[Federal Register Volume 81, Number 225 (Tuesday, November 22, 2016)]
[Rules and Regulations]
[Pages 83625-83643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28095]



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  Federal Register / Vol. 81, No. 225 / Tuesday, November 22, 2016 / 
Rules and Regulations  

[[Page 83625]]



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, U.S. Customs and Border Protection, 
and Federal Emergency Management Agency, Department of Homeland 
Security.

ACTION: Final rule.

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SUMMARY: This rule amends the Department's regulations under the 
Freedom of Information Act (FOIA). The regulations have been revised 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. Additionally, the regulations 
have been updated to reflect developments in the case law.

DATES: This rule is effective December 22, 2016.

FOR FURTHER INFORMATION CONTACT: James V.M.L. Holzer, Deputy Chief FOIA 
Officer, DHS Privacy Office, (202) 343-1743.

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.
    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)).
    On July 29, 2015, the Department of Homeland Security published a 
proposed rule to amend existing regulations under the FOIA. See 80 FR 
45101.\1\ DHS accepted comments on the proposed rule through September 
28, 2015. Finally, on June 30, 2016, the President signed into law the 
FOIA Improvement Act of 2016, Public Law 114-185, into law. DHS is now 
issuing a final rule that responds to public comments on the proposed 
rule and incorporates a number of changes required by the FOIA 
Improvement Act of 2016.
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    \1\ Except as explicitly stated below, DHS incorporates by 
reference the section-by-section analysis contained in the preamble 
to the proposed rule.
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II. Discussion of Final Rule

A. Non-Discretionary Changes Required by the FOIA Improvement Act of 
2016

    In compliance with the FOIA Improvement Act of 2016, DHS has made 
the following changes to the proposed rule text: \2\
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    \2\ Although these changes represent departures from the 
proposed rule text, DHS for good cause finds that advance notice and 
an opportunity for public comment are not necessary in connection 
with these changes. See 5 U.S.C. 553(b)(B). Notice-and-comment is 
unnecessary because these changes simply reflect the current state 
of the law, consistent with the 2016 Act, and because these changes 
constitute a procedural rule exempt from notice-and-comment 
requirements under 5 U.S.C. 553(b)(A).
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    DHS has revised proposed CFR 5.8(a)(1), ``Requirements for filing 
an appeal,'' to change the current appeals period from 60 days to 90 
days as required by section 2(1)(C) of the Act. DHS has also provided 
further clarification regarding the timely receipt of electronic 
submissions.
    DHS has added 6 CFR 5.11(d)(3) to incorporate the portion of the 
Act that restricts an agency's ability to charge certain fees. 
Specifically, section 2(1)(B) of the Act provides that an agency may 
continue to charge fees as usual for an untimely response only if: A 
court has determined that exceptional circumstances exist, or (1) the 
requester has been timely advised of unusual circumstances, (2) more 
than 5000 pages are necessary to respond to the request, and (3) the 
component has contacted the requester (or made at least three good-
faith attempts) about ways to narrow or revise the scope of the 
request. DHS has incorporated this requirement into this final rule 
without change.
    DHS has removed a reference in proposed 6 CFR 5.1(a)(2) that 
referenced the agency's nonbinding policy to disclose exempt 
information when the agency reasonably foresees that disclosure would 
not harm an interest protected by an exemption. Because section 2(1)(D) 
of the Act codifies a substantially similar standard in law,

[[Page 83626]]

DHS is eliminating the proposed statement of policy to avoid confusion.
    DHS has revised proposed 6 CFR 5.2 to conform to section 2(1)(A)(i) 
of the Act, which strikes a reference to public records that must be 
made available ``for public inspection and copying,'' and inserts in 
its place a reference to public records that must be made available 
``for public inspection in an electronic format'' (emphasis added).
    Finally, DHS has also revised proposed 6 CFR 5.5(c), 5.6(c), and 
5.6(e) to conform to requirements in section 2(1)(C) of the Act, which 
require the agency to notify requesters of the availability of the 
Office of Government Information Services (OGIS) and the agency's FOIA 
Public Liaison to provide dispute resolution services.

