[Federal Register Volume 85, Number 96 (Monday, May 18, 2020)]
[Rules and Regulations]
[Pages 29621-29626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09097]


=======================================================================
-----------------------------------------------------------------------

AMERICAN BATTLE MONUMENTS COMMISSION

36 CFR Part 404

RIN 3263-AA01


ABMC FOIA Regulation

AGENCY: American Battle Monuments Commission.

ACTION: Final rule.

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

SUMMARY: This final rule amends the American Battle Monuments 
Commission's (ABMC) regulations under the Freedom of Information Act 
(FOIA). The procedures and guidelines have been revised for compliance 
with FOIA to incorporate changes required by the FOIA Improvement Act 
of 2016 and applicable Department of Justice Office of Information 
Policy guidance.

DATES: This rule is effective May 18, 2020.

FOR FURTHER INFORMATION CONTACT: Edwin L. Fountain, General Counsel, 
American Battle Monuments Commission, 2300 Clarendon Boulevard, Suite 
500, Arlington, VA 22201, [email protected], 703-696-6907.

SUPPLEMENTARY INFORMATION: The authority for this rulemaking is Section 
3 of the FOIA Improvement Act of 2016, Public Law 114-185, 5 U.S.C. 552 
note, which requires agencies to issue regulations on procedures for 
the disclosure of records under FOIA in accordance with that Act. On 
February 18, 2020 (85 FR 8783), the American Battle Monuments 
Commission published a notice of proposed rulemaking (NPRM) to update 
and revise ABMC's procedures and guidelines for compliance with FOIA. 
The Agency invited comments through March 19, 2020. Interested persons 
were afforded the opportunity to participate in the rulemaking process 
through submission of written comments to the proposed rule during the 
open comment period. No comments were received by the Agency.

Changes Proposed by ABMC in This Rulemaking

    This action updates and revises ABMC's procedures and guidelines 
for compliance with FOIA. The revisions to the rule:
     Update the description of and contact information for ABMC 
and the ABMC FOIA Office.
     Require ABMC to make available for public inspection in an 
electronic format records that have been requested three or more times.
     Set forth verification of identity requirements for 
requesters making a request for records about himself or another 
individual.
     Outline procedures for consultation, referral, and 
coordination with other agencies when appropriate.
     Update procedures and time periods for appeals of denials 
of requests.
     Notify requesters of their right to seek dispute 
resolution services from the Office of Government Information Services.

Regulatory Procedures

Executive Order 12866, Regulatory Planning and Review, and Executive 
Order 13563, Improving Regulation and Regulatory Review

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule benefits the public and the United States 
Government by providing clear procedures for members of the public, 
contractors, and employees to follow with regard to the ABMC privacy 
program. This rule is not a significant regulatory action under E.O. 
12866.

Executive Order 13771, Reducing Regulations and Controlling Regulatory 
Costs

    This rule is not expected to be subject to the requirements of E.O. 
13771 (82 FR 9339, February 3, 2017) because this rule is not 
significant under E.O. 12866.

Unfunded Mandates Reform Act

    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.

[[Page 29622]]

Public Law 96-354, Regulatory Flexibility Act

    The ABMC certifies this rule is not subject to the Regulatory 
Flexibility Act (5 U.S.C. Ch. 6) because it would not, if promulgated, 
have a significant economic impact on a substantial number of small 
entities. Therefore, the Regulatory Flexibility Act, as amended, does 
not require ABMC to prepare a regulatory flexibility analysis.

Executive Order 13132, Federalism

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has federalism 
implications. This rule will not have a substantial effect on the 
States; the relationship between the National Government and the 
States; or the distribution of power and responsibilities among the 
various levels of Government.

Public Law 96-511, Paperwork Reduction Act

    It has been determined that this rule does not impose reporting or 
record keeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. chapter 35).

    Dated: April 23, 2020.
Robert J. Dalessandro,
Deputy Secretary, ABMC.

