[Federal Register Volume 79, Number 183 (Monday, September 22, 2014)]
[Rules and Regulations]
[Pages 56500-56513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22186]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1250

[FDMS No. NARA-14-0003; Agency No. NARA-2014-057]
RIN 3095-AB73


NARA Records Subject to FOIA

AGENCY: National Archives and Records Administration.

ACTION: Final rule.

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SUMMARY: NARA has revised our regulations governing Freedom of 
Information Act (FOIA) access to NARA's archival holdings and NARA's 
own operational records. The revisions include clarification as to 
which records are subject to the FOIA, NARA's authority to grant 
access, and adjustments to our 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 
(E-FOIA). The rule affects individuals and organizations that file FOIA 
requests for access to NARA operational records and archival holdings.

DATES: This rule is effective October 22, 2014.

FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, by telephone at 
301-837-3151, by email at [email protected], or by 
mail at 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: On August 4, 2013, NARA published a proposed 
rule in the Federal Register (78 FR 47245) for a 60-day comment period. 
This proposed rule clarified which records are subject to the FOIA and 
NARA's authority to grant access, and made adjustments to our FOIA 
procedures to incorporate changes resulting from the OPEN FOIA Act of 
2009, the OPEN Government Act of 2007, and the Electronic Freedom of

[[Page 56501]]

Information Act Amendments of 1996 (EFOIA). The public comment period 
closed on October 4, 2013. We received four sets of comments on the 
proposed rule; three from individuals and one from the Center for 
Effective Government. We appreciate the thoughtfulness and detail 
reflected in the comments it received. We have reviewed all of the 
submitted comments, considered carefully the suggestions for revision, 
and made certain changes on the basis of these comments. The comments 
are also addressed in narrative form below. In the course of reviewing 
the proposed rule and addressing those comments, we also proposed to 
make additional substantive revisions beyond those addressed in the 
comments, to further clarify definitions and timing. Therefore, we 
published those new substantive revisions in the Federal Register (79 
FR 35127) on June 19, 2014, for a second round of public comment. The 
comment period ended on July 21, 2014, and we received no new comments 
during this round. The revisions from both rounds, and the comments 
received, have been compiled and addressed together in this final 
regulation.

Presumption of Openness (Sec.  1250.2)

    One comment suggested that NARA's presumption of openness must be 
backed by processes that are realistic and operable. We thank the 
commenter for this statement. We take it to heart and believe that 
NARA's core mission of providing access truly backs up the presumption 
of openness. However, we have re-titled and re-worded this provision to 
more directly reflect this.

Original Classification Authority (Sec.  1250.3)

    A commenter had several questions regarding the definition of 
original classification authority, including whether contractors are 
included, who the designated subordinates are, and what occurs if the 
director of ISOO position is not filled. NARA's FOIA program follows 
the Executive order and the ISOO regulations at 32 CFR 2001 to define 
original classification authority. It is outside the scope of the FOIA 
program and FOIA regulations to define the term differently here, or to 
address any issues with that definition. We have added a reference to 
the ISOO regulations so that readers may understand where the 
definition comes from and seek any additional detail that may be 
contained there.

Mandatory Declassification Review (MDR) Versus FOIA (Originally Sec.  
1250.8(d); Now (Sec.  1250.10(d))

    NARA's proposed regulations included the option for requesters to 
consider using the Mandatory Declassification Review (MDR) process 
instead of FOIA if they are requesting access to national security 
classified information. One comment suggested that NARA should add an 
explanation of why a requester might choose the MDR. Although the 
subject is too detailed to set out in this regulation, we added a 
reference to our FOIA Guide, which thoroughly explains the pros and 
cons of each process and the differences between the two.

Access to Executive Branch Records at the National Personnel Record 
Center (NPRC) (Originally Sec.  1250.10(b); Now Sec.  1250.8(b))

    One commenter suggested that NARA should inform requesters where 
they can find information about the provisions under which the NPRC 
processes FOIA requests. We have added citations to the NPRC section of 
NARA's Web site where information on how we process requests can be 
found, and a citation to the Department of Defense's FOIA regulations 
for more information on its requirements. Another comment correctly 
pointed out that the proposed regulations at Sec.  1250.10(b) (now 
(Sec.  1250.8(b)) erroneously referred to ``Sec.  1250.208'' of NARA's 
regulations. However, that section does not exist. We have corrected 
the reference, which was Sec.  1250.20 in our submitted draft, but 
seems to have inadvertently been changed when posting online.

Available Records (Sec.  1250.12)

    Four comments concerned Sec.  1250.12, ``What types of records are 
available in NARA's FOIA library?'' The comments recommended that NARA 
add specific language to state that NARA would establish categories of 
records to disclose and post regularly, proactively identify and 
disclose additional records, release copies of records previously 
released under FOIA, regularly post logs describing the requests we 
have received and processed, and that NARA provide a subscription 
service (such as RSS or email) to notify individuals when new records 
are posted.
    NARA's FOIA Library is for operational records. We have already 
established and disclose categories of records not only through the 
FOIA Library, but also through our other products. For example, we post 
records schedules for the Federal Government on our Web site and have 
published finding aids to our archival records in our Online Public 
Access (OPA) database, through which members of the public can also 
access some archival records. We believe more detailed language in the 
regulation would be confusing to researchers and requesters because 
NARA's archival holdings (as opposed to operational records) are open 
and available, but are not all available online. We also believe the 
categories set forth in Sec.  1250.12(b) (with the additions below) are 
sufficient to cover the records we release specifically as FOIA Library 
items that are not already elsewhere on NARA's Web site. Based on the 
comments and suggestions, we have added language to Sec. Sec.  
1250.12(b)(4) and (6) to add categories of operational records that 
have been requested three or more times, that are likely to become the 
subject of subsequent FOIA requests, and NARA's FOIA logs. In addition, 
we added to the presumption of openness section (Sec.  1250.2) a new 
title and a stronger statement that we proactively identify and 
disclose additional records whenever possible. We are not able to 
provide a subscription service due to insufficient manpower and 
resources.

What To Include in FOIA Requests (Sec.  1250.20(c))

    One commenter suggested that NARA revise this section to read 
``Mark both your letter and envelope, or the subject line of your 
email, with the words `FOIA Request.' '' (Emphasis in original.) We 
have made this revision.

Where To Submit (Sec.  1250.22)

    Two comments were received about Sec.  1250.22, ``Where do I send 
my FOIA request?'' One comment suggested that NARA revise the proposed 
language to emphasize promptly rerouting requests to appropriate agency 
offices, to read, ``Your request will be considered received when it 
reaches the proper office's FOIA staff, but in any event not later than 
ten days after the request is first received.'' The second comment 
suggested that NARA include a telephone number to call and ask for 
mailing addresses of NARA's FOIA customer service centers. We have made 
these revisions, although with slightly different language than that 
proposed. In addition, to make finding the correct contact information 
easier, we have restructured the information into a table.

