[Federal Register Volume 80, Number 145 (Wednesday, July 29, 2015)]
[Proposed Rules]
[Pages 45101-45115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18388]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 80, No. 145 / Wednesday, July 29, 2015 / 
Proposed Rules

[[Page 45101]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

U.S. Customs and Border Protection

19 CFR Part 103

Federal Emergency Management Agency

44 CFR Part 5

[Docket No. DHS-2009-0036]
RIN 1601-AA00


Freedom of Information Act Regulations

AGENCY: Office of the Secretary, Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This rule proposes to amend the Department of Homeland 
Security's (DHS) regulations under the Freedom of Information Act 
(FOIA). The Department (DHS) is proposing to update and streamline the 
language of several procedural provisions, and to incorporate changes 
brought about by the amendments to the FOIA under the OPEN Government 
Act of 2007, among other changes. DHS invites comment on all aspects of 
this proposal.

DATES: Comments and related material must be submitted to the docket 
for this rulemaking, DHS-2009-0036, on or before September 28, 2015.

ADDRESSES: You may submit comments, identified by docket number DHS-
2009-0036, by one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-343-4011.
    (3) Mail: By mail to the Department of Homeland Security, Office of 
the Chief Privacy Officer, ATTN: James Holzer, 245 Murray Lane SW., 
STOP-0655, Washington, DC 20528-0655.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change and may be read at http://www.regulations.gov, 
including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: James Holzer, Senior Director, FOIA 
Operations, Office of the Chief Privacy Officer, Department of Homeland 
Security, at 1-866-431-0486.

SUPPLEMENTARY INFORMATION:

I. Background

    The Secretary of Homeland Security has authority under 5 U.S.C. 
301, 552, and 552a, and 6 U.S.C. 112(e), to issue FOIA and Privacy Act 
regulations. On January 27, 2003, the Department of Homeland Security 
(Department or DHS) published an interim rule in the Federal Register 
(68 FR 4056) that established DHS procedures for obtaining agency 
records under the FOIA, 5 U.S.C. 552, or Privacy Act, 5 U.S.C. 552a. 
DHS solicited comments on this interim rule, but received none.\1\
---------------------------------------------------------------------------

    \1\ This rule proposes revisions to DHS's FOIA regulations, but 
not its Privacy Act regulations. DHS intends to finalize its Privacy 
Act regulations by separate rulemaking.
---------------------------------------------------------------------------

    In 2005, Executive Order 13392 called for the designation of a 
Chief FOIA Officer and FOIA Public Liaisons, along with the 
establishment of FOIA Requester Service Centers as appropriate. 
Subsequently, the Openness Promotes Effectiveness in our National 
Government Act of 2007 (OPEN Government Act), Public Law 110-175, 
required agencies to designate a Chief FOIA Officer who is then to 
designate one or more FOIA Public Liaisons (5 U.S.C. 552(j) and 
552(k)(6)). Sections 6, 7, 9, and 10 of the OPEN Government Act amended 
provisions of the FOIA by setting time limits for agencies to act on 
misdirected requests and limiting the tolling of response times (5 
U.S.C. 552(a)(6)(A)); requiring tracking numbers for requests that will 
take more than 10 days to process (5 U.S.C. 552 (a)(7)(A)); providing 
requesters a telephone line or Internet service to obtain information 
about the status of their requests, including an estimated date of 
completion (5 U.S.C. 552(a)(7)(B)); expanding the definition of 
``record'' to include records ``maintained for an agency by an entity 
under Government contract, for the purposes of records management'' (5 
U.S.C. 552(f)(2)); and introducing alternative dispute resolution to 
the FOIA process through FOIA Public Liaisons (5 U.S.C. 
552(a)(6)(B)(ii) & (l)) and the Office of Government Information 
Services (5 U.S.C. 552(h)(3)).
    DHS now proposes to revise its FOIA regulations at 6 CFR part 5, 
which apply to all components of DHS. This proposed rule would 
implement changes required by the OPEN Government Act and make other 
revisions to DHS FOIA regulations to improve access to Departmental 
records.
    DHS describes the primary proposed changes in the section-by-
section analysis below. DHS invites public comment on each of the 
proposed changes described, as well as any other matters within the 
scope of the rulemaking.

II. Section-by-Section Analysis

    The proposed rules continue to inform the public of the 
responsibilities of DHS in conjunction with requests received under the 
Freedom of Information Act as well as the requirements for filing a 
proper FOIA request.
    DHS is proposing to amend Subpart A to eliminate the provision for 
``brick and mortar'' public reading rooms, amend DHS rules for third-
party requests for records, and add information about proactive DHS 
disclosures.

Section 5.1 General Provisions

    DHS is proposing to amend this part to incorporate reference to 
additional DHS policies and procedures relevant to the FOIA process. 
These resources, which are available at http://www.dhs.gov/freedom-information-act-foia, also include descriptions of the types of records 
maintained by different DHS components. DHS is also proposing to amend 
this section to clarify the definition of a component for purposes of 
this proposed rule. Component means each separate organizational entity 
within DHS that reports directly to the Office of the Secretary. A full 
list of all DHS components would be provided in appendix I of this 
proposed rule (as well

[[Page 45102]]

as in the web resources described above) for informational purposes.
    DHS is proposing to add paragraph (d) to section 5.1, ``Unofficial 
release of DHS information.'' This proposed paragraph seeks to inform 
the public about how information that is not released through official 
DHS channels will be treated in the FOIA process. DHS does not consider 
information that is either inadvertently or inappropriately released by 
means other than the official release process used by DHS, whether in 
FOIA or otherwise, to be a FOIA release and accordingly, DHS does not 
waive its ability to assert exemptions to withhold some or all of the 
same records in response to a FOIA request.
    Finally, DHS is proposing to remove at least two additional 
portions of current section 5.1. First, current paragraph (a)(1) 
clarifies that ``[i]nformation routinely provided to the public as part 
of a regular DHS activity . . . may be provided to the public without 
following this subpart.'' Second, current paragraph (a)(2) provides 
that ``Departmental components may issue their own guidance under this 
subpart pursuant to approval by DHS.'' DHS considers each of these 
provisions to be self-evident, and therefore proposes to remove them 
from the regulation.

Section 5.2 Proactive Disclosures of DHS Records

    DHS proposes to replace prior section 5.2, ``Public Reading 
Rooms,'' which was outdated, with a new section describing the 
proactive disclosure of DHS records. The FOIA requires DHS to make 
certain records available for public inspection and copying. Such 
records are available via the internet through the electronic reading 
rooms of each component. For those individuals with no access to the 
internet, the DHS Privacy Office or the component Public Liaison can 
provide assistance with access to records available in the electronic 
reading rooms. Contact information is provided in Appendix I to this 
subpart.

Section 5.3 Requirements for Making Requests

    DHS proposes to amend paragraph 5.3(a) to eliminate the requirement 
that third-party requesters of records pertaining to an individual 
provide a written authorization from the individual that is the subject 
of the records (or proof of death of the individual) as a prerequisite 
to making such a request for records. As proposed, paragraph (a)(4) 
would inform third-party requesters that they may receive greater 
access if they provide written authorization from, or proof of death 
of, the subject of the records. In certain circumstances, they may in 
fact receive no access absent such authorization or proof. This 
paragraph would further advise that DHS may exercise its administrative 
discretion in seeking additional information from the requester to 
ensure that the proper consent has been received from the subject of 
the records.
    DHS also proposes to amend paragraph (b) to direct requesters to 
contact the FOIA Public Liaison for each component if the requester has 
questions about how to describe the records that the requester seeks. 
DHS also proposes to amend this part to eliminate paragraph (c), which 
would be addressed under section 5.11, ``Fees.'' DHS proposes to insert 
a new paragraph (c), which describes the process under which DHS may 
administratively close a request if a requester fails to comply with a 
request for additional information.

Section 5.4 Responsibility for Responding to Requests

    DHS proposes to insert a new paragraph (c), ``Re-routing of 
misdirected requests,'' to advise requesters that a component that is 
in receipt of a misdirected request within DHS will redirect such a 
request to the proper component without the need for further action 
from the requester. In the event that a component receives a request 
that should be directed outside DHS entirely, the component would 
inform the requester that DHS does not collect or retain the type of 
records requested. Proposed paragraph (c) would cover a different 
situation than current paragraph (c), which only applies ``[w]hen a 
component receives a request for a record in its possession.''
    DHS proposes to combine paragraph 5.4(c), ``Consultations and 
referrals,'' with current paragraph (d), ``Law Enforcement 
Information,'' which covers consultation and referral of law 
enforcement records. Proposed paragraph (d) would describe the process 
of consultation, coordination, and referral of all records, to include 
law enforcement records, consistent with equities of components, 
agencies, or departments other than the responding component. Proposed 
paragraph (e) restates much of the current content of section 5.7, 
``Classified information.''
    DHS proposes to revise current paragraph (f), ``Notice of 
referral.'' Paragraph (f) currently provides that when a component 
refers a request to another component or agency, it ordinarily shall 
notify the requester of such referral. Consistent with current law, DHS 
proposes to insert an exception to this requirement, such that the 
component should not refer the records if disclosure of the identity of 
the component or agency would harm an interest protected by an 
applicable exemption. Instead, the component should coordinate the 
response with the other component or agency, as appropriate.
    DHS proposes a new paragraph, paragraph 5.4(i), ``Electronic 
records and searches,'' to advise requesters of DHS's responsibilities 
under the FOIA with regard to conducting searches of electronic records 
and databases. DHS adheres to the requirement in 5 U.S.C. 552(a)(3)(C), 
which states that agencies will make reasonable efforts to search for 
records in electronic form or format, except when such efforts would 
significantly interfere with the operation of the agency's automated 
information systems. Proposed paragraph 5.4(i) seeks to clarify to 
requesters the types of situations that would amount to ``significant 
interference'' with the operation of agency information systems such 
that DHS would not conduct a search for the requested records.

