[Federal Register Volume 78, Number 150 (Monday, August 5, 2013)]
[Proposed Rules]
[Pages 47245-47253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18872]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1250

[FDMS No. NARA-13-0003; Agency No. NARA-2013-037]
RIN 3095-AB73


NARA Records Subject to FOIA

AGENCY: National Archives and Records Administration.

ACTION: Proposed rule.

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SUMMARY: NARA proposes to revise its regulation governing Freedom of 
Information Act (FOIA) access to NARA's archival holdings and NARA's 
own operational records. The proposed revisions include clarification 
of which records are subject to the FOIA and NARA's authority to grant 
access, and adjustments to NARA's FOIA procedures to incorporate 
changes resulting from the OPEN FOIA Act of 2009, the OPEN Government 
Act of 2007, and 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: Submit comments on or before October 4, 2013.

ADDRESSES: You may submit comments, identified by RIN 3095-AB73, by any 
of the following methods:
    [ssquf] Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    [ssquf] Email: [email protected]. Include RIN 3095-AB73 
in the subject line of the message.
    [ssquf] Fax: 301-837-0319.
    [ssquf] Mail: (For paper, disk, or CD-ROM submissions. Include RIN 
3095-AB73 on the submission) Regulations Comments Desk, Strategy 
Division (SP); Suite 4100; National and Archives Records 
Administration; 8601 Adelphi Road; College Park, MD 20740-6001.
    [ssquf] Hand delivery or courier: Deliver comments to 8601 Adelphi 
Road; College Park, MD.

Instructions: All submissions received must include the agency name and 
Regulatory Information Number (RIN) for this rulemaking (RIN 3095-
AB73). All comments received may be published without changes, 
including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, by telephone at 
301-837-3151, by email to [email protected], or by mail to 
Kimberly Keravuori, Regulations Program Manager; Strategy Division 
(SP), Suite 4100; National Archives and Records Administration; 8601 
Adelphi Road; College Park, MD 20740-6001.

SUPPLEMENTARY INFORMATION: 

Types of Records and FOIA Access

    Unlike most agencies, NARA has two categories of records governed 
by FOIA: NARA's own operational records and archival holdings of the 
Federal government. Among the archival holdings, the FOIA applies only 
to executive branch records in NARA's legal custody and to Presidential 
records created since 1981. Presidential materials in NARA's custody 
that were created before 1981 were donated to the Federal government by 
the President who created them, except that Nixon presidential 
materials are governed by the Presidential Recordings and Materials 
Preservation Act (see Part 1275). Access to those records is governed 
by the deed of gift pertaining to those records, and they are therefore 
not subject to the FOIA.
    NARA cannot grant FOIA access to the following archival holdings. 
Access to these holdings must be granted by the organizations that 
created them:
     Executive agency records stored in NARA's federal records 
centers remain in the legal custody of the agencies that created them. 
Access to these records can be granted only by the creating agency.
     The records of the U.S. House of Representatives and U.S. 
Senate 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 of the United States at NARA 
remain in the legal custody of the Supreme Court, and it controls 
access to these records. Section 1250.6 refers requesters to other NARA 
regulations governing access to these records and to the records of 
other Federal legislative and judicial branch agencies, which are not 
subject to FOIA.

Changes Due to OPEN Government and OPEN FOIA Acts

    Changes resulting from the OPEN Government Act of 2007 (Pub. L. 
110-175) and OPEN FOIA Act of 2009 (Pub. L. 111-83) are found 
throughout the proposed rule.
    The new Sec.  1250.2 reflects NARA's open access mission and 
culture, which are defined by a presumption of openness and by 
discretionary disclosures of information.
    Section 1250.3 adds the definition of a FOIA Public Liaison and 
expanded definition of a news media representative. These two additions 
are requirements under the OPEN

[[Page 47246]]

