[Federal Register Volume 87, Number 174 (Friday, September 9, 2022)]
[Rules and Regulations]
[Pages 55305-55317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19185]


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CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

45 CFR Part 2507

RIN 3045-AA59


Procedures for Disclosure of Records Under the Freedom of 
Information Act

AGENCY: Corporation for National and Community Service.

ACTION: Final rule.

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SUMMARY: The Corporation for National and Community Service (operating 
as AmeriCorps) is finalizing updates to its regulations for processing 
requests for records under the Freedom of Information Act (FOIA) to 
reflect changes made in the FOIA Improvement Act of 2016 and to make 
the regulations more user friendly through plain language.

DATES: This rule takes effect on October 11, 2022.

FOR FURTHER INFORMATION CONTACT: Stephanie Soper, AmeriCorps FOIA 
Officer, at 202-606-6747 or [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On June 30, 2016, President Obama signed into law the FOIA 
Improvement Act of 2016 (Pub. L. 114-185). The Act addresses a range of 
procedural issues that affect agency FOIA regulations, including 
requirements that agencies proactively make certain records available 
on their websites, establish a minimum of 90 days for requesters to 
file an administrative appeal, and provide dispute resolution services 
at various times throughout the FOIA process. With regard to exemptions 
from disclosure, the Act provides that the deliberative process 
protection for a record sunsets after 25 years, codifies the Department 
of Justice's ``foreseeable harm'' standard, and amends FOIA Exemption 
5. The Act also creates a new ``Chief FOIA Officer Council'' and adds 
two new elements to agency Annual FOIA Reports.
    AmeriCorps published a proposed rule to incorporate these changes 
on May 2, 2022. See 87 FR 25598. AmeriCorps received one public comment 
submission on the proposed rule, which AmeriCorps addresses in section 
III of Supplementary Information.

II. Overview of Final Rule

    This final rule will incorporate the FOIA Improvement Act of 2016 
changes into AmeriCorps' FOIA regulations by, among other things:
     Providing that the deliberative process protection for a 
record exempt from disclosure sunsets after 25 years;
     Incorporating the ``foreseeable harm'' standard by 
providing that when a FOIA exemption gives AmeriCorps the discretion to 
either withhold or release records, AmeriCorps will release the records 
or information whenever it determines that disclosure would not 
foreseeably harm an interest that the exemption protects; and
     Providing that the deliberative process privilege of 
Exemption 5 of the FOIA will not apply to records created 25 years or 
more before the date when the records were requested.
    This rule will update AmeriCorps' processing fees to align with 
current agency salary ranges, establish different tracks for processing 
simple FOIA requests and complex FOIA requests and establish a track 
for expedited processing, and make several non-substantive changes to 
make the regulation more user-friendly, including breaking the 
regulation into different subparts and shortening section headings.
    The following table provides a comparison of the current AmeriCorps 
FOIA regulations and the final rule.

[[Page 55306]]



------------------------------------------------------------------------
                                    New 45 CFR         Description of
    Current 45 CFR section           section              changes
------------------------------------------------------------------------
                                Subpart A--        New subpart
                                 General            designation.
                                 Provisions.
2507.1 Definitions............  2507.3             Replaces definition
                                 Definitions.       of ``Act'' with
                                                    ``Freedom of
                                                    Information Act
                                                    (FOIA)'' for
                                                    clarity.
                                                   Replaces definition
                                                    of ``Corporation''
                                                    with definition of
                                                    ``AmeriCorps.''
                                                   Moves definition of
                                                    ``Freedom of
                                                    Information Act
                                                    Officer (FOIA
                                                    Officer)'' to a new
                                                    section Sec.
                                                    2507.4 describing
                                                    AmeriCorps' FOIA
                                                    officials and their
                                                    responsibilities.
                                                   Deletes definition
                                                    for ``electronic
                                                    data'' because these
                                                    terms are not used.
                                                   Deletes definition
                                                    for ``public
                                                    interest'' because
                                                    the meaning of the
                                                    term is explained in
                                                    the one section
                                                    where it appears at
                                                    final Sec.
                                                    2507.24.
                                                   Adds definitions for
                                                    ``complex request,''
                                                    ``consultation,''
                                                    ``exemptions,''
                                                    ``expedited
                                                    processing,''
                                                    ``frequently
                                                    requested records,''
                                                    ``multitrack
                                                    processing,''
                                                    ``Office of
                                                    Government
                                                    Information Services
                                                    (OGIS),''
                                                    ``proactive
                                                    disclosures,'' and
                                                    ``referral.''
                                                   Moves and revises
                                                    definitions for
                                                    ``commercial use
                                                    request,''
                                                    ``educational
                                                    institution,'' ``non-
                                                    commercial
                                                    scientific
                                                    institution,''
                                                    ``representative of
                                                    the news media,''
                                                    ``review'' (changed
                                                    to ``review fees''),
                                                    and ``search''
                                                    (changed to ``search
                                                    fees'') to subpart G
                                                    where they are
                                                    exclusively used.
                                                   Revises the
                                                    definition of ``FOIA
                                                    request'' to move
                                                    the sentence about
                                                    how written requests
                                                    may be received to
                                                    Sec.   2507.6 (b).
                                                   Revises the
                                                    definition of
                                                    ``record'' for
                                                    simplification.
2507.2 What is the purpose of   2507.1 Scope.....  Deletes sentence
 this part?                                         about information
                                                    customarily
                                                    furnished to the
                                                    public because such
                                                    information does not
                                                    require FOIA
                                                    requests. Adds that
                                                    the rules should be
                                                    read in conjunction
                                                    with the FOIA
                                                    statute and OMB
                                                    guidelines and cross
                                                    references Privacy
                                                    Act regulations.
                                2507.2 Policy....  New section.
                                                    Addresses how
                                                    AmeriCorps
                                                    approaches its
                                                    duties and
                                                    responsibilities
                                                    under FOIA.
                                2507.4 Agency      New section. Lists
                                 FOIA Officials.    AmeriCorps'
                                                    authorized FOIA
                                                    officials' positions
                                                    and their roles.
                                Subpart B--        New subpart
                                 Proactive          designation.
                                 Disclosure of
                                 Agency Records.
2507.3 What types of records    2507.5 Records     Replaces section on
 are available for disclosure    Available on       what records
 to the public?                  Agency Website.    AmeriCorps will
                                                    provide when asked
                                                    with a section on
                                                    what information
                                                    AmeriCorps
                                                    proactively makes
                                                    available to the
                                                    public by posting on
                                                    its website. Moves
                                                    information on
                                                    duplication to
                                                    relevant sections
                                                    and information on
                                                    creation of new
                                                    records to Sec.
                                                    2507.8.
                                Subpart C--Filing  New subpart
                                 a FOIA Request.    designation.
2507.4 How are requests for     2507.6             See breakdown by
 records made?                   Requirements for   paragraph below.
                                 FOIA Requests.
                                (a) General        New paragraph.
                                 information.       Clarifies that
                                                    AmeriCorps has a
                                                    centralized system
                                                    for processing FOIA
                                                    requests but that
                                                    State service
                                                    commissions are not
                                                    subject to FOIA.
(a) How made and addressed....  (b) Directions     Allows for email
                                 for making         submissions and
                                 requests.          online submissions
                                                    of FOIA requests, in
                                                    addition to hard
                                                    copy requests.
                                                    (Provision regarding
                                                    the electronic
                                                    reading room is at
                                                    final Sec.
                                                    2507.5).
(b) Request must adequately     (c) Description    Deletes specific
 describe the records sought.    of records         required information
                                 sought.            for FOIA requests,
                                                    as long as the
                                                    requester provides
                                                    enough detail for
                                                    personnel to find
                                                    responsive records
                                                    with a reasonable
                                                    amount of effort.
                                                    Incorporates
                                                    description of what
                                                    happens if the
                                                    records are not
                                                    sufficiently
                                                    described that is in
                                                    current Sec.
                                                    2507.5(b).
                                (d) Third party    Specifies what
                                 requests.          happens if the
                                                    records pertain to a
                                                    third party and
                                                    additional
                                                    information that may
                                                    be required.
                                (e) Date range     Clarifies that the
                                 for requested      request may seek
                                 records.           records in a
                                                    specific date range.
(c) Agreement to pay fees.....  .................  Deleted because the
                                                    final rule would not
                                                    charge for fees
                                                    totaling $25.00 or
                                                    less. See final Sec.
                                                      2507.19(d).
                                2507.7 Requests    New section to
                                 for Archived       clarify to whom
                                 Records.           requesters should
                                                    direct requests for
                                                    records that have
                                                    been archived.
                                Subpart D--Agency  New subpart
                                 Processing and     designation.
                                 Response to FOIA
                                 Requests.
2507.5 How does the             2507.8 Processing  (See breakdown by
 Corporation process requests    of Requests.       paragraph below.)
 for records?
(a) Initial processing........  (a) Authority to   Clarifies that the
                                 grant or deny      FOIA Officer grants
                                 requests.          or denies the
                                                    initial request.
(b) Insufficiently identified   [See 2507.6(c)]..  Moves provision on
 records.                                           how FOIA Officer
                                                    addresses requests
                                                    for records that are
                                                    insufficiently
                                                    described to Sec.
                                                    2507.6(c), and time
                                                    period for response
                                                    to Sec.
                                                    2507.10(f).
(c) Furnishing records........  (b) Providing      Simplifies current
(d) Format of the disclosure     records.           provisions to state
 of a record.                                       that AmeriCorps will
                                                    ordinarily provide
                                                    the record in
                                                    electronic form or
                                                    in other forms upon
                                                    request if readily
                                                    reproducible in that
                                                    form.