List of Subjects in 36 CFR Part 404

    Freedom of information.


0
For the reasons stated in the preamble, ABMC revises 36 CFR part 404 to 
read as follows:

Title 36: Parks, Forests, and Public Property

PART 404--PROCEDURES AND GUIDELINES FOR COMPLIANCE WITH THE FREEDOM 
OF INFORMATION ACT

Sec.
404.1 General.
404.2 Authority and functions.
404.3 Organization.
404.4 Access to information.
404.5 Inspection and copying.
404.6 Definitions.
404.7 Fees to be charged--general.
404.8 Fees to be charged--categories of requesters.
404.9 Miscellaneous fee provisions.
404.10 Waiver or reduction of charges.

    Authority: Pub. L. 114-185, 130 Stat. 538 (5 U.S.C. 552 note).


Sec.  404.1  General.

    The information in this part is furnished for the guidance of the 
public and in compliance with the requirements of the Freedom of 
Information Act (FOIA), 5 U.S.C. 552, as amended. Nothing in this part 
shall be construed to entitle any person to any service or to the 
disclosure of any record to which such person is not entitled under the 
FOIA. The rules in this part should be read in conjunction with the 
text of the FOIA and the Uniform Freedom of Information Fee Schedule 
and Guidelines published by the Office of Management and Budget (``OMB 
Guidelines'').


Sec.  404.2  Authority and functions.

    The general functions of the American Battle Monuments Commission 
(ABMC or Commission), as provided by statute, 36 U.S.C. 2101 et seq., 
are to build and maintain suitable memorials commemorating the service 
of American Armed Forces and to maintain permanent American military 
cemeteries in foreign countries.


Sec.  404.3  Organization.

    (a) Personnel. (1) The Commission is composed of not more than 11 
members appointed by the President.
    (2) The day to day operation of the Commission is under the 
direction of a Secretary appointed by the President.
    (3) Principal officials subordinate to the Secretary include the 
Deputy Secretary, Chief Operating Officer, Chief of Staff, Executive 
Officer, Chief Financial Officer, Chief of Human Resources and 
Administration, Chief Information Officer, Director of Cemetery 
Operations, Executive Engineer, General Counsel, and Public Affairs 
Officer.
    (4) The Commission also creates temporary offices when tasked with 
major additional responsibilities not of a permanent nature.
    (b) Locations. (1) The principal office of the American Battle 
Monuments Commission is located at 2300 Clarendon Boulevard, Suite 500, 
Arlington, VA 22201, (703) 696-6900.
    (2) The American Battle Monuments Commission maintains an overseas 
field office in Paris, France, and cemetery offices at 25 locations in 
Belgium, France, Italy, Luxembourg, Mexico, the Netherlands, Panama, 
the Philippines, Tunisia, and the United Kingdom.


Sec.  404.4  Access to information.