Government Act. The proposed Sec.  1250.20 requires requesters to 
notify NARA of their current mailing address. Section 1250.22 explains 
the FOIA Customer Service Centers. And Sec.  1250.24 addresses how to 
submit a FOIA request to NARA online through the FOIAonline system.
    The proposed Sec.  1250.26 sets the standard time for NARA to 
administratively close a FOIA request at 60 calendar days from the date 
of last correspondence with a requester and informs requesters that 
NARA does not have authority to declassify national security 
information and that NARA must refer all requests for declassification 
to agencies with such authority. The proposed Sec.  1250.27 includes 
procedures informing a requester of an estimated date of completion for 
their FOIA request.
    Subpart C, Fees, governs the fees charged by NARA for FOIA 
requests. Proposed Sec.  1250.50 states that NARA's fee schedule for 
obtaining copies of archival records can be found on NARA's Web page 
and that unresolved fee negotiations can result in the administrative 
closing of a FOIA request. Section 1250.52 establishes increased fees 
for the copying of operational records.
    Subpart D, Appeals, governs the procedures for requesters to file 
appeals and how NARA will process those appeals. Proposed Sec.  1250.74 
informs requesters of the Office of Government Information Services 
(OGIS) and its mediation and dispute resolution services between FOIA 
requesters and Federal agencies.

Regulatory Analysis

    This proposed rule is not a significant regulatory action for the 
purposes of Executive Order 12866 and has been reviewed by the Office 
of Management and Budget (OMB). The proposed amendment is also not a 
major rule as defined in 5 U.S.C. Chapter 8, Congressional Review of 
Agency Rulemaking. 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 people and organizations who file FOIA 
requests with NARA. This proposed rule does not have any federalism 
implications.

List of Subjects in 36 CFR Part 1250

    Administrative practice and procedure, Archives and records, 
Confidential business information, Freedom of information, Information, 
Records, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the National Archives and 
Records Administration proposes to amend 36 CFR part 1250 as follows:

0
1. Revise part 1250 to read as follows:

PART 1250--NARA RECORDS SUBJECT TO FOIA

Subpart A--General Information About Freedom of Information Act (FOIA) 
Requests
Sec.
1250.1 Scope of this part.
1250.2 Presumption of Openness
1250.3 Definitions
1250.4 Who can file a FOIA request?
1250.6 Does FOIA apply to all of the records at NARA?
1250.8 Do I need to use FOIA to gain access to records at NARA?
1250.10 Does NARA provide access to all the executive branch records 
housed at NARA facilities?
1250.12 What types of records are available in NARA's FOIA library?
Subpart B--How to Request 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 NARA accept a FOIA request electronically?
1250.26 How will NARA process my FOIA request?
1250.27 How does NARA determine estimated dates of completion for 
FOIA requests?
1250.28 How do I request expedited processing?
1250.30 How will NARA respond to my request?
1250.32 How may I request assistance with the FOIA process?
Subpart C--Fees
1250.50 General information on fees.
1250.52 FOIA fee schedule for operational records.
1250.54 How will NARA calculate FOIA fees for operational records?
1250.56 How may I request a fee waiver for operational records?
Subpart D--Appeals
1250.70 When may I appeal NARA's FOIA determination?
1250.72 How do I file an appeal?
1250.74 How does NARA process appeals?
Subpart E--Special Situations
1250.80 How does a submitter identify records containing 
confidential commercial information?
1250.82 How does NARA process FOIA requests for confidential 
commercial information?

    Authority: 44 U.S.C. 2104(a) and Sec.  2204 (3)(c)(1); 5 U.S.C. 
552; E.O. 13526, 75 FR 707 and 75 FR 1013, 3 CFR, 2009 Comp., p. 
298-327; 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. This part contains the rules 
that NARA follows to process FOIA requests, such as the amount of time 
NARA has to make a determination regarding the release of records and 
what fees NARA may charge. Other NARA regulations in 36 CFR parts 1254 
through 1275 provide detailed guidance for conducting research at NARA.


Sec.  1250.2  Presumption of Openness

    NARA, as an archives, has always been committed to providing public 
access to as many of its records as possible. NARA therefore continues 
to affirmatively release and post records, or descriptions of such 
records, online in the absence of any FOIA request. NARA also makes 
every effort to make discretionary disclosures of information that 
could otherwise be withheld under an exemption.


Sec.  1250.3  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 or entity on whose behalf the 
request is made.
    (c) Confidential commercial information means records provided by a 
submitter that may contain trade secrets or confidential business or 
financial information that is 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 made by a 
school, university or other educational institution that operates a 
program of scholarly research. To qualify for 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) Expedited processing means the process set forth in the FOIA 
that allows

