[Federal Register Volume 83, Number 155 (Friday, August 10, 2018)]
[Rules and Regulations]
[Pages 39588-39596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17171]


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DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Part 4

[160801675-7593-02]
RIN 0605-AA45


Public Information, Freedom of Information Act and Privacy Act 
Regulations

AGENCY: Department of Commerce.

ACTION: Final rule.

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SUMMARY: This rule amends the Department of Commerce's (Department) 
regulations under the Freedom of Information Act (FOIA) and Privacy 
Act. The FOIA regulations are being revised to clarify, update and 
streamline the language of several procedural provisions, including 
methods for submitting FOIA requests and appeals and the time limits 
for filing an administrative appeal, and to incorporate certain changes 
brought about by the amendments to the FOIA under the FOIA Improvement 
Act of 2016. Additionally, the FOIA regulations are being updated to 
reflect developments in the case law.

DATES: These amendments are effective August 10, 2018.

FOR FURTHER INFORMATION CONTACT: Dr. Michael J. Toland, Deputy Chief 
Freedom of Information Act Officer and Department Privacy Act Officer, 
Office of Privacy and Open Government, 1401 Constitution Ave. NW, Room 
61013, Washington, DC 20230.

SUPPLEMENTARY INFORMATION: 

Background Information

    On February 6, 2018, the Department published a proposed rule 
revising its existing regulations under the FOIA and Privacy Act. See 
83 FR 5215. This rule proposed revisions to the Department's 
regulations under the Freedom of Information Act to incorporate certain 
changes made to the FOIA, 5 U.S.C. 552, by the FOIA Improvement Act of 
2016, Public Law 114-185, 130 Stat. 538 (June 30, 2016). The FOIA 
Improvement Act of 2016 provides that agencies must allow a minimum of 
90 days for requesters to file an administrative appeal. The Act also 
requires that agencies notify requesters of the availability of dispute 
resolution services at various times throughout the FOIA process. This 
rule updated the Department's regulations in 15 CFR part 4, subpart A, 
to reflect those statutory changes. Additionally, this rule revises the 
Department's regulations under the FOIA to clarify, update and 
streamline

[[Page 39589]]

the language of several procedural provisions, including the methods 
for submitting FOIA requests and appeals, to reflect developments in 
the case law and to keep the regulations up to date with small 
administrative changes.

Public Comments

    Interested persons were afforded the opportunity to participate in 
the rulemaking process through submission of written comments to the 
proposed rule during the 30-day open comment period. The Department 
received twenty-four public submissions in response to the proposed 
rulemaking. Due consideration was given to each comment received and a 
determination was made that twenty-three of the comments were not 
relevant to the proposed rule.\1\ The Department adopted the twenty-
fourth comment to enable a more efficient FOIA process.
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    \1\ Comment topics included discussions about infrastructure gas 
pipelines, clean water issues, air quality, environmental 
regulations, and mining.
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Section 4.10 (Appeals From Initial Determinations or Untimely Delays)

    One commenter offered that the proposed regulations should comply 
with guidance from the U.S. Department of Justice's Office of 
Information Policy (OIP) directing agencies--as part of the agency's 
final appeal determination--to also alert FOIA requesters of OGIS's 
mediation services as a nonexclusive alternative to litigation. The 
Department accepts this suggestion and updates Sec.  4.10(f) with 
language that follows the aforementioned OIP guidance.
    The same commenter further recommended that the Department add 
language to Sec.  4.10(f), which clarifies for requesters the 
difference between formal mediation and the services OGIS provides. The 
Department also agrees with this suggestion and updates Sec.  4.10(f) 
with appropriate clarifying language.

Classification

    Executive Order 12866: It has been determined that this document is 
not significant for purposes of E.O. 12866.
    Regulatory Flexibility Act: In accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), the Chief Counsel for Regulation 
certified at the Proposed Rule stage that this regulation will not have 
a significant economic impact on a substantial number of small 
entities. The factual basis for this certification was published with 
the proposed rule and is not repeated here. No comments were received 
regarding the economic impact of this final rule. As a result, a final 
regulatory flexibility analysis is not required and one was not 
prepared.
    Paperwork Reduction Act: This document does not contain a 
collection-of-information requirement subject to the Paperwork 
Reduction Act (PRA). Notwithstanding any other provision of law, no 
person is required to respond to, nor shall any person be subject to a 
penalty for failure to comply with a collection of information subject 
to the Paperwork Reduction Act unless that collection displays a 
currently valid OMB Control Number.

    Dated: August 7, 2018.
Michael J. Toland,
Department of Commerce, Deputy Chief FOIA Officer, Department Privacy 
Act Officer.

    For the reasons stated in the preamble, the Department of Commerce 
amends 15 CFR part 4 as follows:

PART 4--[AMENDED]

0
1. The authority citation for part 4 continues to read as follows:

    Authority:  5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 
553; 31 U.S.C. 3717; 41 U.S.C. 3101; Reorganization Plan No. 5 of 
1950.

Subpart A--Freedom of Information Act

0
2. Amend Sec.  4.1 by redesignating paragraph (c) as (d), and by adding 
a new paragraph (c) to read as follows:


Sec.  4.1   General provisions.

