[Federal Register Volume 72, Number 206 (Thursday, October 25, 2007)]
[Proposed Rules]
[Pages 60611-60614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21012]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 2

RIN 1090-AA61


Amendment to the Freedom of Information Act Regulations

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule: Clarifies the time limit that requesters 
have for filing FOIA appeals; clarifies that requesters must include 
the required documentation with their appeals or their appeals may be 
rejected by the FOIA Appeals Officer; clarifies that requesters must 
file a FOIA request with each separate bureau/office from which they 
are seeking records; changes the language regarding requests for 
expedited processing to be consistent with the language used in the 
FOIA and deletes a paragraph in that section pertaining to ``due 
process rights;'' makes the use of multitrack processing mandatory for 
all bureaus and offices; advises requesters that they may contact the 
bureau/office's FOIA Requester Service Center and the FOIA Public 
Liaison concerning the status of their requests; and includes current 
contact information for DOI's FOIA and Public Affairs/Office of 
Communications Contacts and its reading rooms (Headquarters).

DATES: We will accept comments from all interested parties until 
December 24, 2007.

ADDRESSES: You may submit comments, identified by the number 1090-AA61, 
by any of the following methods:

--Federal rulemaking portal: http://www.regulations.gov [Follow the 
instructions for submitting comments]
--Mail or hand delivery: OCIO/DOI, 1849 C Street, NW., Room 5312-MIB, 
Washington, DC 20240

FOR FURTHER INFORMATION CONTACT: Alexandra Mallus by telephone at (202) 
208-5342.

SUPPLEMENTARY INFORMATION: The Department of the Interior published a 
final rule in the Federal Register on October 21, 2002, revising its 
regulations implementing the FOIA, 43 CFR Part 2. In this publication, 
the language used in Sec.  2.21(d) (6), ``How will the bureau respond 
to my request?'' and the language used in Sec.  2.29, ``How long do I 
have to file an appeal?'' were inconsistent with each other concerning 
the timeframe for filing an appeal. This proposed rule clarifies the 
2002 final rule by noting that appeals must be received by the FOIA 
Appeals Officer no later than 30 workdays from the date of the final 
response. Additionally, this proposed rule clarifies that a requester's 
failure to include all correspondence between himself/herself and the 
bureau concerning his/her FOIA request will result in the Department's 
rejection of the appeal unless the FOIA Appeals Officer determines that 
good cause exists to accept the defective appeal.
    This proposed rule also changes Sec.  2.22, ``What happens if a 
bureau receives a request for records it does not have or did not 
create?'' to eliminate paragraph (a)(1) of Sec.  2.22, which has been 
construed by some courts to require bureaus that had received a FOIA 
request to refer the request to another bureau for a search of its 
records, regardless of whether the bureau that received the request had 
responsive records. The result of this change is that FOIA requesters 
must submit their requests in accordance with Sec.  2.10, which 
requires that the FOIA requester specify which bureau's records are 
being sought or, at a minimum, specify that the FOIA requester is 
seeking the records of more than one bureau.
    Consistent with EO 13392, this proposed rule adds a new paragraph 
(c) to Sec.  2.12, ``When can I expect the response?'' advising 
requesters that they may contact the bureau/office's FOIA Requester 
Service Center and the FOIA Public Liaison concerning the status of 
their requests. Additionally, the language in sections 2.3 and 2.14 
regarding expedited processing has been amended to reflect the 
statutory language. The term ``exceptional need'' has been replaced 
with ``compelling need,'' and paragraph (a)(3) in Sec.  2.14 pertaining 
to ``due process rights'' has been removed.
    This proposed rule also revises the language in Sec.  2.26, ``Does 
the bureau provide multitrack processing of FOIA requests?'' to make 
the use of multitrack

[[Page 60612]]

processing mandatory for all bureaus and offices within the Department 
and remind the bureaus of the statutory requirement of due diligence. 
Finally, Appendix A to Part 2, Department of the Interior FOIA and 
Public Affairs Contacts and Reading Rooms, has been updated to include 
current contact information for DOI's FOIA and Public Affairs/Office of 
Communications Contacts and its reading rooms (Headquarters) and to 
delete the FOIA contacts and reading rooms for the field offices. In 
the future, bureaus/offices will maintain information pertaining to the 
field offices on their FOIA Web sites to ensure that their contact 
information is accurate and current.

