[Federal Register Volume 66, Number 57 (Friday, March 23, 2001)]
[Rules and Regulations]
[Pages 16374-16382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-6555]



[[Page 16373]]

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Part IV





National Archives and Records Administration





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36 CFR Parts 1250 and 1254



NARA Freedom of Information Act Regulations; Final Rule
Federal Register / Vol. 66, No. 57 / Friday, March 23, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 57 / Friday, March 23, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 57 / Friday, March 23, 2001 / Rules and Regulations

[[Page 16374]]

Federal Register Format Changes

  EDITOR'S NOTE: The Office of the Federal Register is printing the 
following document in a two-column format to illustrate proposed 
changes in the appearance of the daily Federal Register. The two-column 
format and other changes in fonts, headings, line spacing, and tables 
are intended to improve readability and public understanding of Federal 
regulations and notices, while minimizing increases in white space that 
affect printing costs charged to agencies. The format changes do not 
affect the legal status of the final rule issued by the National 
Archives and Records Administration.

  We invite agencies and members of the public to comment on the 
proposed format by email at: [email protected] or by U.S. mail at: 
National Archives and Records Administration, Office of the Federal 
Register (NF), Federal Register Format Changes, 700 Pennsylvania Ave., 
NW, Washington, DC 20408-0001. For more information on the proposed 
format change, go to the Federal Register web site at: http://www.nara.gov/fedreg/plainlan.html#top.
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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 (NARA).

ACTION:

Final rule.

SUMMARY:

NARA is revising and reorganizing its regulations that govern access to 
NARA's archival holdings and NARA's own operational records 
through the Freedom of Information Act (FOIA). This 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 rule also incorporates the changes resulting from the Electronic 
Freedom of Information Act Amendments of 1996 (EFOIA). This rule will 
affect individuals and organizations that file FOIA requests for NARA 
operational records and archival holdings.

EFFECTIVE DATE:

April 23, 2001.

FOR FURTHER INFORMATION CONTACT:

Nancy Allard at 301-713-7360.

SUPPLEMENTARY INFORMATION:

NARA published a notice of proposed rulemaking on August 23, 2000, in 
the Federal Register (65 FR 51270) for a 60-day public comment period.

   NARA received two comments, one from the Public Citizen Litigation 
Group, a nonprofit consumer advocacy organization, and one from the 
National Coordinating Committee for the Promotion of History. Following 
is a summary of the comments and a discussion of the changes that we 
made to the proposed rule in response to those comments:


Section 1250.2(c)_Confidential commercial information

   In our proposed rule, we define confidential commercial information 
``as records provided to NARA by a submitter that may contain 
material exempt from release under the FOIA...''. Public Citizen 
believes that this is not the only way that such information may appear 
in NARA's records.
   Public Citizen believes that such information may appear in records 
that were submitted to other agencies and transferred to NARA. In our 
definition we describe a ``submitter'' as one who provides 
NARA with information. We are deleting the phrase ``to NARA'' 
with Sec. 1250.2 (c) so that the regulations will appropriately 
cover both the more common operational requests as well as the 
infrequent archival requests for commercial information still requiring 
protection. Thus, Sec. 1250.2(c) will read, ``confidential 
commercial information means records provided 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.''


Section 1250.2(d)_Definition of ``educational''

   Public Citizen comments that NARA's proposed definition of 
``educational institution request'' as ``a request that 
serves the scholarly research goals of an institution or school rather 
than the individual goals of the requester'', is not supported by 
the statutory language. NARA agrees and has adopted the DOJ definition 
in Sec. 1250.2(d), as suggested by Public Citizen.


Sections 1250.2(e) and 1250.6_Application of FOIA to all archival 
records

   Public Citizen believes that all records in the custody of the 
Archivist should be governed by FOIA. They assert that the proposed 
rule language in the preamble, and at Secs. 1250.2(e) and 
1250.6, indicates that the FOIA applies only to archival records 
received from the executive branch of the Federal government, and does 
not apply to records of Congress or of the federal courts that have 
been transferred to the Archivist's custody because of their 
historical value. The submitter believes that all archival records 
received under 44 U.S.C. 2107, including the records of Congress and 
judicial branch records that have been deposited with NARA for 
preservation are subject to the FOIA. Public Citizen recommends that 
NARA not adopt 36 CFR. 1250.2(e) and 1250.6 in its final regulations.
   We believe that 44 U.S.C. 2107 allows the Archivist to accept for 
deposit Congressional and court records of historical value and that 
accepting these records does not make them records of the executive 
branch for purposes of FOIA. In addition, the courts have carved out 
court and Congressional records from the FOIA statute coverage. (See 
United States v. Spain, No.82-60-N, slip op. At 1 (E.D. Va. June 19, 
1998) and Smith v. United States Congress, No. 95-5281, 1996 WL 523800, 
at *1(D.C.Cir. August 28, 1996)) All the provisions in the proposed 
Sec. 1250.2 are unchanged.