* * * * *
    (c) The Department has a FOIA Requester Service Center with at 
least one FOIA Public Liaison. Each Department component may have a 
FOIA Requester Service Center with at least one FOIA Public Liaison. 
FOIA Public Liaisons are responsible for: Working with requesters that 
have any concerns about the service received from a FOIA component, 
reducing delays in the processing of FOIA requests, increasing 
transparency and understanding of the status of requests, and assisting 
in the resolution of disputes. Contact information for the relevant 
component FOIA Requester Service Centers, FOIA Public Liaisons, and 
component FOIA offices and contacts is available at http://www.osec.doc.gov/opog/contacts.html.
* * * * *

0
3. Amend Sec.  4.2 by revising paragraphs (a) and (c) to read as 
follows:


Sec.  4.2   Public reading rooms.

    (a) Records that the FOIA requires to be made available for public 
inspection and copying are accessible electronically through the 
Department's ``Electronic FOIA Library'' on the Department's website, 
http://www.doc.gov, which includes links to websites for those 
components that maintain Electronic FOIA Libraries. Each component of 
the Department is responsible for determining which of its records are 
required to be made available, as well as identifying additional 
records of interest to the public that are appropriate for disclosure, 
and for making those records available either in its own Electronic 
Library or in the Department's central Electronic FOIA Library. 
Components that maintain their own Electronic FOIA Libraries are 
designated as such in Appendix A to this part. Each component shall 
also maintain and make available electronically a current subject-
matter index of the records made available electronically. Each 
component shall ensure that posted records and indices are updated 
regularly, at least quarterly.
* * * * *
    (c) The Department and its components shall maintain and make 
available electronically for public inspection:
    (1) Copies of records that have been released and--
    (i) That the component that maintains them determines, because of 
their subject matter, have become or are likely to become the subject 
of subsequent requests for substantially the same records by other 
requesters, or
    (ii) That have been requested three or more times by different 
requesters;
    (2) A general index of the records available for public 
inspection--for purposes of these regulations, a general index includes 
records available through a search capability on the Department or 
component's website, such as a person finder;
    (3) Final opinions and orders, including concurring and dissenting 
opinions made in the adjudication of cases;
    (4) Those statements of policy and interpretations that have been 
adopted by a component and are not published in the Federal Register; 
and
    (5) Administrative staff manuals and instructions to staff that 
affect a member of the public.

0
4. Amend Sec.  4.3 by revising paragraph (d) to read as follows:


Sec.  4.3   Records under the FOIA.

* * * * *
    (d) Components shall preserve all correspondence pertaining to the 
requests they receive under this subpart, as well as copies of all 
requested records, until disposition or destruction

[[Page 39590]]

is authorized by Title 44 of the United States Code or the National 
Archives and Records Administration's General Records Schedule 4.2, 
Information Access and Protection Records. Components shall not dispose 
of records while they are the subject of a pending request, appeal, or 
lawsuit under the FOIA.

0
5. Revise Sec.  4.4 to read as follows:


Sec.  4.4   Requirements for making requests.

    (a) How made and addressed. The Department 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 
electronic mail (email) or the FOIAonline website, http://foiaonline.regulations.gov. A request for Department records that are 
not customarily made available to the public as part of the 
Department's regular informational services (or pursuant to a user fee 
statute), must be in writing and shall be processed under the FOIA, 
regardless of whether the FOIA is mentioned in the request. Requests 
must include the requester's full name and a valid return address. 
Requesters may also include other contact information, such as an email 
address and a telephone number. For the quickest handling, the request 
(and envelope, if the request is mailed or hand delivered) should be 
marked ``Freedom of Information Act Request.'' Requests may be 
submitted by U.S. mail, delivery service, email, or online at the 
FOIAonline website, http://foiaonline.regulations.gov. Requests may 
also be submitted to some components, identified in Appendix A to this 
part, by facsimile. Requests should be sent to the Department component 
identified in Appendix A to this part that maintains those records 
requested, and should be sent to the addresses, email addresses, or 
numbers listed in Appendix A to this part or the Department's website, 
http://www.doc.gov.\1\ If the proper component cannot be determined, 
the request should be sent to the central facility identified in 
Appendix A to this part. The central facility will forward the request 
to the component(s) it believes most likely to have the requested 
records. Requests will be considered received for purposes of the 20-
day time limit of Sec.  4.6 as of the date it is received by the proper 
component's FOIA office, but in any event not later than ten working 
days after the request is first received by any Department component 
identified in Appendix A to this part.
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    \1\ The United States Patent and Trademark Office (USPTO), which 
is established as an agency of the United States within the 
Department of Commerce, operates under its own FOIA regulations at 
37 CFR part 102, subpart A. Accordingly, requests for USPTO records, 
and any appeals thereof, should be sent directly to the USPTO.
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    (b) Requests for records about an individual or oneself. For 
requests for records about oneself, Sec.  4.24 contains additional 
requirements. For requests for records about another individual, either 
a notarized authorization signed by that individual or a declaration by 
that individual made under 28 U.S.C. 1746, a law that permits 
statements to be made under penalty of perjury as a substitute for 
notarization, permitting disclosure of the individual's records to the 
requester, or proof that the individual is deceased (for example, a 
copy of a death certificate or an obituary) will facilitate processing 
the request.
    (c) Description of records sought. (1) A FOIA request must 
reasonably describe the agency records sought, to enable Department 
personnel to locate them with a reasonable amount of effort.
    (2) Whenever possible, a request should include specific 
information about each record sought, such as the date, title or name, 
author, recipient, subject matter of the record, case number, file 
designation, or reference number, and the name and location of the 
office where the record(s) might be found.
    (i) In addition, if records about a court case are sought, the 
title of the case, the court in which the case was filed, and the 
nature of the case should be included.
    (ii) If known, any file designations or descriptions of the 
requested records should be included.
    (iii) As a general rule, the more specifically the request 
describes the records sought, the greater the likelihood that the 
Department will be able to locate those records.
    (3) Before submitting their requests, requesters may first contact 
the Department's or the component's FOIA contact to discuss the records 
they are seeking and to receive assistance in describing the records.
    (4) For further assistance, requesters may also contact the 
relevant FOIA Requester Service Center or FOIA Public Liaison. Contact 
information for relevant FOIA Requester Service Centers and FOIA Public 
Liaisons is contained on the Department's website, http://www.osec.doc.gov/opog/contacts.html and Appendix A to this part.
    (5) If a component determines that a request does not reasonably 
describe the records sought, it shall inform the requester what 
additional information is needed or how the request is otherwise 
insufficient, to enable the requester to modify the request to meet the 
requirements of this section.
    (6) Requesters who are attempting to reformulate or modify such a 
request may discuss their request first with the relevant FOIA Contact, 
or if unresolved, with the relevant Requester Service Center or FOIA 
Public Liaison to discuss the records they are seeking and to receive 
assistance in describing the records.
    (7) When a requester fails to provide sufficient detail within 30 
calendar days after having been asked to reasonably describe the 
records sought, the component shall notify the requester in writing 
that the request has not been properly made, that no further action 
will be taken, and that the FOIA request is closed. Such a notice 
constitutes an adverse determination under Sec.  4.7(d) for which 
components shall follow the procedures for a denial letter under Sec.  
4.7(e).
    (8) In cases where a requester has modified his or her request, the 
date of receipt for purposes of the 20-day time limit of Sec.  4.6 
shall be the date of receipt of the modified request.