How Requests Are Processed (Sec.  1250.26)

    NARA received ten comments on Sec.  1250.26, ``How will NARA 
process my

[[Page 56502]]

FOIA request?'' (now titled, ``How does NARA process my FOIA 
request?''). When addressing all of the comments related to Sec.  
1250.26, it became evident that there was a lot of confusion with 
regard to this section due to NARA's multi-track processing. So we have 
substantially reorganized and modified the section to address both the 
apparent overall concerns as well as the specific comments submitted. 
This included breaking down the original paragraph (a) into several 
paragraphs; re-ordering the original paragraphs with headings so the 
multi-track processing is clearer; and changing some of the wording to 
increase clarity.
    One comment suggested that NARA adopt a policy to communicate with 
requesters by email where appropriate, and adjust the regulation 
accordingly. A second comment suggested revising the section to state, 
``NARA will acknowledge all FOIA requests as soon as possible,'' and 
providing an automated acknowledgment when possible. We declined the 
recommendation that we respond by email unless a requester asks that we 
not do so. NARA receives many requests from individuals without regular 
email access, such as prisoners. We think it would be a burden on 
requesters to have to state that they do not want to correspond by 
email. However, we have added language to indicate that we will respond 
by email if a requester submits requests by email or indicates a 
preference for that form of communication. We also declined to revise 
the regulation to state we would process requests as soon as possible; 
instead, we retain the statutory period of 20 working days. Although we 
do respond as soon as possible, merely indicating ``as soon as 
possible'' would leave the end date open. Because of NARA's 
decentralized FOIA processing, it is not feasible for us to provide an 
automated acknowledgment of requests at this time.
    Two comments suggested adding provisions to the section. One 
suggested adding, ``Within 10 days of receiving a request, NARA will 
reroute requests received by any NARA FOIA office to the appropriate 
NARA FOIA office for the records requested. NARA will notify the 
requester of the office to which it rerouted the request and provide 
contact information for that office. If NARA reroutes a request, the 
time period for processing the request begins when the appropriate FOIA 
office receives the request, or 10 days after any NARA FOIA office 
first received the request, whichever is earlier.'' The other suggested 
adding a description of NARA's multi-track processing system to 
distinguish between simple and complex tracks and to provide a 
requester with an opportunity to limit the scope of their request to 
qualify for faster processing.
    In response to the first comment, we added similar language to the 
suggested language, but placed it in Sec.  1250.22 instead of Sec.  
1250.26. Section 1250.22 addresses where to send FOIA requests, 
including the office that would forward any misrouted requests to other 
offices, so the recommended language was more appropriate there. We did 
not add suggested language to include notifying the requester of the 
office to which a request has been forwarded. We have tried 
implementing this workflow in the past. However, we found that this 
process impeded the ability to process the request in a timely fashion. 
We also revised the regulation at Sec.  1250.26 to better describe our 
multi-track processing, including making substantial revisions to the 
organization and wording of the part. Two additional comments 
recommended adding to the section to address clarification and contact 
processes before denying requests. One suggested adding, ``If NARA has 
any uncertainty regarding an aspect of the request, NARA will attempt 
to communicate with the requester to clarify the scope of his or her 
FOIA request.'' The second comment proposed, ``Requests must reasonably 
describe the records sought. If NARA determines that a request does not 
reasonably describe the records sought, NARA will contact the requester 
to seek clarification. NARA may toll the time limits for processing in 
order to make one such request, in which case the time limits resume 
upon NARA's receipt of a response from the requester. NARA will provide 
at least 30 days for the requester to respond to a request for 
clarification. If the request has not been clarified after 30 days, 
NARA will deny the request for not reasonably describing the records 
sought and will provide the requester with the opportunity to appeal 
under the procedures in Subpart D.'' An additional comment also 
suggested that NARA should rigorously attempt to contact requesters 
through different methods of communication to confirm that any requests 
should be administratively closed prior to doing so.
    We added the following language to address the first comment and 
the first part of the second comment, at Sec.  1250.26(b): ``Requests 
must reasonably describe the records sought. If we determine that a 
request does not reasonably describe the records sought, or if we are 
uncertain about another aspect of the request, we contact you to ask 
for clarification.'' At Sec.  1250.26(d), we added language about 
tolling and the time period in which a requester must respond to a 
clarification request. However, we provided the requester with 60 
calendar days in which to respond instead of the recommended 30 
calendar days. This has been NARA's practice and we believe the 
additional time helps to ensure that requesters have sufficient time to 
respond. This longer period is also in line with five other cabinet-
level departments. NARA does rigorously attempt to contact requesters, 
using different methods when possible. We feel the 60 days provides 
more opportunity to contact requesters who don't initially respond. In 
addition, NARA's Office of Government Information Services (OGIS) has 
observed some issues with appeal timeliness at agencies that have 30-
day appeal windows.
    Another comment recommended that we revise the section to prevent 
the destruction of requested records by adding, ``NARA will maintain 
copies of records that are the subject of a pending request, appeal, or 
lawsuit under the FOIA. NARA will also preserve all correspondence 
pertaining to FOIA requests until disposition is authorized under the 
National Archives and Records Administration's General Records Schedule 
14.'' We agree with this proposal and have included a new section, 
Sec.  1250.14, to reflect this request.
    One comment suggested that NARA revise a sentence in Sec.  
1250.26(b)(1) (now Sec.  1250.26(g)(1)) to state that unusual 
circumstances include the need to ``search for and collect the records 
from field facilities, other than the facility to which the requester 
originally sent the request.'' (Emphasis in original) We declined to 
adopt this suggestion because it does not accurately reflect the 
situation in which collection from field facilities would occur. 
Instead, we revised the provision to apply unusual circumstances to 
requests involving one or more field facilities.
    The last two comments involved suggestions regarding the 
Presidential Records Act, one suggesting that NARA include a citation 
to the implementing Executive order, and the other asking questions 
about the length of time for the Presidential notification period. We 
have chosen not to include the citation to the Executive order, or to 
state in the regulation the length of the notification period (which is 
currently 30 days). Because the Executive order can change with 
Presidential administrations, adding a citation (which may be incorrect 
in the next administration) or time period here would not provide 
additional clarity in the long term.

[[Page 56503]]

Instead, we let requesters know the current notification period in our 
acknowledgment letter. Requesters can also look up the appropriate 
notification period in the applicable Executive order at the time of 
their request.

Expedited Processing (Sec.  1250.28)

    One comment suggested that NARA should revise the proposed 
regulations at the second sentence of Sec.  1250.28(a) to state, ``We 
will grant expedited processing if a requester can show: . . . .'' 
(Emphasis in original) In response, we have changed the provision to 
read: ``NARA processes requests and appeals on an expedited basis 
whenever we determine that one or more of the following criteria exist: 
. . . .''