[[Page 47247]]

requesters to ask for expedited processing of their FOIA request if 
they can demonstrate a compelling need.
    (f) Fee category means one of the four categories set forth in the 
FOIA to determine whether a requester will be charged fees for search, 
review, and duplication. The categories are: Commercial requesters; 
non-commercial scientific or educational institutions; news media 
requesters; and all other requesters.
    (g) Fee waiver means the waiver or reduction of processing fees if 
a requester can demonstrate that certain standards set forth in the 
FOIA are satisfied, including that the information is in the public 
interest and is not requested for a commercial interest.
    (h) FOIA Public Liaison means an agency official who is responsible 
for assisting in reducing delays, increasing transparency and 
understanding of the status of requests, and assisting in the 
resolution of disputes.
    (i) FOIA request means a written request, that cites the Freedom of 
Information Act, for access to NARA operational records, records of the 
executive branch of the Federal Government held by NARA, and/or 
Presidential or Vice Presidential records in the custody of NARA that 
were created after January 19, 1981.
    (j) Freedom of Information Act (FOIA) means the law codified at 5 
U.S.C. 552 that provides the public with the right to request 
government records from Federal executive branch agencies.
    (k) 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 in its permanent or full-time 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.
    (l) 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; one that actively gathers information of 
potential interest to a segment of the public, uses its editorial 
skills to turn raw materials into a distinct work, and distributes that 
work to an audience. The term ``news'' means information that is about 
current events or that would be of current interest to the public. 
Examples of news media entities include television or radio stations 
broadcasting to the public at large; publishers of periodicals, 
including print and online publications, who make their products 
available for purchase or subscription to the general public (but only 
in those instances when they can qualify as disseminators of news); and 
freelance journalists who can demonstrate a solid basis for expecting 
publication through that entity, whether or not the journalist is 
employed by that entity.
    (m) 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.
    (n) Operational records means 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.
    (o) Original Classification Authority means the authority to 
classify information as National Security Information at creation, 
granted by the President of the United States in Executive Order 13526, 
Sec. 1.3.
    (p) Other requesters means any individual who does not qualify as a 
commercial-use requester, representative of the news media including a 
freelance journalist, or an educational or non-commercial scientific 
institution requester.
    (q) Presidential records means the official Presidential and Vice 
Presidential records created or received by the President, the Vice 
President, or the White House Staff since January 20, 1981, and covered 
under the Presidential Records Act, 44 U.S.C. 2201-2207. Presidential 
Executive Orders also apply to these records.
    (r) Presidential Records Act means the law that, in part, governs 
access to presidential records and is codified at 44 U.S.C. 2201-2207 
and Part 1270 of these regulations. The law contains six restrictions 
to release of information, which apply for twelve years after a 
President leaves office. Four of the PRA restrictions are identical to 
FOIA exemptions 1, 3, 4, and 6. Two relate to appointments to Federal 
office and confidential communications requesting or submitting advice 
between the President and his advisers, or between such advisers. The 
PRA also excludes application of FOIA exemption 5.
    (s) Review means the examination of documents responsive to a 
request to determine if any, or any part of them, are exempt from 
release under FOIA and to determine if NARA will release exempted 
records.
    (t) Search means the process of looking for and retrieving records 
or information responsive to a request. It also includes reasonable 
efforts to locate and retrieve information from records maintained in 
electronic form or format.
    (u) Submitter means any person or entity providing potentially 
confidential commercial information to an agency, which information may 
be subject to a FOIA request. The term submitter includes, but is not 
limited to, individuals, corporations, state governments, and foreign 
governments.


Sec.  1250.4  Who can file a FOIA request?

    Any individual, partnership, corporation, association, or public or 
private organization other than a Federal agency, regardless of 
nationality, may file a FOIA request with NARA. The Administrative 
Procedure Act, 5 U.S.C. 551(2), excludes Federal agencies from filing 
FOIA requests. However, state and local governments may file FOIA 
requests.


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

    No, FOIA applies only to the records of the executive branch of the 
Federal government and certain Presidential and Vice Presidential 
records. The following chart may help determine how to request access 
to NARA's records:

------------------------------------------------------------------------
                                          Then access is governed by . .
      If you want access to . . .                       .
------------------------------------------------------------------------
(a) Records of executive branch          This CFR part and parts 1254
 agencies.                                through 1260 of this chapter.
                                          FOIA applies to these records.
(b) Records of the Federal courts......  Parts 1254 through 1260 of this
                                          chapter. FOIA does not apply
                                          to these records.
(c) Records of Congress and legislative  Parts 1254 through 1260 of this
 branch agencies.                         chapter. FOIA does not apply
                                          to these records.
(d) Presidential records (created by     This part and parts 1254
 Presidents and Vice Presidents holding   through 1270 of this chapter.
 office since 1981).                      FOIA applies to these records
                                          5 years after the President
                                          leaves office.