B. Response to Comments and Other Changes From the Proposed Rule

    In total, DHS received fifteen public submissions to its proposed 
rule, including one submission from another agency. DHS has given due 
consideration to each of the comments received and has made several 
modifications to the rule, as discussed in greater detail below. Below, 
DHS summarizes and responds to the significant comments received.\3\ 
DHS has grouped the comments by section.
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    \3\ DHS also received a broad range of supportive comments with 
respect to a number of the rule's provisions. In the interest of 
brevity, DHS has not summarized all of the supportive comments 
below.
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1. Comments on Proposed 6 CFR 5.1 (General Provisions) and 5.2 
(Proactive Disclosures of DHS Records)
    DHS proposed to revise 6 CFR 5.1 and 5.2 to, among other things, 
eliminate redundant text and incorporate reference to additional DHS 
policies and procedures relevant to the FOIA process. Two commenters 
suggested that the Department retain text in original 6 CFR 5.1(a)(1), 
which provides that information routinely provided to the public as 
part of a regular Department activity (for example, press releases) may 
be provided to the public without following the DHS FOIA regulations. 
The commenters stated that they opposed DHS's proposed removal of that 
language because not all DHS FOIA officers and FOIA personnel 
understand that such information is to be provided routinely. The 
commenters also stated that retaining the language would promote 
greater consistency in FOIA review. The Department has considered this 
suggestion and has determined that the revised language at 6 CFR 5.2 on 
proactive disclosure of department records adequately replaces the 
language in original 6 CFR 5.1(a)(1). The revised language provides for 
posting of records required to be made available to the public, as well 
as additional records of interest to the public that are appropriate 
for public disclosure (such as press releases). The Department has made 
considerable efforts across the components to ensure that records 
appropriate for public disclosure are proactively posted in agency 
reading rooms.
    One commenter suggested that proposed 6 CFR 5.1(a)(1) be amended to 
reflect that the 1987 OMB guidelines referenced in the paragraph would 
only apply to the extent they are consistent with subsequent statutory 
changes. As is the case with any statutory change, if the law changes 
and the regulation or guidance is no longer consistent with the law, 
then DHS will comply with the law: In this case, changes in the statute 
would override the OMB guidelines. DHS declines to make this change, 
because it is self-evident that DHS only complies with OMB guidelines 
to the extent they are consistent with the governing statute.
    Finally, upon further consideration of the proposed rule text, DHS 
has made a number of clarifying edits to proposed 6 CFR 5.1(a)(1). 
Because this content is adequately covered in 6 CFR 5.10, DHS has 
removed much of the discussion of this topic in 6 CFR 5.1(a)(1).
2. Comments on Proposed 6 CFR 5.3 (Requirements for Making Requests)
    One commenter suggested that DHS retain the current 6 CFR 5.3(a), 
which requires requests for information about third-party individuals 
be accompanied by signed authorizations from the subject of the 
information. The commenter argued that removing the requirement for 
signed authorizations could harm individual privacy. However, the 
subject language in proposed 6 CFR 5.3(a)(4) brings the DHS regulation 
more into line with the language used by many other government 
agencies, including the Department of Justice, which provides 
interagency leadership on FOIA matters. See 28 CFR 16.3. In addition, 
final section 5.3(a)(4) makes plain the importance of third-party 
authorization. And as a matter of established case law, in conducting 
the balancing test between privacy interest and the public interest in 
disclosure of personal information, DHS will weigh the existence or 
non-existence of a signed authorization on a case-by-case basis; in 
many, but not all cases, the lack of a signed authorization may prove 
to be a barrier to access of third-party records unless a significant 
public interest is raised. As such, DHS declines to alter the proposed 
language.
    The same commenter suggested that a caveat be included allowing 
access to the records of public officials without signed authorization 
because this would facilitate access to information about government 
officials. As noted above, DHS considers every request seeking access 
to third party information under a balancing test that evaluates the 
privacy of the individual subject of the records against the public 
interest in disclosing such information. Depending on the information 
sought, some of the records of government officials may be available 
without the need for a signed authorization. However, all records of 
all government officials will not meet the requirements of the 
balancing test. Therefore, DHS declines to create a blanket policy to 
waive the personal privacy interests of government officials in their 
records.
    As proposed, 6 CFR 5.3(c) would allow DHS to administratively close 
a request that does not adequately describe the records, if the 
requester does not respond within 30 days to DHS's request for 
additional information. One commenter requested that DHS clarify how 
DHS may make such a request (e.g., by telephone or in writing or both), 
how a requester may respond, and whether a written response would be 
considered timely if it were postmarked or transmitted electronically 
within 30 days. DHS has revised the regulatory text to make clear that 
each communication must be in writing (physical or electronic) and that 
a written response would be considered timely if it were postmarked 
within 30 working days or transmitted electronically and received by 
11:59:59 p.m. ET on the 30th working day.
    Proposed 6 CFR 5.3(c) provided for administrative closure if the 
requester fails to provide an adequate description of the records 
sought within 30 days of DHS's request for such a description. A 
commenter suggested amending this section to provide that an 
inadequately described request may lose priority in the processing 
queue until the requester provides an adequate description, but will 
not be administratively closed. For purposes of placement in the 
processing queue, an unperfected request (i.e. a request that requires 
additional clarification or other information in order for the agency 
or component to process the request) is not considered to be in the 
queue. As a result, the unperfected request has no ``priority'' in the 
processing queue. Under this rule, DHS will continue to place a request 
into the queue for processing only after the request is perfected. DHS 
believes

[[Page 83627]]