Section 5.5 Timing of Responses to Requests

    DHS proposes to amend paragraph 5.5(a) to advise requesters that 
the response time for misdirected requests that are re-routed under 
paragraph 5.4(c) will commence on the date the request is received by 
the proper component, but in any event, no later than ten working days 
after the request is first received by any component. DHS proposes to 
amend paragraph (b), ``Multitrack Processing,'' to include a specific 
provision for a track for requests granted expedited processing.
    DHS proposes to split current paragraph (c), ``Unusual 
Circumstances,'' into two separately designated paragraphs. As revised, 
the rule would include in paragraph 5.5(d) information on how DHS will 
aggregate multiple related requests submitted by a single requester or 
a group of requesters acting in concert.
    DHS also proposes to redesignate current paragraph 5.5(d), 
``Expedited Processing,'' as paragraph 5.5(e). DHS proposes in proposed 
paragraph 5.5(e) to amend text that describes the procedures for making 
a request for expedited processing of an initial request or an appeal 
(current paragraph (d)), to include two new available justifications 
for requesting expedited processing.

[[Page 45103]]

    5.6 Responses to requests. DHS proposes to revise paragraph 5.6(a) 
to encourage components to communicate with FOIA requesters having 
access to the internet through electronic means, to the extent 
practicable. This new paragraph is intended to address the increasing 
number of FOIA requesters who are corresponding with DHS via electronic 
mail and web portals. DHS proposes to move paragraph (a) to paragraph 
(b), ``Acknowledgment of Requests.'' DHS proposes to amend this 
paragraph to specify that DHS and its components will acknowledge a 
request and assign the request an individualized tracking number if the 
request will take more than ten working days to process. DHS also 
proposes to require acknowledgment letters to contain a brief 
description of the request to allow requesters to more easily keep 
track of their requests. The provision in paragraph (a) referencing 
that the acknowledgment letter will confirm the requester's agreement 
to pay fees would be addressed in proposed section 5.11(e).
    DHS proposes to move paragraph (b), ``Grants of requests,'' to 
paragraph (c). DHS proposes to amend paragraph (b) by removing the 
description of the treatment of information, both released and redacted 
in documents provided to the requester. Substantially the same 
information is now included in a new proposed paragraph, paragraph 
5.6(f), ``Markings on Released Documents.'' DHS proposes to move the 
remainder of current paragraph 5.6(c), ``Adverse determinations of 
requests,'' to two paragraphs, (d) and (e), ``Adverse determinations of 
requests'' and ``Content of denial.'' The language regarding adverse 
determination of requests remains substantially the same. DHS proposes 
to describe the content and process for denial letters in the newly 
proposed paragraph (e), but does not intend this paragraph to 
significantly change the current regulatory requirements concerning 
denial letters.
    DHS also proposes new paragraph (g), ``Use of record exclusions,'' 
which describes the DHS's use of exclusions under 5 U.S.C. 552(c). This 
paragraph proposes to incorporate the requirement set forth by the 
Department of Justice's Office of Information Policy (OIP) that all 
federal agencies obtain the approval of OIP prior to invoking an 
exclusion. This proposed paragraph also includes a requirement that DHS 
maintain an administrative record of the process of the invocation of 
the exclusion and approval by OIP.
    5.7 Confidential commercial information. Proposed section 5.7, 
``Confidential commercial information,'' would replace current section 
5.8 of the current regulations, ``Business information.'' DHS proposes 
to reorder several paragraphs within this section. The changes are for 
clarity and to better advise requesters and providers of commercial 
information how DHS will treat requests for confidential commercial 
information, but the information contained in the proposed section 
remains substantively the same.
    DHS proposes to amend the ``Notice of intent to disclose'' 
paragraph by splitting it into two paragraphs, proposed new paragraph 
(f), ``Analysis of objections'' and proposed new paragraph (g), 
``Notice of intent to disclose.'' The proposed division of the 
information previously contained in a single paragraph is intended to 
improve clarity by highlighting in a separate paragraph that DHS will 
consider a submitter's objections and specific grounds for 
nondisclosure in deciding whether to disclose the requested 
information. Otherwise, the information contained in the new proposed 
paragraphs remains substantively the same.
    Finally, DHS proposes to include an exception to this section for 
commercial information provided to U.S. Customs and Border Protection 
(CBP) by a business submitter. Although CBP's FOIA regulations (located 
at 19 CFR part 103, subpart A) are displaced by the DHS FOIA 
regulations, this rule proposes to allow CBP to continue treating 
commercial information in the same manner as it has since the 
promulgation of current 19 CFR 103.35.
    5.8 Administrative appeals. This section corresponds to section 5.9 
of the current regulations. In the time following the publication of 
the interim regulations in January 2003, DHS has designated Appeals 
Officers for each component. As such, DHS proposes to amend paragraph 
(a) to direct requesters seeking to appeal adverse determinations to 
the DHS Web site or FOIA phone line for FOIA information to obtain the 
name and address of the appropriate appeals officer.
    DHS proposes new paragraph (b) ``Adjudication of appeal,'' which 
replaces former paragraph (c) ``When appeal is required.'' The proposed 
new paragraph informs requesters that the DHS Office of the General 
Counsel or its designee component appeals officers are the authorized 
appeals authority for DHS. New proposed paragraph (b) also informs 
requesters about the treatment of appeals involving classified 
information. Finally, former paragraph (a)(3), which informs requesters 
that appeals will not normally be adjudicated if a FOIA lawsuit is 
filed, is incorporated into proposed paragraph (b).
    DHS proposes to add a new paragraph (c), ``Appeal decisions,'' 
which is substantially similar to current paragraph 5.9(b). Proposed 
paragraph (c) would advise requesters that appeal decisions will be 
made in writing, and that decisions will inform requesters of their 
right to file a lawsuit and about mediation services offered by the 
Office of Government Information Services. Proposed paragraph (c) would 
also advise requesters of what to expect if the appeals officer 
reverses or modifies the original administrative decision on appeal. 
DHS also proposes to add a new paragraph (d), ``Time limit for issuing 
appeal decision,'' which advises requesters of the statutory 20-day 
time limit for responding to appeals, and also of the statutory 10-day 
extension of the 20-day limit available to the appeals officers in 
certain circumstances.
    Finally, DHS proposes to add paragraph (e), ``Appeal necessary 
before seeking court review,'' which advises requesters that an 
administrative appeal is generally required before seeking judicial 
review of a component's adverse determination. This language is 
substantially similar to current paragraph 5.9(c). This proposed 
paragraph also advises requesters that there is no administrative 
appeal requirement prior to seeking judicial review of a denial of 
request for expedited processing.
    5.9 Preservation of records. DHS proposes to redesignate current 
section 5.10 ``Preservation of records'' as section 5.9. There is no 
change to the substantive information in the section.
    5.10 FOIA requests for information contained in a Privacy Act 
system of records. DHS proposes to add the new above-referenced 
section, to explain to requesters how DHS treats FOIA requests for 
information protected by the Privacy Act. When applicable, DHS analyzes 
all requests under both the FOIA and the Privacy Act to ensure that the 
requester receives the greatest amount of information possible under 
federal law. This proposed section also explains the circumstances 
under which a third-party requester can obtain access to information 
protected by the Privacy Act.
    5.11 Fees. DHS proposes to address all fee issues in section 5.11. 
Most of this section remains essentially unchanged. Proposed changes to 
paragraph (b) would clarify some of the definitions used by DHS in 
determining a requester's fee category. For instance, paragraph (b)(1) 
``Commercial use request,'' would clarify that components