0
6. Amend Sec.  4.5 by revising paragraphs (a), (b), and (c) to read as 
follows:


Sec.  4.5   Responsibility for responding to requests.

    (a) In general. Except as stated in paragraph (b) of this section, 
the proper component of the Department to respond to a request for 
records is the component that first receives the request and has 
responsive records (or in the instance of where no records exist, the 
component that first receives the request and is likely to have 
responsive records), or the component to which the Departmental FOIA 
Officer or component FOIA Officer assigns lead responsibility for 
responding to the request. Where a component's FOIA office determines 
that a request was misdirected within the Department, the receiving 
component's FOIA office shall route the request to the FOIA office of 
the proper component(s). Records responsive to a request shall include 
those records within the Department's possession and control as of the 
date the Department begins its search for them. A record that is 
excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), 
is not considered responsive to a request.
    (b) Consultations and referrals. When the Department or a component 
receives a request for a record (or a portion thereof) in its 
possession that originated with another Departmental component or 
Federal agency subject to the FOIA,

[[Page 39591]]

the Department or component should typically refer the record to the 
component or originating agency for direct response to the requester 
(see Sec.  4.8 for additional information about referrals of classified 
information). When the Department or a component receives a request for 
a record (or a portion thereof) in its possession that originated with 
another Departmental component, Federal agency, or executive branch 
office that is not subject to the FOIA, the Department or component 
shall consult with that component, Federal agency, or executive branch 
office before responding to the requester. In instances where a record 
is requested that originated with the Department or component and 
another component, Federal agency, or executive branch office has 
substantial interest in the record (or a portion thereof), the 
Department or component should typically consult with that component, 
Federal agency, or executive branch office before responding to the 
requester.
    (c) Notice of referral. Whenever a component refers a record to 
another Federal agency or Department component for direct response to 
the requester, the component's FOIA Officer should typically notify the 
requester in writing of the referral and inform the requester of the 
name(s) of the agency or Department component to which the record was 
referred, including that agency's or component's FOIA contact 
information. The standard referral procedure is not appropriate where 
disclosure of the identity of the agency or Department component 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 agency responding to a request for records on a living 
third party locates within its files records originating with a law 
enforcement agency, and if the existence of that law enforcement 
interest in the third party were not publicly known, then to disclose 
that law enforcement interest by providing notice of a referral could 
cause an unwarranted invasion of the personal privacy of the third 
party. In such cases, the agency that received the request should 
consult with the originating agency to seek its views on the 
disclosability of the record and the release determination should then 
be conveyed to the requester by the agency that originally received the 
request.
* * * * *

0
7. Amend Sec.  4.6 by revising paragraphs (d)(1), (d)(2), and (e)(1) to 
read as follows:


Sec.  4.6   Time limits and expedited processing.

* * * * *
    (d) * * *
    (1) Components may extend the time period for processing a FOIA 
request only in ``unusual circumstances,'' as described in paragraph 
(d)(2) of this section, in which the component shall, before expiration 
of the twenty-day period to respond, notify the requester of the 
extension in writing of the unusual circumstances involved and the date 
by which processing of the request is expected to be completed. If the 
extension is for more than ten working days, the component shall 
provide the requester with an opportunity to modify the request or 
agree to an alternative time period for processing the original or 
modified request. Furthermore, the requester will be advised that the 
relevant FOIA Public Liaison or FOIA contact is available for this 
purpose and of the requester's right to seek dispute resolution 
services from the Office of Government Information Services (OGIS).
    (2) For purposes of this section, ``unusual circumstances'' 
include:
    (i) The need to search for and collect the requested agency records 
from field facilities or other establishments that are separate from 
the office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are the subject 
of a single request; or
    (iii) The need to consult, which shall be conducted with all 
practicable speed, with another Federal agency having a substantial 
interest in the determination of the FOIA request or with another 
component of the Department which has a substantial interest in the 
determination of the request.
* * * * *
    (e) * * *
    (1) A component must use two or more processing tracks by 
distinguishing between simple and more complex requests based on the 
amount of work and/or time needed to process the request, including the 
amount of pages involved, the need to consult with or refer to other 
agencies or Department components or for commercial confidential 
information to a third party, or whether the request qualifies for 
unusual circumstances as described in paragraph (d)(2) of this section, 
and whether the request qualifies for expedited processing as described 
in paragraph (f) of this section.
* * * * *