[[Page 55307]]

 
                                (c) Records        New paragraph.
                                 previously         Establishes that
                                 released.          AmeriCorps will
                                                    ordinarily release a
                                                    record if it has
                                                    released it in the
                                                    past.
                                (d) Consultation,  New paragraph.
                                 referral, and      Establishes steps
                                 coordination.      AmeriCorps will take
                                                    when it determines
                                                    another Federal
                                                    agency is better
                                                    able to determine
                                                    whether a record is
                                                    exempt from
                                                    disclosure.
(e) Release of record.........  2507.10 Timing of  Consolidates all
                                 Responses to       information on
                                 Requests.          timing for responses
                                                    to FOIA requests and
                                                    adds a new multi-
                                                    track processing
                                                    system based on the
                                                    complexity of the
                                                    requests.
(f) Form and content of notice  2507.11 Responses  Adds that AmeriCorps
 granting request.               to Requests.       will first
                                                    acknowledge the FOIA
                                                    request and provide
                                                    the requester with a
                                                    tracking number.
(g) Form and content of notice  (c)(3) Adverse     Clarifies what
 denying the request.            determinations     qualifies as an
                                 on requests.       adverse
                                                    determination or
                                                    denial of a request.
2507.6 Under what               2507.10 Timing of  Consolidates all
 circumstances may the           Responses to       information on
 Corporation extend the time     Requests.          timing for responses
 limits for an initial                              to FOIA requests and
 response?                                          adds a new multi-
                                                    track processing
                                                    system based on the
                                                    complexity of the
                                                    requests.
                                Subpart F--        New subpart
                                 Appeals and        designation.
                                 Alternative
                                 Dispute
                                 Resolution.
2507.7 How does one appeal the  2507.14            Increases time limit
 Corporations denial of access   Administrative     for submitting an
 to records?                     Appeals.           appeal to 90 days
                                                    after the date of
                                                    the adverse
                                                    determination.
                                                    Identifies where to
                                                    send an appeal.
                                                    Refers to the FOIA
                                                    Appeals Officer
                                                    rather than the
                                                    Chief Operating
                                                    Officer as the
                                                    position designated
                                                    to act on appeals.
                                2507.15 Mediation  New section.
                                 and Dispute        Establishes
                                 Resolution         requesters' right to
                                 Services.          seek dispute
                                                    resolution services
                                                    from the FOIA Public
                                                    Liaison or mediation
                                                    services from OGIS.
2507.8 How are fees             Subpart G--Fees..  New subpart
 determined?.                                       designation. See
                                                    breakdown by
                                                    paragraphs and
                                                    proposed sections
                                                    below.
(a) Policy....................  2507.17 Fees       Consolidates
                                 Overview.          provisions regarding
                                                    how AmeriCorps will
                                                    charge fees.
(b) Types of request..........  2507.18 Requester  Consolidates
                                 Categories and     information to
                                 Fees Charged.      provide a table for
                                                    types of categories
                                                    and fees.
(c) Direct costs..............  2507.16            New section.
                                 Definitions for    Consolidates
                                 this Subpart.      definitions for
                                                    requester categories
                                                    and types of fees
                                                    into one section.
                                                    Provisions regarding
                                                    direct costs are
                                                    contained within
                                                    definitions for
                                                    ``duplication
                                                    fees,'' ``review
                                                    fees,'' and ``search
                                                    fees.''
(d) Charging of fees..........  2507.18 Requester  Consolidates fees
                                 Categories and     into a table.
                                 fees charged.      Increases fees for
                                                    photocopies from
                                                    10[cent] to 20[cent]
                                                    per page. Increases
                                                    search fee to $70
                                                    per hour (in place
                                                    of $12, $28, or $41
                                                    per hour depending
                                                    on who conducts the
                                                    search).
                                2507.19            New section.
                                 Circumstances in   Establishes when
                                 Which Fees May     AmeriCorps may not
                                 Not Be Charged.    charge fees and
                                                    incorporates the
                                                    statutory threshold
                                                    of 5,000 pages.
(e) Consent to pay fees.......  2507.20 Notice of  Clarifies steps
                                 Anticipated Fees   AmeriCorps will take
                                 in Excess of       if it estimates fees
                                 $25.00.            to be assessed will
                                                    exceed $25.00, based
                                                    on the category of
                                                    the requester.
(f) Advance payment...........  2507.23            Provides additional
                                 Collection and     information on
                                 Payment of Fees.   AmeriCorps' ability
                                                    to require an
                                                    advance payment.
(g) Interest on non-payment...  2507.21 Other      Adds provision for
                                 Charges.           special services,
                                                    such as certifying
                                                    records are true
                                                    copies.
(h) Aggregating requests......  2507.22            Replaces ``solid
                                 Aggregating        basis'' with
                                 Requests to        ``reasonable
                                 Ensure Payment     basis.''
                                 of Fees.
(i) Making payment............  2507.23            Adds that AmeriCorps
                                 Collection and     is not required to
                                 Payment of Fees.   accept payments in
                                                    installments.
(j) Fee processing............  .................  Deleted. Proposed
                                                    rule does not
                                                    provide for charging
                                                    fees that total
                                                    $25.00 or less.
(k) Waiver or reduction of      2507.24 Fee        Specifies factors
 fees.                           Waivers or Fee     AmeriCorps will
                                 Reductions.        consider in
                                                    determining whether
                                                    disclosure of the
                                                    information is in
                                                    the public interest
                                                    and whether the
                                                    disclosure is
                                                    primarily in the
                                                    commercial interest
                                                    of the requester.
2507.9 What records will be     2507.9 Reasons     Adds steps AmeriCorps
 denied disclosure under this    for Withholding    will take in
 part?                           Some Records       documenting the
                                 2507.11            reason for
                                 Responses to       withholding. Adds
                                 Requests.          expiration to
                                                    deliberative process
                                                    of Exemption 5.
2507.10 What records are        .................  Deleted. Instead
 specifically exempt from                           refers to exemptions
 disclosure?                                        set out in Act. See
                                                    proposed definition
                                                    of ``exemptions.''
2507.11 What are the            Subpart E--        Replaces ``business
 procedures for the release of   Confidential       submitter'' with
 commercial business             Commercial         ``submitter'' to
 information?                    Information.       include all
                                2507.12             submitters of
                                 Definitions for    confidential
                                 this Subpart.      commercial
                                2507.13             information, rather
                                 Procedures for     than just business
                                 Release of         submitters. Adds
                                 Commercial         that the
                                 Information.       notification to the
                                                    submitter will
                                                    include notice of
                                                    what information
                                                    AmeriCorps proposes
                                                    to disclose and
                                                    withhold.
                                                    Establishes that
                                                    AmeriCorps will
                                                    consider the
                                                    specific grounds the
                                                    submitter asserts
                                                    for non-disclosure
                                                    rather than the
                                                    general criteria
                                                    listed in the
                                                    current regulation.
                                                    Changes the advance
                                                    notice of the time
                                                    period for
                                                    disclosure from six
                                                    working days to five
                                                    working days.
2507.12 Authority.............  .................  Deleted because
                                                    authority is stated
                                                    after the table of
                                                    contents.
                                Subpart H--        New subpart
                                 Miscellaneous.     designation.
                                2507.25            New section.
                                 Preservation of    Clarifies how
                                 Records.           AmeriCorps preserves
                                                    records.

