[Federal Register Volume 83, Number 112 (Monday, June 11, 2018)]
[Proposed Rules]
[Pages 26865-26874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11868]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 83, No. 112 / Monday, June 11, 2018 / 
Proposed Rules  

[[Page 26865]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 1

RIN 0503-AA61


USDA Departmental Freedom of Information Act Regulations

AGENCY: Office of the Chief Information Officer, USDA.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The United States Department of Agriculture (USDA) is 
proposing revisions to its current regulations implementing the Freedom 
of Information Act (FOIA). The revisions in this notice are modeled, in 
part, after the template published by the Department of Justice Office 
of Information Policy and will streamline USDA's FOIA processing 
procedures, include current cost figures to be used in calculating fees 
but, most importantly, incorporate changes brought about by the FOIA 
Improvement Act of 2016 and the OPEN Government Act of 2007.

DATES: Written comments must be postmarked and electronic comments 
submitted on or before August 10, 2018 will be considered prior to 
issuance of a final rule. Comments received by mail will be considered 
timely if they are postmarked on or before that date. The electronic 
Federal Docket Management System will accept comments until Midnight 
Eastern Time at the end of that day.

ADDRESSES: You may submit comments, identified by RIN 0503-AA61, by one 
of the following two methods:
     Federal eRulemaking Portal at www.regulations.gov;
     By mail to Alexis R. Graves, Department FOIA Officer, 
Office of the Chief Information Officer, United States Department of 
Agriculture, 1400 Independence Avenue SW, South Building Room 4101, 
Washington, DC 20250.
    To ensure proper handling, please reference RIN 0503-AA61 on your 
correspondence.

FOR FURTHER INFORMATION CONTACT: Alexis R. Graves, Department FOIA 
Officer, Office of the Chief Information Officer, United States 
Department of Agriculture, 1400 Independence Avenue SW, South Building, 
Room 4101, Washington, DC 20250. You may also contact the Department 
FOIA Officer by phone at 202-690-3318 or [email protected].

SUPPLEMENTARY INFORMATION:

Discussion

    This rule proposes revisions to the Department's regulations 
implementing the FOIA, 5 U.S.C. 552. USDA's current FOIA regulations, 
were codified at 7 CFR part 1 subpart A and last revised on July 28, 
2000. The revisions in this notice are modeled, in part, after the 
template published by the Department of Justice Office of Information 
Policy and will streamline USDA's FOIA processing procedures, include 
current cost figures to be used in calculating fees but, most 
importantly, incorporate changes brought about by the FOIA Improvement 
Act of 2016 and the OPEN Government Act of 2007.

Executive Orders 12866 and 13771

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, 58 FR 51735 (Sept. 30, 1993), section 1(b), 
Principles of Regulation, and Executive Order 13563, 76 FR 3821 
(January 18, 2011), Improving Regulation and Regulatory Review. The 
rule is not a ``significant regulatory action'' under section 3(f) of 
Executive Order 12866. Accordingly, the rulemaking has not been 
reviewed by the Office of Management and Budget. This rule is not an 
Executive Order 13771 regulatory action because this rule is not 
significant under Executive Order 12866.

Unfunded Mandates Reform Act of 1995

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

Regulatory Flexibility Act

    USDA, in accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), 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. Under the FOIA, agencies may 
recover only the direct costs of searching for, reviewing, and 
duplicating the records processed for requesters, and only for certain 
classes of requesters and when particular conditions are satisfied. 
Thus, fees assessed by the USDA are nominal.

Small Business Regulatory Enforcement Fairness Act of 1995

    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 in 7 CFR Part 1

    Administrative practice and procedure, Freedom of Information Act, 
Confidential business information.

    For the reasons stated in the preamble, USDA proposes to amend 7 
CFR part as follows:

0
1. The authority citation for part 1 continues to read as follows:

    Authority:  5 U.S.C. 301, unless otherwise noted.

0
2. Revise subpart A to read as follows:

PART 1--ADMINISTRATIVE REGULATIONS

Subpart A--Official Records

    Authority:  5 U.S.C. 301, 552; 7 U.S.C. 3125a; 31 U.S.C. 9701; 
and 7 CFR 2.28(b)(7)(viii).

USDA Freedom of Information Act Regulations Index

Sec
1.1 General provisions.
1.2 Public reading rooms.

[[Page 26866]]

1.3 Requirements for making a records request.
1.4 Requirements for responding to records requests.
1.5 Responses to requests.
1.6 Timing of responses to records requests.
1.7 Records responsive to records requests.
1.8 Requirements for processing records requests seeking business 
information.
1.9 Administrative appeals.
1.10 Authentication and certification of records.
1.11 Preservation of records.
1.12 Fees and fee schedule.
Appendix A--Fee Schedule


Sec.  1.1   General provisions.

    (a) This subpart contains the rules that the United States 
Department of Agriculture (USDA) and its components follow in 
processing requests for records under the Freedom of Information Act 
(FOIA), 5 U.S.C. 552. These rules should be read together with the 
FOIA, which provides additional information about access to records 
maintained by the USDA. Requests made by individuals for records about 
themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are also 
processed under this subpart.
    (b) The terms ``component'' or ``components'' are used throughout 
this subpart and in Appendix A to include both USDA program agencies 
and staff offices.
    (c) Unless otherwise stated, references to number of days indicates 
business days, excluding Saturdays, Sundays, and legal holidays.
    (d) Supplemental regulations for FOIA requests and appeals relating 
to records of USDA's Office of Inspector General are set forth in 7 CFR 
part 2620.


Sec.  1.2   Public reading rooms.

    (a) Components within the USDA maintain public reading rooms 
containing the records that the FOIA requires to be made regularly 
available for public inspection in an electronic format. Each component 
is responsible for determining which of the records it generates are 
required to be made available in its respective public reading room.
    (b) A link to USDA Electronic Reading Rooms can be found on the 
USDA public FOIA website.


Sec.  1.3   Requirements for making a records request.