0
8. Revise Sec.  4.7 to read as follows:


Sec.  4.7   Responses to requests.

    (a) Acknowledgment of requests. Upon receipt of a request, a 
component ordinarily shall send an acknowledgement to the requester 
which shall provide an assigned tracking request number for further 
reference and, if necessary, confirm whether the requester is willing 
to pay fees. A component must send this acknowledgment if the request 
will take longer than ten working days to process. In most cases, the 
acknowledgement email, generated by the FOIAonline system, that is sent 
to requesters who provide an email address will suffice for this 
requirement.
    (b) Interim responses. If a request involves voluminous records or 
requires searches in multiple locations, to the extent feasible, a 
component shall provide the requester with interim responses. Such 
responses may include records that are fully releasable or records that 
have been withheld in part under one or more applicable FOIA exemptions 
set forth at 5 U.S.C. 552(b). Bureaus will make reasonable efforts to 
provide to requesters an estimated date when a determination will be 
provided. An interim response is not a determination and appeal rights 
need not be provided with the interim response.
    (c) Determination--(1) Grants of requests. If a component makes a 
determination to grant a request in whole or in part, it shall notify 
the requester in writing of such determination.
    (i) A component shall inform the requester:
    (A) Of any fees charged under Sec.  4.11; and
    (B) That the requester may contact the relevant FOIA Public Liaison 
or FOIA contact for further assistance.
    (ii) The component shall also disclose records to the requester 
promptly upon payment of any applicable fees.
    (iii) Records disclosed in part shall be marked or annotated to 
show the applicable FOIA exemption(s) and the amount of information 
deleted, unless doing so would harm an interest protected by an 
applicable exemption. The location of the information deleted shall 
also be indicated on the record, if feasible.
    (2) Adverse determinations of requests. If a component makes an 
adverse determination regarding a request, it shall notify the 
requester of that determination in writing.

[[Page 39592]]

    (i) An adverse determination may be a denial of a request and 
includes decisions that:
    (A) The requested record is exempt, in whole or in part.
    (B) The request does not reasonably describe the records sought and 
the requester is unwilling to further clarify the request.
    (C) The information requested is not a record subject to the FOIA.
    (D) The requested record does not exist, cannot be located, or has 
previously been destroyed.
    (E) The requested record is not readily reproducible in the form or 
format sought by the requester.
    (ii) Adverse determinations may also include:
    (A) Denials of requested fee category status.
    (B) Denials of requests for fee waivers.
    (C) Denials of requests for expedited processing.
    (D) Denials of requests for reduction of fees.
    (3) Content of denial. The denial letter shall be signed by an 
official listed in Appendix B to this part (or a designee), and shall 
include:
    (i) The name and title or position of the person responsible for 
the denial;
    (ii) A brief statement of the reason(s) for the denial, including 
any FOIA exemption(s) applied by the component in denying the request;
    (iii) An estimate of the volume of any records or information 
withheld, by providing the number of pages or some other reasonable 
form of estimation. This estimate 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 FOIA exemption;
    (iv) A statement advising the requester of the right to seek 
dispute resolution services from the Department FOIA Public Liaison, 
the relevant component FOIA Public Liaison or FOIA contact, or OGIS; 
and
    (v) A statement that the denial may be appealed under Sec.  4.10, 
and a list of the requirements for filing an appeal set forth in Sec.  
4.10(b).

0
9. Revise Sec.  4.9 to read as follows:


Sec.  4.9   Confidential commercial information.