[[Page 45104]]

will make determinations on commercial use on a case-by-case basis. 
Paragraph (b)(4) ``Educational institution,'' would add several 
examples to help requesters understand the analysis that DHS will apply 
to determine whether a requester meets the criteria to be considered an 
educational institution. Paragraph (b)(6), ``News media,'' clarifies 
the criteria used by DHS to determine whether a requester qualifies to 
be considered a member of the news media for fee purposes. Paragraph 
(b)(8) ``Search,'' would eliminate superfluous language that does not 
improve the comprehensibility of the paragraph. Because these and 
similar proposed changes are consistent with current regulations and 
describe current process, DHS does not expect that they will result in 
additional costs for the government or the public.
    DHS also proposes to change paragraph (c)(1)(iii), which discusses 
direct costs associated with conducting any search that requires the 
creation of a new computer program, as discussed in new proposed 
paragraph 5.4(i), to locate the requested records. This change is 
intended to improve comprehension and to more accurately describe the 
circumstances under which a requester may be charged for a computerized 
search or a search of electronic records. It does not represent a 
change in practice, as DHS currently charges direct costs for 
specialized data searches. Again, because these proposed changes are 
consistent with current regulations and describe current process, DHS 
does not expect that they will result in additional costs for the 
government or the public.
    DHS proposes to restructure paragraph (c)(3)(d), ``Restrictions on 
charging fees.'' Under this proposal, search fees, and in some cases, 
duplication fees may not be charged if a component fails to comply with 
the time limits in which to respond to a request provided no unusual or 
exceptional circumstances are present. This provision directly tracks a 
mandatory provision from section 6 of the OPEN Government Act of 2007, 
Public Law 110-175, 121 Stat. 2524, 5 U.S.C. 552(a)(4)(A)(viii).
    In addition, DHS proposes to renumber former paragraph (d)(2) as 
paragraph (d)(3), and paragraph (d)(3) as (d)(4). DHS proposes minor 
changes in paragraph (d)(4) to improve clarity. Current paragraphs 
(d)(4) and (d)(5) would be combined into proposed paragraph (d)(5). DHS 
proposes changes to paragraphs (e) and (f) to improve clarity; no 
significant changes are intended with respect to those paragraphs. DHS 
proposes no major changes to paragraphs (g), (h), (i), or (j), but 
proposes to modify a number of procedural provisions consistent with 
the practices of other agencies in this area. DHS also proposes minor 
changes to paragraph (k) to improve clarity. DHS proposes to eliminate 
current paragraph (l), ``Payment of outstanding fees,'' as the 
information in that paragraph is largely duplicative of the information 
contained within proposed paragraph (i)(3)--although proposed paragraph 
(i)(3) is discretionary, DHS anticipates that the result will be 
substantially the same as under current paragraph (l). Except in 
extraordinary circumstances, DHS will not process a FOIA request from 
persons with an unpaid fee from any previous FOIA request to any 
Federal agency until that outstanding fee has been paid in full to the 
agency. Finally, DHS proposes to insert a chart showing fee 
applicability, for ease of reference.
    5.12 Confidential commercial information; CBP procedures.
    As noted above, DHS proposes to include an exception to proposed 
Sec.  5.7 for commercial information provided to U.S. Customs and 
Border Protection (CBP) by a business submitter. Although CBP's FOIA 
regulations (located at 19 CFR part 103, subpart A) are displaced by 
the DHS FOIA regulations, because of the unique nature of CBP's 
mission, this rule proposes to allow CBP to continue treating 
commercial information in the same manner as it has since the 
promulgation of current 19 CFR 103.35. CBP's FOIA regulations, located 
at 19 CFR part 103, subpart A, will be removed no later than the 
effective date of the final rule for this rulemaking. CBP may, however, 
retain cCurrent 19 CFR 103.35 as an interim measure.
    5.13 Other rights and services. DHS proposes no substantive changes 
to this section.
FEMA Regulations
    DHS also proposes to remove FEMA's outdated FOIA regulations at 44 
CFR part 5, subparts A through E. FEMA is currently operating under 
DHS's title 6 FOIA regulations for all purposes.

III. Regulatory Analyses

Executive Orders 12866 and 13563--Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has not been designated a ``significant 
regulatory action,'' under section 3(f) of Executive Order 12866. 
Accordingly, the rule has not been reviewed by the Office of Management 
and Budget.
    DHS has considered the costs and benefits of this proposed rule. 
Previously in this preamble, DHS has provided a section-by-section 
analysis of the provisions in this proposed rule and concludes this 
rule does not impose additional costs on the public or the government. 
This rule does not collect any additional fee revenues compared to 
current practices or otherwise introduce new regulatory mandates. The 
rule's benefits include additional clarity for the public and DHS 
personnel with respect to DHS's implementation of the FOIA and 
subsequent statutory amendments.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, and 
section 213(a) of the Small Business Regulatory Enforcement Fairness 
Act of 1996, 5 U.S.C. 601 note, agencies must consider the impact of 
their rulemakings on ``small entities'' (small businesses, small 
organizations and local governments). The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000. 
DHS has reviewed this regulation and by approving it certifies that 
this regulation will not have a significant economic impact on a 
substantial number of small entities. Based on the previous discussion 
in this preamble, DHS does not believe this rule imposes any additional 
direct costs on small entities.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small

[[Page 45105]]

Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 
U.S.C. 804. This rule will not result in an annual effect on the 
economy of $100,000,000 or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects

6 CFR Part 5

    Classified information, Courts, Freedom of information, Government 
employees, Privacy.

19 CFR Part 103

    Administrative practice and procedure, Confidential business 
information, Courts, Freedom of information, Law enforcement, Privacy, 
Reporting and recordkeeping requirements.

44 CFR Part 5

    Courts, Freedom of information, Government employees.

    For the reasons stated in the preamble, the Department of Homeland 
Security proposes to amend 6 CFR chapter I, part 5, 19 CFR chapter I, 
part 103, and 44 CFR chapter I, part 5, as follows:

Title 6--Domestic Security

PART 5--DISCLOSURE OR PRODUCTION OF MATERIAL OR INFORMATION

0
1. The authority citation for part 5 is revised to read as follows:

    Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 301; 6 U.S.C. 
101 et seq.; E.O. 13392.

0
2. In Chapter I, revise subpart A of part 5 to read as follows:

Subpart A--Procedures for Disclosure of Records Under the Freedom 
of Information Act

Sec.
5.1 General provisions.
5.2 Proactive disclosures of DHS records.
5.3 Requirements for making requests.
5.4 Responsibility for responding to requests.
5.5 Timing of responses to requests.
5.6 Responses to requests.
5.7 Confidential commercial information.
5.8 Administrative appeals.
5.9 Preservation of records.
5.10 FOIA requests for information contained in a Privacy Act system 
of records.
5.11 Fees.
5.12 Confidential commercial information; CBP procedures.
5.13 Other rights and services.
Appendix I to Subpart A--FOIA Contact Information

Subpart A--Procedures for Disclosure of Records Under the Freedom 
of Information Act


Sec.  5.1  General provisions.

    (a)(1) This subpart contains the rules that the Department of 
Homeland Security follows in processing requests for records under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended. The Freedom 
of Information Act applies to third-party requests for documents 
concerning the general activities of the government and of DHS in 
particular. When an individual requests access to his or her own 
records, it is considered a Privacy Act request. Such records are 
maintained by DHS under the individual's name or personal identifier. 
Although requests are considered either FOIA requests or Privacy Act 
requests, agencies process requests in accordance with both laws, which 
provides the greatest degree of lawful access while safeguarding an 
individual's personal privacy.
    (2) These rules should be read in conjunction with the text of the 
FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines 
published by the Office of Management and Budget at 52 FR 10012 (March 
27, 1987) (hereinafter ``OMB Guidelines''). Additionally, DHS has 
additional policies and procedures relevant to the FOIA process. These 
resources are available at http://www.dhs.gov/freedom-information-act-foia. Requests made by individuals for records about themselves under 
the Privacy Act of 1974, 5 U.S.C. 552a, are processed under subpart B 
of part 5 as well as under this subpart. As a matter of policy, DHS 
makes discretionary disclosures of records or information exempt from 
disclosure under the FOIA whenever disclosure would not foreseeably 
harm an interest protected by a FOIA exemption, but this policy does 
not create any right enforceable in court.
    (b) As referenced in this subpart, component means the FOIA office 
of each separate organizational entity within DHS that reports directly 
to the Office of the Secretary.
    (c) DHS has a decentralized system for processing requests, with 
each component handling requests for its records.
    (d) Unofficial release of DHS information. The disclosure of exempt 
records, without authorization by the appropriate DHS official, is not 
an official release of information; accordingly, it is not a FOIA 
release. Such a release does not waive the authority of the Department 
of Homeland Security to assert FOIA exemptions to withhold the same 
records in response to a FOIA request. In addition, while the authority 
may exist to disclose records to individuals in their official 
capacity, the provisions of this part apply if the same individual 
seeks the records in a private or personal capacity.


Sec.  5.2  Proactive disclosure of DHS records.

    Records that are required by the FOIA to be made available for 
public inspection and copying are accessible on DHS's Web site, http://www.dhs.gov/freedom-information-act-foia-and-privacy-act. Each 
component is responsible for determining which of its records are 
required to be made publicly available, as well as identifying 
additional records of interest to the public that are appropriate for 
public disclosure, and for posting and indexing such records. Each 
component shall ensure that posted records and indices are updated on 
an ongoing basis. Each component has a FOIA Public Liaison who can 
assist individuals in locating records particular to a component. A 
list of DHS's FOIA Public Liaisons is available at http://www.dhs.gov/foia-contact-information and in appendix I to this subpart. If you have 
no access to the internet, please contact the Public Liaison for the 
component from which you are seeking records for assistance with 
publicly available records.


Sec.  5.3  Requirements for making requests.