Section 1250.8_Definition of operational records

   Public Citizen suggests that the term ``operational'' be 
defined again at this point in the regulations. NARA believes that this 
term has been fully defined in Sec. 1250.2(i), and that the use 
of the shortened ``plain English'' version is appropriate.


Section 1250.12(a)(4)_Types of records available in NARA's 
reading room

   Public Citizen believes that NARA's proposed language in this 
section is narrower than the statutory mandate, which provides that the 
agency must place in its reading room copies of all records that 
``the agency determines have become or are likely to become the 
subject of subsequent requests for substantially the

[[Page 16375]]

same records.'' NARA's proposed rule states that 
``copies of records requested 3 or more times under the 
FOIA'' must be placed in NARA's FOIA reading room. Public 
Citizen asserts that records may have become subject to subsequent 
requests for substantially the same records even if there have not been 
three or more identical requests. Thus, Public Citizen urges that NARA 
modify the description of records that will be made available in 
NARA's reading room to conform to the statutory language. While 
NARA believes that the proposed language defines how NARA makes this 
determination, we believe that expanding the description to include the 
phrase ``other records that have become or are likely to become 
the subject of subsequent FOIA request'' is a reasonable addition 
to the regulations. We have amended the proposed description of records 
available in NARA's reading room in Sec. 1250.12(a)(4) to 
read: ``copies of records requested 3 or more times under the 
FOIA; and other records that have become or are likely to become the 
subject of subsequent FOIA requests for substantially the same records. 
. .''. The word FOIA has been added a second time to make sure 
that all will understand that these are FOIA requests.


Section 1250.26_Extension of statutory deadlines

   Public Citizen recommends that NARA modify the proposed language in 
Sec. 1250.26 to tell the requester the length of the 
anticipated delay whenever we notify the requester that the 20 working 
day deadline cannot be met. Public Citizen suggests that the 
modification would enable the requesters to make informed decisions 
about whether to modify their request. NARA believes this to be 
appropriate in those instances where a modification of the request will 
enhance NARA's ability to make a more timely response. This 
situation is covered in Sec. 1250.26(c).
   In the cases where NARA notifies a requester that 20 working days is 
not a sufficient amount of time to make a final decision and adds fewer 
than 10 additional days to the response time, as described in 
Sec. 1250.26(b), NARA believes that the statute does not 
require us to seek modification from the requester. The final response 
to the requester would be further delayed if we stopped processing the 
request in order to contact the requester and awaited the 
requester's decision on modifying the request.
   Public Citizen also suggests that NARA inform the requester of the 
completion date of the request. NARA believes that this is an 
appropriate addition to any NARA response to the requester. However, in 
those instances when NARA must wait on another agency 
(Sec. 1250.26(d)) or follow an alternative time schedule 
(Secs. 1250.26(e) and (f)), the date of completion can 
only be an estimate and modification of a request is unlikely to 
eliminate the need for outside consultation. We have added to this 
section a new sentence in order to keep requesters aware of the 
complexities in processing certain types of FOIA responses. Section 
1250.26(a) reads ``NARA will make an initial response to all FOIA 
requesters within 20 days. The initial response will inform requesters 
of any complexity in processing their request, which may lengthen the 
time required to reach a final decision on the release of the 
records.''
   The National Coordinating Committee for the Promotion of History 
(NCCPH) states that researchers sometimes request a specific document 
from NARA only to find that it is withheld in its entirety even though 
there is only a page in question. NCCPH suggests that NARA release part 
of a record before the record is referred. NARA believes that the 
situation that NCCPH is describing here only occurs when the requested 
material is classified. When material is classified, it is sent to 
another agency for review because we do not have the technical or the 
legal ability to determine whether a portion of a classified document 
is unclassified and could be released. Without this certainty, we do 
not believe it appropriate to release any portion of the referred 
material.


Section 1250.28_Expedited processing for records subject to 
multiple requests

   Public Citizen suggests that NARA revise their two criteria on 
imminent danger to person or due process to include the concept of 
``reasonable expectation.'' The statute makes clear that 
expedited processing is required where delay in releasing the records 
could reasonably be expected to pose an imminent threat to life or 
physical safety of an individual. Public Citizen asserts that the 
expedited processing to address due process concerns is appropriate 
where the loss of due process rights is reasonably expected, not just 
where the loss is imminent. Following a review of this comment, NARA 
believes this revision is acceptable and amended the wording to read: 
Sec. 1250.28(a)(1) ``A reasonable expectation of an 
imminent threat to an individual's life or ``physical 
safety;'' and Sec. 1250.28(a)(2) ``A reasonable 
expectation of imminent loss of substantial due process rights.''
   With regard to Public Citizen's suggestion that NARA revise the 
criteria to add the receipt of multiple requests as a reason for 
expediting requests, NARA believes that Congress and the courts 
continue to agree that the fairest pattern for responding to FOIA 
requesters is on a first in/first out basis. In those special 
circumstances where delay could reasonably be expected to cause serious 
harm or where voluminous or complicated requests produce a bottleneck, 
NARA has established procedures for expedited processing and continues 
to use multiple queues.