[[Page 55308]]

 
                                2507.26 Reporting  New section.
                                 Requirements.      Identifies what
                                                    reports AmeriCorps
                                                    will submit to the
                                                    Attorney General.
                                2507.27 Rights     New section. States
                                 and Services       that the CFR part
                                 Qualified by the   should not be
                                 FOIA Statute.      interpreted to
                                                    entitle persons to
                                                    rights or services
                                                    for which they are
                                                    not entitled under
                                                    FOIA.
Appendix A--FOIA Request        .................  Deleted. To be made
 Letter (Sample).                                   available on website
                                                    instead of CFR to
                                                    allow for
                                                    modifications to
                                                    keep current.
Appendix B--FOIA Appeal for     .................  Deleted. To be made
 Release of Information.                            available on website
                                                    instead of CFR to
                                                    allow for
                                                    modifications to
                                                    keep current.
------------------------------------------------------------------------

III. Response to Comments on Proposed Rule and Changes From Proposed to 
Final

    AmeriCorps received one public comment submission containing 
several suggested edits to the proposed rule, which are summarized and 
addressed as follows.
     The commenter pointed out that proposed Sec.  2507.2(b)'s 
statement that the agency's practice of applying the foreseeable harm 
standard is not enforceable in court is inaccurate because the right to 
release of records and information under this standard is enforceable. 
The final rule deletes this sentence. The final rule also revises the 
preceding sentence regarding AmeriCorps' release of records or 
information under this standard to better mirror the statute's 
language.
     In proposed Sec.  2507.3, which contains definitions for 
the regulation, the commenter questioned whether the definitions were 
necessary. AmeriCorps has decided to retain the definitions in the 
final rule for clarity. Additionally, the commenter suggested edits to 
two definitions. First, the commenter suggested, in the definition of 
``Freedom of Information Act (FOIA),'' adding the U.S. Code citation, 
clarifying that a request must ``reasonably describe'' the records, and 
clarifying that agencies may rely upon exclusions (in addition to the 
exemptions) for not releasing records. The final rule adds each of 
these suggested edits for clarification. Second, the commenter stated 
that the definition of ``frequently requested records'' does not mirror 
the statute, which requires the agency to have determined the records 
have become or are likely to become the subject of subsequent requests 
for substantially the same records. The proposed rule contained this 
additional information in proposed Sec.  2507.5(b)(2). In response to 
this comment, AmeriCorps has moved that information from Sec.  
2507.5(b)(2) into the definition.
     Proposed Sec.  2507.11, Responses to Requests, paragraph 
(b) imposed a requirement upon AmeriCorps to acknowledge a FOIA request 
and inform the requester of the tracking number. The commenter pointed 
out that, statutorily, AmeriCorps is not required to provide the 
requester this information if AmeriCorps issues a final determination 
in less than 10 days. AmeriCorps is nevertheless retaining this 
provision in the final rule to ensure consistency in its approach to 
acknowledging requests. Additionally, in paragraph (c)(3)(iii)(A) of 
this section, the proposed rule imposes requirements on AmeriCorps to 
provide a general description of withheld records at the administrative 
stage, and the commenter noted that the statute does not require 
AmeriCorps to provide a general description at this stage. AmeriCorps 
is retaining this regulatory provision to ensure consistency in its 
approach to withholding records. The commenter also noted that this 
proposed paragraph would require AmeriCorps to provide an estimate of 
the volume of the material withheld, but that doing so may harm an 
interest protected by an applicable exemption. In response, the final 
rule adds that AmeriCorps will not specify the volume withheld if doing 
so would harm an interest protected by an exemption. The final rule 
also specifies that AmeriCorps will provide the estimate of the volume 
of material withheld ``where not evident'' given that in some cases, 
the volume will be clear from visible redactions in released materials.
     In proposed Sec.  2507.13, Procedures for Release of 
Commercial Information, the commenter suggested clarifying in paragraph 
(a)(3) when the 10 business days in which a requester may inform the 
agency of any objection begins. The final rule clarifies that the 
calculation of the 10 business days begins from the date the notice is 
sent. The commenter also suggested that paragraph (c) should state that 
a submitter who fails to respond within the requisite time period 
should be considered to have no objection to disclosure and that the 
agency will not consider any information received after the date of the 
disclosure decision. The final rule adds that AmeriCorps will not 
consider any information that is not timely submitted. The final rule 
also includes the requested provision that AmeriCorps will consider any 
submitter who fails to make a timely objection to have no objection but 
adds ``unless the submitter requests an extension of time to reply and 
is granted that extension or a lesser one'' to account for situations 
where AmeriCorps has granted an extension of time.
     Proposed Sec.  2507.14, Administrative Appeals, paragraph 
(f)(2) addressed decisions on appeals. The commenter noted that the 
provision addressed re-processing of withheld records, but that not all 
appeal determinations will pertain to withheld records. The final rule 
addresses this comment by specifying that AmeriCorps will re-process 
the FOIA request in accordance with the FOIA Appeals Officer's decision 
``if applicable'' and promptly send ``releasable'' records to the 
requester.
     In proposed Sec.  2507.19, Circumstances in Which Fees May 
Not Be Charged, the commenter pointed out that the statute refers to 
5,000 pages of the response, rather than the 1,000 pages cited in the 
proposed rule. The final rule corrects this error.
    In addition, AmeriCorps made the following non-substantive edits to 
the proposed rule for clarification:
     In Sec.  2507.3, Definitions, the final rule clarifies how 
proactive disclosures are made publicly available by specifying that 
they will be posted on AmeriCorps' website.
     In Sec.  2507.5, Records Available on Agency website, the 
final rule adds that AmeriCorps will post records that AmeriCorps 
determines are or will be the subject of widespread media, historical, 
or academic interest and that may properly be posted.
     In Sec.  2507.6, Requirements for FOIA Requests, the final 
rule moves the provision stating that requesters may adjust their 
request or ask for drafting advice by emailing the FOIA office from 
paragraph (c)(1) to paragraph (c). The final rule makes this change 
because paragraph (c)(1) is specific to requests that do not reasonably 
describe the records, while requesters have the option of adjusting 
their request or