Responding to Requests (Sec.  1250.30)

    Five comments recommended revisions to Sec.  1250.30, ``How will 
NARA respond to my request?'' (now titled, ``How does NARA respond to 
my request?''). One suggested adding a statement that NARA will use 
plain language in its communications. Another suggested releasing 
records on a rolling basis if the request involves voluminous material 
or multiple locations. And the third comment suggested language that 
NARA would, whenever possible, include the quantity of withheld 
information, and the exemption involved, on any record in which 
information is deleted or redacted. The fourth comment suggested 
striking the word ``may'' from Sec.  1250.30(b) to state that NARA 
denial letters will explain which exemptions apply. NARA adopted all of 
these suggestions. The last comment suggested that NARA include in the 
final rule a reference to the legal obligation to release segregable 
releasable portions of otherwise exempt records. NARA has done so in 
Sec.  1250.30(c).

Copy Format (Sec.  1250.38)

    One commenter suggested that NARA should explain why it proposes to 
delete Sec.  1250.38 of the regulations. NARA did not intend to delete 
this section and has added it back in.

Fees and Fee Waivers (Sec. Sec.  1250.50, 1250.52, 1250.54, 1250.56)

    The nature of the comments received on Subpart C (fees) and other 
sections demonstrated confusion between archival and operational 
records, which is an issue unique to NARA in the FOIA realm. As a 
result, we have restructured this subpart to further emphasize the 
difference between archival and operational records. We also revised 
the table of contents to reflect this change. In addition, the 
definitions at Sec. Sec.  1250.3(a) and (l) have been amended to 
further emphasize the difference between the two.
    We have also made revisions based on specific comments. Four 
comments involved fees, addressing Sec. Sec.  1250.50, 1250.52, and 
1250.54. One comment suggested that NARA not charge any fees if the 
total costs for processing the request are $50 or less. We have 
considered the suggestion, but decline to raise the no-fee threshold to 
$50. We feel this is excessive, particularly in a time period in which 
Federal budgets are being cut and taxpayers are concerned about the use 
of their money. We feel it would be fiscally irresponsible to allow 
free copies to this extent. However, we agree that the previous $15 
threshold is out of date, and have thus raised the limit to $25. This 
amount is also in line with requesters' authorized 100 free pages of 
copies. The second and third comments both suggested that NARA reduce 
its duplication fees to $0.10 per page. We also decline to adopt this 
suggestion. NARA self-serve copiers are all set to charge the standard 
$0.25 per copy, and the machines charge this rate for self-serve 
copies, whether the copies are part of a FOIA request or not. (See 36 
CFR 1258.6 for information about how these rates are set.) NARA cannot 
alter that fee for FOIA self-serve copies. Because a person can make 
self-serve copies for $0.25, it is unreasonable to charge the same or 
less for copies when NARA staff makes the copies. As a result, NARA 
charges $0.05 for the convenience of having a staff member make copies 
instead, raising the cost to $0.30 when we make copies. The fourth 
comment suggested that NARA not charge a processing fee if it takes 
longer than the time limit in 5 U.S.C. 552(a)(6) to process that 
request. We revised the regulation to include this provision.
    Three additional comments addressed fee waivers in Sec.  1250.56. 
Two comments suggested that NARA revise the proposed language to state 
that, in addition to determining substantial public interest in release 
of the documents, it will determine if the request ``primarily'' 
furthers the requester's commercial interests before denying a fee 
waiver. The third comment suggested adding language to provide NARA 
with discretion to waive fees in additional circumstances. We revised 
these provisions as suggested.

Appeals (Sec.  1250.72)

    Three comments were submitted on Sec.  1250.72, ``How do I file an 
appeal.'' One comment suggested stating that all appeals must be 
received within 60 days of receipt of NARA's denial letter. We have 
agreed to make this change despite the fact that we have encountered no 
problems with people being able to meet the current 35-day time period 
for appeals. The second comment suggested adding, ``For appeals 
submitted via mail, you should mark both your letter and envelope with 
the words `FOIA Appeal.' If possible, include the tracking number for 
your request or a copy of your initial request and NARA's denial.'' We 
have made this revision, except for the words ``if possible.'' If 
appellants do not submit a tracking number or copy of the original 
request, we will not be able to determine which request they are 
appealing. One or the other of these items must be included for 
identification. The final comment suggested that NARA change the appeal 
time from calendar days to working days because the appeal would not be 
able to be received if we were not working. We decline to make the 
change. This provision sets out the timeframe within which a requester 
must submit an appeal. If we are not working on the date it arrives, it 
will still be postmarked, or have an email or fax date recorded, and 
thus be deemed to have been submitted on time.

Appeal Processing (Sec.  1250.74)

    One commenter stated that ``appropriate designated appeal 
official'' was not clear enough to determine which official is 
intended. We have modified the section to state: ``We respond to your 
appeal within 20 working days after the appeal official designated in 
36 CFR 1250.72(a)(1)(i) and (ii) receives it.'' That section of the 
regulation includes a list of specific appeal officials.
    An additional commenter stated that they do not believe it is legal 
under 5 CFR Sec.  214.402(c)(1) for NARA's Deputy Archivist to be 
delegated the authority to make FOIA appellate adjudications under 36 
CFR 1250.72(a)(1)(ii) and 36 CFR 1250.74(a)(1) when the Deputy 
Archivist ``most certainly has responsibility for or substantial 
involvement in the determination or public advocacy of major 
controversial FOIA polices of the NARA.'' Based on regulations and the 
Open Government Act of 2007, NARA's Chief FOIA Officer is responsible 
for the FOIA program and policies, not the Deputy Archivist. The Chief 
FOIA Officer for NARA is the General Counsel. Therefore, it is 
appropriate for the Deputy Archivist to handle appellate adjudications.

[[Page 56504]]

Special Situations and Confidential Commercial Information (Subpart E) 
(Sec. Sec.  1250.80-1250.82)