    (a) Where and how to submit a request. (1) A requester may submit a 
request in writing and address the request to the designated component 
within the USDA that maintains the records requested. The USDA 
Department FOIA Officer will maintain a list of contact information for 
component FOIA offices and make this list available on the USDA public 
FOIA website. Filing a FOIA request directly with the component that 
maintains the records will facilitate the processing of the request. If 
responsive records are likely to reside within more than one USDA 
component, the requester should submit the request to the USDA 
Department FOIA office.
    (2) Alternatively, a requester may submit a request electronically 
via USDA's online web portal or via the National FOIA portal. USDA 
components also accept requests submitted to the email addresses of 
component FOIA offices as listed on the USDA public FOIA website.
    (3) If a requester cannot determine where within the USDA to send a 
request, he or she should consult the USDA public FOIA website to 
determine where the records might be maintained. Alternatively, he or 
she may send the request to the USDA Department FOIA Officer, who will 
route the request to the component(s) believed most likely to maintain 
the records requested.
    (4) To facilitate the processing of a request, a requester should 
place the phrase ``FOIA REQUEST'' in capital letters on the front of 
their envelope, the cover sheet of their facsimile transmittal, or the 
subject line of their email.
    (b) What to include in a request. (1) A requester seeking access to 
USDA records should provide sufficient information about himself or 
herself to enable components to resolve, in a timely manner, any issues 
that might arise as to the subject and scope of the request, and to 
deliver the response and, if appropriate, any records released in 
response to the request. Generally, this includes the name of the 
requester, name of the institution on whose behalf the request is being 
made, a phone number at which the requester might be contacted, an 
email address and/or postal mailing address, and a statement indicating 
willingness to pay any applicable processing fees.
    (2) A requester seeking access to USDA records must also provide a 
reasonable description of the records requested, as discussed in 
paragraph (c)(1) of this section.
    (3) A requester who is making a request for records about himself 
or herself may receive greater access if the request is accompanied by 
a signed declaration of identity that is either notarized or includes a 
penalty of perjury statement.
    (4) Where a request for records pertains to another individual, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual 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. As an exercise of 
administrative discretion, the component can require a requester to 
supply additional information if necessary in order to verify that a 
particular individual has consented to disclosure.
    (c) How to describe the requested records. (1) A FOIA request must 
reasonably describe the records requested. This means a request must be 
described in such a way as to enable component personnel familiar with 
the subject of the request to locate them with reasonable effort. In 
general, requesters should include as much detail as possible about the 
specific records or types of records that they are seeking. To the 
extent possible, supply specific information regarding dates, titles, 
names of individuals, names of offices, locations, names of components 
or other organizations, and contract or grant numbers that may help in 
identifying the records requested. If the request relates to pending 
litigation, the requester should identify the court and its location.
    (2) If a component determines that a request is incomplete, or that 
it does not reasonably describe the records sought, the component will 
inform the requester of this fact and advise as to what additional 
information is needed or why the request is otherwise insufficient.


Sec.  1.4   Requirements for responding to records requests.

    (a) In general. Except for the instances described in paragraphs 
(c) and (d) of this section, the component that first receives a 
request for a record is responsible for referring the request.
    (b) Authority to grant or deny requests. The head of a component or 
his or her designee is authorized to grant or to deny any requests for 
records originating with or maintained by that component.
    (c) Handling of misdirected requests. When a component's FOIA 
office determines that a request was misdirected within the 
Department's components, the receiving component's FOIA office will 
route the request to the FOIA office of the proper component(s).
    (d) Coordination of requests involving multiple components. When a 
component becomes aware that a requester has sent a request for records 
to multiple USDA components, the component will notify the USDA 
Department FOIA Officer to determine if some form of coordination is 
warranted.

[[Page 26867]]

    (e) Consultations and referrals in the process of records review. 
(1) Consultation. When records originated with the component processing 
the request, but contain within them information of interest to another 
USDA component or other Federal Government office, the component 
processing the request should consult with that other entity prior to 
making a release determination.
    (2) Referral. When the component processing the request believes 
that a different USDA component or Federal Government office is best 
able to determine whether to disclose the record, the component 
typically should refer the responsibility for responding to the request 
regarding that record to that USDA component or Federal Government 
office. Ordinarily, the component or agency that originated the record 
is presumed to be the best able to make the disclosure determination. 
However, if the component processing the request and the originating 
component or agency jointly agree that the former is in the best 
position to respond regarding the record, then the record may be 
handled as a consultation.


Sec.  1.5  Responses to records requests.

    (a) In general. Components should, to the extent practicable, 
communicate with requesters having access to the internet by electronic 
means, such as email, in lieu of first class U.S. mail.
    (b) Acknowledgements of requests. On receipt of a request, the 
processing component will send an acknowledgement to the requester and 
provide an assigned request tracking number for further reference. 
Components will include in the acknowledgement a brief description of 
the records sought, or attach a copy of the request, to allow 
requesters to more easily keep track of their requests.
    (c) Grants of requests. When a component makes a determination to 
grant a request in whole or in part, it will notify the requester in 
writing. The component will also inform the requester of any fees 
charged, pursuant to Sec.  1.12, in the processing of the request. 
Except in instances where advance payment of fees is required, 
components may issue bills for fees charged at the same time that they 
issue a determination as to the records.
    (d) Specifying the format of records. Generally, requesters may 
specify the preferred form or format (including electronic formats) for 
the records sought. Components will accommodate the request if the 
records are readily reproducible in that form or format.
    (1) Exemptions and discretionary release. All component records, 
except those specifically exempted from mandatory disclosure by one or 
more provisions of 5 U.S.C. 552(a) and (b), will be made available to 
any person submitting a records request under this subpart. Components 
are authorized, in their sole discretion, to make discretionary 
releases when such releases are not otherwise specifically prohibited 
by Executive Order, statute, or regulation.
    (2) Reasonable segregation of records. If a requested record 
contains portions that are exempt from mandatory disclosure and other 
portions that are not exempt, the processing component will ensure that 
all reasonably segregable nonexempt portions are disclosed, and that 
all exempt portions are identified according to the specific exemption 
or exemptions which are applicable.
    (e) Adverse determinations of requests when interim responses are 
not provided. A component making an adverse determination denying a 
request in any respect will notify the requester of that determination 
in writing. The written communication to the requester will include the 
name and title of the person responsible for the adverse determination, 
if other than the official signing the letter; a brief statement of the 
reason(s) for the determination, including any exemption(s) applied in 
denying the request; an estimate of the volume of records or 
information withheld, such as the number of pages or some other 
reasonable form of estimation; a statement that the determination may 
be appealed, followed by a description of the requirements to file an 
appeal; and a statement advising the requester that he or she has the 
right to seek dispute resolution services from the component's FOIA 
Public Liaison or the Office of Government Information Services. An 
adverse determination includes:
    (1) A determination to withhold any requested record in whole or in 
part;
    (2) A determination that a requested record does not exist or 
cannot be found, when no responsive records are located and released;
    (3) A determination that a record is not readily reproducible in 
the format sought by the requester;
    (4) A determination on any disputed fee matter; or
    (5) A denial of a request for expedited treatment.