    (a) Contact information. (1) Individuals wishing to file a request 
under the Freedom of Information Act (FOIA) should address their 
request in writing to the FOIA Office, American Battle Monuments 
Commission, 2300 Clarendon Boulevard, Suite 500, Arlington, VA 22201, 
or to [email protected], or via https://www.foia.gov.
    (2) The American Battle Monuments Commission makes available 
information pertaining to Commission matters within the scope of 5 
U.S.C. 552(a)(2), including records that have been requested three or 
more times, by publishing them electronically at the ABMC home page at 
https://www.abmc.gov/foia. Additional information may be found on the 
National FOIA Portal at https://www.foia.gov. Note: The ABMC.gov site 
provides all of the information the Commission has regarding burials at 
its cemeteries. ABMC does not have service records, casualty lists, or 
information on burials within the United States.
    (b) Requests. (1) Requesters must provide contact information, such 
as their phone number, email address, and/or mailing address, to assist 
ABMC in communicating with them and providing released records.
    (2)(i) Requests for records must reasonably describe the records 
sought. Requesters must describe the records sought in sufficient 
detail to enable agency personnel to locate them with a reasonable 
amount of effort. To the extent possible, requesters should include 
specific information that may help ABMC identify the requested records, 
such as the date, title or name, author, recipient, subject matter, 
case number, file designation, or reference number. Before submitting 
their requests, requesters may contact the ABMC FOIA Assistant or FOIA 
Public Liaison to discuss the records they seek and to receive 
assistance in describing the records.
    (ii) If a request does not reasonably describe the records sought, 
response to the request may be delayed. If, after receiving a request, 
ABMC determines that the request does not reasonably describe the 
records sought, ABMC must inform the requester what additional 
information is needed or why the request is otherwise insufficient. 
Requesters who are attempting to reformulate or modify such a request 
may discuss their request with the FOIA Assistant or FOIA Public 
Liaison.
    (3) Requests may specify the preferred form or format (including 
electronic formats) for the records sought. ABMC will accommodate the 
request if the record is readily reproducible in that form or format.
    (c) Responses to requests. (1) The ABMC FOIA Office is responsible 
for responding to FOIA requests. Upon receipt of any perfected request 
for records, the FOIA Office will determine within 20 days (excepting 
Saturdays, Sundays, and legal public holidays) of the date the request 
is received in the FOIA Office whether it is appropriate to

[[Page 29623]]

grant the request and will immediately provide written notification to 
the person making the request.
    (2) ABMC responds to requests in the order of receipt, using 
multitrack processing. Tracks include simple, and complex, based on 
whether unusual circumstances apply (see paragraph (d) of this 
section), the volume of potential records, the need for consultation or 
referral, and the amount of work or time needed to process the request.
    (3) ABMC will acknowledge requests with a tracking number, summary 
of the request, estimated completion dates, track information, the 
opportunity to narrow or modify the scope, and contact information for 
the FOIA Public Liaison.
    (4) In determining which records are responsive to a request, ABMC 
ordinarily will include only records in its possession as of the date 
that it begins its search. If any other date is used, ABMC must inform 
the requester of that date.
    (d) Extending time limits. If the ABMC FOIA Office determines that 
unusual circumstances apply to the processing of a request, and 
provides timely written notice to the requester, ABMC may extend the 
time limits prescribed in paragraphs (c) and (h) of this section for 
not more than 10 days (excepting Saturdays, Sundays, or legal public 
holidays). Where unusual circumstances merit an extension of more than 
10 working days, ABMC will provide the requester with an opportunity to 
modify the request or arrange an alternative time period for processing 
the original or modified request.
    (1) As used in this paragraph (d), but only to the extent 
reasonably necessary to the proper processing of the particular 
request, the term unusual circumstances means:
    (i) The need to search for and collect the requested records from 
establishments that are separated from the office processing the 
request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (ii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency which have a substantial subject matter interest therein.
    (2) Extensions will be by written notice to the persons making the 
request. The notice of extension will set forth the reasons for the 
extension and the date the determination is expected, and will notify 
the requester of the right to seek assistance from ABMC's FOIA Public 
Liaison to resolve any disputes between the requester and ABMC, or to 
seek dispute resolution services from the Office of Government 
Information Services.
    (3) Before issuing a written notice extending time limits, the 
agency shall provide the person an opportunity to limit the scope of 
the request so that it may be processed within that time limit or an 
opportunity to arrange with the agency an alternative time frame for 
processing the request or a modified request.
    (4) When ABMC reasonably believes that a requester, or a group of 
requestors acting in concert, has submitted requests that constitute a 
single request, involving clearly related matters, ABMC may aggregate 
those requests for purposes of this paragraph (d). One element to be 
considered in determining whether a belief would be reasonable is the 
time period over which the requests have occurred.
    (5) If ABMC fails to comply with the extended time limit, it may 
not charge search fees (or for requesters with preferred fee status, 
may not charge duplication fees), except if unusual circumstances apply 
and more than 5,000 pages are necessary to respond to the request, ABMC 
may charge search fees (or, for requesters in preferred fee status, may 
charge duplication fees) if timely written notice has been made to the 
requester and ABMC has discussed with the requester (or made not less 
than 3 good-faith attempts to do so) how the requester could 
effectively limit the scope of the request.
    (6) If a court determines that exceptional circumstances exist, 
ABMC's failure to comply with a time limit shall be excused for the 
length of time provided by the court order. Refusal by the person to 
reasonably modify the request or arrange such an alternative time frame 
shall be considered as a factor in determining whether exceptional 
circumstances exist.
    (e) Consultation, referral, and classified information. When 
reviewing records located in response to a request, ABMC will determine 
whether another agency of the Federal Government is better able to 
determine whether the record is exempt from disclosure under the FOIA. 
As to any such record, the ABMC must proceed in one of the following 
ways:
    (1) Consultation. When ABMC records contain within them information 
of interest to another agency, ABMC should typically consult with that 
other agency prior to making a release determination.
    (2) Referral. When an ABMC record originated with a different 
agency or contains significant information that originated with a 
different agency, or when ABMC believes that a different agency is best 
able to determine whether to disclose a record, ABMC typically should 
refer the responsibility for responding to the request regarding that 
record to that agency. When ABMC refers any part of the responsibility 
for responding to a request to another agency, it must document and 
maintain a copy of the record, and notify the requester of the 
referral, informing the requester of the name of the agency and FOIA 
contact information.
    (3) Classified information. On receipt of any request involving 
classified information, ABMC must determine whether the information is 
currently and properly classified in accordance with applicable 
classification rules. ABMC must refer the responsibility for responding 
to the request regarding that information to the agency that classified 
the information, or that should consider the information for 
classification.
    (f) Expedited processing. (1) Requests and appeals will be taken 
out of order and given expedited treatment whenever it is determined 
that they involve:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, beyond the public's right to know about 
Government activity generally, if made by a person primarily engaged in 
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the Government's integrity which 
affect public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. A request must 
include 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.
    (3) Within 10 days of receipt of a request for expedited 
processing, ABMC will decide whether to grant it and will notify the 
requester of the decision. If a request for expedited treatment is 
granted, the request will be given priority and will be processed as 
soon as practicable. If a request for expedited

