[Federal Register Volume 65, Number 164 (Wednesday, August 23, 2000)]
[Proposed Rules]
[Pages 51270-51277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21420]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Parts 1250 and 1254

RIN 3095-AA72


NARA Freedom of Information Act Regulations

AGENCY: National Archives and Records Administration.

ACTION: Proposed rule.

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SUMMARY: NARA proposes to revise and reorganize its regulations that 
govern access to NARA's archival holdings and NARA's own operational 
records through the Freedom of Information Act (FOIA). This proposed 
rule combines FOIA procedures for NARA archival records currently in 36 
CFR part 1254, with those for NARA operational records currently in 36 
CFR part 1250.
    This proposed rule also incorporates the changes resulting from the 
Electronic Freedom of Information Act Amendments of 1996 (EFOIA). The 
proposed rule will affect individuals and organizations that file FOIA 
requests for NARA operational records and archival holdings.

DATES: Comments must be received on or before October 23, 2000.

ADDRESSES: Send comments to Regulation Comment Desk, NPLN, Room 4100, 
National Archives and Records Administration, 8601 Adelphi Road, 
College Park, Maryland 20740-6001. You may also fax comments to 301-
713-7270.

FOR FURTHER INFORMATION CONTACT: Nancy Allard or Shawn Morton at 301-
713-7360.

SUPPLEMENTARY INFORMATION: As noted in the SUMMARY, our current FOIA 
regulations are contained in two separate CFR parts that address the 
requirements for submitting and NARA handling of requests for NARA's 
own operational records and records accessioned into the National 
Archives of the United States. Because the definitions and most of the 
procedures to be followed are the same for both types of requests, we 
are moving the current sections that contain the rules for FOIA 
requests for archival records,

[[Page 51271]]

36 CFR 1254.38 and 1254.39, into 36 CFR part 1250 for clarity and to 
reduce duplication. Fees for FOIA requests continue to be different for 
NARA operational and archival records.
    Following is a discussion of substantive changes contained in this 
proposed rule. Additional nonsubstantive changes are made and the 
proposed regulation is written in plain language in accordance with the 
Presidential Memorandum of June 1, 1998, Plain Language in Government 
Writing.
    Due to the expanded scope of proposed part 1250, we are adding more 
explanatory material on the FOIA, its application to Federal records 
which NARA has in its legal and/or physical custody, how NARA provides 
access to records through it, and which records in NARA's holdings are 
subject to the FOIA.
    The FOIA applies only to executive branch records and to 
Presidential records created since 1981. Records of executive agencies 
held in NARA records centers remain in the legal custody of the 
agencies that created them. Access to these records can only be granted 
by the creating agency. Presidential materials in NARA's custody that 
were created before 1981 were donated to the Federal government by the 
President who created them. Access to those records is governed by the 
deed of gift pertaining to those records. Legislative branch records at 
NARA remain in the legal custody of the Congress. Access to those 
records is governed by the Secretary of the Senate and the Speaker of 
the House. Records of the Supreme Court at NARA remain in the legal 
custody of the judicial branch and they control access to these 
records. Section 1250.6 refers requesters to other NARA regulations 
governing access to these records.
    The proposed Secs. 1250.8 and 1250.10 provide the rules governing 
when a requester must use the FOIA to gain access to records in NARA 
custody, and how NARA handles FOIA requests.
    The changes resulting from EFOIA (Public Law 104-231) are found 
throughout the proposed rule. Proposed Sec. 1250.12 explains which NARA 
operational records are available in our FOIA reading room. This 
section addresses the new requirements of the EFOIA that we make 
available records that are frequently requested under FOIA, and also 
that the records and an index to them are available on NARA's web site 
at http://www.nara.gov/foia/.
    We are adding Sec. 1250.24, which tells how to email a FOIA request 
to NARA. The proposed Sec. 1250.26 changes the standard response time 
to a FOIA request from 10 to 20 working days, and also includes 
procedures for handling FOIA requests on an expedited basis when 
``unusual circumstances'' arise. Proposed Sec. 1250.38 explains that 
NARA will provide copies, after all applicable fees have been paid, in 
the format specified by the requester if the records already exist in 
that format, or are readily reproducible in the requested format.
    Subpart C, Fees, governs the fees charged by NARA for FOIA 
requests. Proposed Sec. 1250.50 states that requesters who file FOIA 
requests for NARA operational records will be charged according to 
Subpart C. Additionally, proposed Sec. 1250.50 states that requesters 
who file FOIA requests for archival records will be charged according 
to the reproduction fee schedule in 36 CFR part 1258. NARA does not 
charge search and review fees for any requests for archival records. 
The fee and fee waiver provisions of the FOIA do not apply to archival 
records, rather our specific fee statutes (44 U.S.C. 2116(c)) serves as 
an alternative statute for fee issues.
    Search, review, and reproduction fees for FOIA requests for NARA 
operational records are in proposed Sec. 1250.56. Proposed Sec. 1250.52 
provides the types of fees that will be charged to particular types of 
requesters: commercial users; educational and scientific institutions 
and the news media; and other requesters. The proposed Sec. 1250.58 is 
a new section that explains how NARA will determine if a requester is 
eligible for a fee waiver.
    For clarity, current Sec. 1250.58 is divided into Secs. 1250.70 
through 1250.76. These sections explain the requester's right to appeal 
an adverse decision in response to a FOIA request, the procedures for 
filing an appeal, and how NARA handles appeals. This proposed rule also 
updates references in Sec. 1254.44 to appropriate sections in the 
proposed part 1250.
    This proposed rule is not a significant regulatory action for the 
purposes of Executive Order 12866. As required by the Regulatory 
Flexibility Act, it is hereby certified that this proposed rule will 
not have a significant impact on a substantial number of small entities 
because this regulation will affect only persons and organizations who 
file FOIA requests with NARA. This proposed rule does not have any 
federalism implications.