Public Comment Policy

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 and therefore is not subject to OMB 
review because it is not likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments, or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights or obligations of their 
recipients; or
    (4) Raise novel legal or policy issues.

Regulatory Flexibility Act

    DOI certifies that this regulation will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 606(b)). Under the FOIA, agencies 
may recover only the direct costs of searching for, reviewing, and 
duplicating the records processed for requesters. Thus, fees assessed 
by DOI are nominal.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule will not result 
in an annual effect on the economy of more than $100 million per year; 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; or significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of U.S.-based 
companies to compete with foreign-based enterprises. It deals strictly 
with implementation of the FOIA within DOI.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments, or the private sector. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act (2 U.S.C. 1531 et seq.)

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this rule does not have 
any takings implications. It deals strictly with implementation of the 
FOIA within DOI. Therefore, a takings assessment is not required.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, this rule does not have 
Federalism implications as it deals strictly with implementation of the 
FOIA within DOI. Therefore, a Federalism assessment is not required.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and the requirements of sections 3(a) and 3(b)(2) of 
the Order.

Paperwork Reduction Act

    This rule does not contain any information collection requirements 
for which OMB approval under the Paperwork Reduction Act (44 U.S.C. 
3501-3520) is required.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act (42 U.S.C. 4321-4347) of 
1969 is not required.

Executive Order 13211

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. As this rule is not 
expected to significantly affect energy supplies, distribution, or use, 
this action is not a significant energy action and no Statement of 
Energy Effects is required.

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (A ``section'' appears in bold type 
and is preceded by the symbol ``Sec. '' and a numbered heading; for 
example, ``Sec.  2.7 What do I need to know before filing a FOIA 
request?'') (5) Is the description of the rule in the ``Supplementary 
Information'' section of the preamble helpful in understanding the 
proposed rule? What else could we do to make the rule easier to 
understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, 1849 C Street, NW., MS-7229-MIB, Washington, DC 20240.

List of Subjects in 43 CFR Part 2

    Administrative practice and procedure, Classified information, 
Courts, Freedom of information, Government employees, Privacy.

     Dated: October 5, 2007.
James E. Cason,
Associate Deputy Secretary.

    For the reasons given in the preamble, we propose to amend part 2 
of Title 43 of the Code of Federal Regulations, as set forth below:

PART 2--RECORDS AND TESTIMONY: FREEDOM OF INFORMATION ACT

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

    Authority: 5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701; and 43 
U.S.C. 1460.

[[Page 60613]]

Subpart A--General Information

    2. In Sec.  2.3, revise paragraph (i) to read as follows:


Sec.  2.3  What terms do I need to know?

* * * * *
    (i) Expedited processing means giving a FOIA request priority, and 
processing it ahead of other requests pending in the bureau because a 
requester has shown a compelling need for the records (see Sec.  2.14).
* * * * *

Subpart C--Requests for Records Under the FOIA

    3. In Sec.  2.12, add a new paragraph (c) to read as follows:


Sec.  2.12  When can I get the response?

* * * * *
    (c) Determining the status of your request. To determine the status 
of your request, you should call, fax, or email the point of contact 
provided in the bureau/office's acknowledgment letter to you, 
referencing the FOIA control number assigned to your request. You may 
also contact the appropriate FOIA Requester Service Center. If you are 
dissatisfied with the FOIA Requester Service Center's response, you may 
contact the bureau/office's FOIA Public Liaison to resolve the issue. 
(The relevant names and telephone numbers are listed at http://www.doi.gov/foia/liason.html).
    4. In Sec.  2.14, revise paragraph (a) to read as follows:


Sec.  2.14  When can I get expedited processing?