    (a) Definitions. For the purposes of this section:
    (1) Confidential commercial information means commercial or 
financial information, obtained by the Department from a submitter, 
which may be protected from disclosure under FOIA exemption (b)(4) (5 
U.S.C. 552(b)(4)).
    (2) Submitter means any person or entity outside the Federal 
Government from which the Department obtains confidential commercial 
information, directly or indirectly. The term includes U.S. or foreign 
persons, U.S. or foreign corporations; state, local and tribal 
governments; and foreign governments.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information should be encouraged to use 
good-faith efforts to designate, by appropriate markings, either at the 
time of submission or at a reasonable time thereafter, any portions of 
its submission that it considers to be protected from disclosure under 
FOIA exemption (b)(4). These designations will expire ten years after 
the date of the submission unless the submitter requests, and provides 
justification for, a longer period.
    (c) Notice to submitters. (1) A component shall provide a submitter 
with prompt written notice of a FOIA request or administrative appeal 
that seeks its confidential commercial information whenever required 
under paragraph (d) of this section, except as provided in paragraph 
(g) of this section, in order to give the submitter an opportunity 
under paragraph (e) of this section to object to disclosure of any 
specified portion of that information.
    (2) Such written notice shall be sent via certified mail, return 
receipt requested, or similar means.
    (3) Where notification of a voluminous number of submitters is 
required, such notification may be accomplished by posting or 
publishing the notice in a place reasonably calculated to accomplish 
notification.
    (4) The notice shall either describe the confidential commercial 
information requested or include copies of the requested records or 
portions of the records containing the information. If notification of 
a large number of submitters is required, notification may be made by 
posting or publishing the notice in a place reasonably likely to 
accomplish notification, instead of sending individual notifications.
    (d) When notice is required. Notice shall be given to the submitter 
whenever:
    (1) The submitter has designated the information in good faith as 
protected from disclosure under FOIA exemption (b)(4); or
    (2) The component has reason to believe that the information may be 
protected from disclosure under FOIA exemption (b)(4), but has not yet 
determined whether the information is protected from disclosure.
    (e) Opportunity to object to disclosure. A component shall allow a 
submitter seven working days (i.e., excluding Saturdays, Sundays, and 
legal public holidays) from the date of receipt of the written notice 
described in paragraph (c) of this section to provide the component 
with a statement of any objection to disclosure. A FOIA Officer may 
extend the comment period from seven to ten working days, if a 
submitter requests an extension. The statement from a submitter must 
identify any portions of the information the submitter requests to be 
withheld under FOIA exemption (b)(4), and describe how each qualifies 
for protection under the exemption: That is, why the information is a 
trade secret, or commercial or financial information that is privileged 
or confidential. If a submitter fails to respond to the notice within 
the time specified, the submitter will be considered to have no 
objection to disclosure of the information. Information a submitter 
provides under this paragraph may itself be subject to disclosure under 
the FOIA.
    (f) Notice of intent to disclose. A component shall consider a 
submitter's objections and specific grounds under the FOIA for 
nondisclosure in deciding whether to disclose confidential commercial 
information. If a component decides to disclose confidential commercial 
information over a submitter's objection, the component shall give the 
submitter written notice via certified mail, return receipt requested, 
or similar means, which shall include:
    (1) A statement of reason(s) why the submitter's objections to 
disclosure were not sustained;
    (2) A description of the confidential commercial information to be 
disclosed; and
    (3) A statement that the component intends to disclose the 
information seven working days, or ten working days if an extension is 
granted, from the date the submitter receives the notice.
    (g) Exceptions to notice requirements. The notice requirements of 
paragraphs (c) and (f) of this section shall not apply if:
    (1) The component determines that the information is exempt and 
will be withheld under a FOIA exemption;
    (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 Executive 
Order 12600; or
    (4) The designation made by the submitter under paragraph (b) of 
this

[[Page 39593]]

section appears obviously frivolous, except that, in such a case, the 
component shall provide the submitter written notice of any final 
decision to disclose the information seven working days after the date 
the submitter receives the notice.
    (h) Notice to submitter 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. Where 
notification of a voluminous number of submitters is required, such 
notification may be accomplished by posting or publishing the notice in 
a place reasonably calculated to accomplish notification.
    (i) Corresponding notice to requester. Whenever a component 
provides a submitter with notice and an opportunity to object to 
disclosure under paragraph (c) of this section, the component shall 
notify the requester that the request is being processed under the 
provisions of this regulation and, as a consequence, there may be a 
delay in receiving a response. The notice to the requester will not 
include any of the specific information contained in the records being 
requested. Whenever a submitter files a lawsuit seeking to prevent the 
disclosure of confidential commercial information, the component shall 
notify the requester of such action and, as a consequence, there may be 
further delay in receiving a response.

0
10. Amend Sec.  4.10 by revising paragraphs (a), (b), (c), (d), and 
(f)(3) and (4), and adding paragraph (f)(5), to read as follows:


Sec.  4.10  Appeals from initial determinations or untimely delays.