Sec.  1.6   Timing of responses to perfected records requests.

    (a) In general. Components ordinarily will respond to requests 
according to their order of receipt. In instances involving misdirected 
requests that are re-routed pursuant to Sec.  1.4(c), the response time 
will commence on the date that the request is received by the proper 
component's office that is designated to receive requests, but in any 
event not later than 10-working days after the request is first 
received by any component's office that is designated by these 
regulations to receive requests.
    (b) Response time for responding to requests. Components ordinarily 
will inform requesters of their determination concerning requests 
within 20-working days of the date of receipt of the requests, plus any 
extension authorized by paragraph (d) of this section.
    (c) Multitrack processing and how it affects requests. All 
components must designate a specific track for requests that are 
granted expedited processing in accordance with the standards set forth 
in paragraph (f) of this section. A component also may 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 and the need for 
consultations or referrals. Components will advise requesters of the 
track into which their request falls and, when appropriate, will offer 
the requesters an opportunity to narrow their request so that it can be 
placed in a different processing track in order to decrease the 
processing time. Components will also advise requesters of their right 
to seek assistance in this matter from the component's FOIA Public 
Liaison, and of the availability of dispute resolution services from 
the Office of Government Information Services. Generally, requests that 
can be processed within 20-working days are placed in the simple 
processing track, and requests where unusual circumstances apply are 
placed in the complex processing track.
    (d) Circumstances for extending the response time. Whenever the 
component cannot meet the statutory time limit for processing a request 
because of ``unusual circumstances,'' as defined in the FOIA, and the 
component extends the time limit on that basis, the component must, 
before expiration of the 20-day period to respond, notify the requester 
in writing of the unusual circumstances involved and of the date by 
which the component estimates

[[Page 26868]]

processing of the request will be completed. Where the extension 
exceeds 10-working days, the component must, as described by the FOIA, 
provide the requester with an opportunity to modify the request or 
arrange an alternative time period for processing the original or 
modified request. The component must make available its designated FOIA 
contact or its FOIA Public Liaison for this purpose. The component also 
must alert requesters to the availability of the Office of Government 
Information Services (OGIS) to provide dispute resolution services.
    (e) Combining or aggregating requests. Where a component reasonably 
believes that multiple requests submitted by a single requester, or by 
a group of requesters acting in concert, constitute a single request 
that would otherwise involve unusual circumstances, or have been 
submitted in this fashion to avoid FOIA fees, the requests may be 
aggregated. Components will not aggregate multiple requests that 
involve unrelated matters.
    (f) Procedures for requesting expedited processing. A requester who 
seeks expedited processing must submit a statement, certified to be 
true and correct to the best of that person's knowledge and belief, 
explaining in detail the basis for requesting expedited processing.
    (1) Requests and appeals will be processed on an expedited basis 
whenever it is determined 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; or
    (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.
    (2) Requests for expedited processing may be made at any time. 
Requests based on paragraphs (f)(1)(i) or (ii) of this section must be 
submitted to the component that maintains the records requested. 
Components receiving requests for expedited processing will decide 
whether to grant them within 10 calendar days of their receipt of these 
requests, and will notify the requesters accordingly. If a request for 
expedited treatment is granted, the request or appeal will be given 
priority, placed in the processing track for expedited requests or 
appeals, and will be processed as soon as practicable. If a request for 
expedited processing is denied, any appeal of that decision will be 
acted on expeditiously.


Sec.  1.7   Records responsive to records requests.

    (a) In determining which records are responsive to a request, a 
component ordinarily will include only records in its possession as of 
the date that the component begins its search.
    (b) A component is not required to create a new record in order to 
fulfill a request for records. The FOIA does not require agencies to do 
research, to analyze data, or to answer written questions in response 
to a request.
    (c) Creation of records may be undertaken voluntarily if a 
component determines this action to be in the public interest or the 
interest of the USDA.
    (d) A component is required to provide a record in the format 
specified by a requester, if the record is readily reproducible by the 
component in the format requested.


Sec.  1.8   Requirements for processing records requests seeking 
business information.

    (a) In general. Each component is responsible for making the final 
determination with regard to the disclosure or nondisclosure of 
business information in records submitted by an outside entity.
    (b) Definitions. For purposes of this section:
    (1) Business information means confidential commercial or financial 
information obtained by the USDA from a submitter that may be protected 
from disclosure under exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
    (2) Submitter means any person or entity, including a corporation, 
tribe, state, or foreign government, but not including another federal 
government entity that provides information, either directly or 
indirectly, to the federal government.
    (c) When notice to the submitter is required. (1) The component 
must promptly provide written notice to the submitter when it locates 
records responsive to a FOIA request if:
    (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, but has 
not yet determined whether the information is protected from 
disclosure.
    (2) The notice to a submitter must include:
    (i) Either a copy of the request or a general description of the 
request and the responsive records;
    (ii) A description of the procedures for objecting to the release 
of the possibly confidential information in accordance with paragraph 
(e) of this section;
    (iii) A time limit for responding to the component;
    (iv) Notice that the component, not the submitter, is responsible 
for deciding whether the information will be released or withheld; and
    (v) Notice that failing to respond within the timeframe provided by 
the component will create a presumption that the submitter has no 
objection to disclosure of the records in question.
    (d) Exceptions to submitter notice requirements. The notice 
requirements set forth in paragraphs (c) and (f) of this section do not 
apply if:
    (1) The component determines that the information is exempt under 
the FOIA and should not be disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than the FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600.
    (e) Submitter's opportunity to object to disclosure. The component 
will afford the submitter a reasonable amount of time from the date of 
receipt of the notice to object to the disclosure of any portion of the 
responsive records.
    (1) If a submitter objects to disclosure of any portion of the 
records, the submitter must explain the grounds upon which disclosure 
is opposed in a detailed written statement. The submitter must show why 
the information is a trade secret or commercial or financial 
information that is privileged or confidential. If the information is 
not a trade secret, the following categories must be addressed:
    (i) Whether the submitter provided the information voluntarily and, 
if so, how disclosure will impair the Government's ability to obtain 
similar information in the future and/or how the information fits into 
a category of information that the submitter does not customarily 
release to the public;
    (ii) Whether the Government required the information to be 
submitted, and if so, how disclosure will impair the Government's 
ability to obtain similar information in the future and/or how 
substantial competitive or other business harm would likely result from 
disclosure; and
    (iii) Information provided by the submitter under this paragraph 
may itself be subject to disclosure under the FOIA. A request for this 
information in a subsequent FOIA request may require a new submitter 
notice.