    (a) A bureau will provide expedited processing when you request it 
if you demonstrate to the satisfaction of the bureau that there is a 
compelling need for the records. The following circumstances 
demonstrate a compelling need:
    (1) Where failure to expedite the request could reasonably be 
expected to pose an imminent threat to the life or physical safety of 
an individual; or
    (2) An urgency to inform the public about an actual or alleged 
Federal Government activity if the request is made by a person 
primarily engaged in disseminating information. In most situations, a 
person primarily engaged in disseminating information will be a 
representative of the news media. The requested information must be the 
type of information which has particular value that will be lost if not 
disseminated quickly, and ordinarily refers to a breaking news story of 
general public interest. Therefore, information of historical interest 
only, or information sought for litigation or commercial activities, 
would not qualify, nor would a news media deadline unrelated to 
breaking news.
* * * * *
    5. In Sec.  2.21, revise paragraph (d)(6) to read as follows:


Sec.  2.21  How will the bureau respond to my request?

* * * * *
    (d) * * *
    (6) A statement that the denial may be appealed to the FOIA Appeals 
Officer (see Appendix A to this Part), in accordance with the 
requirements in Sec.  2.29.
* * * * *
    6. In Sec.  2.22, revise paragraph (a) to read as follows:


Sec.  2.22  What happens if a bureau receives a request for records it 
does not have or did not create?

    (a) Consultations/referrals within DOI. If a bureau (other than the 
Office of Inspector General) receives a request for records in its 
possession that another bureau created or is substantially concerned 
with, it will consult with the other bureau before deciding whether to 
release or withhold the records. Alternatively, the bureau may refer 
the request, along with the records, to that bureau for direct 
response. The bureau that received the request will notify you of the 
referral in writing, along with the name of a contact in the other 
bureau(s) to which the referral was made. A referral does not restart 
the statutory time limit for responding to your request.
* * * * *
    7. Revise Sec.  2.26 to read as follows:


Sec.  2.26  Does the bureau provide multitrack processing of FOIA 
requests?

    (a) All bureaus will use three processing tracks to distinguish 
between simple, normal, and complex requests based on the amount of 
time needed to process the request. FOIA requests will be placed in one 
of the following tracks:
    (1) Simple: 1-5 workdays;
    (2) Normal: 20 workdays; or
    (2) Complex: over 20 workdays.
    (b) Bureaus will exercise due diligence in processing requests in 
accordance with the requirements of the FOIA. Requesters should assume, 
unless notified by the bureau, that their request is in the ``Normal'' 
track.
    (c) A bureau should, if possible, give requesters in its complex 
track the opportunity to limit the scope of their request in order to 
qualify for faster processing. A bureau doing so will contact the 
requester by telephone (which should be promptly followed up by a 
written communication) or in writing, whichever is more efficient in 
each case.
    (d) See the Department's FOIA home page at http://www.doi.gov/foia/policy.html for details.

Subpart D--FOIA Appeals

    8. Revise Sec.  2.29 to read as follows:


Sec.  2.29  How long do I have to file an appeal?

    (a) Appeals covered by Sec.  2.28(a)(1), (2), (4) and (5). Your 
FOIA appeal must be received by the FOIA Appeals Officer no later than 
30 workdays from the date of the bureau/office's letter responding to 
your request in full or in part.
    (b) Appeals covered by Sec.  2.28(a)(3). You may file an appeal any 
time after the time limit for responding to your request has passed.
    (c) Appeals covered by Sec.  2.28(a)(6). Your FOIA appeal must be 
received by the FOIA Appeals Officer no later than 30 workdays from the 
date of the letter denying the fee waiver.
    (d) Appeals covered by 2.28(a)(7). You should file an appeal as 
soon as possible.
    (e) Appeals arriving or delivered after 5 p.m. E.T., Monday through 
Friday, will be deemed received on the next workday.
    9. In Sec.  2.30, revise paragraph (b) to read as follows:


Sec.  2.30  How do I file an appeal?