[[Page 47248]]

 
(e) Documents created by Presidents      The deed of gift under which
 holding office before 1981 and housed    they were given to NARA. These
 in a NARA Presidential library.          documents are not agency
                                          records and FOIA does not
                                          apply to these materials.
(f) Nixon Presidential materials.......  Part 1275 of this chapter. FOIA
                                          does not apply to these
                                          materials.
------------------------------------------------------------------------

Sec.  1250.8  Do I need to use FOIA to gain access to records at NARA?

    (a) Most archival records held by NARA have no restrictions to 
access and 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. (See Subpart B of 36 CFR part 1256 for more information about 
how to access archival records).
    (b) If you are seeking access to archival records that are not yet 
available to the public, you will need to file a FOIA request. (See 
part 1260 for additional procedures for access to security-classified 
records.)
    (c) You must file a FOIA request when you request access to NARA 
operational records that are not already available to the public. (See 
Sec.  1256.22 for information on requesting access to restricted 
archival records.)
    (d) If you are requesting records that you know to be classified to 
protect national security interests, you may wish to use the Mandatory 
Declassification Review process, which is set forth at Sec.  1260.70.


Sec.  1250.10  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 the executive branch that have been 
transferred to the legal custody of the Archivist of the United States 
(archival records).
    (b) NARA's National Personnel Records Center (NPRC), located in St. 
Louis, Missouri, is the repository of twentieth-century personnel and 
medical records of former members of the military and of former 
civilian employees of the Federal government. Those official personnel 
files that have been transferred to the legal custody of NARA, which 
occurs when 62 years have passed from the date of separation, are 
processed by NARA according to Sec. Sec.  1250.208 through 1250.32 of 
this part. Those personnel and medical records that remain in the legal 
custody of the agencies that created them are 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) 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 should be requested through 
the originating agency. NARA does not process FOIA requests for these 
records.
    (d) If NARA receives a FOIA request for a record in the legal 
custody of an originating agency, it will forward that request to the 
originating agency for processing. NARA will also provide the requester 
with notification that it has done so and with contact information for 
the originating agency. (See 36 CFR 1256.2 for more information about 
how to access records that are stored in a Federal Records Center.)


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

    (a) NARA makes available certain materials set forth in the FOIA 
for public inspection and copying in both its physical FOIA Library as 
well as the NARA Web site, available at: http://www.archives.gov/foia/electronic-reading-room.html.
    (b) The materials provided through NARA's FOIA Library include:
    (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 three 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; and
    (5) An index, updated quarterly, to these materials.
    (c) These materials are available during normal working hours at 
the NARA facility where the records are located. See 36 CFR part 1253 
and NARA's Web site at http://www.archives.gov/for a thorough 
description of NARA facilities and research room procedures.
    (d) Any of this material that was created after October 31, 1996, 
also will be placed on NARA's Web site at http://www.archives.gov/foia/electronic-reading-room.html.
    (e) For paper copies of the index to these materials write to: NARA 
FOIA Officer (NGC), Room 3110, National Archives and Records 
Administration, 8601 Adelphi Road, College Park, MD 20740-6001.

Subpart B--How To Request Records Under FOIA


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

    In your FOIA request:
    (a) Describe the records you seek in enough detail to allow NARA 
staff to find them with a reasonable amount of effort. The more 
information you provide, the better possibility NARA has of finding the 
records you are seeking. Information that will help NARA find the 
records includes:
    (1) The agencies, offices, or individuals involved;
    (2) The approximate date when the records were created; and
    (3) The subject or description of the records sought.
    (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. It is incumbent on the requester to maintain a current mailing 
address with the office where they have filed the FOIA request.
    (c) Mark both your letter and envelope with the words ``FOIA 
Request.''
    (d) In filing your request, you may find it helpful to consult 
NARA's ``Freedom of Information Act Reference Guide''--which is 
available electronically at http://www.archives.gov/foia/foia-guide.html and in paper form. For a paper copy of NARA's FOIA Guide 
write to: NARA FOIA Officer (NGC), Room 3110, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. 
For additional information about the FOIA, you may refer directly to 
the statute at 5 U.S.C. 552 or visit http://www.foia.gov.


Sec.  1250.22  Where do I send my FOIA request?