List of Subjects

36 CFR Part 1250

    Archives and records, Confidential business information, Freedom of 
information.

36 CFR Part 1254

    Archives and records, Confidential business information, Freedom of 
information, Micrographics, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the National Archives and 
Records Administration proposes to amend Chapter XII of title 36, Code 
of Federal Regulations as follows:
    1. Revise part 1250 to read as follows:

PART 1250--PUBLIC AVAILABILITY AND USE OF FEDERAL RECORDS

Subpart A--General Information About Freedom of Information Act (FOIA) 
Requests
Sec.
1250.1   Scope of this part.
1250.2   Definitions.
1250.4   Who can file a FOIA request?
1250.6   Does FOIA cover all of the records at NARA?
1250.8   Does NARA provide access to all the executive branch 
records housed at NARA facilities?
1250.10   Do I need to use FOIA to gain access to records at NARA?
1250.12   What types of records are available in NARA's FOIA Reading 
Room?
1250.14   If I do not use FOIA to request records, will NARA treat 
my request differently?
Subpart B--How to Access Records Under FOIA
1250.20   What do I include in my FOIA request?
1250.22   Where do I send my FOIA request?
1250.24   Will you accept a FOIA request through email?
1250.26   How quickly will NARA respond to my FOIA request?
1250.28   Will NARA ever expedite the review of the records I 
requested?
1250.30   How do I request expedited processing?
1250.32   How quickly will NARA process an expedited request?
1250.34   How will I know if NARA is going to release the records I 
requested?
1250.36   When will NARA deny a FOIA request?
1250.38   In what format will NARA provide copies?
Subpart C--Fees
1250.50   Will I be charged for my FOIA request?
1250.52   How much will I have to pay for a FOIA request for NARA 
operational records?
1250.54   General information on fees for NARA operational records.
1250.56   Fee schedule for NARA operational records.

[[Page 51272]]

1250.58   Does NARA ever waive FOIA fees for NARA operational 
records?
1250.60   How will NARA determine if I am eligible for a fee waiver 
for NARA operational records?
Subpart D--Appeals
1250.70   What are my appeal rights under FOIA?
1250.72   How do I file an appeal?
1250.74   Where do I send my appeal?
1250.76   May I email my FOIA appeal?
1250.78   How does NARA handle appeals?
Subpart E--Special Situations
1250.80   How does a submitter identify records containing 
confidential commercial information?
1250.82   How will NARA handle a FOIA request for confidential 
commercial information?
1250.84   Service of subpoena or other legal demand for NARA 
operational records.

    Authority: 44 U.S.C. 2104(a); 5 U.S.C. 552; E.O. 12600, 52 FR 
23781, 3 CFR, 1987 Comp., p. 235.

Subpart A--General Information About Freedom of Information Act 
(FOIA) Requests


Sec. 1250.1  Scope of this part.

    This part implements the provisions of the Freedom of Information 
Act (FOIA), 5 U.S.C. 552, as amended, for NARA operational records and 
archival records that are subject to FOIA. Other NARA regulations in 36 
CFR parts 1254 through 1275 provide detailed guidance for conducting 
research at NARA.


Sec. 1250.2  Definitions.