[[Page 29624]]

processing is denied, any appeal of that decision will be acted on 
expeditiously.
    (g) Grants and denials of requests. (1) Once ABMC determines it 
will grant a request in full or in part, it shall notify the requester 
in writing. ABMC must also inform the requester of any fees charged 
under Sec.  404.10 and must disclose the requested records to the 
requester promptly upon payment of any applicable fees. ABMC must 
inform the requester of the availability of its FOIA Public Liaison to 
offer assistance.
    (2) ABMC may provide interim releases for voluminous requests.
    (3) If ABMC determines that a full disclosure of a requested record 
is not possible, it will consider whether partial disclosure of 
information is possible. Records disclosed in part will be marked 
clearly to show the amount of information deleted and the exemption 
under which the deletion was made, unless doing so would harm an 
interest protected by an applicable exemption. The location of the 
information deleted will also be indicated on the record, if 
technically feasible.
    (4) If the request is denied, in part or in full, the written 
notification to the requester shall include the reasons for the denial 
and the estimated volume withheld (unless indicated via markings, or if 
providing such an estimate would harm an interest protected by an 
exemption). The notification must inform the requester of:
    (i) The requester's right to seek assistance from ABMC's FOIA 
Public Liaison;
    (ii) The requester's right to lodge an appeal with ABMC within 90 
days after the date of the denial; and
    (iii) The requester's right to seek dispute resolution services 
from the Office of Government Information Services (OGIS).
    (h) Appeals. Appeals shall be set forth in writing within 90 days 
of receipt of a denial and addressed to the FOIA Office at the address 
specified in paragraph (a) of this section. The appeal should clearly 
identify the agency determination that is being appealed and the 
assigned request number. To facilitate handling, the requester should 
mark both the appeal letter and envelope, or subject line of the 
electronic transmission, ``Freedom of Information Act Appeal.'' The 
appeal shall include a statement explaining the basis for the appeal. 
Appeals will be adjudicated by the ABMC Secretary, or his designee, and 
the adjudication will be set forth in writing within 20 days of receipt 
of the appeal in the ABMC FOIA Office (excepting Saturdays, Sundays, 
and legal public holidays). If, on appeal, the denial is upheld in 
whole or in part, the written determination will also contain a 
notification of the provisions for judicial review and contact 
information for OGIS dispute resolution services. An appeal ordinarily 
will not be adjudicated if the request becomes a matter of FOIA 
litigation.