    NARA has several FOIA Customer Service Centers that process FOIA 
requests. You should send your FOIA request to the appropriate FOIA 
Customer Service Center that you

[[Page 47249]]

believe would have the records you seek.
    (a) For requests for archival records in the Washington, DC, area, 
mail your request to the Chief, Special Access and FOIA Staff (RD-F), 
Room 5500, National Archives and Records Administration, 8601 Adelphi 
Road, College Park, MD 20740-6001. You may also email them to 
[email protected].
    (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 at http:/www.archives.gov/locations/.
    (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 at http:/www.archives.gov/locations/.
    (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. You may also email requests 
to [email protected], or submit your requests online at https://foiaonline.regulations.gov.
    (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 is likely 
to have the records you are seeking. Your request will be considered 
received when it reaches the proper office's FOIA staff.
    (g) If you have questions concerning the processing of your FOIA 
request, you may contact the designated FOIA Customer Service Center as 
set forth above in Sec.  1250.22(a)-(f) for the facility processing 
your request. If that initial contact does not resolve your concerns, 
you may wish to contact the designated FOIA Public Liaison for the 
facility processing your request. A list of NARA's FOIA Customer 
Service Centers and Public Liaisons can be found at http://www.archives.gov/foia/contacts.html.
    (h) If you do not have access to the internet, you may request the 
mailing addresses for NARA's FOIA Public Liaisons and Customer Service 
Centers by writing to: NARA FOIA Officer (NGC), Room 3110, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, 
MD 20740-6001.


Sec.  1250.24  Will NARA accept a FOIA request electronically?

    Yes. Requests for NARA operational records may be submitted and 
tracked through the FOIAonline program, accessible at https://foiaonline.regulations.gov, or by sending an email to [email protected]. 
The body of the message must contain all of the information listed in 
Sec.  1250.20. You may also file a FOIA request by emailing your 
request to the offices listed in Sec.  1250.22.


Sec.  1250.26  How will NARA process my FOIA request?

    (a) NARA will acknowledge all FOIA requests within 20 working days. 
The acknowledgement letter or email will inform requesters of the 
tracking number for their request, and any complexity in processing 
that may lengthen the time required to reach a final decision on the 
release of the records. The acknowledgement letter may also be used to 
seek additional information to clarify the request or to ask that the 
scope of a voluminous request be narrowed. Should any correspondence be 
unanswered by the requester, or returned as undeliverable, NARA 
reserves the right to administratively close the FOIA request 60 
calendar days after the date of the last correspondence NARA sent. NARA 
places FOIA requests in a queue to be processed on a first-in, first-
out basis.
    (b) NARA will make a determination on the release of the records 
you requested within the 20 working days, but if unusual circumstances 
prevent making a decision within 20 working days, NARA will inform you 
in writing with an estimated date of completion. Unusual circumstances 
include the need to:
    (1) Search for and collect the records from field facilities;
    (2) Search for, collect, and review a voluminous amount of records 
that are part of a single request;
    (3) Consult with another agency before releasing records; or
    (4) Refer records for declassification.
    (c) If NARA needs to extend the deadline for more than an 
additional 10 working days, NARA will ask if you wish to modify your 
request so that it can answer the request promptly. If you do not agree 
to modify your request, NARA will work with you to arrange an 
alternative schedule for review and release.
    (d) NARA does not have the authority to declassify and release 
records containing national security information without the approval 
of the agencies that have Original Classification Authority for the 
information contained in the record. NARA will send copies of the 
documents to the appropriate agencies for declassification review. NARA 
will send you an initial response to your FOIA request within 20 
working days, informing you of this consultation with another agency 
and upon request an estimated date of completion, except to the extent 
that the association with the other agency might itself be classified.
    (e) If you have requested Presidential or Vice Presidential records 
and NARA determines that the records are not subject to any applicable 
FOIA or Presidential Records Act (PRA) exemption and therefore can be 
released, NARA must inform the current and former President(s) or Vice 
President(s) of the intention to disclose information from those 
records. After receiving the notice, and pursuant to the current 
Executive Order on the implementation of the PRA, the current and 
former President(s) have a period of time in which to consider whether 
to invoke Executive Privilege to deny access to the requested 
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 request can be made 
only at the end of the Presidential notification period set forth in 
the Executive Order.
    (f) If you have requested records containing confidential 
commercial information, refer to Sec.  1250.82 for information on how 
NARA will process that request.


Sec.  1250.27  How does NARA determine estimated dates of completion 
for FOIA requests?