    (a) General information. (1) DHS has a decentralized system for 
responding to FOIA requests, with each component designating a FOIA 
office to process records from that component. All components have the 
capability to receive requests electronically, either through email or 
a web portal. To make a request for DHS records, a requester should 
write directly to the FOIA office of the component that maintains the 
records being sought. A request will receive the quickest possible 
response if it is addressed to the FOIA office of the component that 
maintains the records sought. DHS's FOIA Reference Guide contains or 
refers the reader to descriptions of the functions of each component 
and provides other information that is helpful in determining where to 
make a request. Each component's FOIA office and any additional 
requirements for submitting a request to a given component are listed 
in Appendix I of this subpart. These references can all be used by 
requesters

[[Page 45106]]

to determine where to send their requests within DHS.
    (2) A requester may also send his or her request to the Privacy 
Office, U.S. Department of Homeland Security, 245 Murray Lane SW STOP-
0655, or via the internet at http://www.dhs.gov/dhs-foia-request-submission-form, or via fax to (202) 343-4011. The Privacy Office will 
forward the request to the component(s) that it determines to be most 
likely to maintain the records that are sought.
    (3) A requester who is making a request for records about him or 
herself must comply with the verification of identity provision set 
forth in subpart B of this part.
    (4) Where a request for records pertains to a third party, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual, in compliance with the 
verification of identity provision set forth in subpart B of this part, 
or a declaration made in compliance with the requirements set forth in 
28 U.S.C. 1746 by that individual, authorizing disclosure of the 
records to the requester, or by submitting proof that the individual is 
deceased (e.g., a copy of a death certificate or an obituary). As an 
exercise of its administrative discretion, each component can require a 
requester to supply additional information if necessary in order to 
verify that a particular individual has consented to disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable DHS personnel to locate 
them with a reasonable amount of effort. A reasonable description 
contains sufficient information to permit an organized, non-random 
search for the record based on the component's filing arrangements and 
existing retrieval systems. To the extent possible, requesters should 
include specific information that may assist a component in identifying 
the requested records, such as the date, title or name, author, 
recipient, subject matter of the record, case number, file designation, 
or reference number. Requesters should refer to Appendix I of this 
subpart for additional component-specific requirements. In general, 
requesters should include as much detail as possible about the specific 
records or the types of records that they are seeking. Before 
submitting their requests, requesters may contact the component's FOIA 
Officer or FOIA public liaison to discuss the records they are seeking 
and to receive assistance in describing the records. If after receiving 
a request, a component determines that it does not reasonably describe 
the records sought, the component should inform the requester what 
additional information is needed or why the request is otherwise 
insufficient. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with the component's 
designated FOIA Officer, its FOIA Public Liaison, or a representative 
of the DHS Privacy Office, each of whom is available to assist the 
requester in reasonably describing the records sought. If a request 
does not reasonably describe the records sought, the agency's response 
to the request may be delayed.
    (c) If a request does not adequately describe the records sought, 
DHS may seek additional information from the requester. If the 
requester does not respond to the request for additional information 
within thirty (30) days, the request may be administratively closed at 
DHS's discretion. This administrative closure does not prejudice the 
requester's ability to submit a new request for further consideration 
with additional information.


Sec.  5.4  Responsibility for responding to requests.

    (a) In general. Except in the instances described in paragraphs (c) 
and (d) of this section, the component that first receives a request 
for a record and maintains that record is the component responsible for 
responding to the request. In determining which records are responsive 
to a request, a component ordinarily will include only records in its 
possession as of the date that it begins its search. If any other date 
is used, the component shall inform the requester of that date. A 
record that is excluded from the requirements of the FOIA pursuant to 5 
U.S.C. 552(c), shall not be considered responsive to a request.
    (b) Authority to grant or deny requests. The head of a component, 
or designee, is authorized to grant or to deny any requests for records 
that are maintained by that component.
    (c) Re-routing of misdirected requests. Where a component's FOIA 
office determines that a request was misdirected within DHS, the 
receiving component's FOIA office shall route the request to the FOIA 
office of the proper component(s).
    (d) Consultations, coordination and referrals. When a component 
determines that it maintains responsive records that either originated 
with another component or agency, or which contains information 
provided by, or of substantial interest to, another component or 
agency, then it shall proceed in accordance with either paragraph 
(d)(1), (2), or (3) of this section, as appropriate:
    (1) The component may respond to the request, after consulting with 
the component or the agency that originated or has a substantial 
interest in the records involved.
    (2) The component may provide a combined or joint response to the 
request after coordinating with the other components or agencies that 
originated the record. This may include situations where the standard 
referral procedure is not appropriate where disclosure of the identity 
of the component or agency to which the referral would be made could 
harm an interest protected by an applicable exemption, such as the 
exemptions that protect personal privacy or national security 
interests. For example, if a non-law enforcement component responding 
to a request for records on a living third party locates records within 
its files originating with a law enforcement agency, and if the 
existence of that law enforcement interest in the third party was not 
publicly known, then to disclose that law enforcement interest could 
cause an unwarranted invasion of the personal privacy of the third 
party. Similarly, if a component locates material within its files 
originating with an Intelligence Community agency, and the involvement 
of that agency in the matter is classified and not publicly 
acknowledged, then to disclose or give attribution to the involvement 
of that Intelligence Community agency could cause national security 
harms. In such instances, in order to avoid harm to an interest 
protected by an applicable exemption, the component that received the 
request should coordinate with the originating component or agency to 
seek its views on the disclosability of the record. The release 
determination for the record that is the subject of the coordination 
should then be conveyed to the requester by the component that 
originally received the request.
    (3) The component may refer the responsibility for responding to 
the request or portion of the request to the component or agency best 
able to determine whether to disclose the relevant records, or to the 
agency that created or initially acquired the record as long as that 
agency is subject to the FOIA. Ordinarily, the component or agency that 
created or initially acquired the record will be presumed to be best 
able to make the disclosure determination. The referring component 
shall document the referral and maintain a copy of the records that it 
refers.
    (e) Classified information. On receipt of any request involving 
classified

[[Page 45107]]

information, the component shall determine whether information is 
currently and properly classified and take appropriate action to ensure 
compliance with 6 CFR part 7. Whenever a request involves a record 
containing information that has been classified or may be appropriate 
for classification by another component or agency under any applicable 
executive order concerning the classification of records, the receiving 
component shall refer the responsibility for responding to the request 
regarding that information to the component or agency that classified 
the information, or should consider the information for classification. 
Whenever a component's record contains information classified by 
another component or agency, the component shall coordinate with or 
refer the responsibility for responding to that portion of the request 
to the component or agency that classified the underlying information.
    (f) Notice of referral. Whenever a component refers any part of the 
responsibility for responding to a request to another component or 
agency, it will notify the requester of the referral and inform the 
requester of the name of each component or agency to which the records 
were referred, unless disclosure of the identity of the component or 
agency would harm an interest protected by an applicable exemption, in 
which case the component should coordinate with the other component or 
agency, rather than refer the records.
    (g) Timing of responses to consultations and referrals. All 
consultations and referrals received by DHS will be handled according 
to the date that the FOIA request initially was received by the first 
component or agency, not any later date.
    (h) Agreements regarding consultations and referrals. Components 
may establish agreements with other components or agencies to eliminate 
the need for consultations or referrals with respect to particular 
types of records.
    (i) Electronic records and searches--(1) Significant interference. 
The FOIA allows components to not conduct a search for responsive 
documents if the search would cause significant interference with the 
operation of the component's automated information system.
    (2) Business as usual approach. A ``business as usual'' approach 
exists when the component has the capability to process a FOIA request 
for electronic records without a significant expenditure of monetary or 
personnel resources. Components are not required to conduct a search 
that does not meet this business as usual criterion.
    (i) Creating computer programs or purchasing additional hardware to 
extract email that has been archived for emergency retrieval usually 
are not considered business as usual if extensive monetary or personnel 
resources are needed to complete the project.
    (ii) Creating a computer program that produces specific requested 
fields or records contained within a well-defined database structure 
usually is considered business as usual. The time to create this 
program is considered as programmer or operator search time for fee 
assessment purposes and the FOIA requester may be assessed fees in 
accordance with 6 CFR 5.11(c)(1)(iii). However, creating a computer 
program to merge files with disparate data formats and extract specific 
elements from the resultant file is not considered business as usual, 
but a special service, for which additional fees may be imposed as 
specified in 6 CFR 5.11. Components are not required to perform special 
services and creation of a computer program for a fee is up to the 
discretion of the component and is dependent on component resources and 
expertise.
    (3) Data links. Components are not required to expend DHS funds to 
establish data links that provide real time or near-real-time data to a 
FOIA requester.


Sec.  5.5  Timing of responses to requests.

    (a) In general. Components ordinarily will respond to requests 
according to their order of receipt. Appendix I to this subpart 
contains the list of components that are designated to accept requests. 
In instances involving misdirected requests that are re-routed pursuant 
to 6 CFR 5.4(c), the response time will commence on the date that the 
request is received by the proper component, but in any event not later 
than ten working days after the request is first received by any DHS 
component designated in appendix I of this subpart.
    (b) Multitrack processing. All components must designate a specific 
track for requests that are granted expedited processing, in accordance 
with the standards set forth in paragraph (e) of this section. A 
component may also designate additional processing tracks that 
distinguish between simple and more complex requests based on the 
estimated amount of work or time needed to process the request. Among 
the factors a component may consider are the number of pages involved 
in processing the request or the need for consultations or referrals. 
Components shall advise requesters of the track into which their 
request falls, and when appropriate, shall offer requesters an 
opportunity to narrow their request so that the request can be placed 
in a different processing track.
    (c) Unusual circumstances. Whenever the statutory time limits for 
processing a request cannot be met because of ``unusual 
circumstances,'' as defined in the FOIA, and the component extends the 
time limits on that basis, the component shall, before expiration of 
the twenty-day period to respond, notify the requester in writing of 
the unusual circumstances involved and of the date by which processing 
of the request can be expected to be completed. Where the extension 
exceeds ten working days, the component shall, as described by the 
FOIA, provide the requester with an opportunity to modify the request 
or agree to an alternative time period for processing. The component 
shall make available its designated FOIA Officer and its FOIA Public 
Liaison for this purpose.
    (d) Aggregating requests. For the purposes of satisfying unusual 
circumstances under the FOIA, components may aggregate requests in 
cases where it reasonably appears that multiple requests, submitted 
either by a requester or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances. Components will not aggregate multiple requests that 
involve unrelated matters.
    (e) Expedited processing. (1) Requests and appeals will be 
processed on an expedited basis whenever the component determines that 
they involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person who is primarily 
engaged in disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity which 
affect public confidence.
    (2) A request for expedited processing may be made at any time. 
Requests based on paragraphs (e)(1)(i), (ii), and (iii) of this section 
must be submitted to the component that maintains the records 
requested. When making a request for expedited processing of an 
administrative appeal, the request should be submitted to the DHS 
Office