that this outcome is the fairest to all requesters, because unperfected 
requests place a heavy administrative burden on DHS to track and 
process. A policy to process all such requests would result in a 
reduction in service for other requesters.
    One commenter suggested amending proposed 6 CFR 5.3 to provide that 
if a requester fails to respond to a request for clarification within 
30 days, the agency or component should make an effort to contact the 
requester using more than one means of communication, before 
administratively closing the request. The commenter stated that if the 
requester ultimately responds after the 30-day deadline, DHS should not 
place the clarified requested at the end of the processing line, but 
should reopen the request and place it back in the processing queue as 
though the request had been was perfected on the date when the original 
request was filed. The commenter stated that this outcome would be 
consistent with DOJ guidance on ``still interested'' letters. DHS 
declines to commit to always seeking further clarification following 
the 30-day deadline. This would be inconsistent with the purpose of the 
30-day deadline. And for the reasons described earlier in this 
preamble, DHS also declines to deem responses perfected 
retrospectively. DHS notes that DOJ's guidance on ``still interested'' 
letters is unrelated to agency requests for clarification.\4\ DHS also 
notes that proposed 6 CFR 5.3 does not contain an exhaustive list of 
reasons for administratively closing a request; for example, a request 
may be administratively closed at the request of the entity or 
individual that made the request. Pending requests may also be closed 
if DHS learns that a requester is deceased.
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    \4\ A ``still interested'' letter is a letter that the agency 
sends to a requester if a substantial period of time has elapsed 
since the time when the request was submitted and is used as a 
method to make sure that the requester continues to seek the 
original information. A requester may respond to a ``still 
interested'' letter by indicating that she or he continues to be 
interested in the original information sought, seek to modify his or 
her request, or indicate that he or she is no longer interested in 
the request.
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    A commenter suggested that DHS commit to always seek additional 
information from a requester before administratively closing the 
request. The commenter stated that this would ensure that FOIA 
officials do not simply close a request without explanation. DHS 
recognizes that requesters may have difficulty formulating proper FOIA 
requests and as such, has provided information and resources to aid 
requesters in drafting proper FOIA requests. Resources permitting, DHS 
will attempt to seek additional clarification rather than 
administratively close requests, but out of fairness to other 
requesters, in the interest of efficiency, and consistent with its 
historical practice and the practice of other agencies, DHS will not 
impose an affirmative requirement to seek additional information or 
clarification in every instance. DHS has clarified 6 CFR 5.3(c) to this 
end. DHS notes that it does not administratively close requests without 
any explanation.
    Another commenter proposed to extend the deadline for clarification 
to 30 business days rather than 30 calendar days. The commenter stated 
that a 30-business-day deadline would ``conform to the Department of 
Justice's recommended deadline with respect to `still-interested' 
letters.'' DHS agrees with the commenter that 30 working days is more 
appropriate. DHS has therefore extended the clarification period from 
30 calendar days to 30 working days. This has the additional benefit of 
being consistent with the separate 30-working-day deadline in DOJ's 
recommended guidelines on still-interested letters.
    One commenter suggested amending proposed 6 CFR 5.3(c) to allow for 
60 days, rather than 30 days, after a request for clarification and 
before administrative closure. The commenter stated that the change was 
necessary because of ``inevitable delays in processing outgoing 
communications from federal agencies.'' The commenter stated that many 
journalists are often on assignment without access to physical mail or 
email for days and weeks at a time, and that ``a 30-day window could 
unfairly jeopardize the processing of their FOIA requests in the event 
that a DHS component requests a clarification, requiring them to 
unnecessarily re-submit requests, and delaying their access to 
requested records. Extending the response time to 60 days does not 
impose any additional burden on DHS components, but would assist 
requesters.'' While DHS recognizes that certain requesters may have 
some difficulty responding to a request for clarification within a 
specified time period, in the interest of not creating additional 
administrative burdens, DHS has determined that the 30-working-day time 
period established by this rule strikes the appropriate balance. DHS 
notes that an administrative closure of an unperfected request does not 
prevent the requester from resubmitting the request at a future date, 
and that since an unperfected request is by definition not placed in 
the processing queue, there is no negative impact on a requester with 
respect to losing their place in the queue if a requester needs to 
submit a revised request.
    A commenter suggested that DHS limit the use of administrative 
closure to those circumstances described in proposed section 5.3(c), 
and not administratively close requests based on any other grounds. The 
commenter specifically stated that DHS sometimes administratively 
closes cases based on a requester's failure to respond to a ``still 
interested'' letter, and that the use of still-interested letters 
``place[s] a significant an unwarranted burden on FOIA requesters that 
runs counter to FOIA.'' The commenter also stated that the proposed 
rule did not include provision for administratively closing a FOIA 
request based on the requester's failure to respond to a ``still 
interested'' letter, and suggested that DHS should not introduce new 
regulatory text on ``still-interested'' letters in the final rule, 
because the proposal did not afford commenters a sufficient opportunity 
to comment on this topic. DHS disagrees that it lacks authority to 
administratively close requests on grounds that are not referenced in 
its FOIA regulations. For example, although DHS regulations do not 
provide for the administrative closure of a request at the requester's 
election, DHS may administratively close such a request. This example 
is very similar to the use of ``still interested'' letters, described 
earlier in this preamble.
    One commenter suggested that the text of proposed 6 CFR 5.3 be 
amended to state that when a request is clear on its face that it is 
being made by an attorney on behalf of a client, no further proof of 
the attorney-client relationship would be required. The commenter 
stated that DHS inconsistently requires attorneys for requesters 
provide documentation of the attorney-client relationship in the form 
of (1) a signed DHS Form G-28, (2) a signed statement on the letterhead 
of the entity for which the FOIA request is being made, or (3) a signed 
statement from the actual requester. The commenter stated that such 
documentation should not be required where the FOIA request clearly 
states that it is being made by an attorney on behalf of a client. DHS 
is unable to make this modification. DHS analyzes third-party requests 
for records under both the Privacy Act and the FOIA. As part of this 
process, DHS determines if the records are being sought with the 
consent of the subject of the records. Without proper documentation, 
DHS is unable to assess whether a third party, be it an attorney or 
other representative of the subject of the records, is properly 
authorized to

[[Page 83628]]