[[Page 26869]]

    (2) If the submitter fails to respond to the notice within the 
timeframe provided for it to respond, the submitter will be considered 
to have no objection to disclosure of the information.
    (f) Notice of intent to disclose over submitter's objection. If a 
component decides to disclose business information over the objection 
of a submitter, the component will give the submitter written notice, 
which will include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A disclosure date subsequent to the notice.
    (g) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the component 
will notify the submitter.
    (h) Corresponding notice to requester. Whenever a component 
provides a submitter with notice and an opportunity to object to 
disclosure under paragraph (e) of this section, the component will also 
notify the requester(s) that it has provided this notice.
    (i) Notice of reverse FOIA lawsuit. Whenever a submitter files a 
lawsuit seeking to prevent the disclosure of business information, the 
component will also notify the requester(s) of this action and advise 
that the request will be held in abeyance until the lawsuit initiated 
by the submitter is resolved.


Sec.  1.9   Administrative appeals.

    (a) Appeals of adverse determinations. If a requester is 
dissatisfied with a component's response to his or her request, the 
requester may submit a written appeal of that component's adverse 
determination denying the request in any respect.
    (b) Deadline for submitting an appeal. Requesters seeking an appeal 
must ensure that the written appeal is received by the office 
responsible for administrative processing of FOIA appeals, for the 
component that issued the initial response, and within 90 calendar days 
of the date of the adverse determination. The date of receipt of an 
appeal will be the day it is received in the office responsible for the 
administrative processing of appeals within the component issuing the 
response. Components adjudicating appeals will issue a decision on an 
appeal, within 20-working days of its date of receipt, plus any 
extension authorized by Sec.  1.6(d).
    (c) Appeals officials. Each component will provide for review of 
appeals by an official different from the official or officials 
designated to make initial determinations on requests.
    (d) Components' responses to appeals. The decision on an appeal 
will be made in writing.
    (1) If the component grants the appeal in whole or in part, it will 
inform the requester of any conditions surrounding the granting of the 
request (e.g., payment of fees). If the component grants only a portion 
of the appeal, it will treat the portion not granted as a denial.
    (2) If the component denies the appeal, either in part or in whole, 
it will inform the requester of that decision and of the following:
    (i) The reasons for denial, including any FOIA exemptions asserted;
    (ii) The name and title or position of each person responsible for 
denial of the appeal;
    (iii) The availability of mediation services offered by the Office 
of Government Information Services of the National Archives and Records 
Administration as a non-exclusive alternative to litigation; and
    (iv) The right to judicial review of the denial in accordance with 
5 U.S.C. 552(a)(4).
    (e) Legal sufficiency review of an appeal. If a component makes the 
determination to deny an appeal in whole or in part, that component 
will send a copy of all records to the Assistant General Counsel, 
General Law and Research Division that the Office of the General 
Counsel (OGC) would need to examine to provide a legal sufficiency 
review of the component's decision.
    (1) Frequently, these records will include a copy of the unredacted 
records requested, a copy of the records marked to indicate information 
the component proposes to withhold, all correspondence relating to the 
request, and a proposed determination letter. When the volume of 
records is so large as to make sending a copy impracticable, the 
component will enclose an informative summary and representative sample 
of those records. The component will not deny an appeal until it 
receives concurrence from the Assistant General Counsel.
    (2) With regard to appeals involving records of (OIG), the records 
in question will be referred to the OIG Office of Counsel, which will 
coordinate all necessary reviews.
    (f) Submission of an appeal before judicial review. Before seeking 
review by a court of a component's adverse determination, a requester 
generally must first submit a timely administrative appeal.


Sec.  1.10  Authentication and certification of records.

    (a) In general. Requests seeking either authenticated or certified 
copies of records will generally be processed under the FOIA. FOIA 
search, review and duplication fees, where applicable, may also apply. 
However, because the costs for authenticated and certified copies are 
outside the FOIA, the provisions of Sec.  1.12 that call for the 
automatic waiver of FOIA fees under $25.00 do not apply.
    (b) Authentication of records. (1) Authentication provides 
confirmation by a USDA officer that a certified copy of a record is 
what it purports to be, an accurate duplicate of the original record.
    (2) When a request is received for an authenticated copy of a 
record that the component determines may be made available, under the 
FOIA, each component will send an authentic (i.e., correct) copy of the 
record to the Assistant General Counsel responsible for the applicable 
component program or other designee of the Secretary of Agriculture. 
The Assistant General Counsel for the applicable component program or 
other designee of the Secretary of Agriculture will certify the copy to 
be authentic and affix the seal of the USDA to it.
    (3) The Hearing Clerk in the Office of Administrative Law Judges 
may authenticate copies of records for the Hearing Clerk. The Director 
of the National Appeals Division may authenticate copies of records for 
the National Appeals Division. The Inspector General is the official 
that authenticates copies of records for the OIG.
    (4) When any component determines that a record for which 
authentication is requested may be made available only in part, because 
certain portions of it are exempt from release under the FOIA, the 
component will process the record under the FOIA and make any needed 
redactions, including notations on the record as to the FOIA 
exemption(s) which require(s) the removal of the information redacted. 
In such an instance, the component will supply a copy of the record 
both in its unredacted state and in its redacted state to the party 
authorized to perform authentication, along with a copy of the proposed 
determination letter regarding the withholding of the information 
redacted.
    (5) The cost for authentication of records is $10.00 per page.
    (c) Certification of records. (1) Certification is the procedure by 
which a USDA officer confirms that a copy of a record is a true 
reproduction of the original.

[[Page 26870]]

    (2) When a request is received for a certified copy of a record 
that the component determines may be made available under the FOIA, 
each component will prepare a correct copy and a statement attesting 
that the copy is a true and correct copy.
    (3) When any component determines that a record for which a 
certified copy is requested may be made available only in part, because 
certain portions of it are exempt from release under the FOIA, the 
component will process the record under the FOIA and make any needed 
redactions, including notations on the record as to the FOIA 
exemption(s) which require(s) the removal of the information redacted.
    (4) The cost for certification of records is $5.00 per page.