[[Page 45108]]

of General Counsel or the component Appeals Officer. Address 
information is available at the DHS Web site, http://www.dhs.gov/freedom-information-act-foia, or by contacting the component FOIA 
officers via the information listed in Appendix I. Requests for 
expedited processing that are based on paragraph (e)(1)(iv) of this 
section must be submitted to the Senior Director of FOIA Operations, 
the Privacy Office, U.S. Department of Homeland Security, 245 Murray 
Lane SW., STOP-0655, Washington, DC 20598-0655. A component that 
receives a misdirected request for expedited processing under the 
standard set forth in paragraph (e)(1)(iv) of this section shall 
forward it immediately to the DHS Senior Director of FOIA Operations, 
the Privacy Office, for determination. The time period for making the 
determination on the request for expedited processing under paragraph 
(e)(1)(iv) of this section shall commence on the date that the Privacy 
Office receives the request, provided that it is routed within ten 
working days, but in no event shall the time period for making a 
determination on the request commence any later than the eleventh 
working day after the request is received by any component designated 
in appendix I of this subpart.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (e)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that he or she is a 
person whose primary professional activity or occupation is information 
dissemination, though it need not be his or her sole occupation. Such a 
requester also must establish a particular urgency to inform the public 
about the government activity involved in the request--one that extends 
beyond the public's right to know about government activity generally. 
The existence of numerous articles published on a given subject can be 
helpful to establishing the requirement that there be an ``urgency to 
inform'' the public on the topic. As a matter of administrative 
discretion, a component may waive the formal certification requirement.
    (4) A component shall notify the requester within ten calendar days 
of the receipt of a request for expedited processing of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, the request shall be given priority, placed in the 
processing track for expedited requests, and shall be processed as soon 
as practicable. If a request for expedited processing is denied, any 
appeal of that decision shall be acted on expeditiously.


Sec.  5.6  Responses to requests.

    (a) In general. Components should, to the extent practicable, 
communicate with requesters having access to the internet using 
electronic means, such as email or web portal.
    (b) Acknowledgments of requests. A component shall acknowledge the 
request and assign it an individualized tracking number if it will take 
longer than ten working days to process. Components shall include in 
the acknowledgment a brief description of the records sought to allow 
requesters to more easily keep track of their requests.
    (c) Grants of requests. Ordinarily, a component shall have twenty 
(20) working days from when a request is received to determine whether 
to grant or deny the request unless there are unusual or exceptional 
circumstances. Once a component makes a determination to grant a 
request in full or in part, it shall notify the requester in writing. 
The component also shall inform the requester of any fees charged under 
6 CFR 5.11 and shall disclose the requested records to the requester 
promptly upon payment of any applicable fees.
    (d) Adverse determinations of requests. A component making an 
adverse determination denying a request in any respect shall notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, include decisions that the requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject 
to the 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 sought by the requester. Adverse determinations 
also include denials involving fees, including requester categories or 
fee waiver matters, or denials of requests for expedited processing.
    (e) Content of denial. The denial shall be signed by the head of 
the component, or designee, and shall include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the component in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, for example, by providing the number of pages or some other 
reasonable form of estimation. This estimation is not required if the 
volume is otherwise indicated by deletions marked on records that are 
disclosed in part, or if providing an estimate would harm an interest 
protected by an applicable exemption; and
    (4) A statement that the denial may be appealed under 6 CFR 5.8(a), 
and a description of the requirements set forth therein.
    (f) Markings on released documents. Markings on released documents 
must be clearly visible to the requester. Records disclosed in part 
shall be marked to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted also shall be indicated on the record, if 
technically feasible.
    (g) Use of record exclusions. (1) In the event that a component 
identifies records that may be subject to exclusion from the 
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the head of the 
FOIA office of that component must confer with Department of Justice's 
Office of Information Policy (OIP) to obtain approval to apply the 
exclusion.
    (2) Any component invoking an exclusion shall maintain an 
administrative record of the process of invocation and approval of the 
exclusion by OIP.


Sec.  5.7  Confidential commercial information.

    (a) Definitions.
    (1) Confidential commercial information means commercial or 
financial information obtained by DHS from a submitter that may be 
protected from disclosure under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from whom DHS obtains 
confidential commercial information, directly or indirectly.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, either at the time of submission or 
within a reasonable time thereafter, any portion of its submission that 
it considers to be protected from disclosure under Exemption 4. These 
designations will expire ten years after the date of the submission 
unless the submitter requests and provides justification for a longer 
designation period.
    (c) When notice to submitters is required. (1) A component shall 
promptly provide written notice to a submitter whenever records 
containing such information are requested under the FOIA if, after 
reviewing the request,

[[Page 45109]]

the responsive records, and any appeal by the requester, the component 
determines that it may be required to disclose the records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) The component has a reason to believe that the requested 
information may be protected from disclosure under Exemption 4.
    (2) The notice shall either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, notice may be made by posting or publishing the 
notice in a place or manner reasonably likely to accomplish it.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of paragraphs (c) and (g) of this section shall not apply 
if:
    (1) The component determines that the information is exempt under 
the FOIA;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous, except that, in such a case, 
the component shall give the submitter written notice of any final 
decision to disclose the information and must provide that notice 
within a reasonable number of days prior to a specified disclosure 
date.
    (e) Opportunity to object to disclosure. (1) A component will 
specify a reasonable time period within which the submitter must 
respond to the notice referenced above. If a submitter has any 
objections to disclosure, it should provide the component a detailed 
written statement that specifies all grounds for withholding the 
particular information under any exemption of the FOIA. In order to 
rely on Exemption 4 as basis for nondisclosure, the submitter must 
explain why the information constitutes a trade secret, or commercial 
or financial information that is privileged or confidential.
    (2) A submitter who fails to respond within the time period 
specified in the notice shall be considered to have no objection to 
disclosure of the information. Information received by the component 
after the date of any disclosure decision will not be considered by the 
component. Any information provided by a submitter under this subpart 
may itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. A component shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose the requested information.
    (g) Notice of intent to disclose. Whenever a component decides to 
disclose information over the objection of a submitter, the component 
shall provide the submitter written notice, which shall include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, the component shall promptly notify the submitter.
    (i) Requester notification. The component shall notify a requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure; whenever it notifies the submitter of its intent 
to disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.
    (j) Scope. This section shall not apply to any confidential 
commercial information provided to CBP by a business submitter. 6 CFR 
5.12 applies to such information. 6 CFR 5.12 also defines 
``confidential commercial information'' as used in this paragraph.


Sec.  5.8  Administrative appeals

    (a) Requirements for filing an appeal.
    (1) A requester may appeal adverse determinations denying his or 
her request or any part of the request to the appropriate Appeals 
Officer. A requester may also appeal if he or she questions the 
adequacy of the component's search for responsive records, or believes 
the component either misinterpreted the request or did not address all 
aspects of the request (i.e., it issued an incomplete response), or if 
the requester believes there is a procedural deficiency (e.g., fees 
were improperly calculated). For the address of the appropriate 
component Appeals Officer, contact the applicable component FOIA 
liaison using the information in appendix I to this subpart, visit 
www.dhs.gov/foia, or call 1-866-431-0486. An appeal must be in writing, 
and to be considered timely it must be postmarked or, in the case of 
electronic submissions, transmitted to the Appeals Officer within 60 
business days after the date of the component's response. The appeal 
should clearly identify the component determination (including the 
assigned request number if the requester knows it) that is being 
appealed and should contain the reasons the requester believes the 
determination was erroneous. To facilitate handling, the requester 
should mark both the letter and the envelope, or the transmittal line 
in the case of electronic transmissions ``Freedom of Information Act 
Appeal.''
    (2) An adverse determination by the component appeals officer will 
be the final action of DHS.
    (b) Adjudication of appeals. (1) The DHS Office of the General 
Counsel or its designee (e.g., component Appeals Officers) is the 
authorized appeals authority for DHS;
    (2) On receipt of any appeal involving classified information, the 
Appeals Officer shall consult with the Chief Security Officer, and take 
appropriate action to ensure compliance with 6 CFR part 7;
    (3) If the appeal becomes the subject of a lawsuit, the Appeals 
Officer is not required to act further on the appeal.
    (c) Appeal decisions. The decision on the appeal will be made in 
writing. A decision that upholds a component's determination will 
contain a statement that identifies the reasons for the affirmance, 
including any FOIA exemptions applied. The decision will provide the 
requester with notification of the statutory right to file a lawsuit 
and will inform the requester of the mediation services offered by the 
Office of Government Information Services, of the National Archives and 
Records Administration, as a non-exclusive alternative to litigation. 
If the adverse decision is reversed or modified on appeal, in whole or 
in part, the requester will be notified in a written decision and the 
request will be thereafter be further processed in accordance with that 
appeal decision.
    (d) Time limit for issuing appeal decision. The statutory time 
limit for responding to appeals is generally 20 workdays after receipt. 
However, the Appeals Officer may extend the time limit for responding 
to an appeal provided the circumstances set forth in 5 U.S.C. 
552(a)(6)(B)(i) are met.
    (e) Appeal necessary before seeking court review. If a requester 
wishes to seek court review of a component's adverse determination on a 
matter appealable under subsection (a)(1) of this section, the 
requester must

[[Page 45110]]

generally first appeal it under this subpart. However, a requester is 
not required to first file an appeal of an adverse determination of a 
request for expedited processing prior to seeking court review.