    The following definitions apply to this part:
    (a) Archival records means permanently valuable records of the 
United States Government that have been transferred to the legal 
custody of the Archivist of the United States.
    (b) Commercial use requester means a requester seeking 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.
    (c) Confidential commercial information means records provided to 
NARA by a submitter that may contain material exempt from release under 
the FOIA because disclosure could reasonably be expected to cause the 
submitter substantial competitive harm.
    (d) Educational institution request means a request that serves the 
scholarly research goals of an institution or school rather than the 
individual goals of the requester. A request from a student seeking 
information for a course of instruction does not qualify as an 
educational institution request. Educational institution requests must 
come from:
    (1) A preschool;
    (2) A public or private elementary or secondary school;
    (3) An institution of undergraduate or graduate higher education;
    (4) An institution of professional education; or
    (5) An institution of vocational education which operates a program 
or programs of scholarly research.
    (e) FOIA request means a written request for access to records of 
the executive branch of the Federal Government held by NARA, including 
NARA operational records, or to Presidential records in the custody of 
NARA that were created after January 19, 1981, that cites the Freedom 
of Information Act.
    (f) Freelance journalist means an individual who qualifies as a 
representative of the news media because the individual can demonstrate 
a solid basis for expecting publication through a news organization, 
even though not actually in its employ. A publication contract would be 
the clearest proof of a solid basis, but the individual's publication 
history may also be considered in demonstrating this solid basis.
    (g) News media representative means a person actively gathering 
news for an entity that is organized and operated to publish or 
broadcast news to the public. The term ``news'' means information that 
is about current events or that would be of current interest to the 
public. Examples of news media entities include television or radio 
stations broadcasting to the public at large, and publishers of 
periodicals (but only in those instances when they can qualify as 
disseminators of news) who make their products available for purchase 
or subscription to the general public.
    (h) Non-commercial scientific institution means an institution that 
is not operated on a basis that furthers the commercial, trade, or 
profit interests of any person or organization, and which is operated 
solely for the purpose of conducting scientific research which produces 
results that are not intended to promote any particular product or 
industry.
    (i) Operational records means those records that NARA creates or 
receives in carrying out its mission and responsibilities as an 
executive branch agency. This does not include archival records as 
defined in paragraph (a) of this section.
    (j) Other requesters means any individual who is not a commercial-
use requester, not a representative of the news media, not a freelance 
journalist, nor one associated with an educational or non-commercial 
scientific institution whose research activities conform to the 
definition in paragraph (h) of this section.
    (k) Submitter means any person or entity providing potentially 
confidential commercial information to an agency. The term submitter 
includes, but is not limited to, corporations, state governments, and 
foreign governments.


Sec. 1250.4  Who can file a FOIA request?

    Any individual, partnership, corporation, association, or 
government regardless of nationality may file a FOIA request.


Sec. 1250.6  Does FOIA cover all of the records at NARA?

    No, FOIA applies only to the records of the executive branch of the 
Federal government and certain Presidential records.

------------------------------------------------------------------------
    If you want access to . . .       Then access is governed by . . .
------------------------------------------------------------------------
(a) Records of executive branch     this part and parts 1254 through
 agencies.                           1260 of this chapter. FOIA applies
                                     to these records.
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(b) Records of the Federal courts.  parts 1254 through 1260 of this
                                     chapter. FOIA does not apply to
                                     these records.
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(c) Records of Congress...........  parts 1254 through 1260 of this
                                     chapter. FOIA does not apply to
                                     these records.
------------------------------------------------------------------------
(d) Presidential records (created   this part and parts 1254 through
 by Presidents holding office        1270 of this chapter. FOIA applies
 since 1981).                        to these records 5 years after the
                                     President leaves office. However a
                                     President may invoke exemptions
                                     under the Presidential Records Act
                                     which would extend this up to 12
                                     years after the President leaves
                                     office.
------------------------------------------------------------------------

[[Page 51273]]

 
(e) Documents created by            the deed of gift under which they
 Presidents holding office before    were given to NARA. These documents
 1981 and housed in a NARA           are not Federal records and FOIA
 Presidential library.               does not apply to these materials.
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(f) Nixon Presidential materials..  part 1275. FOIA does not apply to
                                     these materials.
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Sec. 1250.8  Does NARA provide access to all the executive branch 
records housed at NARA facilities?

    (a) NARA provides access to the records NARA creates (operational 
records) and records originating in other Federal agencies that have 
been transferred to the legal custody of the Archivist of the United 
States (archival records).
    (b) Twentieth-century personnel and medical records of former 
members of the military and of former civilian employees of the Federal 
government are held at NARA's National Personnel Records Center (NPRC), 
located in St. Louis, Missouri. These records remain in the legal 
custody of the agencies that created them and access to them is 
governed by the FOIA and other access regulations of the creating 
agencies. The NPRC processes FOIA requests under authority delegated by 
the originating agencies not under the provisions of this part.
    (c) In our national and regional records centers, NARA stores 
records that agencies no longer need for day-to-day business. These 
records remain in the legal custody of the agencies that created them. 
Access to these records is through the originating agency. NARA does 
not process FOIA requests for these records.


Sec. 1250.10  Do I need to use FOIA to gain access to records at NARA?