[[Page 55309]]

asking for advice outside of this context. Likewise, the final rule 
moves the provision requiring requesters to provide contact information 
from paragraph (c)(1) to a new paragraph (f), to require contact 
information whenever a request is submitted.
     In Sec.  2507.8, Processing of Requests, the reference to 
``coordination'' is removed from paragraph (d) because the section does 
not address coordination. The final rule also clarifies that AmeriCorps 
will determine whether another Federal agency holds an interest in the 
record (as opposed to the proposed language regarding who is better 
able to determine whether a record is exempt).
     In Sec.  2507.11, Responses to Requests, the final rule 
adds that AmeriCorps will provide an estimated date by which it expects 
to provide a response to the requester and may provide interim 
responses releasing records on a rolling basis under certain 
circumstances.
     In Sec.  2507.13, the final rule adds a new provision 
requiring AmeriCorps to notify the requester whenever: (1) AmeriCorps 
provides the submitter with notice and the opportunity to object to 
disclosure, (2) AmeriCorps provides the submitter of its intent to 
disclose requested information, or (3) the submitter files a lawsuit to 
prevent disclosure of the information. These provisions incorporate 
statutory requirements.
     In Sec.  2507.24(b), the final rule reorganizes paragraph 
(b) for clarification, to distinguish criteria used to determine if a 
disclosure is in the public interest from the criteria used to 
determine that the disclosure is not primarily in the commercial 
interest of the requester.
     In Sec.  2507.26, the final rule removes detail as to the 
timing and content of reports to account for changes the Attorney 
General may make to reporting requirements over time.

IV. Regulatory Analyses

A. Executive Orders 12866 and 13563

    Executive Orders (E.O.) 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). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
The Office of Information and Regulatory Affairs in the Office of 
Management and Budget has determined that this rule is not a 
significant regulatory action and therefore, was not subject to review 
under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated 
September 30, 1993.

B. Congressional Review Act (Small Business Regulatory Enforcement 
Fairness Act of 1996, Title II, Subtitle E)

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, AmeriCorps will submit 
for an interim or final rule a report to each House of the Congress and 
to the Comptroller General of the United States. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. The Office of Information and Regulatory Affairs in the 
Office of Management and Budget has determined that this is not a major 
rule under 5 U.S.C. 804.

C. Regulatory Flexibility Act

    As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 
et seq.), AmeriCorps certifies that this rule, if adopted, will not 
have a significant economic impact on a substantial number of small 
entities. Therefore, AmeriCorps has not performed the initial 
regulatory flexibility analysis that is required under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) for rules that are expected to 
have such results.

D. Unfunded Mandates Reform Act of 1995

    For purposes of Title II of the Unfunded Mandates Reform Act of 
1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this 
regulatory action does not contain any Federal mandate that may result 
in increased expenditures in either Federal, State, local, or Tribal 
governments in the aggregate, or impose an annual burden exceeding $100 
million on the private sector.

E. Paperwork Reduction Act

    Under the PRA, an agency may not conduct or sponsor a collection of 
information unless the collections of information display valid control 
numbers. This proposed rule does not contain information collection 
requirements within the meaning of the Paperwork Reduction Act, 44 
U.S.C. 3501-3520.

F. Executive Order 13132, Federalism

    Executive Order 13132, Federalism, prohibits an agency from 
publishing any rule that has Federalism implications if the rule 
imposes substantial direct compliance costs on State and local 
governments and is not required by statute, or the rule preempts State 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order. This rule does not have any 
Federalism implications, as described above.

G. Takings (E.O. 12630)

    This rule does not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630 because this rule 
does not affect individual property rights protected by the Fifth 
Amendment or involve a compensable ``taking.'' A takings implication 
assessment is not required.

H. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule: (a) meets the criteria of section 3(a) 
requiring that all regulations be reviewed to eliminate errors and 
ambiguity and be written to minimize litigation; and (b) meets the 
criteria of section 3(b)(2) requiring that all regulations be written 
in clear language and contain clear legal standards.

I. Consultation With Indian Tribes (E.O. 13175)

    AmeriCorps recognizes the inherent sovereignty of Indian Tribes and 
their right to self-governance. We have evaluated this rule under our 
consultation policy and the criteria in E.O. 13175 and determined that 
this rule does not impose substantial direct effects on federally 
recognized Tribes.

List of Subjects in 45 CFR Part 2507

    Freedom of information.

0
For the reasons stated in the preamble, AmeriCorps revises 45 CFR Part 
2507 to read as follows:

PART 2507--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM 
OF INFORMATION ACT

Subpart A--General Provisions
Sec.
2507.1 Scope.
2507.2 Policy.
2507.3 Definitions.
2507.4 Agency FOIA Officials.
Subpart B--Proactive Disclosures of Agency Records
2507.5 Records available on agency website.
Subpart C--Filing a FOIA Request
2507.6 Requirements for FOIA requests.
2507.7 Requests for archived records.

[[Page 55310]]

Subpart D--Agency Processing and Responses to FOIA Requests
2507.8 Processing of requests.
2507.9 Reasons for withholding some records.
2507.10 Timing of responses to requests.
2507.11 Responses to requests.
Subpart E--Confidential Commercial Information
2507.12 Definitions for this subpart.
2507.13 Procedures for release of commercial information.
Subpart F--Appeals and Alternative Dispute Resolution
2507.14 Administrative appeals.
2507.15 Mediation and dispute resolution services.
Subpart G--Fees
2507.16 Definitions for this subpart.
2507.17 Fees overview.
2507.18 Requester categories and fees charged.
2507.19 Circumstances in Which Fees May Not Be Charged.
2507.20 Notice of Anticipated Fees in Excess of $25.00.
2507.21 Other charges.
2507.22 Aggregating requests to ensure payment of fees.
2507.23 Collection and payment of fees.
2507.24 Fee waivers or fee reductions.
Subpart H--Miscellaneous
2507.25 Preservation of records.
2507.26 Annual reporting requirements.
2507.27 Rights and services qualified by the FOIA statute.

    Authority:  5 U.S.C. 552, 42 U.S.C. 12501 et seq.

Subpart A--General Provisions


Sec.  2507.1  Scope.

    This part contains the rules that the Corporation for National and 
Community Service, operating as AmeriCorps (``the Agency'' or 
``AmeriCorps''), follows in processing requests for records under the 
Freedom of Information Act (``FOIA''), 5 U.S.C. 552. These rules should 
be read in conjunction with the text of the FOIA and the Uniform 
Freedom of Information Fee Schedule and Guidelines published by the 
Office of Management and Budget (``OMB Guidelines''). Requests made by 
individuals for records about themselves under the Privacy Act of 1974, 
5 U.S.C. 552a, are processed in accordance with AmeriCorps' Privacy Act 
regulations, 45 CFR part 2508, as well as under this part.


Sec.  2507.2  Policy.