Sec.  5.9  Preservation of records.

    Each component shall preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized 
pursuant to title 44 of the United States Code or the General Records 
Schedule 4.2 and/or 14 of the National Archives and Records 
Administration. Records will not be disposed of or destroyed while they 
are the subject of a pending request, appeal, or lawsuit under the 
FOIA.


Sec.  5.10  FOIA requests for information contained in a Privacy Act 
system of records.

    (a) Information subject to Privacy Act. (1) If a requester submits 
a FOIA request for information about him or herself that is contained 
in a Privacy Act system of records applicable to the requester (i.e., 
the information contained in the system of records is retrieved by the 
component using the requester's name or other personal identifier, and 
the information pertains to an individual covered by the Privacy Act) 
the request will be processed under both the FOIA and the Privacy Act.
    (2) If the information the requester is seeking is not subject to 
the Privacy Act (e.g., the information is filed under another subject, 
such as an organization, activity, event, or an investigation not 
retrievable by the requester's name or personal identifier), the 
request, if otherwise properly made, will be treated only as a FOIA 
request. In addition, if the information is covered by the Privacy Act 
and the requester does not provide proper verification of the 
requester's identity, the request, if otherwise properly made, will be 
processed only under the FOIA.
    (b) When both Privacy Act and FOIA exemptions apply. Only if both a 
Privacy Act exemption and a FOIA exemption apply can DHS withhold 
information from a requester if the information sought by the requester 
is about him or herself and is contained in a Privacy Act system of 
records applicable to the requester.
    (c) Conditions for release of Privacy Act information to third 
parties in response to a FOIA request. If a requester submits a FOIA 
request for Privacy Act information about another individual, the 
information will not be disclosed without that person's prior written 
consent that provides the same verification information that the person 
would have been required to submit for information about him or 
herself, unless--
    (1) The information is required to be released under the FOIA, as 
provided by 5 U.S.C. 552a (b)(2); or
    (2) In most circumstances, if the individual is deceased.
    (d) Privacy Act requirements. See DHS's Privacy Act regulations in 
5 CFR part 5, subpart B for additional information regarding the 
requirements of the Privacy Act.


Sec.  5.11  Fees.

    (a) In general. Components shall charge for processing requests 
under the FOIA in accordance with the provisions of this section and 
with the OMB Guidelines. Components will ordinarily use the most 
efficient and least expensive method for processing requested records. 
In order to resolve any fee issues that arise under this section, a 
component may contact a requester for additional information. A 
component ordinarily will collect all applicable fees before sending 
copies of records to a requester. If you make a FOIA request, it shall 
be considered a firm commitment by you to pay all applicable fees 
charged under Sec.  5.11, up to $25.00, unless you seek a waiver of 
fees. Requesters must pay fees by check or money order made payable to 
the Treasury of the United States.
    (b) Definitions. Generally, ``requester category'' means one of the 
three categories in which agencies place requesters for the purpose of 
determining whether a requester will be charged fees for search, review 
and duplication; categories include commercial requesters, 
noncommercial scientific or educational institutions or news media 
requesters, and all other requesters. The term ``fee waiver'' means 
that processing fees will be waived, or reduced, if a requester can 
demonstrate that certain statutory standards are satisfied including 
that the information is in the public interest and is not requested for 
a commercial interest. For purposes of this section:
    (1) Commercial use request is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. A component's decision to place a requester in the 
commercial use category will be made on a case-by-case basis based on 
the requester's intended use of the information.
    (2) Direct costs are those expenses that an agency expends in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order to respond to a FOIA request. For 
example, direct costs include the salary of the employee performing the 
work (i.e., the basic rate of pay for the employee, plus 16 percent of 
that rate to cover benefits) and the cost of operating computers and 
other electronic equipment, such as photocopiers and scanners. Direct 
costs do not include overhead expenses such as the costs of space, and 
of heating or lighting a facility.
    (3) Duplication is reproducing a copy of a record or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is authorized by, and is made under the auspices of, an 
educational institution and that the records are not sought for a 
commercial use, but rather are sought to further scholarly research. To 
fall within this fee category the request must serve the scholarly 
research goal of the institution rather than an individual research 
goal.
    Example 1. A request from a professor of geology at a university 
for records relating to soil erosion, written on letterhead of the 
Department of Geology, would be presumed to be from an educational 
institution if the request adequately describes how the requested 
information would further a specific research goal of the educational 
institution.
    Example 2. A request from the same professor of geology seeking 
immigration information from the U.S. Immigration and Customs 
Enforcement in furtherance of a murder mystery he is writing would not 
be presumed to be an institutional request, regardless of whether it 
was written on institutional stationery.
    Example 3. A student who makes a request in furtherance of the 
completion of a course of instruction would be presumed to be carrying 
out an individual research goal, rather than a scholarly research goal 
of the institution, and would not qualify as part of this fee category.

    Note:  These examples are provided for guidance purposes only. 
Each individual request will be evaluated under the particular 
facts, circumstances, and information provided by the requester.

    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as

[[Page 45111]]

defined in paragraph (b)(1) of this section, and that is operated 
solely for the purpose of conducting scientific research the results of 
which are not intended to promote any particular product or industry. A 
requester in this category 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 scientific research and not for a 
commercial use.
    (6) Representative of the news media is any person or entity 
organized and operated to publish or broadcast news to the public that 
actively gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the 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 that disseminate ``news'' 
and make their products available through a variety of means to the 
general public, including but not limited to, news organizations that 
disseminate solely on the Internet. A request for records that supports 
the news-dissemination function of the requester shall not be 
considered to be for a commercial use. In contrast, data brokers or 
others who merely compile and market government information for direct 
economic return shall not be presumed to be news media entities. 
``Freelance'' journalists must demonstrate a solid basis for expecting 
publication through a news media entity in order to be considered as 
working for a news media entity. A publication contract would provide 
the clearest evidence that publication is expected; however, components 
shall also consider a requester's past publication record in making 
this determination.
    (7) Review is the page-by-page, line-by-line examination of a 
record located in response to a request in order to determine whether 
any portion of it is exempt from disclosure. Review time includes 
processing any record for disclosure, such as doing all that is 
necessary to prepare the record for disclosure, including the process 
of redacting the record and marking the appropriate exemptions. Review 
costs are properly charged even if a record ultimately is not 
disclosed. Review time also includes time spent both obtaining and 
considering any formal objection to disclosure made by a confidential 
commercial information submitter under 6 CFR 5.7 or 6 CFR 5.12, but it 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records; and the 
reasonable efforts expended to locate and retrieve information from 
electronic records. Components shall ensure that searches are done in 
the most efficient and least expensive manner reasonably possible by 
readily available means.
    (c) Charging fees. In responding to FOIA requests, components shall 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section. Because the fee amounts 
provided below already account for the direct costs associated with a 
given fee type, unless otherwise stated in Sec.  5.11, components 
should not add any additional costs to those charges.
    (1) Search. (i) Search fees shall be charged for all requests 
subject to the restrictions of paragraph (d) of this section. 
Components may properly charge for time spent searching even if they do 
not locate any responsive records or if they determine that the records 
are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees will be as follows: Managerial--$10.25; 
professional--$7.00; and clerical/administrative--$4.00.
    (iii) Requesters will be charged the direct costs associated with 
conducting any search that requires the creation of a new computer 
program, as referenced in section 5.4, to locate the requested records. 
Requesters shall be notified of the costs associated with creating such 
a program and must agree to pay the associated costs before the costs 
may be incurred.
    (iv) For requests that require the retrieval of records stored by 
an agency at a federal records center operated by the National Archives 
and Records Administration (NARA), additional costs shall be charged in 
accordance with the Transactional Billing Rate Schedule established by 
NARA.
    (2) Duplication. Duplication fees will be charged to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. A component shall honor a requester's preference for receiving 
a record in a particular form or format where it is readily 
reproducible by the component in the form or format requested. Where 
photocopies are supplied, the component will provide one copy per 
request at a cost of ten cents per page. For copies of records produced 
on tapes, disks, or other media, components will charge the direct 
costs of producing the copy, including operator time. Where paper 
documents must be scanned in order to comply with a requester's 
preference to receive the records in an electronic format, the 
requester shall pay the direct costs associated with scanning those 
materials. For other forms of duplication, components will charge the 
direct costs.
    (3) Review. Review fees will be charged to requesters who make 
commercial use requests. Review fees will be assessed in connection 
with the initial review of the record, i.e., the review conducted by a 
component to determine whether an exemption applies to a particular 
record or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, when the appellate authority determines that a 
particular exemption no longer applies, any costs associated with a 
component's re-review of the records in order to consider the use of 
other exemptions may be assessed as review fees. Review fees will be 
charged at the same rates as those charged for a search under paragraph 
(c)(1)(ii) of this section.
    (d) Restrictions on charging fees. (1) No search fees will be 
charged for requests by educational institutions (unless the records 
are sought for a commercial use), noncommercial scientific 
institutions, or representatives of the news media.
    (2) If a component fails to comply with the time limits in which to 
respond to a request, and if no unusual or exceptional circumstances, 
as those terms are defined by the FOIA, apply to the processing of the 
request, it may not charge search fees, or, in the instances of 
requests from requesters described in paragraph (d)(1) of this section, 
may not charge duplication fees.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, 
components will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) When, after first deducting the 100 free pages (or its cost 
equivalent) and the first two hours of search, a total fee calculated 
under paragraph (c) of this