    Six comments were received regarding Subpart E--Special Situations. 
One suggested re-titling the subpart ``Confidential Commercial 
Information'' because the sections all involve such information. We 
have changed the title as suggested. One comment suggested revising the 
proposed language in Sec.  1250.80 to require submitters to proactively 
designate claimed confidential business information within 30 days, 
that such designations are not binding on NARA, and that blanket 
designations by page will not be considered a good faith effort. We 
have made revisions to the provisions to address these concerns and 
additional comments about the clarity of the language. It now reads: 
``At the time of submission, a submitter of business information is 
expected to designate, by appropriate markings, any portions of its 
submission that it considers to be protected from disclosure under FOIA 
Exemption 4. Although these portions may be designated, this does not 
preclude NARA from conducting a full FOIA review of such documents if 
we receive a FOIA request for those records. These designations will 
expire 10 years after the date of the submission unless the submitter 
requests, and provides justification for, a longer designation period, 
or NARA extends the designation period at its discretion.'' A second 
comment suggested revising Sec.  1250.82 to require substantiation for 
claims of confidential business information in the form of a detailed 
written statement specifying grounds for withholding and showing why 
that information should not be released. We have added language to 
require justification but have declined to use the detailed language 
suggested. We believe the review process described in Sec.  1250.82(a) 
(now split into subparagraphs (a) and (b) for clarity) addresses these 
portions of the comment and that Sec.  1250.82(e) already indicates 
that submitters must justify objections, by stating that they must 
submit the basis for the objection. However, we have added additional 
language: ``We provide the submitter with 20 working days from the date 
of NARA's notice to object to the release and to explain a basis for 
the objection, including justification and support for the claim.''
    Another comment asked if NARA would let requesters know when a 
longer designation period would expire. NARA will not do this because 
we do not track these expiration dates. These dates are assessed at the 
time a request for the records is made, based on the original 
submission date or extension date. The commenter also stated that the 
language ``a reasonable time thereafter'' was too vague. We have 
removed this language. And this commenter asked if the NARA FOIA 
Officer is a filled and funded position. Although this question is 
outside the scope of this regulation, NARA's FOIA officer is a filled 
and funded position.
    The final comment suggested adding a new section, Sec.  1250.83, to 
streamline notice of requests to submitters, to read, ``NARA will not 
notify a submitter under Sec.  1250.82 (emphasis in original) if it 
determines that:
    (a) The information must be withheld under FOIA's exemptions;
    (b) The information lawfully has been published or made available 
to the public;
    (c) Disclosure of the information is required by statute (other 
than FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600; or
    (d) The designation made by the submitter appears obviously 
frivolous--except that, in such a case, the agency will, no fewer than 
five working days prior to a specified disclosure date, give the 
submitter written notice of any final decision to disclose the 
information.''
    We have revised the regulation essentially as suggested with 
respect to paragraphs (a), (b), and (c), but placed it under Sec.  
1250.82(a) instead. However, we have not accepted the proposed 
paragraph (d) because it would still require notification to the 
submitter.

Regulatory Review Information

    This rule is not a significant regulatory action for the purposes 
of E.O. 12866 and has been reviewed by the Office of Management and 
Budget (OMB). It 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, we certify that this rule will not have 
a significant impact on a substantial number of small entities. It 
makes only clarifications to the already-existing processes by which 
individuals or entities request access to NARA records, and updates 
them to reflect changes in Federal requirements to make access easier.

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 revises 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 and Proactive Disclosures.
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 Does NARA provide access under FOIA 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 library?
1250.14 Preservation of FOIA-related materials.
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 Does NARA accept electronic FOIA requests?
1250.26 How does NARA process my FOIA request?
1250.27 How does NARA determine estimated completion dates for FOIA 
requests?
1250.28 How do I request expedited processing?
1250.30 How does NARA respond to my request?
1250.32 How may I request assistance with the FOIA process?
1250.38 In what format does NARA provide copies?
Subpart C--Fees
1250.50 General information on fees for all FOIA requests.
1250.51 What fee policies apply to archival records?
1250.52 What fee policies apply to operational records?
1250.53 What is the FOIA fee schedule for operational records?
1250.54 How does 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--Confidential Commercial Information
1250.80 How does a submitter identify records containing 
confidential commercial information?

[[Page 56505]]

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

    Authority:  44 U.S.C. 2104(a) and 2204(3)(c)(1); 5 U.S.C. 552; 
E.O. 13526; 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 we follow to process FOIA requests, such as the amount of time we 
have to make a determination regarding the release of records and what 
fees we 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 and Proactive Disclosures.

    NARA, consistent with its core mission, has always been committed 
to providing public access to as many of our records as possible. We 
therefore continue to affirmatively release and post records, or 
descriptions of such records, on our Web site at www.archives.gov in 
the absence of any FOIA request. We proactively identify and make 
discretionary disclosures of additional records of interest to the 
public whenever possible.


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. These are historical 
documents and do not include NARA operational records as defined in 
paragraph (l) of this section.
    (b) Commercial use request means a request that asks for 
information for a use or purpose that furthers a commercial, trade, or 
profit interest 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 sought to further scholarly research, not for a commercial use.
    (e) Expedited processing means the process set forth in the FOIA 
that allows requesters to ask for faster processing of their FOIA 
request if they can demonstrate a specific 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 fees if a requester 
is able to 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, or 
Presidential or Vice Presidential records in NARA's custody 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) Non-commercial scientific institution request means a request 
submitted by 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.
    (l) Operational records means records that NARA creates or receives 
in carrying out our mission and responsibilities as an executive branch 
agency. This does not include archival records as defined in paragraph 
(a) of this section.
    (m) Original Classification Authority means the authority to 
classify information as National Security Information at creation, as 
granted by the President of the United States in Executive Order 13526, 
section 1.3, and defined in 32 CFR part 2001.
    (n) Other request means a request submitted by any individual whose 
request does not qualify as a commercial-use request, representative of 
the news media request (including a request made by a freelance 
journalist), or an educational or non-commercial scientific institution 
request.
    (o) 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.
    (p) Presidential Records Act (PRA) means the law that, in part, 
governs access to Presidential and Vice Presidential records and is 
codified at 44 U.S.C. 2201-2207 and Part 1270 of these regulations. The 
PRA contains six restrictions that authorize NARA to withhold 
information, which apply for 12 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 and among such advisers. The PRA also 
excludes application of FOIA Exemption 5.
    (q) Representative of the news media means a person or entity that 
is organized and operated to publish or broadcast news to the public, 
and 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 that broadcast news to 
the public at large and publishers of periodicals, including print and 
online publications that disseminate news and make their products 
available through a variety of means to the general public. We consider 
requests for records that support the news-dissemination function of 
the requester to be a non-commercial use. We consider ``freelance'' 
journalists who demonstrate a solid basis for expecting publication 
through a news media entity as working for that entity. A publishing 
contract provides the clearest evidence that a journalist expects 
publication; however,

[[Page 56506]]

we also consider a requester's past publication record. We decide 
whether to grant a requester media status on a case-by-case basis, 
based on the requester's intended use.
    (r) Review means examining documents responsive to a request to 
determine whether any portions of them are exempt from disclosure. 
Review time includes processing any record for disclosure (i.e., doing 
all that is necessary to prepare the record for disclosure), including 
redacting the record and marking the appropriate FOIA exemptions.
    (s) 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.
    (t) 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 the FOIA apply to all of the records at NARA?