Sec.  404.5  Inspection and copying.

    When a request for information has been approved pursuant to Sec.  
404.4, the person making the request may make an appointment to inspect 
or copy the materials requested during regular business hours by 
writing or telephoning the FOIA Officer at the address or telephone 
number listed in Sec.  404.4(b). Such materials may be copied and 
reasonable facilities will be made available for that purpose. Copies 
of individual pages of such materials will be made available at the 
price per page specified in Sec.  404.7(d); however, the right is 
reserved to limit to a reasonable quantity the copies of such materials 
which may be made available in this manner when copies also are offered 
for sale by the Superintendent of Documents.


Sec.  404.6  Definitions.

    For the purpose of this part:
    (a) All the terms defined in the Freedom of Information Act apply.
    (b) The term direct costs means those expenditures that ABMC 
actually incurs in searching for and duplicating (and in the case of 
commercial requesters, reviewing) documents to respond to a FOIA 
request. Direct costs include, for example, the salary of the employee 
performing work (the basic rate of pay for the employee plus 16 percent 
of that rate to cover benefits) and the cost of operating duplicating 
machinery. Not included in direct costs are overhead expenses such as 
costs of space, and heating or lighting the facility in which the 
records are stored.
    (c) The term search means the process of looking for and retrieving 
records or information responsive to a request. It includes page-by-
page or line-by-line identification of information within records and 
also includes reasonable efforts to locate and retrieve information 
from records maintained in electronic form or format. ABMC employees 
should ensure that searching for material is done in the most efficient 
and least expensive manner so as to minimize costs for both the agency 
and the requester. For example, employees should not engage in line-by-
line search when merely duplicating an entire document would prove the 
less expensive and quicker method of complying with a request. Search 
should be distinguished, moreover, from review of material in order to 
determine whether the material is exempt from disclosure (see paragraph 
(f) of this section).
    (d) The term duplication means the making of a copy of a document, 
or of the information contained in it, necessary to respond to a FOIA 
request. Such copies can take the form of paper, microform, audio-
visual materials, or electronic records (e.g., magnetic tape or disk), 
among others. The requester's specified preference of form or format of 
disclosure will be honored if the record is readily reproducible in 
that format.
    (e) The term review refers to the process of examining documents 
located in response to a request to determine whether any portion of 
any document located is permitted to be withheld. It also includes 
processing any documents for disclosure, e.g., doing all that is 
necessary to excise them and otherwise prepare them for release. Review 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (f) The term commercial use request refers to a request from or on 
behalf of one who seeks information for a use or purpose that furthers 
the commercial, trade, or profit interests of the requester or the 
person on whose behalf the request is made. In determining whether a 
requester properly belongs in this category, ABMC must determine the 
use to which a requester will put the documents requested. Moreover, 
where an ABMC employee has reasonable cause to doubt the use to which a 
requester will put the records sought, or where that use is not clear 
from the request itself, the employee should seek additional 
clarification before assigning the request to a specific category.
    (g) The term educational institution refers to a 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. Agencies 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.
    (h) The term non-commercial scientific institution refers to an 
institution that is not operated on a commercial basis (as that term is 
referenced in paragraph (g) 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.