    (a)(1) If a request for records to a component other than the 
Office of Inspector General is initially denied in whole or in part, or 
has not been timely determined, or if a requester receives an adverse 
determination regarding any other matter listed under this subpart (as 
described in Sec.  4.7(c)), the requester may file an appeal. Appeals 
can be submitted in writing or electronically, as described in 
paragraph (b)(1) of this section. For requests filed on or after July 
1, 2016, the appeal must be received by the Office of the General 
Counsel during normal business hours (8:30 a.m. to 5:00 p.m., Eastern 
Time, Monday through Friday) within 90 calendar days of the date of the 
written denial of the adverse determination or, if there has been no 
determination, an appeal may be submitted any time after the due date 
of the request, including the last extension under Sec.  4.6(d), of a 
request due date. Written or electronic appeals arriving after normal 
business hours will be deemed received on the next normal business day. 
If the 90th calendar day falls on a Saturday, Sunday, or a legal public 
holiday, an appeal received by 5:00 p.m., Eastern Time, the next 
business day will be deemed timely. Appeals received after the 90-day 
limit will not be considered.
    (2) If a request for records to the Office of Inspector General is 
initially denied in whole or in part, or has not been timely 
determined, or if a requester receives an adverse determination 
regarding any other matter listed under this subpart (as described in 
Sec.  4.7(c)), the requester may file an appeal. Appeals can be 
submitted in writing or electronically, as described in paragraph 
(b)(2) of this section. For requests submitted on or after July 1, 
2016, the appeal must be received by the Office of Inspector General, 
Office of Counsel, during normal business hours (8:30 a.m. to 5:00 
p.m., Eastern Time, Monday through Friday) within 90 calendar days of 
the date of the written denial of the adverse determination or, if 
there has been no determination, an appeal may be submitted any time 
after the due date, including the last extension under Sec.  4.6(d), of 
the adverse determination. Written or electronic appeals arriving after 
normal business hours will be deemed received on the next normal 
business day. If the 90th calendar day falls on a Saturday, Sunday, or 
a legal public holiday, an appeal received by 5:00 p.m., Eastern Time, 
the next business day will be deemed timely. Appeals received after the 
90-day limit will not be considered.
    (b)(1) Appeals, other than appeals from requests made to the Office 
of Inspector General, shall be decided by the Assistant General Counsel 
for Employment, Litigation, and Information (AGC-ELI). Written appeals 
should be addressed to the Assistant General Counsel for Employment, 
Litigation, and Information, at the U.S. Department of Commerce, Office 
of the General Counsel, Room 5896, 1401 Constitution Avenue NW, 
Washington, DC 20230. For a written appeal, both the letter and the 
appeal envelope should be clearly marked ``Freedom of Information Act 
Appeal.'' Appeals may also be submitted electronically either by email 
to [email protected] or online at the FOIAonline website, http://foiaonline.regulations.gov, if requesters have a FOIAonline account. In 
all cases, the appeal (written or electronic) should include a copy of 
the original request and initial denial, if any. All appeals should 
include a statement of the reasons why the records requested should be 
made available and why the adverse determination was in error. No 
opportunity for personal appearance, oral argument or hearing on appeal 
is provided. Upon receipt of an appeal, AGC-ELI ordinarily shall send 
an acknowledgement letter to the requester which shall confirm receipt 
of the requester's appeal.
    (2) Appeals of initial and untimely determinations by the Office of 
Inspector General shall be decided by the Counsel to the Inspector 
General, except that appeals of records requests that were initially 
denied by the Counsel to the Inspector General shall be decided by the 
Deputy Inspector General. Written appeals should be addressed to the 
Counsel to the Inspector General, or the Deputy Inspector General if 
the records were initially denied by the Counsel to the Inspector 
General. The address of both is: U.S. Department of Commerce, Office of 
the Inspector General, Office of Counsel, Room 7898C, 1401 Constitution 
Avenue NW, Washington, DC 20230. For a written appeal, both the letter 
and the appeal envelope should be clearly marked ``Freedom of 
Information Act Appeal.'' Appeals may also be submitted electronically 
either by email to [email protected] or online at the FOIAonline 
website, http://foiaonline.regulations.gov, if requesters have a 
FOIAonline account. In all cases, the appeal (written or electronic) 
should include a copy of the original request and initial denial, if 
any. All appeals should include a statement of the reasons why the 
records requested should be made available and why the adverse 
determination was in error. No opportunity for personal appearance, 
oral argument or hearing on appeal is provided. Upon receipt of an 
appeal, the Counsel to the Inspector General, or the Deputy Inspector 
General if the records were initially denied by the Counsel to the 
Inspector General, ordinarily shall send an acknowledgement letter to 
the requester which shall confirm receipt of the requester's appeal.
    (c) Upon receipt of an appeal involving records initially denied on 
the basis of FOIA exemption (b)(1), the records shall be forwarded to 
the Deputy Assistant Secretary for Security (DAS) for a 
declassification review. The DAS may overrule previous classification 
determinations in whole or in part if continued protection in the 
interest of national security is no longer required, or no longer 
required at the same level. The DAS shall advise the AGC-ELI, the 
General Counsel, Counsel to the Inspector General, or Deputy Inspector 
General, as appropriate, of his or her decision.

[[Page 39594]]

    (d) If an appeal is granted, the notification letter may include 
documents to be released or the request may be referred back to the 
component for further action consistent with the determination on the 
appeal.
    (f) * * *
    (3) Notification that dispute resolution services are offered by 
the Office of Government Information Services (OGIS) of the National 
Archives and Records Administration as a non-exclusive alternative to 
litigation, informing the requester that dispute resolution is a 
voluntary process, and if the Department and requester agree to 
participate in the dispute resolution services provided by OGIS, the 
Department will actively engage as a partner to the process in an 
attempt to resolve the dispute.
    (4) Notification that judicial review of the denial is available in 
the district court of the United States in the district in which the 
requester resides, or has his or her principal place of business, or in 
which the agency records are located, or in the District of Columbia; 
and
    (5) The name and title or position of the official responsible for 
denying the appeal.

0
11. Amend Sec.  4.11 by:
0
a. Revising paragraphs (a), (b)(2), (b)(4), (b)(6), (b)(7), (b)(8), (c) 
introductory text, (c)(2), (c)(3)(ii), (d)(6), and (d)(7).
0
b. Adding paragraph (d)(8).
0
c. Revising paragraphs (e), (i)(4), (j), (l)(2)(iii), (l)(3)(ii), and 
(l)(5).
    The revisions and addition read as follows:


Sec.  4.11  Fees.

    (a) In general. Components shall charge fees for processing 
requests under the FOIA in accordance with paragraph (c) of this 
section, except where fees are limited under paragraph (d) of this 
section or when a waiver or reduction is granted under paragraph (l) of 
this section. A component shall collect all applicable fees before 
processing a request if a component determines that advance payment is 
required in accordance with paragraphs (i)(2) and (i)(3) of this 
section. If advance payment of fees is not required, a component shall 
collect all applicable fees before sending copies of requested records 
to a requester. Requesters must pay fees by check or money order made 
payable to the Treasury of the United States.
    (b) * * *
    (2) Direct costs means those expenses a component incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records to respond to a FOIA request. The hourly 
processing fees for calculating direct costs for Department or 
component personnel searching for, duplication, and reviewing records 
are reflected in Table 1. Note that the 16% overhead has already been 
included in the hourly rates identified in Table 1.