    (a) For a FOIA requester who asks for an estimated date of 
completion for records that do not require consultation with another 
agency, NARA will provide the requester with an estimated date of 
completion based on a reasonable judgment at that point in time as to 
how long it will take to complete the request. Given the uncertainty 
inherent in establishing any estimate, the estimated date of completion 
may be subject to change at any time.
    (b) When a FOIA requester asks for an estimated date of completion 
for records that must be reviewed by another agency, NARA will provide 
the requester with an estimated date of completion based on a 
reasonable judgment at that point in time as to how long it will take 
to complete the request,

[[Page 47250]]

which includes the following additional steps:
    (1) When sending documents for consultation to another agency, NARA 
will include in the initial consultation letter to that agency a 
request for an estimated date of completion.
    (2) Estimated dates of completion provided by consulting agencies 
will be retained in the relevant request file and will be used by NARA 
to determine the estimated date of completion for the FOIA requester.
    (3) If the consulted agency or agencies do not provide NARA with an 
estimated date of completion, NARA will provide the requester with an 
estimate based on NARA's general experience working with the agency or 
agencies and the types and volumes of records at issue.


Sec.  1250.28  How do I request expedited processing?

    (a) In certain cases NARA will move your FOIA request or appeal to 
the head of our FOIA queue. We may grant expedited processing if a 
requester can show:
    (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 may 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. NARA cannot expedite the review of 
classified records nor can we shorten the Presidential notification 
period described in Sec.  1250.26(e).
    (c) To 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 or 
appeal.
    (d) NARA will respond to your request for expedited processing 
within 10 days of our receipt of your request. If we grant your 
request, the NARA office responsible for the review of the requested 
records will process your request as quickly as possible. We will 
inform you if we deny your request for expedited processing. If you 
decide to appeal that denial, we will expedite our review of your 
appeal.


Sec.  1250.30  How will NARA respond to my request?

    (a) NARA will send a response that provides the requester with 
NARA's release determination, including whether any responsive records 
were located, how much responsive material was located, whether such 
records have been released in full or withheld in full or in part, 
where you may review the records, and any fees you must pay for the 
request.
    (b) If NARA denies any part of your request, the response will 
explain the reasons for the denial, which FOIA exemptions may apply to 
withhold records, and your right to appeal that determination.
    (c) Records may be withheld in full or in part if any of the nine 
FOIA exemptions apply. NARA will withhold information only where 
disclosure is prohibited by law (such as information that remains 
classified, or information that is specifically closed by statute) or 
where NARA reasonably foresees that disclosure would cause harm to an 
interest protected by one of the FOIA exemptions. In addition, if only 
part of a record must be withheld, NARA will provide access to the rest 
of the information in the record. Information that may be exempt from 
disclosure under the FOIA is:

------------------------------------------------------------------------
           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 Sec.   552(b)
                                             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.
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)(9)........................  Geological and geophysical
                                             information and data,
                                             including maps, concerning
                                             wells.
------------------------------------------------------------------------


[[Page 47251]]

    (d) Presidential records subject to the FOIA may not be withheld 
under 5 U.S.C. 552(b)(5) as defined above. However, Presidential 
records may be withheld under the remaining FOIA exemptions, as well as 
the six PRA restrictions for a period of 12 years from when a President 
leaves office, in accordance with 44 U.S.C. 2204 and Part 1270 of these 
regulations. Presidential records are also subject to review by 
representatives of the current and former Presidents, who may assert 
constitutionally-based privileges.


Sec.  1250.32  How may I request assistance with the FOIA process?

    (a) For assistance at any point in the FOIA process, you may 
contact the NARA FOIA Public Liaison. That individual is responsible 
for assisting to reduce delays, increase transparency and understanding 
of the status of requests, and assisting to resolve FOIA disputes. A 
list of NARA's FOIA Customer Service Centers and Public Liaisons can be 
found at http://www.archives.gov/foia/contacts.html.
    (b) The Office of Government Information Services (OGIS) serves as 
the Federal FOIA Ombudsman and assists requesters and agencies to 
prevent and resolve FOIA disputes. OGIS also reviews agencies' FOIA 
policies, procedures, and compliance. You may contact OGIS using the 
information provided in Sec.  1250.78, below.

Subpart C--Fees


Sec.  1250.50  General information on fees.

