention to effectively convey information to the public will be
considered. It will be presumed that a representative of the news
media, as defined in appendix A of this subpart, will satisfy this
consideration.
(iv) The public's understanding of the subject in question must be
enhanced by the disclosure to a significant degree. However, components
will not make value judgments about whether the information at issue is
``important'' enough to be made public.
(4) Factors for consideration of commercial interest. In deciding
whether disclosure of the requested information is in the requester's
commercial interest, components will consider the following two
factors:
(i) Components will identify any commercial interest of the
requester, as defined in appendix A of this subpart. Requesters may be
given an opportunity to provide explanatory information regarding this
consideration.
(ii) A waiver or reduction of fees is justified where the public
interest is greater than any identified commercial interest in
disclosure. Components ordinarily will presume that where a news media
requester has satisfied the public interest standard, the public
[[Page 56106]]
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) Partial fee waivers. Where only some of the records to be
released satisfy the requirements for a waiver of fees, a waiver will
be granted for those records only.
(6) Timing of requests for fee waivers. Requests for a waiver or
reduction of fees should be made when the request is first submitted to
the component and should address the criteria referenced in paragraph
(p)(3) of this section. A requester may submit a fee waiver request
later 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 will be required to pay any costs incurred up to the date
the fee waiver request was received.
Appendix A to Subpart A--Fee Schedule
Section 1. In General. This schedule sets forth fees to be
charged for providing copies of records--including photographic
reproductions, microfilm, maps and mosaics, and related services--
requested under the Freedom of Information Act (``FOIA''). The fees
set forth in this schedule are applicable to all components of the
USDA. Further information about fees and fee waivers is provided in
7 CFR 1.12 Fees and Fee Waivers.
Section 2. Definitions.
(a) Types of FOIA fees. The FOIA defines the following types of
FOIA fees that may be charged for responding to FOIA requests.
(1) Search fees.
(i) Searching is the process of looking for and retrieving
records or information responsive to a request. Search time includes
page-by-page or line-by-line identification of information within
records and the reasonable efforts expended to locate and retrieve
information from electronic records.
(ii) Search time is charged in quarter-hour increments within
the USDA, and includes the direct costs incurred by a component in
searching for records responsive to a request. It does not include
overhead expenses such as the costs of space and heating or lighting
of the facility in which the records are maintained.
(iii) Components may charge for time spent searching for
requested records even if they do not locate any responsive records
or if they determine that the records that they locate are entirely
exempt from disclosure.
(iv) USDA components will charge for search time at the actual
salary rate of the individual who conducts the search, plus 16
percent of the salary rate (to cover benefits). This rate was
adopted for consistency with the Uniform Freedom of Information Act
Fee Schedule and Guidelines (``OMB Fee Guidelines'') that state that
agencies should charge fees that recoup the full allowable direct
costs that they incur in searching for responsive records.
(v) Search time also includes the direct costs associated with
conducting any search that requires the creation of a new computer
program to locate the requested records. Components will notify
requesters of the costs of creating such a program, and requesters
must agree to pay the associated costs before these costs may be
incurred.
(2) Review fees.
(i) Reviewing is the process of examining records located in
response to a request in order to determine whether any portion of
the records is exempt from disclosure. The process of review also
includes the process of preparing records for disclosure, for
example, doing all that is necessary to redact them and prepare them
for release. Review time also includes time spent considering any
formal objection to disclosure of responsive records made by a
business submitter as discussed in 7 CFR 1.8 Requirements for
processing requests seeking business information. However, it does
not include time spent resolving general legal or policy issues
regarding the application of the nine FOIA exemptions.
(ii) Review time is charged in quarter-hour increments within
the USDA, and includes the direct costs incurred by a component in
preparing records responsive to a request for disclosure. It does
not include overhead expenses such as the costs of space and heating
or lighting of the facility in which the records are maintained.
(iii) USDA components may charge for time spent reviewing
requested records even if they determine that the records reviewed
are entirely exempt from disclosure.