    (a) Most archival records held by NARA are available to the public 
for research without filing a FOIA request. You may either visit a NARA 
facility as a researcher to view and copy records or you may write to 
request copies of specific records.
    (b) If you are seeking access to archival records that are 
restricted and not available to the public, you may need to file a FOIA 
request or a mandatory review request (see part 1254 of this chapter 
for procedures for accessing classified records) to gain access to 
these materials. If you make a reference request for restricted 
records, we may ask that you change your reference request to a FOIA 
request or a mandatory review request. See 36 CFR 1254.46 for 
information on filing mandatory review requests.
    (c) You must file a FOIA request when you request access to NARA 
operational records that are not already available to the public.


Sec. 1250.12  What types of records are available in NARA's FOIA 
Reading Room?

    (a) NARA makes available for public inspection and copying the 
following materials described in subsection (a)(2) of the FOIA:
    (1) Final NARA orders;
    (2) Written statements of NARA policy that are not published in the 
Federal Register;
    (3) Operational staff manuals and instructions to staff that affect 
members of the public;
    (4) Copies of records requested 3 or more times under FOIA; and
    (5) An index, updated quarterly, to these materials.
    (b) These materials are available during normal working hours at 
the NARA facility where the records are located. See 36 CFR parts 1253 
and 1254 for a fuller description of NARA facilities and research room 
procedures.
    (c) Any of this material that was created after October 31, 1996 
will also be placed on NARA's web site at http://www.nara.gov/foia/.
    (d) For paper copies of the index to these materials write the NARA 
FOIA Officer at the address listed in Sec. 1250.22(d).


Sec. 1250.14  If I do not use FOIA to request records, will NARA treat 
my request differently?

    Whether you choose to invoke the FOIA or not, NARA will respond as 
promptly as possible to your request.

Subpart B--How To Access Records Under FOIA


Sec. 1250.20  What do I include in my FOIA request?

    In your FOIA request, you must:
    (a) Describe the records you wish to access in enough detail to 
allow NARA staff to find them. The more information you provide, the 
better possibility NARA has of finding the records you are seeking. 
Information that will help us find the records includes:
    (1) The agencies, offices, or individuals involved; and
    (2) The approximate date when the records were created.
    (b) Include your name and full mailing address. If possible, please 
include a phone number or email address as well. This information will 
allow us to reach you faster if we have any questions about your 
request.
    (c) Mark both your letter and envelope with the words ``FOIA 
Request.''


Sec. 1250.22  Where do I send my FOIA request?

    (a) For requests for archival records in the Washington, DC, area, 
mail your request to the Chief, Special Access and FOIA Staff (NWCTF), 
Room 6350, National Archives and Records Administration, 8601 Adelphi 
Road, College Park, MD 20740-6001.
    (b) For archival records in any of NARA's regional records services 
facilities, send the FOIA request to the director of the facility in 
which the records are located. The addresses for these facilities are 
listed in 36 CFR 1253.7.
    (c) For Presidential records subject to FOIA, mail your request to 
the director of the library in which the records are located. The 
addresses for these facilities are listed in 36 CFR 1253.3.
    (d) For the operational records of any NARA unit except the Office 
of the Inspector General, mail your request to the NARA FOIA Officer 
(NGC), Room 3110, National Archives and Records Administration, 8601 
Adelphi Road, College Park, MD 20740-6001.
    (e) For records of the Inspector General write to Office of the 
Inspector General (OIG), FOIA Request, Room 1300, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
    (f) If you are unable to determine where to send your request, send 
it to the NARA FOIA Officer (NGC), Room 3110, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. 
That office will forward your request to the office(s) that have the 
records you are seeking. Your request will be considered received when 
it reaches the proper office's FOIA staff.


Sec. 1250.24  Will you accept a FOIA request through email?

    Yes, send email FOIA requests to [email protected]. You must 
indicate in the subject line of your email message that you are sending 
a FOIA request. The body of the message must contain

[[Page 51274]]

all of the information listed in Sec. 1250.20.


Sec. 1250.26  How quickly will NARA respond to my FOIA request?