make a Privacy Act request for the records. Without authorization, DHS 
applies a balancing test to determine whether the personal privacy 
interests of the individual outweigh the public interest in disclosure 
of such records, which may result in a denial of access to third party 
requests that are not accompanied with proper signed authorization.
3. Comments on Proposed 6 CFR 5.4 (Responsibility for Responding to 
Requests)
    One commenter suggested amending proposed 6 CFR 5.4(d), which 
pertains to interagency consultations, to clarify the extent to which 
consultations may also be required with the White House. The commenter 
stated that ``[t]o promote transparency,'' the final rule should 
``address [DHS's] FOIA-related consultations with the Office of White 
House Counsel.'' Consultations occur on a case-by-case basis and depend 
on the specific information that may be revealed in a request. 
Depending on the specific request at issue, DHS and its components 
consult with entities throughout state, local, and federal government, 
including the White House. An attempt to catalogue every possible 
consultation would be impracticable, and would be inconsistent with the 
overall goal of streamlining the regulations. DHS therefore declines to 
make this suggested change.
    One commenter stated that DHS should always notify the requester of 
referrals because DHS had not substantiated its claim that merely 
naming the agency to which a FOIA request had been referred could 
``harm an interest protected by an applicable exemption.'' The 
commenter also stated that proposed 6 CFR 5.4(f) mistakenly referenced 
referral of records, rather than requests. The commenter stated that 
``referrals do not entail referrals of records, but instead implicate 
requests.'' DHS and its components make every effort to notify 
requesters when records are referred to other components. A referral 
differs from a consultation in several ways, but most significantly to 
the requester, when records are referred to another agency, the 
receiving agency is the entity that will ordinarily respond directly to 
the requester unless such a response might compromise a law enforcement 
or intelligence interest. DHS and its components have a very broad 
mission space that includes law enforcement and intelligence functions. 
As such, there may be times when DHS is unable to disclose the referral 
of records from one component to another or from a DHS component to 
another agency due to law enforcement and/or intelligence concerns. As 
such, DHS declines to make this a mandatory requirement.\5\ Finally, 
the reference to ``records'' at the end of proposed 6 CFR 5.4(f) was 
intentional. In general, when DHS makes a referral to another agency, 
it is referring responsive records to that agency, rather than 
referring the request itself without records.
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    \5\ For more information on consultations and referrals, please 
see the Memorandum from DHS Chief FOIA Office Mary Ellen Callahan to 
DHS FOIA Officers, DHS Freedom of Information Act Policy Guidance: 
(1) Processing ``Misdirected'' FOIA Requests; and (2) Implementation 
of the Department of Justice Office of Information Policy (OIP) 
December 2011 OIP Guidance: Referrals, Consultations, and 
Coordination: Procedures for Processing Records When Another Agency 
or Entity Has an Interest in Them (Mar. 9, 2012), available at 
https://www.dhs.gov/sites/default/files/publications/dhs-foia-handling-guidance_1.pdf.
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4. Comments on Proposed 6 CFR 5.5(e)(3) and 5.11(b)(6) (Timing of 
Responses to Requests and Fees, With Respect to News Media)
    Five commenters suggested amendments to the proposed language of 6 
CFR 5.5(e)(3) and 5.11(b)(6) to make the definition of news media less 
restrictive. Commenters felt that it would be difficult or cumbersome 
for certain requesters to establish that news dissemination was their 
``primary professional activity.'' In response, DHS has eliminated the 
requirement in proposed 5.5(e)(3) that a requester seeking expedited 
processing establish that he or she engages in information 
dissemination as his or her primary professional activity. DHS has also 
removed the ``organized and operated'' restriction. These changes are 
consistent with existing case law.\6\
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    \6\ See Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015)
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    One commenter also proposed that DHS eliminate the requirement in 
proposed 6 CFR 5.11(b)(6) that news be broadcast to the ``public at 
large'' and that periodicals qualify for news media status only if 
their products are available to the general public. The commenter 
suggested that the proposed rule should make clear that no particular 
audience size was required. The reference to the ``public at large'' 
and the ``general public'' are merely exemplary and do not act as hard-
and-fast restrictions. The standard identified in the final rule, as 
revised in response to public comments, allows DHS to classify a 
requester as a member of the news media on a case-by-case basis without 
a rigid requirement of audience size.
    One commenter proposed that DHS eliminate the availability of 
expedited processing for the news media. As the FOIA statute clearly 
contemplates expedited processing for news media, DHS is unable to 
eliminate this provision.
5. Comments on Proposed 6 CFR 5.6 (Responses to Requests)
    Two commenters requested that the language of proposed 6 CFR 5.6 be 
amended to include a statement that there is a ``presumption in favor 
of disclosure.'' The first commenter sought inclusion of the language 
based upon memoranda issued by the President Obama and Attorney 
General, respectively.\7\ The second commenter also cited the model 
civil society FOIA rules as the basis for requesting the additional 
language. DHS operates in accordance with guidance promulgated by the 
Department of Justice, including Attorney General Holder's 2009 
memorandum which urged agencies to ``adopt a presumption in favor of 
disclosure.'' DHS FOIA regulations are intended to inform and advise 
the public about DHS operations and procedures for processing FOIA 
requests. Because proposed 6 CFR 5.6 deals strictly with the 
administrative steps of processing a FOIA request, and because the 
Department already adheres to the direction in the memoranda without 
relying on additional regulatory text, the Department declines to make 
this suggested change.
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    \7\ See 74 FR 4683 (Jan. 26, 2009); Memorandum from the Attorney 
General to the Heads of Executive Departments and Agencies, The 
Freedom of Information Act (FOIA) (Mar. 19, 2009), available at 
https://www.justice.gov/sites/default/files/ag/legacy/2009/06/24/foia-memo-march2009.pdf.
_____________________________________-

    One commenter suggested that the regulations specify greater use of 
electronic means of communication by DHS components to allow the 
electronic filing of FOIA requests to avoid the delay and uncertainty 
occasioned by first-class mail. The Department already encourages the 
electronic filing of FOIA requests and the service is available for all 
components through the DHS FOIA portal at www.dhs.gov/steps-file-foia 
or through the DHS mobile application (available for both iOS and 
Android platforms). The Department has incorporated language into 6 CFR 
5.6(a) which specifies that DHS components should use electronic means 
of communicating with requesters whenever practicable.
    One commenter proposed changing the language of 6 CFR 5.6(b) to 
state that DHS will assign a request a tracking number if processing 
the request would take longer than ten calendar days, rather than ten 
working days as the proposed rule provided. The commenter stated that 
the FOIA statute specified ``calendar'' days rather than working

[[Page 83629]]