(iv) USDA components will charge for review time at the actual
salary rate of the individual who conducts the review, plus 16
percent of the salary rate (to cover benefits). This rate was
adopted for consistency with the OMB Fee Guidelines that state that
agencies should charge fees that recoup the full allowable direct
costs that they incur in reviewing records for disclosure.
(v) Review time also includes the direct costs associated with
the cost of computer programming designed to facilitate a manual
review of the records, or to perform electronic redaction of
responsive records, particularly when records are maintained in
electronic form. Components will notify requesters of the costs
performing such programming, and requesters must agree to pay the
associated costs before these costs may be incurred.
(3) Duplication fees.
(i) Duplicating is the process of producing copies of records or
information contained in records requested under the FOIA. Copies
can take the form of paper, audiovisual materials, or electronic
records, among other forms.
(ii) Duplication is generally charged on a per-unit basis. The
duplication of paper records will be charged at a rate of $.05 per
page within the USDA. The duplication of records maintained in other
formats will include all direct costs incurred by a component in
performing the duplication, including any costs associated in
acquiring special media, such as CDs, disk drives, special mailers,
and so forth, for transmitting the requested records or information.
It does not include overhead expenses such as the costs of space and
heating or lighting of the facility in which the records are
maintained.
(iii) Duplication generally does not include the cost of the
time of the individual making the copy. This time is generally
factored into the per page cost of duplication. However, when
duplication requires the handling of fragile records, or paper
records that cannot be safely duplicated in high-speed copiers,
components may also charge for the time spent duplicating these
records. In such an instance, the cost of this time will be added to
the per-page charge, and an explanation provided to the requester in
the component's itemization of FOIA fees charges. Components may
describe this time as time spent in duplicating fragile records.
(iv) USDA components will charge for time spent in duplicating
fragile records at the actual salary rate of the individual who
performs the duplication, plus 16 percent of the salary rate (to
cover benefits). This rate was adopted for consistency with the OMB
Fee Guidelines that state that agencies should charge fees that
recoup the full allowable direct costs that they incur in
duplicating requested records.
(v) Where paper records must be scanned in order to comply with
a requester's preference to receive the records in an electronic
format, duplication costs will also include the direct costs
associated with scanning those materials, including the time spent
by the individual performing the scanning. Components may describe
this time as time spent in scanning paper records.
(vi) However, when components ordinarily scan paper records in
order to review and/or redact them, the time required for scanning
records will not be included in duplication fees, but in review
fees, when these are applicable. When components that ordinarily
scan paper records in order to review and/or redact them release
records in an electronic format to requesters who are not to be
charged review fees, duplication fees will not include the time
spent in scanning paper records. In such instances, duplication fees
may only include the direct costs of reproducing the scanned
records. In such instances, components may not charge duplication
fees on a per-page basis.
(b) Categories of FOIA requesters for fee purposes. The FOIA
defines the following types of requests and requesters for the
charging of FOIA fees.
(1) Commercial use requests.
(i) Commercial use requests are requests for information for a
use or a purpose that furthers commercial, trade or profit
interests, which can include furthering those interests through
litigation. Components will determine, whenever reasonably possible,
the use to which a requester will put the requested records. When it
appears that the requester will put the records to a commercial use,
either because of the nature of the request itself or because a
component has reasonable cause to doubt a requester's stated use,
the component may provide the
[[Page 56107]]
requester a reasonable opportunity to submit further clarification.
A component's decision to place a request in the commercial use
category will be made on a case-by-case basis based on the
requester's intended use of the information.
(ii) Commercial requests will be charged applicable search fees,
review, and duplication fees.
(iii) If a component fails to comply with the statutory time
limits in which to respond to a commercial request, as provided in 7
CFR 1.6(b), and if no unusual or exceptional circumstances, as those
terms are defined by the FOIA, apply to the processing of the
request, as discussed in 7 CFR 1.6(d), it may not charge search fees
for the processing of the request. It may, however, still charge
applicable review and duplication fees.