    (a) General information on fees for archival records
    (1) NARA is specifically authorized to charge for copying archival 
records under a separate fee statute, 44 U.S.C. 2116(c). As a result, 
archival records are exempt from the FOIA fee waiver provisions, per 5 
U.S.C. 552(a)(4)(A)(vi), and NARA does not grant fee waivers for 
archival records requested under the FOIA. But NARA is able to make 
most of its archival 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 free of 
charge.
    (2) NARA does not charge search fees for FOIA requests for archival 
records, but it does limit the search to two hours.
    (3) If requesters would like NARA to supply them with copies of 
archival records, NARA typically requires requesters to pay all 
applicable fees in accordance with the fee schedule before it provides 
the copies. NARA's Fee Schedule for archival records can be found at: 
www.archives.gov/research/order/fees.html.
    (b) General information on FOIA fees for operational records.
    (1) Requesters seeking access to NARA operational records may be 
charged search fees even if the records are not releasable or even if 
NARA does not find any responsive records during its search.
    (2) If you are a noncommercial FOIA requester entitled to receive 
100 free pages, but the records cannot be copied onto standard-sized 
(8.5 by 11) photocopy paper, NARA will copy them on larger paper and 
will reduce the copy fee by the normal charge for 100 standard-sized 
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-sized paper copies for free.
    (3) We will not charge you any fee if the total costs for 
processing your request are $15 or less.
    (4) 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 specified amount.
    (c) General information on fees for all FOIA requests
    (1) 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.
    (2) 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. In aggregating requests, we may consider the 
subject matter of the requests and whether the requests were filed 
close in time to one another.
    (3) If in the course of negotiating fees a requester does not 
respond to a NARA component within 60 days, NARA reserves the right to 
administratively close the FOIA request after 60 calendar days have 
passed from date of the last correspondence NARA sent.


Sec.  1250.52  FOIA fee schedule for 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.  1250.56.
    (a) Search fees--
    (1) Manual searching. 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 NARA professional employee, 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 
NARA professional employee, 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 
whether any FOIA exemptions must be applied to withhold information.
    (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 records for 
$0.25 cents per page.
    (2) Photocopying standard-sized pages. When NARA produces the 
photocopies, the charge is $0.30 cents per page.
    (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 NARA professional employee, the rate 
is $33 per hour (or fraction thereof).
    (4) Copying other media. This is the direct cost to NARA of the 
reproduction. Specific rates will be provided upon request.


Sec.  1250.54  How will NARA calculate FOIA fees for operational 
records?

    (a) If you are a commercial use requester, NARA will charge you 
fees for searching, reviewing, and copying responsive records.
    (b) If you are an educational or scientific institution requester, 
or a member of the news media, you are entitled to search time, review 
time, and

[[Page 47252]]

up to 100 pages of copying without charge. NARA will charge copying 
fees only beyond the first 100 pages.
    (c) If you do not fall into either of the categories in paragraphs 
(a) and (b) of this section, and are an ``other requester,'' you are 
entitled to two hours of search time, review time, and up to 100 pages 
of copying without charge. NARA will charge for search time beyond the 
first two hours and for copying beyond the first 100 pages.


Sec.  1250.56  How may I request a fee waiver for 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) To be eligible for a fee waiver or reduction you must explain:
    (1) How the requested records pertain to the operations and 
activities of the Federal government. There must be a clear connection 
between the identifiable operations or activities of the Federal 
government and the subject of your request.
    (2) How the release will reveal meaningful information about 
Federal government activities that is not already publicly known.
    (3) How disclosure to you will advance the understanding of the 
general public on the issue.
    (4) Your expertise or understanding of the requested records.
    (5) How you intend to disseminate the requested information to a 
broad spectrum of the public.
    (6) How disclosure will lead to a significantly greater 
understanding of the government by the public.
    (c) After reviewing your request and determining that there is a 
substantial public interest in release, NARA will also determine if it 
furthers your commercial interests. If it does, you are not eligible 
for a fee waiver.
    (d) 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 waiver of fees.

Subpart D--Appeals


Sec.  1250.70  When may I appeal NARA's FOIA determination?

    You may appeal any adverse determination, including:
    (a) Refusal to release a record, either in whole or in part;
    (b) Determination that a record does not exist or cannot be found;
    (c) Determination that the record you sought was not subject to the 
FOIA;
    (d) Denial of a request for expedited processing;
    (e) Denial of a fee waiver request; or
    (f) Fee category determination.


Sec.  1250.72  How do I file an appeal?