    No, the FOIA applies only to the records of the executive branch of 
the Federal Government and certain Presidential and Vice Presidential 
records:

------------------------------------------------------------------------
    If you want access to . . .       Then access is governed by . . .
------------------------------------------------------------------------
(a) Records of executive branch     This CFR part and parts 1254 through
 agencies.                           1260 of this chapter. FOIA applies
                                     to these records.
(b) Records of the Federal courts   Parts 1254 through 1260 of this
 and judicial branch agencies.       chapter. FOIA does not apply to
                                     these records.
(c) Records of Congress and         Parts 1254 through 1260 of this
 legislative branch agencies.        chapter. FOIA does not apply to
                                     these records.
(d) Presidential records (created   This part and parts 1254 through
 by Presidents and Vice Presidents   1270 of this chapter. FOIA applies
 holding office since 1981).         to these records five years after
                                     the President and Vice President
                                     leave office.
(e) Documents created by            The deed of gift under which they
 Presidents holding office before    were given to NARA. These documents
 1981 and housed in a NARA           are not agency records and FOIA
 Presidential library.               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  Does NARA provide access under FOIA to all the executive 
branch records housed at NARA facilities?

    (a) NARA provides access under FOIA 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 for twentieth-century personnel and 
medical records of former members of the military and personnel records 
of former civilian employees of the Federal Government.
    (1) Those official personnel and medical files that have been 
transferred to NARA's legal custody, which occurs 62 years after the 
date of an employee's or veteran's separation from Federal service, are 
processed by NARA according to this part, at Sec. Sec.  1250.20 through 
1250.32.
    (2) 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 originating agencies, which the NPRC 
processes under authority delegated by the originating agencies, not 
under the provisions of this part. Because of the intricacies of other 
agencies' FOIA regulations, further explanation here is not feasible. 
More information about the NPRC processes, including access to NPRC 
records, is available on NARA's Web site at http://www.archives.gov/st-louis/military-personnel/ and at http://www.archives.gov/st-louis/civilian-personnel.
    (c) NARA's Federal records centers store records that agencies no 
longer need for day-to-day business. These records remain in the legal 
custody of the agencies that created them. Requests for access to 
another agency's records in a NARA Federal records center should be 
made directly to the originating agency. We do not process FOIA 
requests for these records.
    (d) If your FOIA request includes a record in the legal custody of 
an originating agency, we forward that request to the originating 
agency for processing. We also provide you with notification that we 
have 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 Federal records centers.)


Sec.  1250.10  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 need to file a FOIA request. (See 36 CFR 
1256.22 for information on how to request access to restricted archival 
records. See paragraph (d) of this section, and part 1260, for 
additional procedures on access to classified records.)
    (c) You must also file a FOIA request when you request access to 
NARA operational records (records NARA creates) that are not already 
available to the public.
    (d) If you are requesting records that you know are classified to 
protect national security interests, you may wish to use the Mandatory 
Declassification Review process, which is set forth at 36 CFR 1260.70. 
(Please see NARA's FOIA Guide, available online at http://www.archives.gov/foia/foia-guide.html, for the differences between the 
FOIA and Mandatory Declassification Review access processes.)


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

    (a) We make available certain materials (listed in the FOIA) for 
public inspection and copying in both our physical FOIA Library as well 
as on NARA's Web site, available at http://www.archives.gov/foia/electronic-reading-room.html.

[[Page 56507]]

    (b) The materials provided through NARA's FOIA Library include:
    (1) Final NARA orders;
    (2) Written statements of NARA policy which are not published in 
the Federal Register;
    (3) Operational staff manuals and instructions to staff that affect 
members of the public;
    (4) At our discretion, copies of operational 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;
    (5) An index, updated quarterly, to these materials; and
    (6) FOIA logs including opening and closing date, requester's and 
organization's name, description of the records, and final disposition.
    (c) You may inspect and copy these materials 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 locations 
and research room procedures.
    (d) You may also access much of these materials on the NARA Web 
site. Any of these materials created after October 31, 1996, are on 
NARA's Web site at http://www.archives.gov/foia/electronic-reading-room.html.
    (e) For a paper copy of the index to these online materials, write 
to: NARA FOIA Officer (NGC); Room 3110; National Archives and Records 
Administration; 8601 Adelphi Road; College Park, MD 20740-6001.


Sec.  1250.14  Preservation of FOIA-related records.

    Each NARA component preserves all correspondence pertaining to the 
requests that it receives under this part, as well as copies of all 
requested records, until Title 44 of the United States Code or NARA's 
General Records Schedule 14 authorizes disposition or destruction. 
Records will not be disposed of while they are the subject of a pending 
request, appeal, or lawsuit under the FOIA.

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 sufficient detail to enable 
NARA staff to locate 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(s) when the records were created;
    (3) The subject, title, or description of the records sought; and
    (4) Author, recipient, case number, file designation, or reference 
number.
    (b) Include your name and full mailing address as well as phone 
number and email address. This information allows us to reach you 
faster if we have any questions about your request. It is your 
responsibility to keep your current mailing address up to date with the 
office where you have filed the FOIA request.
    (c) If you request records about yourself, you must do so in 
accordance with the Privacy Act and our implementing regulations at 36 
CFR part 1202. This includes requirements to verify your identity (see 
36 CFR 1202.40). If you request records about someone other than 
yourself, you may receive greater access if you submit either a 
notarized document signed by the other person that certifies their 
identity and gives their permission for you to have access, or proof 
that the other person is deceased (e.g., a copy of a death certificate 
or an obituary). NARA may, at its discretion, require you to supply 
additional information if necessary to verify that a particular 
individual has consented to disclosure of records about them.
    (d) Mark both your letter and envelope, or the subject line of your 
email, with the words ``FOIA Request.''
    (e) Before 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?

    (a) 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 believe would have the records 
you seek:

------------------------------------------------------------------------
               For:                    Mail/submit request to or call:
------------------------------------------------------------------------
(1) Archival records located in     Chief, Special Access and FOIA Staff
 the Washington, DC, area . ..       (RD-F), Room 5500, National
                                     Archives and Records
                                     Administration, 8601 Adelphi Road,
                                     College Park, MD 20740-6001 OR by e-
                                     mail to [email protected].
(2) Archival records maintained in  . . . the director of the facility
 other parts of the country . ..     in which the records are located.
                                     You can find locations and contact
                                     information for NARA facilities at
                                     http://www.archives.gov/locations/
                                     or 36 CFR 1253.5.
(3) Presidential records subject    . . . the director of the
 to FOIA . . ..                      Presidential library in which the
                                     records are located. You can find
                                     locations and contact information
                                     for NARA's Presidential libraries
                                     at http://www.archives.gov/locations/ locations/ or 36 CFR 1253.3.
(4) Operational records of any      NARA FOIA Officer (NGC), Room 3110,
 NARA unit except the Office of      National Archives and Records
 the Inspector General . ..          Administration, 8601 Adelphi Road,
                                     College Park, MD 20740-6001 OR by
                                     email to [email protected] OR online at
                                     https://foiaonline.regulations.gov.
(5) Operational records of the      Office of the Inspector General
 Office of the Inspector General .   (OIG), FOIA Request, Room 1300,
 ..                                  National Archives and Records
                                     Administration, 8601 Adelphi Road,
                                     College Park, MD 20740-6001.
(6) Any other records, or if you    NARA FOIA Officer (NGC), Room 3110,
 are unable to determine where to    National Archives and Records
 send your request or if you do      Administration, 8601 Adelphi Road,
 not have access to the internet     College Park, MD 20740-6001 OR call
 for a list of NARA's FOIA (7)       (301) 837-FOIA (3642) ** Within 10
 Public Liaisons and Customer        working days of receiving a
 Service Centers . ..                request, this office will forward
                                     your request to the office(s) that
                                     is likely to have the records you
                                     are seeking.
------------------------------------------------------------------------