    (a) AmeriCorps follows a balanced approach in administering the 
FOIA. The Agency recognizes the right of the public to seek access to 
information in its possession. It also recognizes the legitimate 
interests of organizations or persons who have submitted records to 
AmeriCorps or who would otherwise be affected by release of records. 
AmeriCorps has no discretion to release certain records, such as trade 
secrets and confidential commercial information, prohibited from 
release by law. The Agency provides the fullest responsible disclosure 
that is consistent with the requirements of the FOIA.
    (b) When a FOIA exemption gives Federal agencies the discretion to 
either withhold or release records, AmeriCorps releases the records or 
information unless it reasonably foresees that disclosure would harm an 
interest that the exemption protects.


Sec.  2507.3  Definitions.

    As used in this part:
    Agency is any executive agency, military agency, government 
corporation, government-controlled corporation, or other establishment 
in the Executive Branch of the Federal Government, or any independent 
regulatory agency. AmeriCorps is an agency.
    AmeriCorps or the Agency means the Corporation for National and 
Community Service, which operates as AmeriCorps.
    Complex request is a request that typically seeks a high volume of 
material or requires additional steps to process, such as the need to 
search for records in multiple locations.
    Consultation is when AmeriCorps locates a record that contains 
information of interest to another agency, and, before any final 
determination is made, AmeriCorps asks that other agency for its views 
on whether or not the records can be released to the requester.
    Exemptions are the nine categories of information that are not 
required to be released in response to a FOIA request because release 
would be harmful to a government or private interest. These categories 
are called ``exemptions'' from disclosure.
    Expedited processing is the FOIA response track granted in certain 
limited situations to process FOIA requests ahead of other pending 
requests.
    FOIA request is a written request for Agency records, made by any 
person, including a member of the public (U.S. or foreign citizen), an 
organization, or a business--but not including a Federal agency, an 
agent of a foreign government, an order from a court, or a fugitive 
from the law--that either explicitly or implicitly involves the FOIA, 
or this part.
    Freedom of Information Act (FOIA) is a United States Federal law at 
5 U.S.C. 552 that grants the public access to records possessed by 
government agencies. Upon written request, U.S. Government agencies are 
required to release reasonably described records, except to the extent 
the records fall under an exclusion or one of the nine exemptions 
listed in the Act.
    Frequently requested records are records that have been released 
either in full or with the same information withheld and either:
    (1) Have been requested from AmeriCorps three or more times; or
    (2) Because of their subject matter, AmeriCorps determines have 
become or are likely to become the subject of subsequent requests for 
the same records.
    Multitrack processing is a system that divides incoming FOIA 
requests into processing tracks according to their complexity.
    Office of Government Information Services (OGIS) is an office 
within the National Archives and Records Administration that offers 
mediation services to resolve disputes between FOIA requesters and 
agencies, as a non-exclusive alternative to litigation. OGIS also 
reviews agency FOIA compliance, policies, and procedures and makes 
recommendations for improvement.
    Proactive disclosures are records that agencies make publicly 
available on their website without waiting for a specific FOIA request.
    Record means information, regardless of the form in which it is 
stored or its characteristics, which is created or obtained by an 
agency and is under the control of the agency at the time of the 
request. It includes information maintained for the agency by an entity 
under government contract for records management purposes. It does not 
include records that do not already exist and that would have to be 
created specifically to respond to a request.
    Referral occurs when an agency locates a record that originated 
with, or is of otherwise primary interest to, another agency. The 
receiving agency will forward that record to the other agency to 
process the record and to provide the final determination directly to 
the requester.
    Search is the process of looking for and retrieving records or 
information responsive to a request.
    Simple request is a FOIA request that an agency anticipates will 
involve a small volume of material or which the agency will be able to 
process relatively quickly.
    Tolling means temporarily stopping the running of a time limit.

[[Page 55311]]

Sec.  2507.4  Agency FOIA officials.

    The following are AmeriCorps' authorized FOIA officials, each of 
whom will be identified on americorps.gov, and their roles.
    (a) The Chief FOIA Officer:
    (1) Has overall responsibility for AmeriCorps' compliance with the 
FOIA;
    (2) Provides high-level oversight and support to AmeriCorps' FOIA 
program;
    (3) Recommends adjustments to AmeriCorps' practices, personnel, and 
funding, as needed, to improve FOIA administration, including through 
Chief FOIA Officer Reports submitted to the U.S. Department of Justice;
    (4) Tells the Agency's FOIA Officers of all significant 
developments with respect to the FOIA;
    (5) Is responsible for offering training to agency staff regarding 
their FOIA responsibilities;
    (6) Serves as the primary liaison with the Office of Government 
Information Services and the U.S. Department of Justice's Office of 
Information Policy; and
    (7) Reviews, at least annually, all aspects of AmeriCorps' 
administration of the FOIA to ensure compliance with the FOIA's 
requirements.
    (b) The FOIA Officer receives, tracks, and processes the Agency's 
FOIA requests, including making final release determinations. The FOIA 
Officer is responsible for program direction, original denials, and 
policy decisions required for effective implementation of the Agency's 
FOIA program.
    (c) The FOIA Appeals Officer receives and act upon appeals from 
requesters whose initial requests for the Agency's records have been 
denied, in whole or in part.
    (d) The FOIA Public Liaison serves as the official to whom a FOIA 
requester can raise concerns about the services received, following an 
initial response from the FOIA Officer. In addition, the FOIA Public 
Liaison assists, as appropriate, in reducing delays, increasing 
transparency, answering requesters' questions about the status of their 
requests, and resolving disputes.

Subpart B--Proactive Disclosures of Agency Records


Sec.  2507.5  Records available on agency website.

    (a) AmeriCorps regularly updates and posts the following on its 
public website, americorps.gov:
    (1) Information that is required to be published in the Federal 
Register under 5 U.S.C. 552(a)(1) and:
    (2) Administrative staff manuals and instructions to staff that 
affect any member of the public.
    (3) Statements of policy and interpretation adopted by AmeriCorps 
and not published in the Federal Register.
    (4) Final opinions, including concurring and dissenting opinions, 
as well as orders, made in the adjudication of administrative cases.
    (5) Records that AmeriCorps determines are or will be the subject 
of widespread media, historical, or academic interest and that may 
properly be publicly posted.
    (b) On the FOIA page of its public website, americorps.gov, the 
Agency posts records that are required by the FOIA to be made available 
for public inspection and copying under 5 U.S.C 552(a)(2), including, 
but not limited to, frequently requested records.
    (c) For help from the FOIA Officer or the FOIA Public Liaison in 
finding proactively disclosed records, members of the public may 
contact AmeriCorps at [email protected] or at: AmeriCorps, Office of the 
General Counsel, 250 E Street SW, Washington, DC 20525.

Subpart C--Filing a FOIA Request


Sec.  2507.6  Requirements for FOIA requests.