(iv) If a component fails to comply with the statutory time
limits in which to respond to a commercial request, as provided in 7
CFR 1.6(b), when unusual or exceptional circumstances, as those
terms are defined by the FOIA, apply to the processing of the
request, as discussed in 7 CFR 1.6(d), and the component notifies
the requester, in writing, within the statutory 20-working day time
period, that unusual or exceptional circumstances, as those terms
are defined by the FOIA, apply to the processing of the request,
more than 5,000 pages are necessary to respond to the request, and
the component has discussed with the requester by means of written
mail, electronic mail, or by telephone (or has made not less than
three good faith attempts to do so) how the requester could
effectively limit the scope of the request, the component may charge
any search fees for the processing of the request, as well as any
applicable review and duplication fees. Otherwise, it may only
charge applicable review and duplication fees.
(2) Educational institution requesters.
(i) Educational institution requesters are requesters who are
affiliated with a school that operates a program of scholarly
research, such as a preschool, a public or private elementary or
secondary school, an institution of undergraduate education, an
institution of graduate higher education, an institution of
professional education, or an institution of vocational education.
To be in this category, a requester must show that the request is
made under the auspices of a qualifying institution and that the
records are not sought for a commercial use but are sought to
further scholarly research. Records sought by students at an
educational institution for use in fulfilling their degree
requirements may qualify if the requester articulates a clear
relationship to his or her coursework. Students must document how
the records they are requesting will further the scholarly research
aims of the institution in question.
(ii) Educational institution requesters are entitled to receive
100 pages of duplication without charge. Following the exhaustion of
this entitlement, they will be charged fees for the duplicating of
any additional pages of responsive records released. They may not be
charged search or review fees.
(iii) If a component fails to comply with the statutory time
limits in which to respond to an educational use request, as
provided in 7 CFR 1.6(b), and if no unusual or exceptional
circumstances, as those terms are defined by the FOIA, apply to the
processing of the request, as discussed in 7 CFR 1.6(d), it may not
charge duplication fees for the processing of the request.
(iv) If a component fails to comply with the statutory time
limits in which to respond to an educational use request, as
provided in 7 CFR 1.6(b), when unusual or exceptional circumstances,
as those terms are defined by the FOIA, apply to the processing of
the request, as discussed in 7 CFR 1.6(d), and the component
notifies the requester, in writing, within the statutory 20-working
day time period, that unusual or exceptional circumstances, as those
terms are defined by the FOIA, apply to the processing of the
request, more than 5,000 pages are necessary to respond to the
request, and the component has discussed with the requester by means
of written mail, electronic mail, or by telephone (or has made not
less than three good-faith attempts to do so) how the requester
could effectively limit the scope of the request, the component may
charge duplication for the processing of the request. Otherwise, it
may not charge duplication fees.
(3) Noncommercial scientific institution requesters.
(i) Noncommercial scientific institution requesters are
requesters who are affiliated with an institution that is not
operated on a ``commercial'' basis, as that term is defined in
paragraph (b)(1)(i) 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 not sought for a commercial use
but are sought to further scientific research.
(ii) Noncommercial scientific institution requesters are
entitled to receive 100 pages of duplication without charge.
Following the exhaustion of this entitlement, they will be charged
fees for the duplicating of any additional pages of responsive
records released. They may not be charged search or review fees.
(iii) If a component fails to comply with the statutory time
limits in which to respond to a noncommercial scientific institution
request, as provided in 7 CFR 1.6(b), and if no unusual or
exceptional circumstances, as those terms are defined by the FOIA,
apply to the processing of the request, as discussed in 7 CFR
1.6(d), it may not charge duplication fees for the processing of the
request.