Sec.  1.11  Preservation of records.

    Components will preserve all correspondence and records relating to 
requests and appeals received under this subpart, as well as copies of 
all requested records, until disposition or destruction of such 
correspondence and records is authorized pursuant to title 44 of the 
United States Code or the General Record Schedule 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 civil action under the FOIA.


Sec.  1.12  Fees and fee schedule.

    (a) Authorization to set FOIA fees. The Chief Financial Officer is 
delegated authority to promulgate regulations providing for a uniform 
fee schedule applicable to all components of the USDA regarding 
requests for records under this subpart. The regulations providing for 
a uniform fee schedule are found in Appendix A to this subpart.
    (b) In general. Components will charge for processing requests 
under the FOIA in accordance with the provisions of Appendix A to this 
subpart and the Uniform Freedom of Information Fee Schedule and 
Guidelines published by the Office of Management and Budget (OMB 
Guidelines).
    (c) Guidance for lowering FOIA fees. Components will ensure that 
searches, review, and duplication are conducted in the most efficient 
and least expensive manner practicable.
    (d) Communicating with requesters on fee issues. In order to 
resolve any fee issues that arise under this subpart, a component may 
contact a requester for additional information.
    (e) Notifying requesters of estimated fees. When a component 
determines or estimates that the processing of a FOIA request will 
incur chargeable FOIA fees, in accordance with Appendix A and the OMB 
Guidelines, the component will notify the requester in writing of the 
actual or estimated amount of the fees, including a breakdown of the 
fees for search, review or duplication, unless the requester has 
indicated a willingness to pay fees as high as those anticipated.
    (f) Requester commitment to pay estimated fees. In cases in which a 
requester has been notified that the processing of his or her request 
will incur chargeable FOIA fees, the component providing such 
notification will not begin processing the request until the requester 
commits in writing to pay the actual or estimated total fee, or 
designates the amount of fees that he or she is willing to pay, or in 
the case of a 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 these statutory entitlements. The requester must 
provide the commitment or designation in writing, and must, when 
applicable, designate an exact dollar amount he or she is willing to 
pay.
    (g) Tolling of request for fee issues. 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 when it notified the 
requester of the estimated fees in excess of the amount the requester 
is willing to pay. Once the requester responds, the time to respond 
will resume from where it was at the date of the notification.
    (h) Assisting requesters wishing to lower fees. 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.
    (i) Timing of Bills of Collection. Except in instances where 
advance payment is required, or where requesters have previously failed 
to pay a properly charged FOIA fee within 30 calendar days of the 
billing date, components may issue Bills for Collection for FOIA fees 
owed at the same time that they issue their responses to FOIA requests.
    (j) Advance payment of FOIA fees when estimated fees exceed 
$250.00. When a component determines or estimates that a total fee to 
be charged for the processing of a FOIA request is likely to exceed 
$250.00, it may require the requester to make an advance payment up to 
the amount of the entire anticipated fee before beginning to process 
the request. In cases in which a component requires advance payment, 
the request will be closed unless the advance payment is received 
within 20-working days of the date of the request for advance payment. 
However, a component may elect to process a request prior to collecting 
fees exceeding $250.00 when it receives a satisfactory assurance of 
full payment from a requester with a history of prompt payment.
    (k) Special services. For services not covered by the FOIA or by 
Appendix A, as described in Sec.  1.10, components may set their own 
fees in accordance with applicable law. Although components are not 
required to provide special services, such as providing multiple copies 
of the same record, or sending records by means other than first class 
mail, if a component chooses to do so as a matter of administrative 
discretion, the direct costs of these services will be charged.
    (l) 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-calendar 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 of the circumstances 
involves. Multiple requests involving unrelated matters will not be 
aggregated for fee purposes.
    (m) Payment of FOIA fees. Requesters must pay FOIA fees by check or 
money order made payable to the Treasury of the United States. 
Components are not required to accept payments in installments.
    (n) Failure to pay properly charged fees. When 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 
the requester's identity in order to avoid paying outstanding

[[Page 26871]]

fees, it may require that the requester provide proof of identity.
    (o) Restrictions on charging fees. If a component fails to comply 
with the statutory time limits in which to respond to a request, as 
provided in Sec.  1.6(b), and if unusual or exceptional circumstances, 
as those terms are defined by the FOIA, apply to the processing of the 
request, as discussed in Sec.  1.6(d), it may not charge search fees 
for the processing of the request, or duplication fees for the 
processing of the request if the requester is classified as an 
educational institution requester, a noncommercial scientific 
institution requester, or a representative of the news media, as 
defined in Appendix A, unless:
    (1) The component notifies the requester, in writing, within the 
statutory 20-working day time period, that unusual or exceptional 
circumstances as those terms are defined by the FOIA, apply to the 
processing of the request;
    (2) More than 5,000 pages are necessary to respond to the request; 
and
    (3) The component has discussed with the requester by means of 
written mail, electronic mail, or by telephone (or has made not less 
than 3 good-faith attempts to do so) how the requester could 
effectively limit the scope of the request.
    (p) Waivers of chargeable fees. (1) In general. Records responsive 
to a request will be furnished without charge or at a reduced rate 
below the rate established in Appendix A, where a component determines, 
based on available evidence, that the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest as defined in paragraph (p)(3) of this section, 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 as defined in paragraph (p)(4) of 
this section.
    (2) Adjudication of fee waivers. Each fee waiver request is judged 
on its own merit.
    (3) Factors for consideration of public interest. In deciding 
whether 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, 
components will consider all four of 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 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 requester's individual understanding. A requester's 
expertise in the subject area as well as his or her ability and 
intention to effectively convey information to the public will be 
considered. It will be presumed that a representative of the news 
media, as defined in Appendix A, will satisfy this consideration.
    (iv) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant degree. However, components 
will not make value judgments about whether the information at issue is 
``important'' enough to be made public.
    (4) Factors for consideration of commercial interest. In deciding 
whether disclosure of the requested information is in the requester's 
commercial interest, components will consider the following two 
factors:
    (i) Components will identify any commercial interest of the 
requester, as defined in Appendix A. Requesters may 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 will 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 will not be 
presumed to primarily serve the public interest.
    (5) Partial fee waivers. Where only some of the records to be 
released satisfy the requirements for a waiver of fees, a waiver will 
be granted for those records only.
    (6) Timing of requests for fee waivers. 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.