    (a) You may submit your appeal via mail or electronically. All 
appeals must be in writing and received by NARA within 35 calendar days 
of the date of NARA's denial letter.
    (1) For appeals submitted via mail, you should mark both your 
letter and envelope with the words ``FOIA Appeal,'' and include a copy 
of your initial request and NARA's denial.
    (i) 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.
    (ii) Send all other appeals for denial of access to Federal records 
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. For Presidential 
records, appeals should be sent to the appropriate Presidential Library 
Director at the address listed in 36 CFR 1253.3.
    (2) For all appeals submitted electronically, except those 
regarding Presidential records, send an email to [email protected]. For 
Presidential records, electronic appeals must contain all the 
information listed in Sec.  1250.72 and be sent to the email address of 
the appropriate Presidential Library. These email addresses are listed 
in 36 CFR 1253.3. The subject line of the email should read ``PRA/FOIA 
appeal.''
    (b) In your appeal, you may wish to explain why you challenge 
NARA's determination, for example why NARA should release the records, 
grant your fee waiver request, or expedite the processing of your 
request. If NARA was not able to find the records you wanted, explain 
why you believe NARA's search was inadequate. If NARA 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  How does NARA process appeals?

    (a) NARA will respond to your appeal within 20 working days after 
its receipt by the appropriate designated appeal official. If NARA 
reverses or modifies the initial decision, it will inform you in 
writing and reprocess your request. For Presidential records, if any 
additional information is released, NARA must follow the notification 
procedures outlined in 36 CFR Sec.  1250.26(e). If NARA does not change 
its initial decision, it will respond to you and explain the reasons 
for the decision, any FOIA exemptions that apply, and your right to 
judicial review of the decision if information is denied under a FOIA 
exemption.
    (1) An adverse determination by the Archivist or Deputy Archivist 
will be the final action by NARA; and
    (2) NARA will cease processing an appeal if a requester files a 
FOIA lawsuit.
    (b) NARA will notify you of your right to seek judicial review of 
an adverse determination as set forth in the FOIA at 5 U.S.C. 
552(a)(4)(B). If you wish to see judicial review of any adverse 
determination, you must first appeal it under this section.
    (c) NARA will also inform you that the 2007 FOIA amendments created 
the Office of Government Information Services (OGIS) to offer mediation 
services to resolve disputes between FOIA requesters and Federal 
agencies as a non-exclusive alternative to litigation. A requester may 
contact OGIS in any of the following ways: Office of Government 
Information Services, National Archives and Records Administration, 
8601 Adelphi Road--OGIS, College Park, MD 20740, ogis.archives.gov, 
Email: [email protected], Telephone: 202-741-5770, Facsimile: 202-741-5769, 
Toll-free: 1-877-684-6448.

Subpart E--Special Situations


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

    A submitter of business information will use good-faith efforts to 
designate, by appropriate markings, either at the time of submission or 
at a reasonable time thereafter, any portions of its submission that it 
considers to be protected from disclosure under FOIA Exemption 4. These 
designations will expire 10 years after the date of the submission 
unless the submitter requests, and provides justification for, a longer 
designation period.


Sec.  1250.82  How does NARA process FOIA requests for confidential 
commercial information?

    If NARA receives a FOIA request for records containing confidential 
commercial information or for records that it believes may contain 
confidential commercial information and if the

[[Page 47253]]

information is less than 10 years old, NARA will follow these 
procedures:
    (a) If, after reviewing the records in response to a FOIA request, 
NARA believes that the records should properly be released under FOIA, 
it will make reasonable efforts to inform the submitter. The notice to 
the submitter will describe the business information requested or 
include copies of the requested records.
    (b) 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. NARA's 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.
    (c) When the request is for information from a voluminous number of 
submitters, notification may be made by posting or publishing the 
notice in a place reasonably likely to inform the submitters of the 
proposed disclosure.
    (d) The submitter will have 10 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 as appropriate.
    (e) NARA will review and consider all objections to release that 
are received within the time limit. If NARA decides to release the 
records, it will inform the submitter in writing. This notice will 
include copies of the records as NARA intends to release them and its 
reasons for deciding to release. NARA will also inform the submitter 
that it intends to release the records 10 working days after the date 
of the notice unless a U.S. District Court forbids disclosure.
    (f) If the requester files a lawsuit under the FOIA for access to 
any withheld records, NARA will inform the submitter.
    (g) NARA will notify the requester whenever it notifies the 
submitter of the opportunity to object or to extend the time for 
objecting.

    Dated: July 29, 2013.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2013-18872 Filed 8-2-13; 8:45 am]
BILLING CODE 7515-01-P