[[Page 45112]]

section is $14.00 or less for any request, no fee will be charged.
    (e) Notice of anticipated fees in excess of $25.00. (1) When a 
component determines or estimates that the fees to be assessed in 
accordance with this section will exceed $25.00, the component shall 
notify the requester of the actual or estimated amount of the fees, 
including a breakdown of the fees for search, review and/or 
duplication, unless the requester has indicated a willingness to pay 
fees as high as those anticipated. If only a portion of the fee can be 
estimated readily, the component shall advise the requester 
accordingly. If the requester is a noncommercial use requester, the 
notice will specify that the requester is entitled to his or her 
statutory entitlements of 100 pages of duplication at no charge and, if 
the requester is charged search fees, two hours of search time at no 
charge, and will advise the requester whether those entitlements have 
been provided.
    (2) In cases in which a requester has been notified that the actual 
or estimated fees are in excess of $25.00, the request shall not be 
considered perfected and further work will not be completed until the 
requester commits in writing to pay the actual or estimated total fee, 
or designates some amount of fees he or she is willing to pay, or in 
the case of a noncommercial use requester who has not yet been provided 
with his or her statutory entitlements, designates that he or she seeks 
only that which can be provided by the statutory entitlements. The 
requester must provide the commitment or designation in writing, and 
must, when applicable, designate an exact dollar amount the requester 
is willing to pay. Components are not required to accept payments in 
installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the component estimates that the total 
fee will exceed that amount, the component will toll the processing of 
the request while it notifies the requester of the estimated fees in 
excess of the amount the requester has indicated a willingness to pay. 
The component shall inquire whether the requester wishes to revise the 
amount of fees he or she is willing to pay and/or modify the request. 
Once the requester responds, the time to respond will resume from where 
it was at the date of the notification.
    (4) Components will make available their FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if a component chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
will be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (g) Charging interest. Components may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the component. Components will follow the provisions of the 
Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as 
amended, and its administrative procedures, including the use of 
consumer reporting agencies, collection agencies, and offset.
    (h) Aggregating requests. When a component reasonably believes that 
a requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, the component may aggregate those requests and charge 
accordingly. Components may presume that multiple requests of this type 
made within a 30-day period have been made in order to avoid fees. For 
requests separated by a longer period, components will aggregate them 
only where there is a reasonable basis for determining that aggregation 
is warranted in view of all the circumstances involved. Multiple 
requests involving unrelated matters will not be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i)(2) and (3) of this section, a component shall not 
require the requester to make an advance payment before work is 
commenced or continued on a request. Payment owed for work already 
completed (i.e., payment before copies are sent to a requester) is not 
an advance payment.
    (2) When a component determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. A component 
may elect to process the request prior to collecting fees when it 
receives a satisfactory assurance of full payment from a requester with 
a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any component or agency within 30 calendar days of 
the billing date, a component may require that the requester pay the 
full amount due, plus any applicable interest on that prior request and 
the component may require that the requester make an advance payment of 
the full amount of any anticipated fee, before the component begins to 
process a new request or continues to process a pending request or any 
pending appeal. Where a component has a reasonable basis to believe 
that a requester has misrepresented his or her identity in order to 
avoid paying outstanding fees, it may require that the requester 
provide proof of identity.
    (4) In cases in which a component requires advance payment, the 
request shall not be considered received and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 30 calendar days after the date of 
the component's fee determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In instances where records responsive 
to a request are subject to a statutorily-based fee schedule program, 
the component will inform the requester of the contact information for 
that source.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request shall be furnished without charge or at a 
reduced rate below that established under paragraph (c) of this 
section, where a component determines, on a case-by-case basis, based 
on all available information, that the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government; and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) In deciding whether disclosure of the requested information is 
in the public interest because it is likely to contribute significantly 
to public understanding of operations or activities of the government, 
components will consider the following factors:
    (i) The subject of the request must concern identifiable operations 
or activities of the federal government, with a connection that is 
direct and clear, not remote or attenuated.
    (ii) Disclosure of the requested records must be meaningfully

[[Page 45113]]

informative about government operations or activities in order to be 
``likely to contribute'' to an increased public understanding of those 
operations or activities. The disclosure of information that already is 
in the public domain, in either the same or a substantially identical 
form, would not contribute to such understanding where nothing new 
would be added to the public's understanding.
    (iii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as his or her ability and 
intention to effectively convey information to the public shall be 
considered. It shall be presumed that a representative of the news 
media will satisfy this consideration.
    (iv) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant extent. However, components 
shall not make value judgments about whether the information at issue 
is ``important'' enough to be made public.
    (3) To determine whether disclosure of the requested information is 
primarily in the commercial interest of the requester, components will 
consider the following factors:
    (i) Components shall identify any commercial interest of the 
requester, as defined in paragraph (b)(1) of this section, that would 
be furthered by the requested disclosure. Requesters shall be given an 
opportunity to provide explanatory information regarding this 
consideration.
    (ii) A waiver or reduction of fees is justified where the public 
interest is greater than any identified commercial interest in 
disclosure. Components ordinarily shall presume that where a news media 
requester has satisfied the public interest standard, the public 
interest will be the interest primarily served by disclosure to that 
requester. Disclosure to data brokers or others who merely compile and 
market government information for direct economic return shall not be 
presumed to primarily serve the public interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (5) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the component and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal. When a requester who has committed to pay 
fees subsequently asks for a waiver of those fees and that waiver is 
denied, the requester will be required to pay any costs incurred up to 
the date the fee waiver request was received.
    (6) Summary of fees. The following table summarizes the chargeable 
fees (excluding direct fees identified in Sec.  5.11) for each 
requester category.

----------------------------------------------------------------------------------------------------------------
             Category                   Search fees           Review fees               Duplication fees
----------------------------------------------------------------------------------------------------------------
Commercial-use...................  Yes.................  Yes.................  Yes.
Educational or Non-Commercial      No..................  No..................  Yes (100 pages free).
 Scientific Institution.
News Media.......................  No..................  No..................  Yes (100 pages free).
Other requesters.................  Yes (2 hours free)..  No..................  Yes (100 pages free).
----------------------------------------------------------------------------------------------------------------

Sec.  5.12  Confidential commercial information; CBP procedures.

    (a) In general. For purposes of this section, ``commercial 
information'' is defined as trade secret, commercial, or financial 
information obtained from a person. Commercial information provided to 
CBP by a business submitter and that CBP determines is privileged or 
confidential commercial or financial information will be treated as 
privileged or confidential and will not be disclosed pursuant to a 
Freedom of Information Act request or otherwise made known in any 
manner except as provided in this section.
    (b) Notice to business submitters of FOIA requests for disclosure. 
Except as provided in paragraph (b)(2) of this section, CBP will 
provide business submitters with prompt written notice of receipt of 
FOIA requests or appeals that encompass their commercial information. 
The written notice will describe either the exact nature of the 
commercial information requested, or enclose copies of the records or 
those portions of the records that contain the commercial information. 
The written notice also will advise the business submitter of its right 
to file a disclosure objection statement as provided under paragraph 
(c)(1) of this section. CBP will provide notice to business submitters 
of FOIA requests for the business submitter's commercial information 
for a period of not more than 10 years after the date the business 
submitter provides CBP with the information, unless the business 
submitter requests, and provides acceptable justification for, a 
specific notice period of greater duration.
    (1) When notice is required. CBP will provide business submitters 
with notice of receipt of a FOIA request or appeal whenever:
    (i) The business submitter has in good faith designated the 
information as commercially- or financially-sensitive information. The 
business submitter's claim of confidentiality should be supported by a 
statement by an authorized representative of the business entity 
providing specific justification that the information in question is 
considered confidential commercial or financial information and that 
the information has not been disclosed to the public; or
    (ii) CBP has reason to believe that disclosure of the commercial 
information could reasonably be expected to cause substantial 
competitive harm.
    (2) When notice is not required. The notice requirements of this 
section will not apply if:
    (i) CBP determines that the commercial information will not be 
disclosed;
    (ii) The commercial information has been lawfully published or 
otherwise made available to the public; or
    (iii) Disclosure of the information is required by law (other than 
5 U.S.C. 552).
    (c) Procedure when notice given. (1) Opportunity for business 
submitter to object to disclosure. A business submitter receiving 
written notice from CBP of receipt of a FOIA request or appeal 
encompassing its commercial information may object to any disclosure of 
the commercial information by providing CBP with a detailed statement 
of reasons within 10 days of the date of the notice (exclusive of 
Saturdays, Sundays, and legal public holidays). The statement should 
specify all the grounds for withholding any of the commercial 
information under any exemption of the FOIA and, in the case of 
Exemption 4, should demonstrate why the information is considered to be 
a trade secret or commercial or financial information that is 
privileged or confidential. The disclosure objection