    (a) General information. AmeriCorps has a centralized system for 
responding to FOIA requests. AmeriCorps headquarters is the central 
processing point for all requests for Agency records, regardless of 
where they are stored. State service commissions are not part of 
AmeriCorps and are not Federal agencies, and thus are not subject to 
the FOIA.
    (b) Directions for making requests. All FOIA requests must be 
submitted in writing to the FOIA Officer at AmeriCorps headquarters in 
one of the following ways:
    (1) By email: [email protected]. Including a phone number with a request 
will help with processing.
    (2) By online submission: via the National FOIA Portal at 
www.FOIA.gov.
    (3) By mail: AmeriCorps, Attn.: FOIA Officer, Office of General 
Counsel, 250 E Street SW, Washington, DC 20525.
    (4) By fax: (202) 606-3467.
    (c) Description of records sought. Requesters must provide enough 
detail about the Agency's records they seek that AmeriCorps personnel 
can find responsive records, if they exist, with a reasonable amount of 
effort. To the extent possible, requesters should include information 
that helps identify the records, such as dates, titles or names, 
authors, recipients, subject matter of the records, or assigned 
reference numbers. Requesters may adjust their request or ask for 
advice on writing a request by sending a note to [email protected].
    (1) If a request does not reasonably describe the records sought, 
AmeriCorps' response to the request may be delayed or denied.
    (2) When AmeriCorps determines that a request does not sufficiently 
describe the records sought, it will ask the requester for further 
information. If the requester does not respond to a request for 
additional information within thirty (30) working days, the request may 
be administratively closed at AmeriCorps' discretion. A requester may, 
after administrative closure of a request, submit a new request with 
additional information for further consideration.
    (d) Third-party requests. When a request for records pertains to a 
third party (that is, a person other than the requester), the requester 
may receive greater access by submitting a notarized authorization 
signed by the third party or a declaration, made in compliance with the 
requirements set forth in the FOIA, that the third party authorizes 
disclosure of the records to the requester, or proof that the third 
party is deceased (for example, a copy of a death certificate or a 
published obituary). If necessary, AmeriCorps may require additional 
information from a requester to verify that the third party consents to 
disclosure. Alternatively, requesters may demonstrate an overriding 
public interest in the disclosure of information pertaining to a third 
party (for example, by producing evidence that alleged Government 
impropriety occurred, necessitating a disclosure of information related 
to official misconduct).
    (e) Date range for requested records. Requesters may ask for a 
specific date range for a search, but requests may not ask for records 
that are anticipated for the future, but do not yet exist. As it 
determines which records are responsive to a request, AmeriCorps 
ordinarily will include only records in its possession as of the date 
it begins its search, if a date range is not specified.
    (f) Contact information. Requesters must provide a telephone number 
or email address in their request so that AmeriCorps can contact them 
for clarification, if necessary, or help them narrow down a request 
that would otherwise be unduly burdensome.


Sec.  2507.7  Requests for archived records.

    In accordance with agency records schedules and General Records 
Schedules, AmeriCorps transfers permanent records to the National 
Archives and Records Administration (``National Archives''). Once these 
records are transferred, they are in the physical and legal custody of 
the National Archives. Accordingly,

[[Page 55312]]

requests for retired AmeriCorps records should be submitted to the 
National Archives by mail addressed to: Special Access and FOIA Staff 
(NWCTF), 8601 Adelphi Road, Room 5500, College Park, MD 20740; by fax 
to (301) 837-1864; or by email to [email protected].

Subpart D--Agency Processing and Response to FOIA Requests


Sec.  2507.8  Processing of requests.

    (a) Authority to grant or deny requests. The FOIA Officer is 
authorized to grant or deny any requests for records maintained by 
AmeriCorps. If the request is for records under the control and 
jurisdiction of the Office of the Inspector General, the FOIA Officer 
will forward the request to that office's FOIA officer for the initial 
determination and the reply to the requester.
    (b) Providing records. AmeriCorps will provide copies only of 
records it has in its possession. AmeriCorps is not compelled to create 
new records to respond to a FOIA request, answer questions posed as 
FOIA requests, perform research for a requester, compile lists of 
selected items from its files, or provide a requester with statistical 
or other data, unless such data has been compiled previously and is 
available in the form of a record.
    (1) AmeriCorps is required to provide only one copy of a record.
    (2) AmeriCorps will ordinarily provide the record in electronic 
form. Requesters may specify the preferred form or format for the 
records they seek, and AmeriCorps will provide releasable records in 
that form or format if they are readily reproducible in that way and 
the format allows for any necessary redactions.
    (3) If AmeriCorps cannot make a legible copy of a record to be 
released, it is not required to reconstruct the record. Instead, 
AmeriCorps will furnish the best copy possible and note the record's 
poor quality in its reply.
    (c) Records previously released. If AmeriCorps has released a 
record, or a part of a record, to a requester in the past, it will 
ordinarily release it to a new requester. However, this principle does 
not apply if the previous release was unauthorized or if an exemption 
applies that did not apply earlier. If an exemption is the reason for 
denial, AmeriCorps will specify the exemption under which information 
is withheld.
    (d) Consultation and referral. When AmeriCorps reviews records in 
response to a request and determines that another agency of the Federal 
Government holds an interest in the record, AmeriCorps will proceed in 
one of the following ways:
    (1) Consultation. When responsive records have originated with 
AmeriCorps but contain within them information of interest to another 
agency, or other Federal Government office, AmeriCorps consults with 
that other agency before making a release determination.
    (2) Referral. (i) When a responsive record has originated with a 
different agency or other Federal Government office that is subject to 
the FOIA, AmeriCorps refers the responsibility for responding to the 
request regarding that record, on the presumption that the agency that 
originated a record will be best able to make the disclosure 
determination. However, if AmeriCorps and the originating agency 
jointly agree that AmeriCorps is in the best position to respond 
regarding the record, then the record may be handled as a consultation.
    (ii) Whenever AmeriCorps refers any part of the responsibility for 
responding to a request to another agency, it will document the 
referral, maintain a copy of the record that it refers, notify the 
requester of the referral, and tell the requester the name(s) of the 
agency to which the record was referred and that agency's FOIA contact 
information.


Sec.  2507.9  Reasons for withholding some records.

    (a) AmeriCorps records will be made available to the public unless 
it determines that such records should be withheld from disclosure 
under subsection 552(b) of the Act and/or in accordance with this part. 
Section 552(b) of the FOIA contains nine exemptions to the mandatory 
disclosure of records.
    (b) AmeriCorps will:
    (1) Withhold information under the FOIA only if disclosure is 
prohibited by law or it reasonably foresees that disclosure would harm 
an interest protected by an exemption.
    (2) Consider whether partial disclosure of information is possible 
whenever it determines that a full disclosure of a requested record is 
not possible.
    (3) Take reasonable steps necessary to segregate and release 
nonexempt information.
    (4) Note in the record and response letter the basis for a 
redaction when it withholds information in a record, or an entire 
record.
    (c) To the extent it properly can under an exemption, AmeriCorps 
will withhold information it obtains from any submitter that gave it to 
the agency in reliance on a statutory or regulatory provision for 
confidentiality. This section does not authorize the giving of any 
pledge of confidentiality by any officer or employee of AmeriCorps.
    (d) The deliberative process privilege of Exemption 5 of the FOIA 
will not apply to records created 25 years or more before the date when 
the records were requested.


Sec.  2507.10  Timing of responses to requests.

    (a) In General. AmeriCorps ordinarily will respond to requests 
according to their order of receipt.
    (b) Multitrack processing. AmeriCorps processes requests in a 
multitrack system based on the date of receipt, the amount of work and 
time involved in processing the request, and whether the request 
qualifies for expedited processing. This multitrack processing system 
does not lessen the Agency's responsibility to process requests as 
quickly as possible.
    (1) AmeriCorps uses three tracks:
    (i) A track for simple requests that can be processed in 20 working 
days;
    (ii) A track for complex requests that require more than 20 working 
days; and
    (iii) A track for expedited processing.
    (2) Within each track, processing will ordinarily proceed on a 
``first-in, first-out'' basis, and rank-ordered by the date of receipt 
of the request, unless there are unusual circumstances as set forth in 
paragraph (c) of this section, or the requester is entitled to 
expedited processing as set forth in paragraph (e) of this section.
    (3) If a request does not qualify as simple, AmeriCorps may give 
the requester an opportunity to limit the scope of the request in order 
to qualify for faster processing.
    (c) Unusual circumstances. Whenever the statutory time limit for 
processing a request cannot be met because of ``unusual 
circumstances,'' as defined in the FOIA, and AmeriCorps extends the 
time limit on that basis, AmeriCorps will:
    (1) Before expiration of the 20-day period to respond, notify the 
requester in writing of the unusual circumstances and when AmeriCorps 
expects to complete processing the request; and
    (2) When the extension exceeds 10 working days, AmeriCorps will:
    (i) Notify the requester in writing of the right to seek dispute 
resolution services from the Office of Government Information Services 
(OGIS);
    (ii) Give the requester an opportunity to modify the request or 
arrange an alternative time period for processing; and
    (iii) Provide contact information for the FOIA Public Liaison.