    (a) NARA will make an initial response to all FOIA requests within 
20 working days.
    (b) In most cases, NARA will make a decision on the release of the 
records you requested within the 20 working days. If unusual 
circumstances prevent us from making a decision within 20 working days, 
we will inform you in writing how long it will take us to complete your 
request. Unusual circumstances are the need to:
    (1) Search for and collect the records from field facilities;
    (2) Search for, collect, and review a voluminous amount of records 
which are part of a single request; or
    (3) Consult with another agency before releasing records.
    (c) If we are extending the deadline for more than an additional 10 
working days, we will ask you if you wish to modify your request so 
that we can meet the deadline. If you do not agree to modify your 
request, we will work with you to arrange an alternative time schedule 
for review and release.
    (d) If you have requested records that we do not have the authority 
to release without consulting another agency (e.g. security-classified 
records), we will refer copies of the documents to the appropriate 
agency. NARA will send you an initial response to your FOIA requests 
within 20 working days informing you of this referral. However, the 
final response to your FOIA can only be made when the agency to which 
we have referred the documents responds to us.
    (e) If you have requested Presidential records and NARA decides to 
grant you access, NARA must inform the incumbent and former Presidents 
of our intention to disclose information from those records. After 
receiving the notice, the incumbent and former Presidents have 30 days 
in which to decide whether or not to invoke Executive privilege to deny 
access to the information. NARA will send you an initial response to 
your FOIA requests within 20 working days informing you of the status 
of your request. However, the final response to your FOIA can only be 
made at the end of the 30-day Presidential notification period.
    (f) If you have requested records containing confidential 
commercial information that is less than 10 years old, we will contact 
the submitter of the requested information. NARA will send you an 
initial response to your FOIA request within 20 working days informing 
you of our actions. See Sec. 1250.82 for the time allowed the submitter 
to object to the release of confidential commercial information. If the 
records contain confidential commercial information that is 10 years 
old or older, NARA staff will not contact the submitter, but will 
process the request under normal FOIA procedures.


Sec. 1250.28  Will NARA ever expedite the review of the records I 
requested?

    (a) In certain cases NARA will move your FOIA request or appeal to 
the head of our FOIA queue. We will do this for any of the following 
reasons:
    (1) Imminent threat to an individual's life or physical safety;
    (2) Imminent loss of a substantial due process right; or
    (3) An urgent need to inform the public about an actual or alleged 
Federal government activity (this last criterion applies only to those 
requests made by a person primarily engaged in disseminating 
information to the public).
    (b) NARA can expedite requests, or segments of requests, only for 
records over which we have control. If NARA must refer a request to 
another agency, we will so inform you and suggest that you seek 
expedited review from that agency. We cannot expedite requests for 
Presidential records or shorten the 30-day Presidential notification 
period.


Sec. 1250.30  How do I request expedited processing?

    You must submit a statement, certified to be true and correct to 
the best of your knowledge, explaining the basis of your need for 
expedited processing. All such requests must be sent to the appropriate 
official at the address listed in Sec. 1250.22. You may request 
expedited processing when you first request records or at any time 
during our processing of your request.


Sec. 1250.32  How quickly will NARA process an expedited request?

    We will respond to you within 10 days of our receipt of your 
request for expedited processing. If we grant your request, the NARA 
office responsible for the review of the requested records will process 
your request as quickly as possible. If we deny your request for 
expedited processing and you decide to appeal our denial, we will also 
expedite our review of your appeal.


Sec. 1250.34  How will I know if NARA is going to release the records I 
requested?

    Once NARA decides to release the requested records, in whole or in 
part, we will inform you in writing. Our response will tell you how 
much responsive material we found, where you may review the records, 
and the copying or other charges due. If the records you sought were 
released only in part, we will estimate, if possible, the amount of the 
withheld information. Also, if we deny any part of your request, our 
response will explain the reasons for the denial, which FOIA exemptions 
apply, and your right to appeal our decisions.


Sec. 1250.36  When will NARA deny a FOIA request?

    The FOIA contains nine exemptions under which information may be 
exempted from release. Given the age and nature of archival records, 
many of these exemptions apply to only a few of the records in our 
custody. We will only withhold information where we must (such as 
information which remains classified, or information which is 
specifically closed by statute) or we reasonably foresee that 
disclosure would cause a harm. In addition if only part of a record 
must be withheld, NARA will provide access to the rest of the 
information in the record. Categories of information that may be exempt 
from disclosure under the FOIA are as follows:

------------------------------------------------------------------------
     Section of the FOIA:                 Reason for exemption
------------------------------------------------------------------------
 5 U.S.C. 552(b)(1)..........   Specifically authorized under criteria
                                established by an Executive order to be
                                kept secret in the interest of national
                                defense or foreign policy and are in
                                fact properly classified under the
                                Executive order.
 5 U.S.C. 552(b)(2)..........   Related solely to the internal personnel
                                rules and practices of an agency.
 5 U.S.C. 552(b)(3)..........  Specifically exempted from disclosure by
                                statute (other than section 552b of this
                                title), provided that the statute:
                               (A) Requires that the matters be withheld
                                from the public in such a manner as to
                                leave no discretion on the issue; or
                               (B) Establishes particular criteria for
                                withholding or refers to particular
                                types of matters to be withheld.
 5 U.S.C. 552(b)(4)..........  Trade secrets and commercial or financial
                                information obtained from a person that
                                are privileged or confidential.
 5 U.S.C. 552(b)(5)..........  Inter-agency or intra-agency memorandums
                                or letters which would not be available
                                by law to a party other than an agency
                                in litigation with the agency.