[[Page 29625]]

    (i) The term representative of the news media refers to any person 
or entity that gathers information of potential interest to a segment 
of the public, uses its editorial skills to turn the raw materials into 
a distinct work, and distributes that work to an audience. The term 
``news'' means information that is about current events or that would 
be of current interest to the public. Examples of news media entities 
include television or radio stations that broadcast news to the public 
at large, and publishers of periodicals that disseminate ``news'' and 
make their products available through a variety of means to the general 
public, including news organizations that disseminate solely on the 
internet. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity will be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, agencies 
can also consider a requester's past publication record in making this 
determination. Agencies will advise requesters of their placement in 
this category. A request for records supporting the news-dissemination 
function of the requester will not be considered to be for a commercial 
use.


Sec.  404.7  Fees to be charged--general.

    ABMC shall charge fees that recoup the full allowable direct costs 
it incurs. ABMC will collect all applicable fees before sending copies 
of records to the requester. Moreover, it shall use the most efficient 
and least costly methods to comply with requests for documents made 
under the FOIA. ABMC may recover the cost of searching for and 
reviewing records even if there is ultimately no disclosure of records.
    (a) Manual searches for records. ABMC will charge at the salary 
rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the 
search.
    (b) Computer searches for records. ABMC will charge at the salary 
rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the 
search. Before assessing fees associated with creating a new computer 
program, ABMC will ensure that requester is first notified and agrees 
to pay such fees, pursuant to paragraph (g)(3) of this section.
    (c) Review of records. Only requesters who are seeking documents 
for commercial use may be charged for time spent reviewing records to 
determine whether they are exempt from mandatory disclosure. Charges 
may be assessed only for the initial review; i.e., the review 
undertaken the first time ABMC analyzes the applicability of a specific 
exemption to a particular record or portion of a record. Records or 
portions of records withheld in full under an exemption that is 
subsequently determined not to apply may be reviewed again to determine 
the applicability of other exemptions not previously considered. The 
costs for such a subsequent review is assessable.
    (d) Duplication of records. Records will be duplicated at a rate of 
$.10 per page. For copies prepared by computer, such as tapes or 
printouts, ABMC shall charge the actual cost, including operator time, 
of production of the tape or printout. For other methods of 
reproduction or duplication, ABMC will charge the actual direct costs 
of producing the document(s). If ABMC estimates that duplication 
charges are likely to exceed $25, it shall notify the requester of the 
estimated amount of fees, unless the requester has indicated in advance 
his willingness to pay fees as high as those anticipated. Such a notice 
shall offer a requester the opportunity to confer with agency personnel 
with the object of reformulating the request to meet his or her needs 
at a lower cost.
    (e) Other charges. (1) When it elects to charge them, ABMC will 
recover the full costs of providing services such as certifying that 
records are true copies or sending records by special methods such as 
express mail.
    (2) For requests that require the retrieval of records stored by an 
agency at a Federal records center operated by the National Archives 
and Records Administration (NARA), ABMC will charge additional costs in 
accordance with the Transactional Billing Rate Schedule established by 
NARA.
    (f) Payment of fees. Remittances shall be in the form either of a 
personal check or bank draft drawn on a bank in the United States, or a 
postal money order. Remittances shall be made payable to the order of 
the Treasury of the United States and mailed to the FOIA Officer, 
American Battle Monuments Commission, 2300 Clarendon Blvd., Suite 500, 
Arlington, VA 22201. A receipt for fees paid will be given upon 
request.
    (g) Restrictions on assessing fees. With the exception of 
requesters seeking documents for a commercial use, ABMC will provide 
the first 100 pages of duplication and the first 2 hours of search time 
without charge. Moreover, ABMC will not charge fees to any requester, 
including commercial use requesters, if the cost of collecting a fee 
would be equal to or greater than the fee itself.
    (1) The elements to be considered in determining the cost of 
collecting a fee are the administrative costs of receiving and 
recording a requester's remittance, and processing the fee for deposit 
in the Treasury Department's special account.
    (2) For purposes of the restrictions on assessment of fees in this 
paragraph (g), the word pages refers to paper copies of 8\1/2\ x 11 or 
11 x 14. Thus, requesters are not entitled to 100 microfiche or 100 
computer disks, for example. A microfiche containing the equivalent of 
100 pages or 100 pages of computer printout, does meet the terms of the 
restriction.
    (3) Similarly, the term search time in this paragraph (g) has as 
its basis, manual search. To apply this term to searches made by 
computer, ABMC will determine the hourly cost of operating the central 
processing unit and the operator's hourly salary plus 16 percent. When 
the cost of search equals the equivalent dollar amount of two hours of 
the salary of the person performing the search, i.e., the operator, 
ABMC will begin assessing charges.