[[Page 55313]]

    (d) Aggregating Requests to Satisfy Unusual Circumstances. For the 
purposes of satisfying unusual circumstances under the FOIA, AmeriCorps 
may aggregate requests in cases where it reasonably appears that 
multiple requests, submitted either by a requester or by a group of 
requesters acting in concert, constitute a single request that would 
otherwise involve unusual circumstances. AmeriCorps will not aggregate 
multiple requests that involve unrelated matters.
    (e) Expedited processing. (1) Requests and appeals will be 
processed on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of a person;
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if the request is made by a person who is 
primarily engaged in disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the Government's integrity that 
affect public confidence.
    (2) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, that explains in detail 
the basis for requesting expedited processing.
    (i) For example, under paragraphs (e)(1)(ii) and (iv) of this 
section, a requester who is not a full-time member of the news media 
must establish that their primary professional activity or occupation 
is information dissemination, though it need not be their sole 
occupation. They must also clearly describe why there is a particular 
urgency to inform the public about the government activity or questions 
about integrity involved in the request--one that extends beyond the 
public's right to know about government activity generally.
    (ii) As a matter of administrative discretion, AmeriCorps may waive 
the formal certification requirement.
    (3) Within 10 calendar days of receiving a request for expedited 
processing, AmeriCorps will notify the requester of its decision 
whether to grant or deny the request. If AmeriCorps grants expedited 
processing, the request will be placed in the expedited processing 
track and be processed as soon as practicable. If AmeriCorps denies a 
request for expedited processing, it will act expeditiously on any 
appeal of that decision.
    (f) Tolling. The 20-day period under paragraph (b)(1) of this 
section commences on the date that the request is first received by the 
FOIA Officer. The 20-day period will not be tolled by AmeriCorps except 
under the following circumstances:
    (1) The FOIA Officer may make one request to the requester for 
information and will toll the 20-day period while waiting for the 
information. The time from this request to the FOIA Officer's receipt 
of a response that addresses the questions will be tolled.
    (2) If the requester has indicated that they are willing to pay 
fees up to a certain amount, but the estimated fee exceeds that amount, 
the FOIA Officer will notify them of the higher estimated fees and ask 
if they wish to revise the amount of fees they are willing to pay or 
modify the request. The time from this request to the FOIA Officer's 
receipt of a response that addresses the questions will be tolled.


Sec.  2507.11  Responses to requests.

    (a) In general. To the extent practicable, AmeriCorps will 
communicate with requesters using electronic means, such as email. Upon 
request, AmeriCorps will provide an estimated date by which it expects 
to provide a response to the requester. If a request involves a 
voluminous amount of material, or searches in multiple locations, the 
agency may provide interim responses, releasing records on a rolling 
basis.
    (b) Acknowledgment of requests. AmeriCorps will acknowledge the 
request and inform the requester of the tracking number assigned to the 
request.
    (c) Determinations on requests. In all determinations on requests, 
AmeriCorps will notify the requester in writing of the right to seek 
assistance from AmeriCorps' FOIA Public Liaison.
    (1) Grants of requests for records. When AmeriCorps grants a 
request in for records in full, it will notify the requester in writing 
and provide the records. If fees apply, AmeriCorps will inform the 
requester of those fees and send them the requested records promptly 
upon their payment of those fees.
    (2) Grants for other matters. When AmeriCorps grants a request for 
a fee waiver, modification of a request, or expedited processing, it 
will notify the requester promptly, in writing.
    (3) Adverse determinations on requests. If AmeriCorps denies a 
request in any respect, it will notify the requester in writing of the 
determination and their right to seek dispute resolution services from 
AmeriCorps' FOIA Public Liaison or the Office of Government Information 
Services.
    (i) Adverse determinations, or denials of requests for records, 
include decisions that a record, or portion of it, is exempt; that the 
request does not reasonably describe the records sought; that the 
record is not subject to the FOIA, is not an agency record, does not 
exist, cannot be located, or has been destroyed; or that the record is 
not readily reproducible in the format sought by the requester.
    (ii) Adverse determinations also include denials involving fees or 
fee waiver matters or denials of requests for expedited proceeding.
    (4) Information provided in the case of a denial. Response letters 
that deny all or part of a request will be signed by the person making 
the decision and will provide:
    (i) In the case of records withheld in whole or in part, a general 
description of what has been withheld and, where not evident, an 
estimate of the volume of material withheld, unless providing the 
description or estimate would harm an interest protected by an 
exemption;
    (ii) The reasons for the denial, including, as applicable, a 
reference to the specific FOIA exemption that authorizes the 
withholding;
    (iii) An explanation of the requester's appeal rights as described 
in Subpart F and the name and contact information of the Agency's FOIA 
Appeals Officer.

Subpart E--Confidential Commercial Information


Sec.  2507.12  Definitions for this subpart.

    In addition to the definitions in Sec.  2507.3, the following 
definitions apply to this subpart:
    Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides information, either directly or 
indirectly, to the Federal Government.
    Confidential commercial information means commercial or financial 
information obtained by an agency from a submitter that may be 
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 
552(b)(4).


Sec.  2507.13  Procedures for release of commercial information.

    (a) Notification to submitters of confidential commercial or 
financial information. When AmeriCorps possesses confidential 
commercial or financial information, and receives a request for the 
records, the Agency will, before release of any information:
    (1) Notify the submitter about the request and provide copies of 
the requested records;

[[Page 55314]]

    (2) Tell the submitter what information it proposes to disclose and 
withhold in accordance with Exemption (b)(4) of the Act; and
    (3) Require the submitter to inform the agency in writing, within 
10 business days from the date the notice is sent, if they object to 
any proposed disclosure of commercial or financial information in the 
records.
    (b) When notice to submitter is not required. AmeriCorps will not 
give notice to a submitter of confidential commercial or financial 
information if:
    (1) The Agency determines that the information shall not be 
disclosed;
    (2) The information has previously been published or otherwise 
lawfully been made available to the public; or
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552).
    (c) Analysis of objection. AmeriCorps will consider a submitter's 
timely objections and specific grounds for nondisclosure in deciding 
whether to disclose the requested information. AmeriCorps will not 
consider any information not timely submitted. A submitter who fails to 
make a timely objection will be considered to have no objection to 
disclosure, unless the submitter requests an extension of time to reply 
and is granted that extension or a lesser one.
    (d) Disclosure over the objection of a submitter. Whenever 
AmeriCorps determines to disclose information over the objection of a 
submitter of commercial or financial information, it will send the 
submitter written notice that includes:
    (1) A description of the commercial or financial information to be 
released to the requester;
    (2) The reasons why the submitter's objection to release was not 
sustained;
    (3) The date when the records will be disclosed, which shall be not 
less than 5 business days after the notice is sent.
    (e) Notice of suit for release. Whenever a requester brings suit to 
compel the disclosure of a submitter's commercial or financial 
information, AmeriCorps will promptly notify the submitter.
    (f) Notification to requestor. AmeriCorps will notify the requester 
whenever:
    (1) AmeriCorps provides the submitter with notice and the 
opportunity to object to disclosure;
    (2) AmeriCorps notifies the submitter of its intent to disclose 
requested information; and
    (3) The submitter files a lawsuit to prevent disclosure of the 
information.