[[Page 51275]]

 
 5 U.S.C. 552(b)(6)..........  Personnel and medical files and similar
                                files the disclosure of which would
                                constitute a clearly unwarranted
                                invasion of personal privacy.
 5 U.S.C. 552(b)(7)..........  Records or information compiled for law
                                enforcement purposes, but only to the
                                extent that the production of such law
                                enforcement records or information:
                               (A) Could reasonably be expected to
                                interfere with enforcement proceedings:
                               (B) Would deprive a person of a right to
                                a fair trial or an impartial
                                adjudication;
                               (C) Could reasonably be expected to
                                constitute an unwarranted invasion of
                                personal privacy;
                               (D) Could reasonably be expected to
                                disclose the identity of a confidential
                                source, including a State, local, or
                                foreign agency or authority or any
                                private institution which furnished
                                information on a confidential basis,
                                and, in the case of a record or
                                information compiled by a criminal law
                                enforcement authority in the course of a
                                criminal investigation, or by an agency
                                conducting lawful national security
                                intelligence investigation, information
                                furnished by a confidential source;
                               (E) Would disclose techniques and
                                procedures for law enforcement
                                investigations or prosecutions, or would
                                disclose guidelines for law enforcement
                                investigations or prosecutions if such
                                disclosure could reasonably be expected
                                to risk circumvention of the law; or
                               (F) Could reasonably be expected to
                                endanger the life or physical safety of
                                any individual.
5 U.S.C. 552(b)(8)...........  Contained in or related to examination,
                                operating, or condition reports prepared
                                by, on behalf of, or for the use of an
                                agency responsible for the regulation or
                                supervision of financial institutions.
 5 U.S.C. 552(b)(8)..........  Geological and geophysical information
                                and data, including maps, concerning
                                wells.
------------------------------------------------------------------------

Sec. 1250.38  In what format will NARA provide copies?

    After all applicable fees are paid, NARA will provide you copies of 
records in the format you request if the records already exist in that 
format, or if they are readily reproducible in the format you request.

Subpart C--Fees


Sec. 1250.50  Will I be charged for my FOIA request?

    (a) Fees and fee waivers for FOIA requests for NARA operational 
records are listed in this subpart.
    (b) Fees for FOIA requests for NARA archival records are listed in 
36 CFR part 1258.


Sec. 1250.52  How much will I have to pay for a FOIA request for NARA 
operational records?

    (a) If you are a commercial use requester, we will charge you fees 
for searching, reviewing, and copying.
    (b) If you are an educational or scientific institution requester, 
or a member of the news media, we will charge you fees for copying. 
However, we will not charge you for copying the first 100 pages.
    (c) If you do not fall into either of the categories in paragraphs 
(a) and (b) of this section, then we will charge you search and copying 
fees. However, we will not charge you for the first 2 hours of search 
time or for copying the first 100 pages.


Sec. 1250.54  General information on fees for NARA operational records.

    (a) NARA is able to make most of its records available for 
examination at the NARA facility where the records are located. 
Whenever this is possible, you may review the records in a NARA 
research room at that facility.
    (b) If you want NARA to supply you with copies, we will normally 
require you to pay all applicable fees in accordance with Sec. 1250.52 
before we provide you with the copies.
    (c) NARA may charge search fees even if the records are not 
releasable or even if we do not find any responsive records during our 
search.
    (d) If you are entitled to receive 100 free pages, but the records 
cannot be copied onto standard size (8.5" by 11") photocopy paper, we 
will copy them on larger paper and will reduce your copy fee by the 
normal charge for 100 standard size photocopies. If the records are not 
on textual media (e.g., photographs or electronic files) we will 
provide the equivalent of 100 pages of standard size paper copies for 
free.
    (e) We will not charge you any fee if the total costs are $10 or 
less.
    (f) If estimated search or review fees exceed $50, we will contact 
you. If you have specified a different limit that you are willing to 
spend, we will contact you only if we estimate the fees will exceed 
that amount.
    (g) If you have failed to pay FOIA fees in the past, we will 
require you to pay your past-due bill before we begin processing your 
request. If we estimate that your fees may be greater than $250, we may 
require payment or a deposit before we begin processing your request.
    (h) If we determine that you (acting either alone or with others) 
are breaking down a single request into a series of requests in order 
to avoid or reduce fees, we may aggregate all these requests in 
calculating the fees.


Sec. 1250.56  Fee schedule for NARA operational records.