Appendix A--Fee Schedule

    Section 1. In General. This schedule sets forth fees to be 
charged for providing copies of records--including photographic 
reproductions, microfilm, maps and mosaics, and related services--
requested under the Freedom of Information Act (FOIA). The fees set 
forth in this schedule are applicable to all components of the USDA.
    Section 2. Definitions.
    (a) Types of FOIA fees. The FOIA defines the following types of 
FOIA fees that may be charged for responding to FOIA requests.
    (1) Search fees.
    (i) Searching 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.
    (ii) Search time is charged in quarter-hour increments within 
the USDA, and includes the direct costs incurred by a component in 
searching for records responsive to a request. It does not include 
overhead expenses such as the costs of space and heating or lighting 
of the facility in which the records are maintained.
    (iii) Components may charge for time spent searching for 
requested records even if they do not locate any responsive records 
or if they determine that the records that they locate are entirely 
exempt from disclosure.
    (iv) USDA components will charge for search time at the actual 
salary rate of the individual who conducts the search, plus 16 
percent of the salary rate (to cover benefits.) This rate was 
adopted for consistency with the OMB Fee Guidelines that state that 
agencies should charge fees that recoup the full allowable direct 
costs that they incur in searching for responsive records.
    (v) Search time also includes the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. Components will notify 
requesters of the costs of creating such a program, and requesters 
must agree to pay the associated costs before these costs may be 
incurred.
    (2) Review fees.
    (i) Reviewing is the process of examining records located in 
response to a request in order to determine whether any portion of 
the records is exempt from disclosure. The process of review also 
includes the process of preparing records for disclosure, for 
example, doing all that it necessary to redact them and prepare them 
for release. Review time also includes time spent considering any 
formal objection to disclosure of responsive records made by a 
business

[[Page 26872]]

submitter as discussed in Sec.  1.8 Requirements for processing 
requests seeking business information. However, it does not include 
time spent resolving general legal or policy issues regarding the 
application of the nine FOIA exemptions.
    (ii) Review time is charged in quarter-hour increments within 
the USDA, and includes the direct costs incurred by a component in 
preparing records responsive to a request for disclosure. It does 
not include overhead expenses such as the costs of space and heating 
or lighting of the facility in which the records are maintained.
    (iii) UDSA components may charge for time spent reviewing 
requested records even if they determine that the records reviewed 
are entirely exempt from disclosure.
    (iv) USDA components will charge for review time at the actual 
salary rate of the individual who conducts the review, plus 16 
percent of the salary rate (to cover benefits.) This rate was 
adopted for consistency with the OMB Fee Guidelines that state that 
agencies should charge fees that recoup the full allowable direct 
costs that they incur in reviewing records for disclosure.
    (v) Review time also includes the direct costs associated with 
the cost of computer programming designed to facilitate a manual 
review of the records, or to perform electronic redaction of 
responsive records, particularly when records are maintained in 
electronic form. Components will notify requesters of the costs 
performing such programming, and requesters must agree to pay the 
associated costs before these costs may be incurred.
    (3) Duplication fees.
    (i) Duplicating is the process of producing copies of records or 
information contained in records requested under the FOIA. Copies 
can take the form of paper, audiovisual materials, or electronic 
records, among other forms.
    (ii) Duplication is generally charged on a per-unit basis. The 
duplication of paper records will be charged at a rate of $.05 per 
page within the USDA. The duplication of records maintained in other 
formats will include all direct costs incurred by a component in 
performing the duplication, including any costs associated in 
acquiring special media, such as CDs, disk drives, special mailers, 
and so forth, for transmitting the requested records or information. 
It does not include overhead expenses such as the costs of space and 
heating or lighting of the facility in which the records are 
maintained.
    (iii) Duplication generally does not include the cost of the 
time of the individual making the copy. This time is generally 
factored into the per page cost of duplication. However, when 
duplication requires the handling of fragile records, or paper 
records that cannot be safely duplicated in high-speed copiers, 
components may also charge for the time spent duplicating these 
records. In such an instance, the cost of this time will be added to 
the per-page charge, and an explanation provided to the requester in 
the component's itemization of FOIA fees charges. Components may 
describe this time as time spent in duplicating fragile records.
    (iv) USDA components will charge for time spent in duplicating 
fragile records at the actual salary rate of the individual who 
performs the duplication, plus 16 percent of the salary rate (to 
cover benefits). This rate was adopted for consistency with the OMB 
Fee Guidelines that state that agencies should charge fees that 
recoup the full allowable direct costs that they incur in 
duplicating requested records.
    (v) Where paper records must be scanned in order to comply with 
a requester's preference to receive the records in an electronic 
format, duplication costs will also include the direct costs 
associated with scanning those materials, including the time spent 
by the individual performing the scanning. Components may describe 
this time as time spent in scanning paper records.
    (vi) However, when components ordinarily scan paper records in 
order to review and/or redact them, the time required for scanning 
records will not be included in duplication fees, but in review 
fees, when these are applicable. When components who ordinarily scan 
paper records in order to review and/or redact them, release records 
in an electronic format to requesters who are not to be charged 
review fees, duplication fees will not include the time spent in 
scanning paper records. In such instances, duplication fees may only 
include the direct costs of reproducing the scanned records. In such 
instances, components may not charge duplication fees on a per-page 
basis.
    (b) Categories of FOIA requesters for fee purposes. The FOIA 
defines the following types of requesters for the charging of FOIA 
fees.
    (1) Commercial requesters.
    (i) Commercial requesters are requesters who ask for information 
for a use or a purpose that furthers commercial, trade or profit 
interests, which can include furthering those interests through 
litigation. Components will determine, whenever reasonably possible, 
the use to which a requester will put the requested records. When it 
appears that the requester will put the records to a commercial use, 
either because of the nature of the request itself or because a 
component has reasonable cause to doubt a requester's stated use, 
the component may provide the requester a reasonable opportunity to 
submit further clarification. 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.
    (ii) Commercial requesters will be charged applicable search 
fees, review fees, and duplication fees.
    (iii) If a component fails to comply with the statutory time 
limits in which to respond to a commercial request, as provided in 
Sec.  1.6(b), and if no unusual or exceptional circumstances, as 
those terms are defined by the FOIA, apply to the processing of the 
request, as discussed in Sec.  1.6(d), it may not charge search fees 
for the processing of the request. It may, however, still charge 
applicable review and duplication fees.
    (iv) If a component fails to comply with the statutory time 
limits in which to respond to a commercial request, as provided in 
Sec.  1.6(b), when unusual or exceptional circumstances, as those 
terms are defined by the FOIA apply to the processing of the 
request, as discussed in section Sec.  1.6(d), and the component 
notifies the requester, in writing, within the statutory 20-working 
day time period, that unusual or exceptional circumstances as those 
terms are defined by the FOIA apply to the processing of the 
request, more than 5,000 pages are necessary to respond to the 
request, and the component has discussed with the requester by means 
of written mail, electronic mail, or by telephone (or has made not 
less than three good faith attempts to do so) how the requester 
could effectively limit the scope of the request, the component may 
charge any search fees for the processing of the request, as well as 
any applicable review and duplication fees. Otherwise, it may only 
charge applicable review and duplication fees.
    (2) Educational institution requesters.
    (i) Educational institution requesters are requesters who are 
affiliated with a school that operates a program of scholarly 
research, such as a preschool, a public or private elementary or 
secondary school, an institution of undergraduate education, an 
institution of graduate higher education, an institution of 
professional education, or an institution of vocational education. 
To be in this category, a requester must show that the request is 
authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for a commercial use 
but are sought to further scholarly research. Records sought by 
students at an educational institution for use in fulfilling their 
degree requirements do not necessarily qualify for educational 
institution status. Students must document how the records they are 
requesting will further the scholarly research aims of the 
institution in question.
    (ii) Educational institution requesters are entitled to receive 
100 pages of duplication without charge. Following the exhaustion of 
this entitlement, they will be charged fees for the duplicating of 
any additional pages of responsive records released. They may not be 
charged search fees or review fees.
    (iii) If a component fails to comply with the statutory time 
limits in which to respond to an educational use request, as 
provided in Sec.  1.6(b), and if no unusual or exceptional 
circumstances, as those terms are defined by the FOIA apply to the 
processing of the request, as discussed in Sec.  1.6(d), it may not 
charge duplication fees for the processing of the request.
    (iv) If a component fails to comply with the statutory time 
limits in which to respond to an educational use request, as 
provided in Sec.  1.6(b), when unusual or exceptional circumstances, 
as those terms are defined by the FOIA apply to the processing of 
the request, as discussed in Sec.  1.6(d), and the component 
notifies the requester, in writing, within the statutory 20-working 
day time period, that unusual or exceptional circumstances as those 
terms are defined by the FOIA apply to the processing of the 
request, more than 5,000 pages are necessary to respond to the 
request, and the component has discussed with the requester by means 
of written mail, electronic mail, or by telephone (or has made not 
less than 3 good-faith attempts to do so) how the requester could 
effectively limit the scope of the request, the