* * * * *
    (b) You must include with your appeal copies of all correspondence 
between you and the bureau concerning your FOIA request, including your 
request and the bureau's response (if there is one). Failure to include 
with your appeal all correspondence between you and the bureau will 
result in the Department's rejection of your appeal, unless the FOIA 
Appeals Officer determines, in the FOIA Appeal Officer's sole 
discretion, that good cause exists to accept the defective appeal. The 
time limits for responding to your appeal will not begin to run until 
the documents are received.
* * * * *
    10. Appendix A to part 2 is revised to read as follows:

Appendix A to Part 2--Department of the Interior FOIA and Public 
Affairs Contacts, and Reading Rooms

Departmental

Departmental FOIA Officer, Senior FOIA Program Officer, MS-5312-MIB, 
1849 C St., NW., Washington, DC 20240, Telephone No. (202) 208-5342, 
(202) 208-2588, Fax No. (202) 208-6867, (202) 208-6084

[[Page 60614]]

Departmental FOIA/Privacy Act, Appeals Officer, MS-6556-MIB, 1849 C 
St., NW., Washington, DC 20240, Telephone No. (202) 208-5339, Fax 
No. (202) 208-6677
Departmental Privacy Act Officer, MS-5312-MIB, 1849 C St., NW., 
Washington, DC 20240, Telephone No. (202) 219-0868, Fax No. (202) 
208-6084
Public Affairs Office, Office of Communications, MS-6013, MIB, 1849 
C St., NW., Washington, DC 20240, Telephone No. (202) 208-6416, Fax 
No. (202) 208-3231
Reading Room--DOI's Library, MIB (C Street Entrance), 1849 C St., 
NW., Washington, DC 20240, Telephone No. (202) 208-5815, Fax No. 
(202) 208-6773

Office of the Secretary

FOIA Officer, MS-116, SIB, 1951 Constitution Ave., NW., Washington, 
DC 20240, Telephone No. (202) 208-6045, Fax No. (202) 219-2374
Public Affairs Office, Office of Communications, MS-6013, MIB, 1849 
C St., NW., Washington, DC 20240, Telephone No. (202) 208-6416, Fax 
No. (202) 208-3231
Reading Room--DOI's Library, MIB (C Street Entrance), 1849 C St., 
NW., Washington, DC 20240, Telephone No. (202) 208-5815, Fax No. 
(202) 208-6773

Office of Inspector General

FOIA Officer, MS-5341, MIB, 1849 C St., NW., Washington, DC 20240, 
Telephone No. (703) 487-5436, Fax No. (703) 487-5406
Public Affairs Office, MS-5341 MIB, 1849 C St., NW., Washington, DC 
20240, Telephone No. (202) 513-0326, Fax No. (202) 219-3856
Reading Room, Room 5341, MIB, 1849 C St., NW., Washington, DC 20240, 
Telephone No. (703) 487-5443, Fax No. (703) 487-5400

Office of the Solicitor (SOL) Headquarters

FOIA Officer, MS-6556, MIB, 1849 C St., NW., Washington, DC 20240, 
Telephone No. (202) 208-6505, Fax No. (202) 208-5206
Public Affairs Office, Office of Communications, MS-6013, MIB, 1849 
C St., NW., Washington, DC 20240, Telephone No. (202) 208-6416, Fax 
No. (202) 208-3231
Reading Room, Room 2328, MIB, 1849 C St., NW., Washington DC 20240, 
Telephone No. (202) 208-6505, Fax No. (202) 208-5206

Fish & Wildlife Service (FWS) Headquarters

FOIA Officer, Arlington Square, Room 222, 4401 North Fairfax Dr., 
Arlington, VA 22203, Telephone No. (703) 358-2504, Fax No. (703) 
219-2428
Public Affairs Office, MS-3447, MIB, 1849 C St., NW., Washington, DC 
20240, Telephone No. (202) 208-5634, Fax No. (202) 208-5850
Reading Room, Arlington Square, Room 224, 4401 North Fairfax Dr., 
Arlington, VA 22203, Telephone No. (703) 358-1730, Fax No. (703) 
358-2269

National Park Service (NPS) Headquarters

FOIA Officer, Office of the CIO, Org Code 2550, 1849 C St., NW., 
Washington, DC 20240, Telephone No. (202) 354-1925, Fax No. (202) 
371-6741
Public Affairs Office, P.O. Box 37127, Washington, DC 20013-7127, 
Telephone No. (202) 208-6843, Fax No. (202) 219-0910
Reading Room, Administrative Program Center, 1201 Eye St., NW., 12th 
Floor, Washington, DC 20005, Telephone No. (202) 354-1925, Fax No. 
(202) 371-6741