[[Page 56508]]

    (b) NARA officially receives your request when it reaches the 
proper office's FOIA staff, but no later than 10 working days after the 
request first arrives at one of the offices in the table above. Receipt 
by the appropriate office initiates the time period for responding to 
your request (see 36 CFR 1250.26).
    (c) If you have questions concerning the processing of your FOIA 
request, you may contact the designated FOIA Customer Service Center 
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. You can find a 
list of NARA's FOIA Customer Service Centers and Public Liaisons at 
http://www.archives.gov/foia/contacts.html.


Sec.  1250.24  Does NARA accept electronic FOIA requests?

    Yes. You may submit and track requests for NARA operational records 
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 
36 CFR 1250.20. You may also file a FOIA request by emailing your 
request to the offices listed in the table at 36 CFR 1250.22.


Sec.  1250.26  How does NARA process my FOIA request?

    (a) Acknowledgement. NARA acknowledges all FOIA requests in writing 
within 20 working days after receipt by the appropriate office (see 36 
CFR 1250.22). The acknowledgement letter or email informs you of your 
request tracking number, and any complexity in processing that may 
lengthen the time NARA requires to reach a final decision on the 
release of the records. The acknowledgement letter or email may also 
seek additional information to clarify your request or to ask you to 
narrow the scope of a very large or broad request.
    (b) Clarification of requests. Requests must reasonably describe 
the records sought. If we determine that a request does not reasonably 
describe the records sought, or if we are uncertain about another 
aspect of the request, we contact you to ask for clarification.
    (c) Search cut-off date. As the end or cut-off date for a records 
search, NARA uses the date on which we first begin our search for 
documents responsive to your request, unless you specify an earlier 
cut-off date. This includes those cases when you request records 
``through the present,'' ``through today,'' or similar language. If 
NARA uses any other search end date, we inform you of that date.
    (d) Stops in processing time, clarification requests, and 
administrative closure. NARA may stop the clock for processing a 
request one time in order to seek your clarification. In such a case, 
the processing time resumes upon our receipt of your response. We 
provide at least 60 calendar days for you to respond to a request for 
clarification. If you do not clarify the request within 60 calendar 
days, we deny the request for not reasonably describing the records 
sought and provide you with the opportunity to appeal under the 
procedures in Subpart D. Should you not answer any correspondence, or 
should the correspondence be returned as undeliverable, NARA reserves 
the right to administratively close the FOIA request 60 calendar days 
after the date of the last correspondence we send.
    (e) Confidential commercial information. If you have requested 
records containing confidential commercial information, refer to 36 CFR 
1250.82 for information on how we process that request.
    (f) Processing queues. NARA places FOIA requests in simple or 
complex processing queues to be processed in the order received, on a 
first-in, first-out basis. In most cases, we make a determination about 
release of the records you requested within 20 working days from when 
the appropriate office receives your request (simple queue processing). 
However, if complexity or unusual circumstances prevent NARA from 
making a decision within 20 working days, we place your request into a 
complex processing queue. This way, such cases do not hold up the 
processing of other requests that do not include such time-consuming 
factors. We notify you of complicating factors in our acknowledgement 
letter or email, and you may choose to limit the scope of your request 
to convert the complex processing queue request to a simple processing 
queue request. For more detailed information on NARA's multi-track 
processing queues, see our FOIA Guide at http://www.archives.gov/foia-guide.html (for a paper copy, see 36 CFR 1250.20(d)).
    (g) Complex processing queue factors. We place into a complex 
processing queue any request that cannot be completed within 20 working 
days due to complexity, volume, because it contains national security 
information, because it involves Presidential or Vice Presidential 
records, or involves unusual circumstances. Unusual circumstances 
include the need to:
    (1) Search for and collect the records from one or more field 
facilities;
    (2) Search for, collect, and review a voluminous amount of records 
that are part of a single request;
    (3) Consult with another Federal agency before releasing records; 
or
    (4) Refer records to another Federal agency for declassification.
    (h) Complex processing schedule. If NARA needs to extend the 
deadline for more than an additional 10 working days due to the 
complexity of a request or as a result of unusual circumstances, we ask 
if you wish to modify your request so that we can answer the request 
sooner. If you do not wish to modify your request, we work with you to 
arrange an alternative schedule for review and release.
    (i) Complex processing: National security declassification and 
release. 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 records. We send copies of the documents 
to the appropriate originating Federal agencies for declassification 
review. We also send you an initial response to your FOIA request 
within 20 working days, informing you of this consultation with, or 
referral to, another Federal agency, except to the extent that the 
association with the other agency may itself be classified. Upon your 
request, we provide you an estimated date of completion.
    (j) Complex processing: Presidential or Vice Presidential records. 
If you request Presidential or Vice Presidential records and we 
determine that the records are not subject to any applicable FOIA or 
Presidential Records Act (PRA) exemption (and can therefore be 
released), we must notify the current and former President(s) or Vice 
President(s) of our intention to disclose information from those 
records. After receiving the notice, the current and former 
President(s) and Vice President(s) have a period of time (as set out in 
the applicable Executive order on implementation of the PRA) in which 
to choose whether to invoke Executive Privilege to deny access to the 
requested information. Although we send you an initial status response 
to your FOIA request within 20 working days in these cases, the final 
response to your FOIA request will take longer. We can provide the 
final response only at the end of the Presidential notification period 
set forth in the Executive order.