[[Page 26873]]

component may charge duplication for the processing of the request. 
Otherwise, it may not charge duplication fees.
    (3) Noncommercial scientific institution requesters.
    (i) Noncommercial scientific institution requesters are 
requesters who are affiliated with an institution that is not 
operated on a ``commercial'' basis, as that term is defined in 
paragraph (b)1(i) 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. To 
be in this category, a requester must show that the request is 
authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for a commercial use 
but are sought to further scientific research.
    (ii) Noncommercial scientific institution requesters are 
entitled to receive 100 pages of duplication without charge. 
Following the exhaustion of this entitlement, they will be charged 
fees for the duplicating of any additional pages of responsive 
records released. They may not be charged search fees or review 
fees.
    (iii) If a component fails to comply with the statutory time 
limits in which to respond to a noncommercial scientific institution 
request, as provided in Sec.  1.6(b), and if no unusual or 
exceptional circumstances, as those terms are defined by the FOIA 
apply to the processing of the request, as discussed in Sec.  
1.6(d), it may not charge duplication fees for the processing of the 
request.
    (iv) If a component fails to comply with the statutory time 
limits in which to respond to a noncommercial scientific institution 
request, as provided in Sec.  1.6(b), when unusual or exceptional 
circumstances, as those terms are defined by the FOIA apply to the 
processing of the request, as discussed in Sec.  1.6(d), and the 
component notifies the requester, in writing, within the statutory 
20-working day time period, that unusual or exceptional 
circumstances as those terms are defined by the FOIA apply to the 
processing of the request, more than 5,000 pages are necessary to 
respond to the request, and the component has discussed with the 
requester by means of written mail, electronic mail, or by telephone 
(or has made not less than 3 good-faith attempts to do so) how the 
requester could effectively limit the scope of the request, the 
component may charge duplication for the processing of the request. 
Otherwise, it may not charge duplication fees.
    (4) Representatives of the news media.
    (i) Representatives of the news media are persons or entities 
organized and operated to publish or broadcast news to the public 
that actively gather information of potential interest to a segment 
of the public, uses their editorial skills to turn the raw materials 
into a distinct work, and distribute that work to an audience. The 
term ``news'' means information that is about current events or that 
would be of current interest to the public. Examples of news media 
entities include television or radio stations broadcasting to the 
public at large and publishers of periodicals (but only in those 
instances where they can qualify as disseminators of ``news'') who 
make their products available for purchase or subscription by the 
general public, including news organizations that disseminate solely 
on the internet. For ``freelance'' journalists to be regarded as 
working for a news organization, they must demonstrate a solid basis 
for expecting publication through that organization. A publication 
contract would be the clearest proof, but components will also look 
to the past publication record of a requester in making this 
determination. To be in this category, a requester must not be 
seeking the requested records for a commercial use. However, a 
request for records supporting the news-dissemination function of 
the requester will not be considered to be for a commercial use.
    (ii) Representatives of the news media are entitled to receive 
100 pages of duplication without charge. Following the exhaustion of 
this entitlement, they will be charged fees for the duplication of 
any additional pages of responsive records released. They may not be 
charged search or review fees.
    (iii) If a component fails to comply with the statutory time 
limits in which to respond to a news-media use request, as provided 
in Sec.  1.6(b), and if no unusual or exceptional circumstances, as 
those terms are defined by the FOIA apply to the processing of the 
request, as discussed in Sec.  1.6(d), it may not charge duplication 
fees for the processing of the request.
    (iv) If a component fails to comply with the statutory time 
limits in which to respond to a news-media request, as provided in 
Sec.  1.6(b), when unusual or exceptional circumstances, as those 
terms are defined by the FOIA apply to the processing of the 
request, as discussed in Sec.  1.6(d), and the component notifies 
the requester, in writing, within the statutory 20-working day time 
period, that unusual or exceptional circumstances as those terms are 
defined by the FOIA apply to the processing of the request, more 
than 5,000 pages are necessary to respond to the request, and the 
component has discussed with the requester by means of written mail, 
electronic mail, or by telephone (or has made not less than 3 good-
faith attempts to do so) how the requester could effectively limit 
the scope of the request, the component may charge duplication for 
the processing of the request. Otherwise, it may not charge 
duplication fees.
    (5) All other requesters.
    (i) All other requesters are individuals and entities who do not 
fall into any of the four categories described in paragraphs (1), 
(2), (3) and (4) of this section. Requesters seeking information for 
personal use, public interest groups, and nonprofit organizations 
are examples of requesters who might fall into this group.
    (ii) All other requesters are entitled to receive 100 pages of 
duplication without charge. Following the exhaustion of this 
entitlement, they will be charged fees for the duplicating of any 
additional pages of responsive records released. All other 
requesters are also entitled to receive 2 hours of search time 
without charge. Following the exhaustion of this entitlement, they 
may be charged search fees for any remaining search time required to 
locate the records requested. They may not be charged review fees.
    (iii) If a component fails to comply with the statutory time 
limits in which to respond to an all-other request, as provided in 
Sec.  1.6(b), and if no unusual or exceptional circumstances, as 
those terms are defined by the FOIA, apply to the processing of the 
request, as discussed in Sec.  1.6(d), it may not charge search fees 
for the processing of the request.
    (iv) If a component fails to comply with the statutory time 
limits in which to respond to an all-other request, as provided in 
Sec.  1.6(b), when unusual or exceptional circumstances, as those 
terms are defined by the FOIA apply to the processing of the 
request, as discussed in Sec.  1.6(d), and the component notifies 
the requester, in writing, within the statutory 20-working day time 
period, that unusual or exceptional circumstances as those terms are 
defined by the FOIA apply to the processing of the request, more 
than 5,000 pages are necessary to respond to the request, and the 
component has discussed with the requester by means of written mail, 
electronic mail, or by telephone (or has made not less than 3 good-
faith attempts to do so) how the requester could effectively limit 
the scope of the request, the component may charge search fees for 
the processing of the request as well as any applicable duplication 
fees. Otherwise, it may only charge only applicable duplication 
fees.
    Section 3. Charging fees.
    (a) In general. When responding to FOIA requests, components 
will charge all applicable FOIA fees that exceed the USDA charging 
threshold, as provided in paragraph (b) of this section, unless a 
waiver or reduction of fees has been granted under Sec.  1.12(p), or 
statutory time limits on processing are not met, and when unusual or 
exceptional circumstances apply, components do not meet all of the 
three conditions for charging as set forth in Sec.  1.12(o).
    (b) USDA fee charging threshold. The OMB Fee Guidelines state 
that agencies will not charge FOIA fees if the cost of collecting 
the fee would be equal to or greater than the fee itself. This 
limitation applies to all requests, including those seeking records 
for commercial use. At the USDA, the cost of collecting a FOIA fee 
is currently established as $25.00. Therefore, when calculating FOIA 
fees, components will charge requesters all applicable FOIA fees 
when these fees equal or exceed $25.01.
    (c) 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.
    (d) NARA retrieval fees. For requests that require the retrieval 
of records stored by a component at a Federal records center 
operated by the National Archives and Records Administration (NARA), 
additional costs will be charged in accordance with the