    In responding to FOIA requests for operational records, NARA will 
charge the following fees, where applicable, unless we have given you a 
reduction or waiver of fees under Sec. 1250.60.
    (a) Search fees--(1) Manual searching of records. When the search 
is relatively straightforward and can be performed by a clerical or 
administrative employee, the search rate is $16 per hour (or fraction 
thereof). When the request is more complicated and must be done by a 
professional employee of NARA, the rate is $33 per hour (or fraction 
thereof)
    (2) Computer searching. This is the actual cost to NARA of 
operating the computer and the salary of the operator. When the search 
is relatively straightforward and can be performed by a clerical or 
administrative employee, the search rate is $16 per hour (or fraction 
thereof). When the request is more complicated and must be done by a 
professional employee of NARA, the rate is $33 per hour (or fraction 
thereof).
    (b) Review fees. (1) Review fees are charged for time spent 
examining all documents that are responsive to a request to determine 
if any are exempt from release and to determine if NARA will release 
exempted records.
    (2) The review fee is $33 per hour (or fraction thereof).
    (3) NARA will not charge review fees for time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (c) Reproduction fees--(1) Self-service photocopying. At NARA 
facilities with self-service photocopiers, you may make reproductions 
of released paper documents for 15 cents per page.
    (2) Photocopying standard size pages. This charge is 20 cents per 
page when NARA produces the photocopies.
    (3) Reproductions of electronic records. The direct costs to NARA 
for staff time for programming, computer

[[Page 51276]]

operations, and printouts or electromagnetic media to reproduce the 
requested information will be charged to requesters. When the work is 
relatively straightforward and can be performed by a clerical or 
administrative employee, the search rate is $16 per hour (or fraction 
thereof). When the request is more complicated and must be done by a 
professional employee of NARA, the rate is $33 per hour (or fraction 
thereof).
    (4) Copying other media. This is the direct cost to NARA of the 
reproduction. Specific charges will be provided upon request.


Sec. 1250.58  Does NARA ever waive FOIA fees for NARA operational 
records?

    (a) NARA will waive or reduce your fees for NARA operational 
records only if your request meets both of the following criteria:
    (1) The request is in the public interest (i.e., information likely 
to contribute significantly to public understanding of the operations 
and activities of the government); and
    (2) The request is not primarily in your commercial interest.
    (b) All requests for fee waivers or reductions must be made at the 
time of the initial FOIA request. All requests must include the grounds 
for requesting the reduction or elimination of fees.


Sec. 1250.60  How will NARA determine if I am eligible for a fee waiver 
for NARA operational records?

    (a) If you request a fee waiver, NARA will consider the following 
in reviewing how your request meets the public interest criteria in 
Sec. 1250.58(a)(1):
    (1) How do the records pertain to the operations and activities of 
the Federal Government?
    (2) Will release reveal any meaningful information about Federal 
Government activities that is not already publicly known?
    (3) Will disclosure to you advance the understanding of the general 
public on the issue?
    (4) Do you have expertise in or a thorough understanding of these 
records?
    (5) Will you be able to disseminate this information to a broad 
spectrum of the public?
    (6) Will disclosure lead to a significantly greater understanding 
of the Government by the public?
    (b) After reviewing your request and determining that there is a 
substantial public interest in release, NARA will also review it to 
determine if it furthers your commercial interests. If it does, you are 
not eligible for a fee waiver.

Subpart D--Appeals


Sec. 1250.70  What are my appeal rights under FOIA?

    You may appeal any of the following decisions:
    (a) The refusal to release a record, either in whole or in part;
    (b) The determination that a record does not exist or cannot be 
found;
    (c) The determination that the record you sought was not subject to 
the FOIA;
    (d) The denial of a request for expedited processing; or
    (e) The denial of a fee waiver request.


Sec. 1250.72  How do I file an appeal?

    (a) All appeals must be in writing and received by NARA within 35 
calendar days of the date of NARA's denial letter. Mark both your 
letter and envelope with the words ``FOIA Appeal,'' and include a copy 
of your initial request and our denial.
    (b) In your appeal, explain why we should release the records, 
grant your fee waiver request, or expedite the processing of your 
request. If we were not able to find the records you wanted, explain 
why you believe our search was inadequate. If we denied you access to 
records and told you that those records were not subject to FOIA, 
please explain why you believe the records are subject to FOIA.


Sec. 1250.74  Where do I send my appeal?

    (a) If NARA's Inspector General denied your request, send your 
appeal to the Archivist of the United States, c/o FOIA Appeal Staff, 
Office of the General Counsel (NGC), Room 3110, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, Maryland 
20740-6001.
    (b) Send all other appeals to the Deputy Archivist of the United 
States, c/o FOIA Appeal Staff, Office of the General Counsel (NGC), 
Room 3110, National Archives and Records Administration, 8601 Adelphi 
Road, College Park, Maryland 20740-6001.
    (c) Denials under FOIA of access to national security information 
accessioned into the National Archives of the United States are made by 
designated officials of the originating or responsible agency or by 
NARA under a written delegation of authority. You must appeal 
determinations that records remain classified for reasons of national 
security to the agency with responsibility for protecting and 
declassifying that information. NARA will provide you with the 
necessary appeal information in those cases. You can find additional 
information on access to national security classified records at NARA 
in 36 CFR part 1254.