Section 1250.50_Fees

   NCCPH believes that NARA's search and review fees are too high 
and that while it is reasonable to charge search fees for another 
agency's records, it is unreasonable for NARA to charge for a 
search of its own operational records. NARA does not charge for 
searching and reviewing archival records accessioned into the National 
Archives of the United States when we receive a FOIA request for them.
   In establishing fees for NARA's own operational records 
requested under FOIA we have followed the procedures established by 
OMB. Search and review fees are established at the salary of the 
individual who is doing the search and review. There is no charge for 
the first two hours of search or review time. NARA rarely charges for 
search or review of operational records as the two-hour free time is 
rarely used up.
   This rule is not a significant regulatory action for the purpose of 
Executive Order 12866. As required by the Regulatory Flexibility Act, 
it is hereby certified that this 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 
request with NARA. The rule does not have any federalism or tribal 
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 amends chapter XII of title 36, Code of Federal 
Regulations as follows:

[[Page 16376]]


0

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.
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), 2204; 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 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 preschool, a public or 
private elementary or secondary school, an institution of undergraduate 
higher education, an institution of graduate higher education, an 
institution of professional education, or an institution of vocational 
education, that operates a program of scholarly research. 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 
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

[[Page 16377]]

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. Use the following 
chart to determine how to gain access:

------------------------------------------------------------------------
     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.
------------------------------------
(b) Records of the Federal           Parts 1254 through 1260 of this
 courts                               chapter. FOIA does not apply to
                                      these records.
------------------------------------
(c) Records of Congress              Parts 1254 through 1260 of this
                                      chapter. FOIA does not apply to
                                      these records.
------------------------------------
(d) Presidential records             This part and parts 1254 through
 (created by Presidents holding       1270 of this chapter. FOIA applies
 office 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.
------------------------------------
(e) Documents created by             The deed of gift under which they
 Presidents holding office before     were given to NARA. These
 1981 and housed in a NARA            documents are not Federal records
 Presidential library.                and FOIA does not apply to these
                                      materials.
------------------------------------
(f) Nixon Presidential               Part 1275 of this chapter. FOIA
 materials                            does not apply to these materials.
------------------------------------------------------------------------

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;

[[Page 16378]]

   (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 other 
records that have been or are likely to become the subject of 
subsequent FOIA requests for substantially the same records;
   (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 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. The initial response will inform requesters of any 
complexity in processing their request, which may lengthen the time 
required to reach a final decision on the release of the records.
   (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 request 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

[[Page 16379]]

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) A reasonable expectation of an imminent threat to an 
individual's life or physical safety;
   (2) A reasonable expectation of an 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.                 Related solely to the internal personnel rules
 552(b)(2)                and practices of an agency.
------------------------
5 U.S.C.                 Specifically exempted from disclosure by
 552(b)(3)                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.                 Trade secrets and commercial or financial
 552(b)(4)                information obtained from a person that are
                          privileged or confidential.
------------------------
5 U.S.C.                 Inter-agency or intra-agency memorandums or
 552(b)(5)                letters which would not be available by law to
                          a party other than an agency in litigation
                          with the agency.
------------------------
5 U.S.C.                 Personnel and medical files and similar files
 552(b)(6)                the disclosure of which would constitute a
                          clearly unwarranted invasion of personal
                          privacy.
------------------------

[[Page 16380]]

 
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.                 Contained in or related to examination,
 552(b)(8)                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.                 Geological and geophysical information and
 552(b)(9)                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

[[Page 16381]]

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 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 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, (ATTN: FOIA Appeal 
Staff), Room 4200, 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, (ATTN: FOIA Appeal Staff), Room 4200, 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

[[Page 16382]]

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 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

0

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 E.O. 12600, 52 FR 
23781, 3 CFR, 1987 Comp., p. 235.


Secs. 1254.38 and 1254.39  [Removed]

0

3. Amend Subpart C to remove Secs. 1254.38 and 1254.39.

0

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: March 11, 2001.
John W. Carlin,
Archivist of the United States.

[FR Doc. 01-6555 Filed 3-22-01; 8:45 am]
BILLING CODE 7515-01-F