                  Table 1--FOIA Hourly Processing Fees
------------------------------------------------------------------------
              Type                        Grade             Hourly rate
------------------------------------------------------------------------
Administrative.................  E-9/GS-8 and below.....             $28
Professional...................  Contractor/O-1 to O-6/W-             56
                                  1 to W-5/GS-9 to GS-15.
Executive......................  O-7 and above and                   128
                                  Senior Executive
                                  Service.
------------------------------------------------------------------------

* * * * *
    (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. Educational institutions may include a 
preschool, a public or private elementary or secondary school, an 
institution of undergraduate higher education, an institution of 
graduate higher education, an institution of professional education, or 
an institution of vocational education A Department component may seek 
verification from the requester that the request is in furtherance of 
scholarly research and agencies will advise requesters of their 
placement in this category. Verification may be supported by a letter 
from a teacher, instructor, or professor written on the institution's 
letterhead or from an institutional email address and in which the body 
of the email outlines the research to be conducted. Student requests 
may be supported by evidence that the records are sought for the 
student's academic research purposes, for example, through evidence of 
a class assignment or a letter from a teacher, instructor, or 
professor. A component's decision to grant a requester educational 
institution status will be made on a case-by-case basis based upon the 
requester's intended use of the material.

    Example 1. A request from a professor or a student 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.
    Example 2. A request from the same professor or student of 
geology seeking drug information from the Food and Drug 
Administration 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 letterhead.
    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.
* * * * *
    (6) Representative of the news media, or news media requester, 
means 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 are television or radio 
stations broadcasting 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 news 
organizations that disseminate solely on the internet. To be in this 
category, a requester must not be seeking the requested records for a 
commercial use. A request for records that supports the news-
dissemination function of the requester shall not be considered to be 
for a commercial use. A freelance journalist shall be regarded as 
working for a news-media entity if the journalist can demonstrate a 
solid basis for expecting publication through that entity, whether or 
not the journalist is actually employed by the entity. A publication 
contract would be the clearest proof, but components shall also look to 
the past publication record of a requester in making this 
determination. A component's decision to grant a requester media status 
will be made on a case-by-case basis based upon the requester's 
intended use of the material. The mere fact that a person or entity has 
been classified as news media with respect to one request does not mean 
they will be so considered as

[[Page 39595]]

news media with respect to any other requests.
    (7) Review means the 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 it and marking any 
applicable exemptions. Review costs are recoverable even if a record 
ultimately is not disclosed. Review time includes time spent obtaining 
and considering any formal objection to disclosure made by a submitter 
under Sec.  4.9, but does not include time spent resolving general 
legal or policy issues regarding the application of exemptions.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes identification of 
information within records and also includes reasonable efforts to 
locate and retrieve information from records maintained in electronic 
form or format. Components shall ensure that searches are done in the 
most efficient and least expensive manner reasonably possible.
    (c) Fees. In responding to FOIA requests, components shall charge 
the fees summarized in chart form in paragraphs (c)(1) and (c)(2) of 
this section and explained in paragraphs (c)(3) through (c)(5) of this 
section, unless a waiver or reduction of fees has been granted under 
paragraph (l) of this section.
* * * * *
    (2) Uniform fee schedule.

------------------------------------------------------------------------
                Service                                Rate
------------------------------------------------------------------------
(i) Manual search......................  Hourly rate from Table 1 of
                                          employee involved.
(ii) Computerized search...............  Actual direct cost, including
                                          operator time, using the
                                          hourly rate from Table 1, of
                                          the employee involved.
(iii) Review of records................  Hourly rate from Table 1 of
                                          employee involved.
(iv) Duplication of records:
    (A) Paper copy reproduction........  $.08 per page.
    (B) Other reproduction (e.g.,        Actual direct cost, including
     converting paper into an             operator time, using the
     electronic format (e.g.,             hourly rate from Table 1, of
     scanning), computer disk or          the employee involved.
     printout, or other electronically-
     formatted reproduction (e.g.,
     uploading records made available
     to the requester into FOIAonline)).
------------------------------------------------------------------------