[[Page 56509]]

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

    (a) When you ask for an estimated completion date for records that 
do not require consultation with another agency, we estimate the 
completion date on the basis of our reasonable judgment at that point 
as to how long it will take to complete the request. Given the 
uncertainty inherent in establishing any estimate, the estimated 
completion date may be subject to change at any time.
    (b) When you ask for an estimated completion date for records that 
must be reviewed by another agency, our estimate is also based on 
information from the other agency:
    (1) When we send documents for consultation to another agency, we 
ask the agency to provide an estimated completion date for its portion 
of the processing.
    (2) We keep the consulting agency's estimated completion date for 
its portion of the processing in the request file and use it in 
addition to our own processing time estimate to provide you with an 
overall estimated completion date.
    (3) If the consulted agency or agencies do not provide us with an 
estimated completion date, we provide you with an estimate based on our 
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) NARA processes requests and appeals on an expedited basis 
whenever we determine that one or more of the following criteria exist:
    (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;
    (3) An urgent need to inform the public about an actual or alleged 
Federal Government activity (this criterion applies only to those 
requests made by a person primarily engaged in disseminating 
information to the public); or
    (4) A matter of widespread and exceptional media interest in which 
there exist possible questions that affect public confidence in the 
Government's integrity.
    (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 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 36 CFR 1250.26(j).
    (c) To request expedited processing, you must submit a statement, 
certified to be true and correct, explaining the basis for your need 
for expedited processing. You must send the request to the appropriate 
official at the address listed in Sec.  1250.22 of this subpart. You 
may request expedited processing when you first request records or at 
any time during NARA's processing of your request or appeal.
    (d) We will respond to your request for expedited processing within 
10 calendar days of our receipt of your request to expedite. If we 
grant your request, the NARA office responsible for the review of the 
requested records will process your request as a priority, and it will 
be processed as soon as practicable. 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 does NARA respond to my request?

    (a) NARA sends you a response informing you of our release 
determination, including whether any responsive records were located, 
how much responsive material was located, whether the 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. We will use 
plain language in all written communications with requesters.
    (b) If we deny any part of your request, our response will explain 
the reasons for the denial, which FOIA exemptions apply to withhold 
records, and your right to appeal that determination.
    (c) NARA may withhold records in full or in part if any of the nine 
FOIA exemptions apply. NARA withholds information only where disclosure 
is prohibited by law (such as information that remains classified, or 
information that is specifically exempt by statute) or where we 
reasonably foresee that disclosure would cause harm to an interest 
protected by one of the FOIA exemptions. If we must withhold part of a 
record, we provide access to the rest of the information in the record. 
On the released portion of the record, we indicate the amount of 
information we redacted and the exemption(s) we applied, unless 
including that indication would harm an interest the exemption 
protects. NARA may also determine that a request does not reasonably 
describe the records sought; the information requested is not a record 
subject to FOIA; the requested record does not exist, cannot be 
located, or has been destroyed; or the requested record is not readily 
reproducible in the form or format you sought. 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)........................  ``(A) specifically
                                             authorized under criteria
                                             established by an Executive
                                             order to be kept secret in
                                             the interest of national
                                             defense or foreign policy
                                             and (B) are in fact
                                             properly classified
                                             pursuant to such 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;''

[[Page 56510]]

 
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;'' or
5 U.S.C. 552(b)(9)........................  ``geological and geophysical
                                             information and data,
                                             including maps, concerning
                                             wells.''
------------------------------------------------------------------------

    (d) If a request involves a voluminous amount of material or 
searches in multiple locations, we provide you with interim responses, 
releasing the records on a rolling basis.
    (e) NARA may not withhold Presidential records subject to FOIA 
under 5 U.S.C. 552(b)(5) as defined in the table in paragraph (c) of 
this section. However, NARA may withhold Presidential records under the 
remaining FOIA exemptions. In addition, Presidential records may be 
withheld under 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 
36 CFR part 1270. Representatives of the current and former Presidents 
may also review Presidential records, and may assert constitutionally-
based privileges that would prevent NARA from releasing some or all or 
the information requested.


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 you to reduce delays, increase transparency and 
understanding of the status of requests, and resolve any FOIA disputes. 
You can find a list of our FOIA Customer Service Centers and Public 
Liaisons at http://www.archives.gov/foia/contacts.html.
    (b) The Office of Government Information Services (OGIS), part of 
NARA, 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 below in 36 CFR 1250.74(c).


Sec.  1250.38  In what format does NARA provide copies?

    After all applicable fees are paid, we 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  General information on fees for all FOIA requests.

    (a) If you have failed to pay FOIA fees in the past, we will 
require you to pay your past-due bill and we may also require that you 
pay the anticipated fee before we begin processing your current 
request. If we estimate that your fees may be greater than $250, we may 
also require advance payment or a deposit before we begin processing 
your request. If you fail to make an advance payment within 60 calendar 
days after the date of NARA's fee letter, we will close the request.
    (b) If we determine that you (acting either alone or with other 
requesters) are breaking down a single request into a series of 
requests in order to avoid or reduce fees, we may aggregate all of 
these requests when 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.
    (c) If, in the course of negotiating fees, you do not respond to a 
NARA component within 60 calendar days, we reserve the right to 
administratively close the FOIA request after 60 calendar days have 
passed from the date of our last correspondence to you.


Sec.  1250.51  What fee policies apply to archival records?

    (a) NARA is specifically authorized to charge fees 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 we do not grant fee 
waivers for archival records requested under the FOIA. However, we make 
most of our 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 and may also use your own equipment to make copies.
    (b) We do not charge search fees for FOIA requests for archival 
records, but we do limit the search to two hours.
    (c) If you would like us to make copies of archival records, we 
typically require you to pay all applicable fees (in accordance with 
the fee schedule) before we provide the copies.
    (d) You can find our Fee Schedule for archival records at: 
www.archives.gov/research/order/fees.html.


Sec.  1250.52  What fee policies apply to operational records?

    (a) For operational records, we may charge search fees even if the 
records are not releasable or we do not find any responsive records 
during our search.
    (b) 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, we copy them on larger paper and 
reduce the copy fee by the normal charge for 100 standard-sized 
photocopies. If the records are not on textual media (e.g., they are 
photographs or electronic files), we provide the equivalent of 100 
pages of standard-sized paper copies for free.
    (c) We do not charge you any fee if the total cost for processing 
your request is $25 or less.
    (d) 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

[[Page 56511]]

you only if we estimate the fees will exceed that specified amount.


Sec.  1250.53  What is the FOIA fee schedule for operational records?

    In responding to FOIA requests for operational records, NARA 
charges 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. NARA bases the fees for computer searches 
on the actual cost to NARA of operating the computer and the salary of 
the operator. When the search is relatively straightforward and a 
clerical or administrative employee can conduct it, the search rate is 
$16 per hour (or fraction thereof). When the request is more 
complicated and a NARA professional employee must perform it, the rate 
is $33 per hour (or fraction thereof).
    (b) Review fees. (1) NARA charges review fees for time we spend 
examining documents that are responsive to a request to determine 
whether we must apply any FOIA exemptions to withhold information. NARA 
charges review fees even if we ultimately are unable to disclose a 
record.
    (2) The review fee is $33 per hour (or fraction thereof).
    (3) NARA does not charge review fees for time we spend resolving 
general legal or policy issues regarding the application of exemptions. 
However, NARA does charge review fees for time we spend obtaining and 
considering any formal objection to disclosure made by a confidential 
commercial information submitter.
    (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 per page.
    (2) Photocopying standard-sized pages. When we make the photocopies 
for operational records, the charge is $0.30 per page.
    (3) Reproductions of electronic records. NARA charges you for our 
direct costs for staff time for programming, computer operations, and 
printouts or electromagnetic media to reproduce the requested 
electronic information. When the work is relatively straightforward and 
a clerical or administrative employee can perform it, the rate is $16 
per hour (or fraction thereof). When the request is more complicated 
and a NARA professional employee must do it, the rate is $33 per hour 
(or fraction thereof).
    (4) Copying other media. This is the direct cost to NARA of the 
reproduction. We provide specific rates on a case-by-case basis.