days. The FOIA statute provides only that a tracking number be assigned 
if the request will take longer than ``ten days'', 5 U.S.C. 
552(a)(7)(A), and is silent on the issue of working or calendar days. 
However, in light of the use of working days to determine the twenty-
day time limitations for original responses and responses to appeals 
(which specify twenty days ``excepting Saturdays, Sundays, and legal 
public holidays'' 5 U.S.C. 552(a)(6)(A)(i) and (ii)), DHS has also 
implemented 5 U.S.C. 552(a)(7)(A) using a working days standard. For 
clarification, working days refers to weekdays (Monday through Friday), 
and not legal holidays and weekends (Saturday and Sunday).
    One commenter suggested that the initial acknowledgment letter 
contain information on how to file an administrative appeal because if 
DHS fails to provide a timely response to the FOIA request, a requester 
is entitled to file an administrative appeal or seek judicial review. 
The commenter stated that in cases of constructive denial, the 
requester would not be informed how to administratively appeal the 
constructive denial. DHS declines to add the appeals language to the 
initial acknowledgment letter. While DHS acknowledges that in 
situations of constructive denial, a requester may seek to file an 
administrative appeal, at the time the initial letter is sent, there is 
no adverse determination from which to appeal, which may serve to 
confuse members of the public. In addition. DHS provides information on 
how to file an appeal on its Web site (https://www.dhs.gov/foia-appeals-mediation), and information is always available by contacting 
the DHS Privacy Office or any of the component FOIA officers via U.S. 
mail, electronic mail, or by telephone. Contact information for DHS 
FOIA officers can be found at the following link: https://www.dhs.gov/foia-contact-information.
    One commenter suggested that proposed 6 CFR 5.6(d) be amended to 
exclude language that characterizes as an ``adverse determination'' the 
agency's determination that a ``request does not reasonably describe 
the records sought.'' The commenter stated that the language would 
allow DHS components to deny FOIA requests based on inadequate 
descriptions of records sought, rather than seeking more information 
from requesters. As provided in proposed 6 CFR 5.3, DHS components try 
to obtain clarification from requesters by use of ``needs more 
information'' letters and contacting requesters via telephone or 
electronic mail to seek additional information. In many, but not all, 
circumstances the additional information is sufficient to allow DHS to 
process the request. However, if DHS ultimately administratively closes 
a request, DHS treats such a closure as an adverse determination from 
which the requester can seek administrative appeal.
    One commenter suggested that proposed 6 CFR 5.6(g) be amended to 
specifically prohibit DHS from making a ``false'' response to a request 
when DHS determines that the request falls within 5 U.S.C. 552(c). 
Section 5.6(g) was intended to provide notice that records determined 
to be properly subject to an exclusion are not considered to be 
responsive to the FOIA request because excluded records, by law, ``are 
not subject to the requirements of [the FOIA].'' 5 U.S.C. 552(c). By 
definition, when DHS determines that an exclusion under 552(c) applies, 
any documents would no longer be subject to FOIA and DHS's statement to 
a requester of such fact could not be considered ``false''. While the 
commenter would prefer that the agency make a ``Glomar'' response, that 
is, refuse to confirm or deny the existence of responsive records, the 
FOIA statutory scheme clearly allows agencies to utilize an exclusion 
when the situation is appropriate. And as proposed 6 CFR 5.6(g) and 5 
U.S.C. 552(c) make clear, once an agency lawfully applies an exclusion, 
the excluded records are not responsive to the request. Accordingly, 
DHS is maintaining the language as proposed.
6. Comments on Proposed 6 CFR 5.7 (Confidential Commercial Information)
    One commenter suggested that proposed 6 CFR 5.7 be amended to 
require ``a more detailed notification'' to the requester when the 
agency denies a FOIA request on the basis of FOIA exemption 4. FOIA 
exemption 4 protects trade secrets and commercial or financial 
information obtained from a person that is privileged or confidential. 
The commenter stated that requiring more detail would ``ensure that the 
requester can properly obtain judicial review.'' DHS already strives to 
provide as much information as possible to a requester when a request 
for information is denied. DHS must weigh the requester's need for 
information against the interests of the submitter of the information; 
particularly where the information is being withheld as confidential 
commercial information, it may be impossible for DHS to provide 
additional information without revealing information that DHS would be 
required to protect under FOIA Exemption 4. As such, DHS declines to 
make this suggested change.
    Another commenter suggested that DHS revise proposed 6 CFR 5.7(e) 
and (g) to specify the minimum number of days that will be afforded to 
submitters to provide comments and file reverse-FOIA lawsuits. The 
commenter stated that establishing such a standard would prevent the 
agency from inconsistently interpreting the requirement to provide a 
``reasonable'' period of time. DHS agrees that it is appropriate to set 
a minimum number of days. Accordingly, this final rule specifies that 
submitters will have a minimum of 10 working days to provide comments. 
DHS may provide a longer time period, at its discretion. Further, 
submitters will be given a minimum of 10 working days' notice if 
information is to be disclosed over their objection. The same commenter 
also sought clarification of whether ``submitter'' as used in proposed 
6 CFR 5.7 was the same as ``business submitter'' as used in proposed 6 
CFR 5.12(a). Section 5.12 applies only to CBP operations and should be 
read independently from 6 CFR 5.7.
7. Comments on Proposed 6 CFR 5.8 (Administrative Appeals)
    As noted above, based upon requirements in the FOIA Improvement Act 
of 2016, DHS has changed the appeals period from 60 working days to 90 
working days.
    One commenter suggested that proposed 6 CFR 5.8(a)(1) be amended to 
state that appeals will be considered timely if delivered within 60 
working days of an adverse determination. An adverse determination can 
refer to any outcome which the requester seeks to appeal. The commenter 
stated that the proposed regulations do not specify with enough 
certainty when the 60 workdays begin to run for purposes of filing an 
administrative appeal. The proposed rule already considered appeals to 
be timely if the appeal is postmarked, or transmitted in the case of 
electronic submissions, within 90 workdays of the date of the 
component's response. DHS considers the postmark rule to be clear and 
more favorable to appealing requesters. DHS therefore will not require 
delivery within 90 days of the notice of an adverse determination. 
However, in the interests of clarifying the exact time period, DHS has 
added language to reflect that an electronically transmitted appeal 
will be considered timely if transmitted to the appeals officer by 
11:59:59 p.m. ET or EDT of the 90th working day following the date of 
an adverse determination on a FOIA request.
    An agency commenter suggested that proposed 6 CFR 5.8(c) be amended 
to clarify that DHS and its components will participate in mediation 
with the

[[Page 83630]]