Sec. 1250.76  May I email my FOIA appeal?

    Yes, you may submit a FOIA appeal via email to [email protected]. 
You must put the words ``FOIA Appeal'' in the subject line of your 
email message. The body of your message must contain the information in 
Sec. 1250.72(b).


Sec. 1250.78  How does NARA handle appeals?

    NARA will respond to your appeal within 20 working days after its 
receipt of the appeal by NARA. If we reverse or modify our initial 
decision, we will inform you in writing and reprocess your request. If 
we do not change our initial decision, our response to you will explain 
the reasons for our decision, any FOIA exemptions that apply, and your 
right to judicial review of our decision.

Subpart E--Special Situations


Sec. 1250.80  How does a submitter identify records containing 
confidential commercial information?

    When a person submits records that contain confidential commercial 
information to NARA, that person may state in writing that all or part 
of the records are exempt from disclosure under exemption (b)(4) of the 
FOIA.


Sec. 1250.82  How will NARA handle a FOIA request for confidential 
commercial information?

    If NARA receives a FOIA request for records containing confidential 
commercial information or for records that we believe may contain 
confidential commercial information and if the information is less than 
10 years old, we will follow these procedures:
    (a) If, after reviewing the records in response to a FOIA request, 
we believe that the records may be opened, we will make reasonable 
efforts to inform the submitter of this. When the request is for 
information from a single or small number of submitters, NARA will send 
a notice via registered mail to the submitter's last known address. Our 
notice to the submitter will include a copy of the FOIA request and 
will tell the submitter the time limits and procedures for objecting to 
the release of the requested material.
    (b) The submitter will have 5 working days from the receipt of our 
notice to object to the release and to explain the basis for the 
objection. The NARA FOIA Officer may extend this period for an 
additional 5 working days.
    (c) NARA will review and consider all objections to release that 
are received within the time limit. If we decide to release the 
records, we will inform the submitter in writing. This notice will 
include copies of the records as we

[[Page 51277]]

intend to release them and our reasons for deciding to release. We will 
also inform the submitter that we intend to release the records 10 
working days after the date of the notice unless a U.S. District Court 
forbids disclosure.
    (d) If the requester files a lawsuit under the FOIA for access to 
any withheld records, we will inform the submitter.
    (e) We will notify the requester whenever we notify the submitter 
of the opportunity to object or to extend the time for objecting.


Sec. 1250.84  Service of subpoena or other legal demand for NARA 
operational records.

    (a) A subpoena duces tecum or other legal demand for the production 
of NARA operational records must be addressed to the Office of the 
General Counsel (NGC), Room 3110, National Archives and Records 
Administration, 8601 Adelphi Road, College Park, MD, 20740-6001.
    (b) The Archivist of the United States and the General Counsel are 
the only NARA employees authorized to accept, on behalf of NARA, 
service of a subpoena duces tecum or other legal demands for NARA 
operational records.
    (c) Regulations concerning service of a subpoena duces tecum or 
other legal demand for archival records accessioned into the National 
Archives of the United States, records of other agencies in the custody 
of the Federal records centers, and donated historical materials are 
located at 36 CFR 1254.8.

PART 1254--AVAILABILITY OF RECORDS AND DONATED HISTORICAL MATERIALS

    2. The authority citation for part 1254 continues to read as 
follows:

    Authority: 44 U.S.C. 2101-2118; 5 U.S.C. 552; and EO 12600, 52 
FR 23781, 3 CFR, 1987 Comp., p. 235.


Secs. 1254.38 and 1254.39  [Removed]

    3. Amend Subpart C to remove Secs. 1254.38 and 1254.39.
    4. Amend Sec. 1254.44 by revising the section heading and 
paragraphs (a) and (c) to read as follows:


Sec. 1254.44  Freedom of Information Act (FOIA) requests.

    (a) Requests for access to national security information under the 
Freedom of Information Act. Requests for access to national security 
information under the FOIA are processed in accordance with the 
provisions of 36 CFR part 1250. Time limits for responses to FOIA 
requests for national security information are those provided in the 
FOIA, rather than the longer time limits provided for responses to 
mandatory review requests specified by Executive Order 12958, 
Classified National Security Information (3 CFR, 1995 Comp., p. 333).
* * * * *
    (c) Denials and appeals. Denials under FOIA of access to national 
security information accessioned into the National Archives of the 
United States are made by designated officials of the originating or 
responsible agency or by NARA under a written delegation of authority. 
You must appeal determinations that records remain classified for 
reasons of national security to the agency with responsibility for 
protecting and declassifying that information. NARA will provide you 
with the necessary appeal information in those cases.

    Dated: August 17, 2000.
John W. Carlin,
Archivist of the United States.
[FR Doc. 00-21420 Filed 8-22-00; 8:45 am]
BILLING CODE 7515-01-P