Bureau of Land Management (BLM) Headquarters

FOIA Officer, MS-WO-560, 1620 L St., NW., Room 725, Washington, DC 
20240, Telephone No. (202) 452-5013, Fax No. (202) 452-5002
Public Affairs Office, MS-WO-610, 1620 L St., NW., Room 406, 
Washington, DC 20240, Telephone No. (202) 452-5125, Fax No. (202) 
452-5124
Reading Room, 1620 L St., NW.--Room 750, Washington, DC 20240, 
Telephone No. (202) 452-5193, Fax No. (202) 452-0395

Minerals Management Service (MMS) Headquarters

FOIA Officer, 381 Elden St. MS-2200, Herndon, VA 20170-4817, 
Telephone No. (703) 787-1689, Fax No. (703) 787-1207
Public Affairs Office, Office of Communications, 1849 C St., NW., 
MS-4230, Washington, DC 20240, Telephone No. (202) 208-3985, Fax No. 
(202) 208-3968
Reading Room, Public Information Office, 1201 Elmwood Park Blvd., 
New Orleans, LA 70123-2394, Telephone No. (800) 200-GULF, Fax No. 
(504) 736-2620

Office of Surface Mining (OSM) Headquarters

FOIA Officer, MS-130, SIB, 1951 Constitution Ave., NW., Washington, 
DC 20240, Telephone No. (202) 208-2961, Fax No. (202) 219-3092
Office of Communications, MS-262, SIB, 1951 Constitution Ave., NW., 
Washington, DC 20240, Telephone No. (202) 208-2565, Fax No. (202) 
501-0549
Reading Room, Contact: OSM FOIA Officer, Room 263, SIB, 1951 
Constitution Ave., NW., Washington, DC 20240, Telephone No. (202) 
208-2961, Fax No. (202) 501-4734

U.S. Geological Survey (USGS) Headquarters

FOIA Officer, 12201 Sunrise Valley, Dr., MS-807, Reston, VA 20192, 
Telephone No. (703) 648-7158, Fax No. (703) 648-6853
Office of Communications, 12201 Sunrise Valley Dr., MS-119, Reston, 
VA 20192, Telephone No. (703) 648-4460, Fax No. (703) 648-4466
Reading Room, USGS Library, 12201 Sunrise Valley Dr., Reston, VA 
20192, Telephone No. (703) 648-4302, Fax No. (703) 648-6373

Bureau of Reclamation (BOR) Headquarters

FOIA Officer, P.O. Box 25007, 84-21300, Denver, CO 80225-0007, 
Telephone No. (303) 445-2048, Fax No. (303) 445-6575
Public Affairs Office, P.O. Box 25007, 82-40000, Denver, CO 80225-
0007, Telephone No. (303) 236-7000, Fax No. (303) 236-9235
Reading Room, Reclamation Library, P.O. Box 25007, 84-27960, Denver, 
CO 80225-0007, Telephone No. (303) 445-2072, Fax No. (303) 445-6303

Bureau of Indian Affairs (BIA) Headquarters

FOIA Officer, MS-3071, MIB, 1849 C St., NW., Washington, DC 20240, 
Telephone No. (202) 208-4542, Fax No. (202) 208-6597
Public Affairs Office, MS-3658, MIB, 1849 C St., NW., Washington, DC 
20240, Telephone No. (202) 208-3710, Fax No. (202) 501-1516
Reading Room, Room 3071, MIB, 1849 C St., NW., Washington, DC 20240, 
Telephone No. (202) 513-0883, Fax No. (202) 208-6597

    Note: For more information on FOIA, including the most current 
listing of FOIA Contacts and reading rooms, visit DOI's FOIA Web 
site at http://www.doi.gov/foia/. Henceforth, Appendix A to 43 CFR 
Part 2 will be maintained and updated on DOI's FOIA Web site. If you 
do not have access to the Web, please contact the appropriate bureau 
FOIA Officer or the Departmental FOIA Office.


 [FR Doc. E7-21012 Filed 10-24-07; 8:45 am]
BILLING CODE 4310-RK-P