Office of Government Information Services, National Archives and 
Records Administration, should a requester elect to mediate any dispute 
related to a FOIA request. DHS reaffirms its commitment to actively 
participate in mediation should any FOIA requester seek to resolve a 
dispute and has added language to this section to reflect such.
    One commenter suggested that proposed 6 CFR 5.8(d) be amended to 
clarify that the time period for response to an appeal may not be 
extended for greater than 10 days. DHS considers this amendment to be 
unnecessary as the statute clearly does not provide for extensions 
beyond a single 10-day period.
    One commenter suggested amending proposed 6 CFR 5.8(e) to clarify 
that judicial review is available without pursuing administrative 
appeal where a request has been constructively denied through agency 
inaction. DHS has determined that this proposed change is unnecessary 
as the FOIA statute itself provides judicial review of constructive 
denial without the necessity of administrative exhaustion.
8. Comments on Proposed 6 CFR 5.9 (Preservation of Records) or 5.10 
(FOIA Requests for Information Contained in a Privacy Act System of 
Records)
    No comments requiring agency response were received regarding 
proposed 6 CFR 5.9 or 5.10.
9. Comments on Proposed 6 CFR 5.11 (Fees)
    Several public submissions contained comments regarding the 
Department's assessment of fees. As a general matter, the Department 
notes that the fee provisions are written to conform to the OMB 
Guidelines, which establish uniform standards for fee matters. 
Conformity with the OMB Guidelines is required by the FOIA. See 5 
U.S.C. 552(a)(4)(A)(i).
    DHS has revised the ``Definitions'' section of proposed 6 CFR 
5.11(b) by inserting the word ``primarily'' before ``commercial 
interest'' to more accurately conform to the statutory language of the 
FOIA. Consistent with other provisions of the proposed rule, the change 
clarifies that fee waivers are available to requesters even if they 
have a commercial interest as long as the requester can show a public 
interest in the information and that the primary interest in the 
information is not commercial.
    One commenter suggested that DHS retain the definition of 
``commercial use request'' in current 6 CFR 5.11(b)(1) instead of the 
proposed revisions because the commenter felt that the proposed 
regulation significantly broadened DHS's discretion in determining 
whether a request is commercial in nature. The DHS definition of 
``commercial use request'' conforms to the definition promulgated by 
DOJ in its FOIA regulations. DHS has not changed the definition of a 
commercial request and continues to rely on the same definition in the 
current interim regulations at 6 CFR 5.11 that ``a 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 include 
furthering those interests through litigation.''
    The same commenter opposed the removal of the requirement that 
``the component shall provide a reasonable opportunity to submit 
further clarification.'' The proposed changes do not require DHS to 
seek further clarification from a requester, but rather allow each 
component to make a case-by-case determination, which may, in the 
agency's discretion, include seeking further information from the 
requester regarding the purpose for the request. This change comports 
with the DHS proposed regulation at 6 CFR 5.3(c), which gives the 
agency discretion to determine which requests will be the subject of 
requests for clarification in the event the request is insufficient. 
Requiring DHS to seek further information would increase the 
administrative burden on the agency and prejudice other requesters. The 
final rule text reflects the need to allow components to assess the 
intended purpose of each request on a case-by-case basis. As such, DHS 
declines to make any changes to this language.
    One commenter suggested that DHS retain the broader definition of 
``educational institution'' in current 6 CFR 5.11(b)(4) because the 
proposed definition of educational institution would exclude students 
enrolled in educational institutions that make FOIA requests in 
furtherance of their own research. DHS agrees and has changed the 
proposed definition of educational institutions to include students 
seeking FOIA requests to further their own scholarly research by 
eliminating the example which had excluded such requesters from 
categorization as educational institutions. The revisions are also 
consistent with Sack v. Dep't of Defense, 823 F.3d 687 (D.C. Cir. 
2016).
    Several commenters sought revision of the definition in proposed 6 
CFR 5.11(b)(6) of ``news media.'' This issue is discussed earlier in 
this preamble, under the section for comments on proposed 6 CFR 5.5.
    One commenter suggested amending proposed 6 CFR 5.11(e) to clarify 
that a non-commercial requester that does not pay fees or declines to 
pay an estimated fee would still be eligible for two hours of search 
time without charge. The commenter sought the change because they 
stated that there was disagreement between agencies about whether or 
not such requesters would be entitled to the two free hours of search 
times under such circumstances. DHS has added language to section 
5.11(e)(1) to make this more clear; the fee table at proposed 6 CFR 
5.11(k)(6) also contains this information.
    One commenter suggested that DHS eliminate proposed 6 CFR 
5.11(k)(5), concerning the closure of requests where the required 
advance fee payment has not been received within 30 days. The commenter 
stated that the requirement of advance payment posed an additional 
financial barrier to accessing information, particularly in light of 
DHS's proposed redefinition of educational institutions to exclude 
students making FOIA requests in furtherance of their own educational 
coursework. As noted above, DHS has already addressed the concern about 
students being excluded from the definition of educational request. 
Regarding the remainder of the commenter's suggestion that DHS 
eliminate the closure of requests for which the required advance fee 
payment has not been timely received, DHS declines to make this change. 
While DHS recognizes that this requirement may impose a burden on some 
requesters, DHS has a strong interest in maintaining the integrity of 
the administrative process. As numerous court decisions have noted, 
government agencies are not required to process requests for free for 
those requesters that do not qualify for a fee waiver regardless of the 
requester's ability to pay the estimated fee. Further, the FOIA statute 
itself allows agencies to collect advance payment of fees when the 
requester has previously failed to pay fees in a timely fashion, or the 
agency has determined that the fee will exceed $250. 5 U.S.C. 
552(a)(4)(A)(v).
10. Comments on Proposed 6 CFR 5.12 (Confidential Commercial 
Information; CBP Procedures)
    One commenter stated that the second sentence of proposed 6 CFR 
5.12(a) was redundant in that it provided that ``commercial information 
that CBP [U.S. Customs and Border Protection] determines is privileged 
or confidential . . . will be treated as privileged or confidential.'' 
DHS has determined that this language is not redundant because

[[Page 83631]]