Sec.  404.8  Fees to be charged--categories of requesters.

    For purposes of assessing fees, the FOIA establishes four 
categories of requesters: Commercial use requesters, educational and 
non-commercial scientific institution requesters; news media 
requesters, and all other requesters.
    (a) Commercial use requesters. When ABMC receives a request for 
documents for commercial use, it will assess charges that recover the 
full direct costs of searching for, reviewing for release, and 
duplicating the records sought. Commercial use requesters are not 
entitled to 2 hours of free search time nor 100 free pages of 
reproduction of documents.
    (b) Educational and noncommercial scientific institution 
requesters. Requesters in this category who meet the criteria in Sec.  
404.6(g) or (h) are entitled to two free hours of search time and the 
first 100 pages of duplication without charge. To be eligible for 
inclusion in this category, a requester must show that the request is 
authorized by and under the auspices of a qualifying institution and 
that the records are not sought for a commercial use, but are sought in 
furtherance of scholarly (if the request is from an educational 
institution) or scientific (if the request is from a non-commercial 
scientific institution) research.
    (c) Requesters who are representatives of the news media. 
Requesters in this category who meet the criteria in Sec.  404.6(i) are 
entitled to two free hours

[[Page 29626]]

of search time and the first 100 pages of duplication without charge. 
To be eligible for inclusion in this category, a requester must show 
that the records are not sought for a commercial use, but are sought in 
furtherance of the news dissemination function of the requester.
    (d) All other requesters. ABMC shall charge requesters who do not 
fit into any of the categories in paragraphs (a) through (c) of this 
section fees that recover the full reasonable direct cost of searching 
for and reproducing records that are responsive to the request, except 
that the first 100 pages of reproduction and the first 2 hours of 
search time shall be furnished without charge.


Sec.  404.9  Miscellaneous fee provisions.