[[Page 45114]]

information provided by a person pursuant to this paragraph may be 
subject to disclosure under the FOIA.
    (2) Notice to FOIA requester. When notice is given to a business 
submitter under paragraph (b)(1) of this section, notice will also be 
given to the FOIA requester that the business submitter has been given 
an opportunity to object to any disclosure of the requested commercial 
information.
    (d) Notice of intent to disclose. CBP will consider carefully a 
business submitter's objections and specific grounds for nondisclosure 
prior to determining whether to disclose commercial information. 
Whenever CBP decides to disclose the requested commercial information 
over the objection of the business submitter, CBP will provide written 
notice to the business submitter of CBP's intent to disclose, which 
will include:
    (1) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained;
    (2) A description of the commercial information to be disclosed; 
and
    (3) A specified disclosure date which will not be less than 10 days 
(exclusive of Saturdays, Sundays, and legal public holidays) after the 
notice of intent to disclose the requested information has been issued 
to the business submitter. Except as otherwise prohibited by law, CBP 
will also provide a copy of the notice of intent to disclose to the 
FOIA requester at the same time.
    (e) Notice of FOIA lawsuit. Whenever a FOIA requester brings suit 
seeking to compel the disclosure of commercial information covered by 
paragraph (b)(1) of this section, CBP will promptly notify the business 
submitter in writing.


Sec.  5.13  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, 
as of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.

Appendix I to Subpart A--FOIA Contact Information

Department of Homeland Security Chief FOIA Officer

    Chief Privacy Officer/Chief FOIA Officer, The Privacy Office, 
U.S. Department of Homeland Security, 245 Murray Lane SW., STOP-
0655, Washington, DC 20528-0655.

Department of Homeland Security Deputy Chief FOIA Officer

    Deputy Chief FOIA Officer, The Privacy Office, U.S. Department 
of Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 
20528-0655.

Senior Director, FOIA Operations

    Sr. Director, FOIA Operations, The Privacy Office, U.S. 
Department of Homeland Security, 245 Murray Lane SW., STOP-0655, 
Washington, DC 20528-0655, Phone: 202-343-1743 or 866-431-0486, Fax: 
202-343-4011, Email: foia@hq.dhs.gov.

Director, FOIA Production and Quality Assurance

    Public Liaison, FOIA Production and Quality Assurance, The 
Privacy Office, U.S. Department of Homeland Security, 245 Murray 
Lane SW., STOP-0655, Washington, DC 20528-0655, Phone: 202-343-1743 
or 866-431-0486, Fax: 202-343-4011, Email: foia@hq.dhs.gov.

U.S. Customs & Border Protection (CBP)

    FOIA Officer/Public Liaison, 90 K Street NE., 9th Floor, 
Washington, DC 20229-1181, Phone: 202-325-0150, Fax: 202-325-0230.

Office of Civil Rights and Civil Liberties (CRCL)

    FOIA Officer/Public Liaison, U.S. Department of Homeland 
Security, Washington, DC 20528, Phone: 202-357-1218, Email: 
CRCL@dhs.gov.

Federal Emergency Management Agency (FEMA)

    FOIA Officer/Public Liaison, 500 C Street SW., Room 7NE, 
Washington, DC 20472, Phone: 202-646-3323, Email: fema-foia@dhs.gov.

Federal Law Enforcement Training Center (FLETC)

    FOIA Officer/Public Liaison, Building #681, Suite 187B, Glynco, 
GA 31524, Phone: 912-267-3103, Fax: 912-267-3113, Email: fletc-foia@dhs.gov.

National Protection and Programs Directorate (NPPD)

    FOIA Officer/Public Liaison, U.S. Department of Homeland 
Security, Washington, DC 20528, Phone: 703-235-2211, Fax: 703-235-
2052, Email: NPPD.FOIA@dhs.gov.

Office of Biometric Identity Management (OBIM) FOIA Officer

    Department of Homeland Security, Washington, DC 20598-0628, 
Phone: 202-298-5454, Fax: 202-298-5445, E-Mail: OBIM-FOIA@ice.dhs.gov.

Office of Intelligence & Analysis (I&A)

    FOIA Officer/Public Liaison, U.S. Department of Homeland 
Security, Washington, DC 20528, Phone: 202-447-4883, Fax: 202-612-
1936, Email: I&AFOIA@hq.dhs.gov.

Office of Inspector General (OIG)

    FOIA Public Liaison, DHS-OIG Counsel, STOP 0305, 245 Murray Lane 
SW., Washington, DC 20528-0305, Phone: 202-254-4001, Fax: 202-254-
4398, Email: FOIA.OIG@oig.dhs.gov.

Office of Operations Coordination and Planning (OPS)

    FOIA Officer/Public Liaison, U.S. Department of Homeland 
Security, Washington, DC 20528, Phone: 202-447-4156, Fax: 202-282-
9811, Email: FOIAOPS@DHS.GOV.

Science & Technology Directorate (S&T)

    FOIA Officer/Public Liaison, U.S. Department of Homeland 
Security, Washington, DC 20528, Phone: 202-254-6342, Fax: 202-254-
6739, Email: stfoia@hq.dhs.gov.

Transportation Security Administration (TSA)

    FOIA Officer/Public Liaison, Freedom of Information Act Branch, 
601 S. 12th Street, 11th Floor, East Tower, TSA-20, Arlington, VA 
20598-6020, Phone: 1-866-FOIA-TSA or 571-227-2300, Fax: 571-227-
1406, Email: foia.tsa@dhs.gov.

U.S. Citizenship & Immigration Services (USCIS)

    FOIA Officer/Public Liaison, National Records Center, FOIA/PA 
Office, P.O. Box 648010, Lee's Summit, MO 64064-8010, Phone: 1-800-
375-5283 (USCIS National Customer Service Unit), Fax: 816-350-5785, 
Email: uscis.foia@uscis.dhs.gov.

United States Coast Guard (USCG)

    Commandant (CG-611), 2100 2nd St. SW., Attn: FOIA Officer/Public 
Liaison, Washington, DC 20593-0001, FOIA Requester Service Center 
Contact: Amanda Ackerson, Phone: 202-475-3522, Fax: 202-475-3927, 
Email: efoia@uscg.mil.

United States Immigration & Customs Enforcement (ICE)

    Freedom of Information Act Office, FOIA Officer/Public Liaison, 
500 12th Street SW., Stop 5009, Washington, DC 20536-5009.
    FOIA Requester Service Center Contact, Phone: 866-633-1182, Fax: 
202-732-4265, Email: ice-foia@dhs.gov.

United States Secret Service (USSS)

    Freedom of Information and Privacy Acts Branch, FOIA Officer/
Public Liaison, 245 Murray Drive, Building 410, Washington, DC 
20223, Phone: 202-406-6370, Fax: 202-406-5586, Email: 
FOIA@usss.dhs.gov.

    Please direct all requests for information from the Office of 
the Secretary, Citizenship and Immigration Services Ombudsman, 
Domestic Nuclear Detection Office, Office of the Executive 
Secretary, Office of Intergovernmental Affairs, Management 
Directorate, Office of Policy, Office of the General Counsel, Office 
of Health Affairs, Office of Legislative Affairs, Office of Public 
Affairs and the Privacy Office, to the DHS Privacy Office at: The 
Privacy Office, U.S. Department of Homeland Security, 245 Murray 
Lane SW., STOP-0655, Washington, DC 20528-0655, Phone: 202-343-1743 
or 866-431-0486, Fax: 202-343-4011, Email: foia@hq.dhs.gov.

Appendix B to Part 5--[Removed]

0
3. Remove appendix B to part 5.

[[Page 45115]]

Title 19--Customs Duties

PART 103--AVAILABILITY OF INFORMATION

0
4. The authority citation for part 103 is revised to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a; 19 U.S.C. 66, 1624; 31 
U.S.C. 9701.
    Section 103.31 also issued under 19 U.S.C. 1431; Section 103.31a 
also issued under 19 U.S.C. 2071 note and 6 U.S.C. 943; Section 
103.33 also issued under 19 U.S.C. 1628; Section 103.34 also issued 
under 18 U.S.C. 1905.


Sec.  103.35  [Removed]

0
5. Remove Sec.  103.35.

Title 44--Emergency Management and Assistance

PART 5--PRODUCTION OR DISCLOSURE OF INFORMATION

0
6. The authority citation for part 5 is revised to read as follows:

    Authority:  Pub. L. 107-296, 116 Stat. 2135; 5 U.S.C. 301.

Subparts A Through E--[Removed and Reserved]

0
7. Remove and reserve subparts A through E of part 5.

0
8. In Sec.  5.86, revise the section to read as follows:


Sec.  5.86  Records involved in litigation or other judicial process.

    Subpoenas duces tecum issued pursuant to litigation or any other 
adjudicatory proceeding in which the United States is a party shall be 
referred to the Chief Counsel.

Jeh Charles Johnson,
Secretary.
[FR Doc. 2015-18388 Filed 7-28-15; 8:45 am]
BILLING CODE 9110-9L-P