there may be information that a submitter deems privileged and 
confidential that does not meet the criteria established by CBP. The 
text identified by the commenter serves to clarify to submitters that 
only information that CBP has deemed ``privileged or confidential'' 
will be treated as such by the agency. The same commenter also sought 
clarification of whether the term ``business submitter'' used in 
proposed 6 CFR 5.12 was the same as the definition of ``submitter'' 
used in proposed 6 CFR 5.7. As DHS noted above in the section covering 
comments on proposed 6 CFR 5.7, these sections are to be read 
independently and definitions may not be interchangeable.
11. Other Comments
    One commenter stated that he had previously submitted FOIA requests 
to DHS on behalf of his small business, and that DHS had extended the 
estimated delivery date of its responses without providing notice or a 
reason, and that his requests had been sent to the wrong offices and 
subsequently terminated because found to be duplicative. The commenter 
asserted, without further elaboration, that delays in FOIA processing 
imposed direct costs on a small business he represented. The commenter 
also stated that DHS has a large backlog of FOIA requests. The 
commenter requested that DHS provide additional economic and small 
entity analysis related to the costs of FOIA processing delays and the 
proposed rule, and that ``once these have been completed . . . DHS 
reopen the comment period for at least 60 days for public comment.'' 
The commenter stated that ``[i]t is inconceivable that the current 
backlog has not imposed costs on small and large businesses under this 
proposal.'' The commenter requested DHS develop an estimate of the 
quantifiable costs and benefits of the rule and also complete a 
Regulatory Flexibility Act analysis of the impacts of the rule on small 
entities. The commenter also submitted two related comments regarding 
specific interactions he had in submitting FOIA requests to two DHS 
components, the Transportation Security Administration (TSA), and CBP. 
Those two comments included a list of eight questions related to the 
TSA request and 11 questions related to the CBP request, which the 
commenter requested be addressed in an economic analysis.
    Much of the commenter's submission is well outside the scope of the 
proposed rule, which was intended primarily to update and streamline 
regulatory text to reflect intervening statutory and other changes. For 
example, the commenter raised specific issues with previous FOIA 
requests to DHS components (whether a specific FOIA request was closed 
properly and changes in a delivery date with another FOIA request). The 
delay costs associated with past DHS processing of a past FOIA request 
or the impacts of the current backlog are by definition not due to any 
changes made in this rule and therefore are not direct costs of this 
rule. Issues regarding specific pending or historical FOIA requests are 
more properly addressed to the component's FOIA office and not as 
comments to the FOIA proposed rule. Regarding the commenter's request 
for an assessment of the quantified costs and benefits of the rule and 
a Regulatory Flexibility Act analysis, DHS did consider the costs, 
benefits and impacts of the proposed rule on small entities. The 
proposed rule's Executive Orders 12866 and 13563 analysis and 
Regulatory Flexibility Act both reflect DHS's consideration of the 
economic impacts of the proposed rule, as well as DHS's conclusion that 
the proposed rule would not impose additional costs on the public or 
the government. DHS affirmatively stated that (1) the proposed rule 
would not collect additional fees compared to current practice or 
otherwise introduce new regulatory mandates, (2) the benefits of the 
rule included additional clarity for the public, and (3) regarding the 
impacts on small entities, the proposed rule did not impose additional 
direct costs on small entities. See 80 FR 45104 for this discussion of 
costs, benefits, and small entity impacts. DHS notes the commenter did 
not identify any specific provisions of the proposed rule that he 
believed would lead to delays in FOIA processing or otherwise increase 
costs as compared to FOIA current procedures, or suggest any 
alternatives to the proposed rule that would result in increased 
efficiencies. The proposed rule did not invite an open-ended search for 
any and all potential changes to DHS FOIA regulations that might 
potentially result in processing improvements; the rule's economic 
analysis reflects full consideration of the limited changes included in 
the proposed rule.\8\
---------------------------------------------------------------------------

    \8\ Alternatively, to the extent the commenter implies that DHS 
FOIA regulations are primarily responsible for processing delays, 
misdirected FOIA requests, or other challenges associated with FOIA 
processing, DHS finds the commenter's views completely unsupported, 
and likely incorrect. DHS is unaware of any study of its FOIA 
processing challenges that cites flaws in existing regulations as a 
major causal factor. See http://www.gao.gov/products/GAO-15-82 and 
http://www.gao.gov/products/GAO-12-828.
---------------------------------------------------------------------------

    One commenter suggested that the regulation be amended to allow 
individuals protected by the confidentiality provisions in the Violence 
Against Women Act (VAWA) as amended, 42 U.S.C. 13701 and 8 U.S.C. 1367, 
to submit FOIA requests for their own information without that 
information subsequently being made public. DHS agrees with the 
commenter that this sensitive information should not be made public. 
But DHS believes the commenter's concerns are misplaced, because DHS 
does not apply the ``release to one, release to all'' policies of FOIA 
to first-party requests for personal information. DHS will not release 
to the public information covered by the aforementioned authorities 
subsequent to a first-party request for that his or her own 
information.
    One commenter suggested that proactive disclosure include automatic 
disclosure of alien files to individuals in removal proceedings. The 
Department has determined that automatic disclosure of alien files to 
all individuals in removal proceedings falls well outside of the scope 
of the proposed rule and FOIA generally, and therefore will not be 
addressed here.
    Finally, one commenter sought inclusion of a proposed section 5.14, 
which would require DHS to review records to determine if the release 
of information contained in records would be in the public interest 
``because it is likely to contribute significantly to public 
understanding of the operations or activities of the DHS.'' As provided 
in proposed 6 CFR 5.2, DHS already proactively posts certain Department 
records it determines are of interest to the public. In addition, DHS 
generally follows the rule that records are publicly posted after the 
Department has received three requests for such records. DHS also 
recently participated in a DOJ pilot program which sought to examine 
the feasibility of posting all requested records as long as no privacy 
interests were implicated. Proactive review and posting of records, 
whether they are the subject of FOIA requests or not, is a time and 
resource intensive undertaking. DHS will continue to examine the 
feasibility of expanding the public posting of records, but due to 
practical and operational concerns, cannot divert resources away from 
the processing of FOIA requests to devote the additional resources that 
would be required to comply with the scope of proactive posting 
suggested by this comment. As such, DHS declines to incorporate this 
proposed new section.

[[Page 83632]]

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 rule. This rule 
will not introduce new regulatory mandates. In the proposed rule we 
stated that this rule would not result in additional costs on the 
public or the government. As explained above, some commenters raised 
concerns about the potential burden associated with a streamlined 
process for administratively closing unclear requests, though none 
offered a quantified estimate of that burden. We continue to believe 
that DHS's general assessment of the economic impacts of this rule, as 
stated in the proposed rule, is accurate. DHS does acknowledge that 
there will be a limited number of cases, however, in which this rule 
will result in some requesters clarifying and resubmitting a request, 
rather than simply clarifying a request. DHS believes that the burden 
associated with resubmitting a request would be minimal, because 
requesters that are required to resubmit requests that lack sufficient 
information or detail to allow DHS to respond are required to submit 
the same information as requesters that are required to provide 
clarification (i.e., information that will supplement the information 
provided with the original request such that DHS can reasonably 
identify the records the requester is seeking and process the request). 
Since both sets of requesters must provide additional information in 
writing to allow the agency to process their requests, it is difficult 
to quantify any additional cost associated with resubmission as 
compared to clarification. 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.