(iv) If a component fails to comply with the statutory time
limits in which to respond to a noncommercial scientific institution
request, as provided in 7 CFR 1.6(b), when unusual or exceptional
circumstances, as those terms are defined by the FOIA, apply to the
processing of the request, as discussed in 7 CFR 1.6(d), and the
component notifies the requester, in writing, within the statutory
20-working day time period, that unusual or exceptional
circumstances, as those terms are defined by the FOIA, apply to the
processing of the request, more than 5,000 pages are necessary to
respond to the request, and the component has discussed with the
requester by means of written mail, electronic mail, or by telephone
(or has made not less than three good-faith attempts to do so) how
the requester could effectively limit the scope of the request, the
component may charge duplication for the processing of the request.
Otherwise, it may not charge duplication fees.
(4) Representatives of the news media.
(i) Representative of the news media is any person or entity
that actively 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, but are not limited to, television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only in those instances where they can qualify as
disseminators of ``news'') who make their products available for
purchase or subscription by the general public, including news
organizations that disseminate solely on the internet. For
``freelance'' journalists to be regarded as working for a news
organization, they must demonstrate a solid basis for expecting
publication through that organization. A publication contract would
be the clearest proof, but components will also look to the past
publication record of a requester in making this determination. To
be in this category, a requester must not be seeking the requested
records for a commercial use. However, a request for records
supporting the news-dissemination function of the requester will not
be considered of commercial use.
(ii) Representatives of the news media are entitled to receive
100 pages of duplication without charge. Following the exhaustion of
this entitlement, they will be charged fees for the duplication of
any additional pages of responsive records released. They may not be
charged search or review fees.
(iii) If a component fails to comply with the statutory time
limits in which to respond to a news-media use request, as provided
in 7 CFR 1.6(b), and if no unusual or exceptional circumstances, as
those terms are defined by the FOIA, apply to the processing of the
request, as discussed in 7 CFR 1.6(d), it may not charge duplication
fees for the processing of the request.
(iv) If a component fails to comply with the statutory time
limits in which to respond to a news-media request, as provided in 7
CFR 1.6(b), when unusual or exceptional circumstances, as those
terms are defined by the FOIA, apply to the processing of the
request, as discussed in 7 CFR 1.6(d), and the component notifies
the requester, in writing, within the statutory 20-working day time
period, that unusual or exceptional circumstances, as those terms
are defined by the FOIA, apply to the processing of the request,
more than 5,000 pages are necessary to respond to the request, and
the component has discussed with the requester by means of written
mail, electronic mail, or by telephone (or has made not less than
three good-faith attempts to do so) how the requester could
[[Page 56108]]
effectively limit the scope of the request, the component may charge
duplication for the processing of the request. Otherwise, it may not
charge duplication fees.
(5) All other requesters.
(i) All other requesters are individuals and entities who do not
fall into any of the four categories described in Section 2(b)
paragraphs (1), (2), (3) and (4) of this appendix. Requesters
seeking information for personal use, public interest groups, and
nonprofit organizations are examples of requesters who might fall
into this group.
(ii) All other requesters are entitled to receive 100 pages of
duplication without charge. Following the exhaustion of this
entitlement, they will be charged fees for the duplicating of any
additional pages of responsive records released. All other
requesters are also entitled to receive 2 hours of search time
without charge. Following the exhaustion of this entitlement, they
may be charged search fees for any remaining search time required to
locate the records requested. They may not be charged review fees.
(iii) If a component fails to comply with the statutory time
limits in which to respond to an all-other request, as provided in 7
CFR 1.6(b), and if no unusual or exceptional circumstances, as those
terms are defined by the FOIA, apply to the processing of the
request, as discussed in 7 CFR 1.6(d), it may not charge search fees
for the processing of the request.
(iv) If a component fails to comply with the statutory time
limits in which to respond to an all-other request, as provided in 7
CFR 1.6(b), when unusual or exceptional circumstances, as those
terms are defined by the FOIA, apply to the processing of the
request, as discussed in 7 CFR 1.6(d), and the component notifies
the requester, in writing, within the statutory 20-working day time
period, that unusual or exceptional circumstances, as those terms
are defined by the FOIA, apply to the processing of the request,
more than 5,000 pages are necessary to respond to the request, and
the component has discussed with the requester by means of written
mail, electronic mail, or by telephone (or has made not less than
three good-faith attempts to do so) how the requester could
effectively limit the scope of the request, the component may charge
search fees for the processing of the request as well as any
applicable duplication fees. Otherwise, it may only charge
applicable duplication fees.