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

    (a) If you are a commercial use requester, NARA charges 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 up to 100 pages of copying without charge. NARA charges 
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 and review time, and up to 100 pages of 
copying without charge. NARA may charge for search time beyond the 
first two hours and for copying beyond the first 100 pages.
    (d) NARA does not charge a fee for processing a FOIA request if it 
exceeds any time limit under 5 U.S.C. 552(a)(6) in processing that 
request, unless unusual or exceptional circumstances (defined under the 
FOIA statute) are relevant.


Sec.  1250.56  How may I request a fee waiver for operational records?

    (a) We 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., the information is 
likely to contribute significantly to public understanding of the 
operations or 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 records you are requesting 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 that the 
public does not already know about Federal Government activities. 
Disclosing information that is already in the public domain, in either 
the same or a substantially-identical form, does not add anything new 
to the public's understanding of Government activities;
    (3) How disclosure to you will advance public understanding of the 
issue;
    (4) Your expertise or understanding of the requested records as 
well as your ability and intention to effectively convey information to 
the public. NARA ordinarily presumes that a representative of the news 
media satisfies this consideration;
    (5) How you intend to disseminate the requested information to a 
broad spectrum of the public; and
    (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, we also determine if the 
request primarily furthers your commercial interests. If it does, you 
are not eligible for a fee waiver.
    (d) You should ask for waiver or reduction of fees when you first 
submit your request to NARA, and should address the criteria referenced 
above. You may also ask for a fee waiver at a later time while the 
underlying record request is still pending or during an administrative 
appeal.
    (e) We may also waive (either partially or in full) or reduce fees 
for operational records in additional circumstances as a matter of 
administrative discretion.

Subpart D--Appeals


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

    You may appeal when there is 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 60 calendar days 
from the date of our determination letter.
    (1) For appeals submitted via mail, you should mark both your 
letter and envelope with the words ``FOIA Appeal,'' and include either 
your tracking number or a copy of your initial request and our 
determination letter.

[[Page 56512]]

    (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.
    (iii) For Presidential records, send appeals 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 letter, you may include as much or as little 
related information as you wish, as long as it clearly identifies 
NARA's initial determination letter (including the assigned request 
number, if known) from which you are appealing, and 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 NARA's 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  How does NARA process appeals?

    (a) We respond to your appeal within 20 working days after the 
appeal official designated in 36 CFR 1250.72(a)(1)(i) and (ii) receives 
it. If we reverse or modify the initial decision, we inform you in 
writing and, if applicable, reprocess your request. For Presidential 
records, if we release any additional information, we must follow the 
notification procedures outlined in 36 CFR 1250.26(j). If we do not 
change our initial decision, we respond in writing to you, explain the 
reasons for the decision, and set out any FOIA exemptions that apply.
    (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) We 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 seek judicial review of any adverse 
determination, you must first appeal it administratively under this 
section.
    (c) We also inform you that the Office of Government Information 
Services (OGIS) offers mediation services to resolve disputes between 
FOIA requesters and Federal agencies as a non-exclusive alternative to 
litigation. You 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--Confidential Commercial Information


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

    At the time of submission, a submitter of business information is 
expected to designate, by appropriate markings, any portions of its 
submission that it considers to be protected from disclosure under FOIA 
Exemption 4. Although these portions may be designated, this does not 
preclude NARA from conducting a full FOIA review of all such documents 
if a FOIA request for those records has been received. These 
designations will expire 10 years after the date of the submission 
unless the submitter requests, and provides justification for, a longer 
designation period, or NARA extends the designation period at its 
discretion.


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 we believe may contain 
confidential commercial information, we follow these procedures:
    (a) If the records are less than 10 years old or are still covered 
under an extended FOIA Exemption 4 designation period, we review the 
records in response to a FOIA request. If we then believe that we 
should release the records under FOIA, we make reasonable efforts to 
inform the submitter. The notice to the submitter describes the 
business information requested or includes copies of the requested 
records. NARA does not notify the submitter when we determine that:
    (1) We must withhold the information under FOIA's exemptions;
    (2) The information has been lawfully published or made available 
to the public; or
    (3) We are required by a statute (other than the FOIA), or by a 
regulation issued in accordance with the requirements of Executive 
Order 12600, to disclose the information.
    (b) If the records are 10 or more years old, we review the records 
in response to a FOIA request as we would any other records, and at our 
discretion, inform the submitter. NARA releases the records if we 
determine that neither Exemption 4 nor any other exemption applies.
    (c) When the request is for information from a single or small 
number of submitters, we send a notice via registered mail to the 
submitter's last known address. NARA's notice to the submitter includes 
a copy of the FOIA request and tells the submitter the time limits and 
procedures for objecting to the release of the requested material.
    (d) When the request involves information from a voluminous number 
of submitters, we may post or publish the notice in a place or manner 
reasonably likely to inform the submitters of the proposed disclosure, 
instead of sending letters.
    (e) We provide the submitter with 20 working days from the date of 
NARA's notice to object to the release and to explain a basis for the 
objection, including justification and support for the claim. The NARA 
FOIA Officer may extend this period as appropriate.
    (f) We review and consider all objections to release that we 
receive within the time limit. Any information provided by a submitter 
under this provision may itself be subject to disclosure under FOIA. 
NARA considers a submitter who fails to respond within the time period 
specified in the notice to have no objection to disclosure of the 
information. If we decide to release the records, we inform the 
submitter in writing, along with NARA's reasons for the decision to 
release. We include with the notice copies of the records as we intend 
to release them. We also inform the submitter that we intend to release 
the records within a reasonable time after the date of the notice 
unless a U.S. District Court forbids disclosure. NARA will not consider 
any information we receive after the date of a disclosure decision.

[[Page 56513]]

    (g) If the requester files a lawsuit under the FOIA for access to 
any withheld records, we promptly notify the submitter.
    (h) NARA notifies the requester in three circumstances:
    (1) When we notify the submitter of the opportunity to object to 
disclosure, or to extend the time for objecting;
    (2) When we notify the submitter of our intent to disclose the 
requested information; and
    (3) When a submitter files a lawsuit to prevent the disclosure of 
the information.

    Dated: September 10, 2014.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2014-22186 Filed 9-19-14; 8:45 am]
BILLING CODE 7515-01-P