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. DHS does not believe this rule 
imposes any additional direct costs on small entities. However, as 
explained in the previous Executive Orders 12866 and 13563 section, it 
is possible that an entity that resubmits a request might incur a 
slightly different impact than one that clarifies a request. Such a 
cost difference would be so minimal it would be difficult to quantify. 
DHS further notes that although one commenter stated that he found the 
proposed rule's regulatory flexibility certification ``challenging,'' 
no commenter stated the proposed rule would cause a significant 
economic impact on a substantial number of small entities, or provided 
any comments suggesting such an impact on a substantial number of small 
entities. Based on the previous analysis and the comments on the 
proposed rule, DHS certifies this rule will not have a significant 
economic impact on a substantial number of small entities.

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.

Small Business Regulatory Enforcement Fairness Act of 1996

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

[[Page 83633]]

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.
    (2) The rules in this subpart 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.
    (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 in an electronic format 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. Requesters 
who do not have access to the internet may contact the Public Liaison 
for the component from which they seek 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 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.
    (c) If a request does not adequately describe the records sought, 
DHS may at its discretion either administratively close the request or 
seek additional information from the requester. Requests for 
clarification or more information will be made in writing (either via 
U.S. mail or electronic mail whenever possible). Requesters may respond 
by U.S. Mail or by electronic mail regardless of the method used by DHS 
to transmit the request for additional information. In order to be

[[Page 83634]]

considered timely, responses to requests for additional information 
must be postmarked or received by electronic mail within 30 working 
days of the postmark date or date of the electronic mail request for 
additional information or received by electronic mail by 11:59:59 p.m. 
ET on the 30th working day. If the requester does not respond to a 
request for additional information within thirty (30) working 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 respond 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 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

[[Page 83635]]

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 Sec.  
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 Sec.  
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 Sec.  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. The component shall also alert requesters to 
the availability of the Office of Government Information Services 
(OGIS) to provide dispute resolution services.
    (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 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 who primarily engages in 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

[[Page 83636]]

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 
Sec.  5.11 and shall disclose the requested records to the requester 
promptly upon payment of any applicable fees. The component shall 
inform the requester of the availability of its FOIA Public Liaison to 
offer assistance.
    (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 Sec.  5.8(a), 
and a description of the requirements set forth therein.
    (5) A statement notifying the requester of the assistance available 
from the agency's FOIA Public Liaison and the dispute resolution 
services offered by OGIS.
    (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, 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, but no fewer than 10 working days, 
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

[[Page 83637]]

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, but no fewer than 10 working days.
    (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. Section 
5.12 applies to such information. Section 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 90 working days after the date of the 
component's response. An electronically filed appeal will be considered 
timely if transmitted to the Appeals Officer by 11:59:59 p.m. ET or EDT 
on the 90th working day. 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. 
Should the requester elect to mediate any dispute related to the FOIA 
request with the Office of Government Information Services, DHS and its 
components will participate in the mediation process in good faith. 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 working days 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 paragraph (a)(1) of this section, the requester 
must 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

[[Page 83638]]

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 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 primarily 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 made in connection with his or her role at the 
educational institution. Components may seek verification from the 
requester that the request is in furtherance of scholarly research.

    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 their 
coursework or other school-sponsored activities and provides a copy 
of a course syllabus or other reasonable documentation to indicate 
the research purpose for the request, would 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 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 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

[[Page 83639]]

and considering any formal objection to disclosure made by a 
confidential commercial information submitter under Sec.  5.7 or Sec.  
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, noncommercial 
scientific institutions, or representatives of the news media, unless 
the records are sought for a commercial use.
    (2) If a component fails to comply with the FOIA's time limits in 
which to respond to a 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, except as described 
in (d)(2)(i) through (iii).
    (i) If a component has determined that unusual circumstances as 
defined by the FOIA apply and the component provided timely written 
notice to the requester in accordance with the FOIA, a failure to 
comply with the time limit shall be excused for an additional 10 days.
    (ii) If a component has determined that unusual circumstances, as 
defined by the FOIA, apply and more than 5,000 pages are necessary to 
respond to the request, a component may charge search fees, or, in the 
case of requesters described in paragraph (d)(1) of this section, may 
charge duplication fees, if the following steps are taken. The 
component must have provided timely written notice of unusual 
circumstances to the requester in accordance with the FOIA and the 
component must have discussed with the requester via written mail, 
email, or telephone (or made not less than three good-faith attempts to 
do so) how the requester could effectively limit the scope of the 
request in accordance with 5. U.S.C. 552(a)(6)(B)(ii). If this 
exception is satisfied, the component may charge all applicable fees 
incurred in the processing of the request.
    (iii) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (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 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. Two hours of search time will be provided free of charge 
to non-commercial requesters regardless of whether they agree to pay 
estimated fees.

[[Page 83640]]

    (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 received 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 
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

[[Page 83641]]

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 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;

[[Page 83642]]

    (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: [email protected]

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: [email protected]

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: [email protected]

Federal Emergency Management Agency (FEMA)

FOIA Officer/Public Liaison, 500 C Street SW., Room 7NE, Washington, 
DC 20472, Phone: 202-646-3323, Email: [email protected]

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: [email protected]

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: 
[email protected]
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: [email protected]

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: 
[email protected]

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: [email protected]

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: 
[email protected]

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: 
st[email protected]

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: [email protected]

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: [email protected]

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: [email protected]

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: [email protected]

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: [email protected]

    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: [email protected]

Appendix B to Part 5--[Removed and Reserved]

0
3. Remove and reserve appendix B to part 5.

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.

[[Page 83643]]

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. Revise Sec.  5.86 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. 2016-28095 Filed 11-21-16; 8:45 am]
 BILLING CODE 9110-9L-P