[[Page 26874]]

Transactional Billing Rate Schedule established by NARA.
    (e) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires a component 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 program.
    (f) Social Security Numbers and Tax Identification Numbers. 
Components may not require requesters to provide Social Security 
Numbers or Tax Identification Numbers in order to pay FOIA fees due.

                               Table 1 of Appendix to Subpart A--FOIA Fee Schedule
----------------------------------------------------------------------------------------------------------------
             Type of request                     Type of charge                          Price
----------------------------------------------------------------------------------------------------------------
Commercial Requesters...................  Duplication charges........  $0.05 per page.
                                                                       When the component has to copy fragile
                                                                        records, the charge is $0.05 per page
                                                                        plus the copying time involved, which
                                                                        includes the actual hourly salary rate
                                                                        of the employee involved, plus 16% of
                                                                        the hourly salary rate.
                                          Search charges.............  Actual hourly salary rate of employee
                                                                        involved, plus 16% of the hourly salary
                                                                        rate.
                                          Review charges.............  Actual hourly salary rate of employee
                                                                        involved, plus 16% of the hourly salary
                                                                        rate.
Educational or Non-Commercial Scientific  Duplication charges........  No charge for first 100 pages, then $0.05
 Requesters.                                                            per page.
                                                                       When the component has to copy fragile
                                                                        records, the charge is $0.05 per page
                                                                        plus the copying time involved, which
                                                                        includes the actual hourly salary rate
                                                                        of the employee involved, plus 16% of
                                                                        the hourly salary rate.
                                          Search charges.............  Free.
                                          Review charges.............  Free.
Representatives of the News Media.......  Duplication charges........  No charge for first 100 pages, then $0.05
                                                                        per page.
                                                                       When the component has to copy fragile
                                                                        records, the charge is $0.05 per page
                                                                        plus the copying time involved, which
                                                                        includes the actual hourly salary rate
                                                                        of the employee involved, plus 16% of
                                                                        the hourly salary rate.
                                          Search charges.............  Free.
                                          Review charges.............  Free.
All Other Requesters....................  Duplication charges........  No charge for first 100 pages, then $0.05
                                                                        per page.
                                                                       When the component has to copy fragile
                                                                        records, the charge is $0.05 per page
                                                                        plus the copying time involved, which
                                                                        includes the actual hourly salary rate
                                                                        of the employee involved, plus 16% of
                                                                        the hourly salary rate.
                                          Search charges.............  No charge for first two (2) hours of
                                                                        search time, then actual hourly salary
                                                                        rate of employee involved, plus 16% of
                                                                        the hourly salary rate.
                                          Review charges.............  Free.
----------------------------------------------------------------------------------------------------------------


    Dated: May 25, 2018.
Stephen L. Censky,
Deputy Secretary.
[FR Doc. 2018-11868 Filed 6-8-18; 8:45 am]
 BILLING CODE 3410-P