    (3) * * *
    (ii) For computer searches of records, requesters will be charged 
the direct costs of conducting the search, although certain requesters 
(as provided in paragraph (d)(1) of this section) will be charged no 
search fee and certain other requesters (as provided in paragraph 
(d)(3) of this section) are entitled to the cost equivalent of two 
hours of manual search time without charge. These direct costs will 
include the costs of the operator/programmer FOIA hourly processing 
rate apportionable to the search and any other tangible direct costs 
associated with a computer search.
* * * * *
    (d) * * *
    (6) No search fees shall be charged to a FOIA requester when a 
component does not comply with the statutory time limits at 5 U.S.C. 
552(a)(6) in which to respond to a request (this section only applies 
to FOIA requests, not appeals), except as described in paragraph (d)(8) 
of this section.
    (7) No duplication fees shall be charged to requesters in the fee 
category of a representative of the news media or an educational or 
noncommercial scientific institution when a component does not comply 
with the statutory time limits at 5 U.S.C. 552(a)(6) in which to 
respond to a request, except as described in paragraph (d)(8) of this 
section.
    (8)(i) When a Department component determines that unusual 
circumstances, as those terms are defined in Sec.  4.6(d)(2), apply to 
the processing of the request, and provides timely written notice to 
the requester in accordance with the FOIA, then the Department 
component is granted an additional ten days until the fee restrictions 
in paragraphs (d)(6) and (7) of this section apply.
    (ii) The fee restrictions in paragraphs (d)(6) and (7) of this 
section do not apply:
    (A) When a Department component determines that unusual 
circumstances, as those terms are defined in Sec.  4.6(d)(2), apply to 
the processing of the request;
    (B) More than 5,000 pages are necessary to respond to the request;
    (C) The Department component provides timely written notice to the 
requester in accordance with the FOIA; and
    (D) The Department component has discussed with the requester (or 
made three good faith attempts to do so) on how the requester can 
effectively limit the scope of the request.
    (e) Notice of anticipated fees in excess of $20.00. (1) When a 
component determines or estimates that the fees for processing a FOIA 
request will total more than $20.00 or total more than the amount the 
requester indicated a willingness to pay, the component shall notify 
the requester of the actual or estimated amount of the fees, unless the 
requester has stated in writing 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 that the estimated 
fee may be only a portion of the total fee. A notice under this 
paragraph shall offer the requester an opportunity to discuss the 
matter with Departmental personnel in order to modify the request in an 
effort to meet the requester's needs at a lower cost. The requester may 
also contact the Department FOIA Public Liaison, the relevant 
component's FOIA Public Liaison or FOIA contact, or OGIS for further 
assistance, or file an administrative appeal of the fee estimate amount 
in accordance with Sec.  4.10.
    (2) When a requester has been notified that the actual or estimated 
fees will amount to more than $20.00, or amount to more than the amount 
the requester indicated a willingness to pay, the component will do no 
further work on the request until the requester agrees in writing to 
pay the actual or estimated total fee. The component will toll the 
processing of the request when it notifies the requester of the actual 
or estimated amount of fees and this time will be excluded from the 
twenty (20) working day time limit (as specified in Sec.  4.6(b)). The 
requester's agreement to pay fees must be made in writing, must 
designate an exact dollar amount the requester is willing to pay, and 
must be received within 30 calendar days from the date of the 
notification of the fee estimate. If the requester fails to submit an 
agreement to pay the anticipated fees within 30 calendar days from the 
date of the component's fee notice, the component will presume that the 
requester is no longer interested and

[[Page 39596]]

notify the requester that the request will be closed.
* * * * *
    (i) * * *
    (4) When the component requires advance payment or payment due 
under paragraphs (i)(2) and (i)(3) of this section, the component will 
not further process the request until the required payment is made. The 
component will toll the processing of the request when it notifies the 
requester of the advanced payment due and this time will be excluded 
from the twenty (20) working day time limit (as specified in Sec.  
4.6(b)). If the requester does not pay the advance payment within 30 
calendar days from the date of the component's fee notice, the 
component will presume that the requester is no longer interested and 
notify the requester that the request will be closed.
    (j) Tolling. When necessary for the component to clarify issues 
regarding fee assessment with the FOIA requester, the time limit for 
responding to the FOIA request is tolled until the component resolves 
such issues with the requester. The tolling period is from the day a 
requester was contacted through the working day (i.e., excluding 
Saturdays, Sundays, and legal public holidays) on which a response was 
received by the responsible component.
* * * * *
    (l) * * *
    (2) * * *
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will 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 and ability and intention to effectively 
convey information to the public shall be considered. It shall be 
presumed that a representative of the news media satisfies this 
consideration.
* * * * *
    (3) * * *
    (ii) The primary interest in disclosure: Whether any identified 
commercial interest of the requester is sufficiently great, in 
comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified if the public interest standard (paragraph 
(l)(1)(i) of this section) is satisfied and the public interest is 
greater than any identified commercial interest in disclosure. 
Components ordinarily shall presume that if a news media requester has 
satisfied the public interest standard, the public interest is the 
primary interest 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.
* * * * *
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (l)(2) and (3) of this section, insofar as 
they apply to each request.

0
12. Amend Appendix A to Part 4 by revising the introductory text of 
paragraph (5) and paragraph (5)(v) to read as follows:

Appendix A to Part 4--Freedom of Information Public Inspection 
Facilities, and Addresses for Requests for Records Under the Freedom of 
Information Act and Privacy Act, and Requests for Correction of 
Amendment Under the Privacy Act

* * * * *
    (5) Economic Development Administration, Office of the Chief 
Counsel, U.S. Department of Commerce, 14th and Constitution Avenue 
NW, Room 72023, Washington, DC 20230; Ph.: (202) 482-3085; Fax: 
(202) 482-5671; FOIAonline: http://foiaonline.regulations.gov. This 
component maintains a separate online Electronic FOIA Library 
through its website, http://www.eda.gov. The following Regional EDA 
offices do not maintain separate online Electronic FOIA Libraries.
* * * * *
    (v) Philadelphia Regional Office, EDA, U.S. Department of 
Commerce, Robert N.C. Nix Federal Building, 900 Market Street, Room 
602, Philadelphia, Pennsylvania 19107; Ph.: (215) 597-4603.
* * * * *
[FR Doc. 2018-17171 Filed 8-9-18; 8:45 am]
BILLING CODE 3510-BX-P