Section 3. Charging fees.
(a) In general. When responding to FOIA requests, components
will charge all applicable FOIA fees that exceed the USDA charging
threshold, as provided in paragraph (b) of this section, unless a
waiver or reduction of fees has been granted under 7 CFR 1.12(p), or
statutory time limits on processing are not met, and when unusual or
exceptional circumstances apply, components do not meet all of the
three conditions for charging as set forth in 7 CFR 1.12(o).
(b) USDA fee charging threshold. The OMB Fee Guidelines state
that agencies will not charge FOIA fees if the cost of collecting
the fee would be equal to or greater than the fee itself. This
limitation applies to all requests, including those seeking records
for commercial use. At the USDA, the cost of collecting a FOIA fee
is currently established as $25.00. Therefore, when calculating FOIA
fees, components will charge requesters all applicable FOIA fees
when these fees equal or exceed $25.01.
(c) Charging interest. Components may charge interest on any
unpaid bill starting on the 31st day following the date of billing
the requester. Interest charges will be assessed at the rate
provided in 31 U.S.C. 3717 and will accrue from the billing date
until payment is received by the 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.
(d) NARA retrieval fees. For requests that require the retrieval
of records stored by a component at a Federal records center
operated by the National Archives and Records Administration
(``NARA''), additional costs will be charged in accordance with the
Transactional Billing Rate Schedule established by NARA.
(e) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires a component to set and collect
fees for particular types of records. In instances where records
responsive to a request are subject to a statutorily-based fee
schedule program, the component will inform the requester of the
contact information for that program.
(f) Social Security Numbers and Tax Identification Numbers.
Components may not require requesters to provide Social Security
Numbers or Tax Identification Numbers in order to pay FOIA fees due.
Table 1 to Appendix A to Subpart A--FOIA Fee Schedule
----------------------------------------------------------------------------------------------------------------
Type of request Type of charge Price
----------------------------------------------------------------------------------------------------------------
Commercial Requesters................ Duplication charges.... $0.05 per page.
When the component has to copy fragile records,
the charge is $0.05 per page plus the copying
time involved, which includes the actual hourly
salary rate of the employee involved, plus 16%
of the hourly salary rate.
Search charges......... Actual hourly salary rate of employee involved,
plus 16% of the hourly salary rate.
Review charges......... Actual hourly salary rate of employee involved,
plus 16% of the hourly salary rate.
Educational or Non-Commercial Duplication charges.... No charge for first 100 pages, then $0.05 per
Scientific Requesters. page.
When the component has to copy fragile records,
the charge is $0.05 per page plus the copying
time involved, which includes the actual hourly
salary rate of the employee involved, plus 16%
of the hourly salary rate.
Search charges......... Free.
Review charges......... Free.
Representatives of the News Media.... Duplication charges.... No charge for first 100 pages, then $0.05 per
page
When the component has to copy fragile records,
the charge is $0.05 per page plus the copying
time involved, which includes the actual hourly
salary rate of the employee involved, plus 16%
of the hourly salary rate.
Search charges......... Free.
Review charges......... Free.
All Other Requesters................. Duplication charges.... No charge for first 100 pages, then $0.05 per
page.
When the component has to copy fragile records,
the charge is $0.05 per page plus the copying
time involved, which includes the actual hourly
salary rate of the employee involved, plus 16%
of the hourly salary rate.
Search charges......... No charge for first two (2) hours of search
time, then actual hourly salary rate of
employee involved, plus 16% of the hourly
salary rate.
Review charges......... Free.
----------------------------------------------------------------------------------------------------------------
Stephen L. Censky,
Deputy Secretary.
[FR Doc. 2019-22896 Filed 10-18-19; 8:45 am]
BILLING CODE 3410-KR-P