    (a) Charging interest--notice and rate. ABMC may begin assessing 
interest charges on an unpaid bill starting on the 31st day following 
the day on which the billing was sent. The fact that the fee has been 
received by ABMC within the 30-day grace period, even if not processed, 
will suffice to stay the accrual of interest. Interest will be at the 
rate prescribed in 31 U.S.C. 3717 and will accrue from the date of the 
billing.
    (b) Charges for unsuccessful search. ABMC may assess charges for 
time spent searching, even if it fails to locate the records or if 
records located are determined to be exempt from disclosure. If ABMC 
estimates that search charges are likely to exceed $25, it shall notify 
the requester of the estimated amount of fees, unless the requester has 
indicated in advance his or her willingness to pay fees as high as 
those anticipated. Such a notice shall offer the requester the 
opportunity to confer with agency personnel with the object of 
reformulating the request to meet his or her needs at a lower cost.
    (c) Aggregating requests. A requester may not file multiple 
requests at the same time, each seeking portions of a document or 
documents, solely in order to avoid payment of fees. When ABMC 
reasonably believes that a requester, or a group of requestors acting 
in concert, has submitted requests that constitute a single request, 
involving clearly related matters, ABMC may aggregate those requests 
and charge accordingly. One element to be considered in determining 
whether a belief would be reasonable is the time period over which the 
requests have occurred.
    (d) Advance payments. ABMC may not require a requester to make an 
advance payment, i.e., payment before work is commenced or continued on 
a request, unless:
    (1) ABMC estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250. Then, ABMC 
will notify the requester of the likely cost and obtain satisfactory 
assurance of full payment where the requester has a history of prompt 
payment of FOIA fees, or require an advance payment of an amount up to 
the full estimated charges in the case of requesters with no history of 
payment; or
    (2) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing). Then, 
ABMC may require the requester to pay the full amount owed plus any 
applicable interest as provided in paragraph (a) of this seciton or 
demonstrate that he or she has, in fact, paid the fee, and to make an 
advance payment of the full amount of the estimated fee before the 
agency begins to process a new request or a pending request from that 
requester.
    (3) When ABMC acts under paragraph (d)(1) or (2) of this section, 
the administrative time limits prescribed in the FOIA, 5 U.S.C. 
552(a)(6) (i.e., 20 working days from receipt of initial requests and 
20 working days from receipt of appeals from initial denial, plus 
permissible extensions of these time limits), will begin only after 
ABMC has received fee payments described in paragraphs (d)(1) and (2) 
of this section.
    (e) Effect of the Debt Collection Act. ABMC will comply with 
provisions of the Debt Collection Act of 1982 (Pub. L. 97-365), 
including disclosure to consumer reporting agencies and use of 
collection agencies, where appropriate, to encourage repayment.
    (f) Tolling. If the requester has indicated a willingness to pay 
some designated amount of fees, but the ABMC estimates that the total 
fee will exceed that amount, ABMC will toll the processing of the 
request when it notifies the requester of the estimated fees in excess 
of the amount the requester has indicated a willingness to pay. The 
agency will inquire whether the requester wishes to revise the amount 
of fees the requester is willing to pay or modify the request. Once the 
requester responds, the time to respond will resume from where it was 
at the date of the notification.
    (g) Reducing costs. At any time a request may contact the ABMC FOIA 
Public Liaison or other FOIA professional to assist in reformulating a 
request to meet the requester's needs at a lower cost.


Sec.  404.10  Waiver or reduction of charges.

    Requesters may seek a waiver of fees by submitting a written 
application demonstrating how disclosure of the requested information 
is in the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities 
of the Government and is not primarily in the commercial interest of 
the requester.
    (a) ABMC will waive its fees in whole or in part when it 
determines, based on all available information, that the following 
factors are satisfied:
    (1) Disclosure of the requested information will shed light on 
identifiable operations or activities of the Federal Government with a 
connection that is direct and clear, not remote or attenuated.
    (2) The disclosure 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. ABMC will 
consider the requester's expertise in the subject area as well as the 
requester's ability and intention to effectively convey information to 
the public. ABMC will presume that a representative of the news media 
satisfies this consideration.
    (3) The disclosure is not primarily in the commercial interest of 
the requester. Requesters will be given an opportunity to provide 
explanatory information regarding this consideration. ABMC ordinarily 
will presume that when a news media requester has satisfied factors in 
paragraphs (a)(1) and (2) of this section, the request is not primarily 
in the commercial interest of the requester.
    (b) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver must be granted for those 
records.
    (c) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the agency and should address the 
criteria referenced in paragraph (a) of this section. 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 must pay any costs 
incurred up to the date the fee waiver request was received.

[FR Doc. 2020-09097 Filed 5-15-20; 8:45 am]
BILLING CODE 6120-01-P