Subpart F--Appeals and Alternative Dispute Resolution


Sec.  2507.14  Administrative appeals.

    Whenever AmeriCorps denies a FOIA request, it will inform the 
requester of the reasons for the denial and of the requester's right to 
appeal the denial to the FOIA Appeals Officer.
    (a) What a requester may appeal. A requester may appeal:
    (1) The withholding of a document or part of a document;
    (2) Denial of a fee waiver request;
    (3) The type or amount of fees they were charged;
    (4) Any other type of adverse determination under the FOIA; or
    (5) A failure by AmeriCorps to conduct an adequate search for the 
requested records.
    (b) What a requester may not appeal. A requester may not appeal the 
lack of a timely response.
    (c) When appeal is required. A requester must generally submit a 
timely administrative appeal before they seek court review of the 
Agency's adverse determination.
    (d) Requirements for making an appeal. A requester must:
    (1) Make the appeal in writing;
    (2) Transmit or postmark the appeal within 90 calendar days after 
the date of adverse determination;
    (3) Clearly identify the assigned request number and the Agency 
determination they are appealing;
    (4) Mark the subject line of the appeal email, or letter and 
envelope, with ``FOIA Appeal.''
    (e) Where to file an appeal. A requester may file an appeal by 
sending an email to [email protected] to the attention of the FOIA Appeals 
Officer, or a letter to: FOIA Appeals Officer, AmeriCorps, 250 E Street 
SW, Washington, DC 20525. There is no charge for filing an 
administrative appeal.
    (f) Adjudication of appeals. (1) The FOIA Appeals Officer will 
conduct de novo review and make the final determination on appeals.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (f) Decisions on appeals. The FOIA Appeals Officer will provide the 
decision on any appeal in writing within 20 days (excepting Saturdays, 
Sundays, and legal public holidays) from the date the FOIA Appeals 
Officer received the appeal. The FOIA Appeals Officer's determination 
of an appeal constitutes the Agency's final action.
    (1) If the FOIA Appeals Officer's decision upholds the Agency's 
determination, the decision will:
    (i) State the reasons for the affirmance, including any FOIA 
exemptions applied;
    (ii) Notify the requester of their statutory right to file a 
lawsuit; and
    (iii) Inform the requester of the mediation services offered by 
OGIS as a non-exclusive alternative to litigation.
    (2) If the FOIA Appeals Officer's decision remands or modifies the 
Agency determination, either in whole or in part, they will notify the 
requester of that determination in writing. Thereafter, AmeriCorps will 
re-process the FOIA request in accordance with that determination and, 
if applicable, promptly send the releasable records to the requester, 
unless a reasonable delay is justified.


Sec.  2507.15  Mediation and dispute resolution services.

    If a requester receives an adverse determination on a FOIA request, 
they have the right to seek dispute resolution services from the FOIA 
Public Liaison or mediation services from OGIS. Congress has charged 
OGIS with resolving FOIA disputes between Federal agencies and 
requesters. OGIS's mediation services are an alternative to litigation, 
but do not preclude it.

Subpart G--Fees


Sec.  2507.16  Definitions for this subpart.

    In addition to the definitions in Sec.  2507.3, the following 
definitions apply to this subpart:
    Commercial use request is a FOIA request for a purpose that 
furthers a commercial, trade, or profit interest, which can include 
furthering those interests through litigation. The Agency's decision to 
place a requester in the commercial use category will be made on a 
case-by-case basis, in consideration of the requester's intended use of 
the information.
    Direct costs are the expenses AmeriCorps incurs in searching for 
and duplicating (and, in the case of commercial use requests, 
reviewing) records in order to respond to a FOIA request. Direct costs 
do not include overhead expenses such as the costs of space, or of 
heating or lighting a facility.
    Duplication fees are the reasonable direct costs of making copies 
of records to respond to a FOIA request, including the cost of 
materials to produce paper copies and materials plus operator time to 
produce tapes, disks, or other media.
    Educational institution is any school that operates a program of 
scholarly research. To qualify for this fee category, a requester must 
show that the request is authorized by, and made under the auspices of, 
an educational institution

[[Page 55315]]

and that the records are not sought for a commercial use, but rather 
are sought to further scholarly research. The request must serve the 
scholarly research goals of the institution rather than an individual 
research goal.
    Fee waiver is a waiver or reduction of processing fees if a 
requester can demonstrate that certain statutory standards are 
satisfied, including that the information is in the public interest and 
is not requested for a commercial interest.
    Noncommercial scientific institution is an institution that is not 
operated on a ``commercial'' basis and that is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry. A requester in 
this category must show that the request is authorized by, and made 
under the auspices of, a qualifying institution and that the records 
are sought to further scientific research and are not for a commercial 
use.
    Representative of the news media is 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. In this clause, the 
term ``news'' means information that is about current events or that 
would be of current interest to the public. A freelance journalist will 
be regarded as a representative of the news media if they demonstrate a 
solid basis for expecting publication through a news media entity.
    Review fees are the direct costs incurred during the initial 
examination of a document to determine if it must be disclosed under 
the FOIA. This includes doing all that is necessary to prepare a record 
for disclosure, such as redacting the record and marking the 
appropriate exemptions. Review time also includes time spent obtaining 
and considering any formal objection to disclosure made by a 
confidential commercial information submitter. It does not include time 
spent resolving general legal or policy issues regarding the 
application of exemptions. Review fees are properly charged even if a 
record ultimately is not disclosed.
    Search fees are costs of all time spent looking for responsive 
material, including, if necessary, page-by-page or line-by-line 
identification of information within records.


Sec.  2507.17  Fees overview.

    (a) AmeriCorps will charge fees for processing FOIA requests in 
accordance with the provisions of this subpart and with the OMB 
Guidelines, unless a waiver or reduction of fees has been granted under 
Sec.  2507.24.
    (b) AmeriCorps will search for, review, and duplicate records in 
the most efficient and the least expensive manner.
    (c) AmeriCorps may properly charge for time spent searching even if 
it does not locate any responsive records or if it determines that the 
records are entirely exempt from disclosure.
    (d) When a request is made for commercial purposes, review fees 
will be assessed for the Agency's time spent on its initial analysis to 
determine whether an exemption applies to a record or portion of a 
record.
    (e) No charge will be made at the administrative review stage for 
review of exemptions that were applied at the initial review stage. 
However, if one or more exemptions are deemed to no longer apply, the 
costs associated with the Agency's re-review of the records to consider 
the use of other exemptions may be assessed as review fees.
    (f) Requesters may seek a fee waiver. AmeriCorps will consider 
requests for a fee waiver in accordance with the requirements in Sec.  
2507.24.
    (g) To resolve any fee issues that arise under this section, 
AmeriCorps may contact a requester for additional information.


Sec.  2507.18  Requester categories and fees charged.

    (a) The FOIA establishes the following categories of requesters 
and, depending on the category, these types of fees to be paid:
    (1) Commercial use requesters: these pay search, review, and 
duplication fees.
    (2) Non-commercial scientific institutions, educational 
institutions whose purpose is scholarly or scientific research, or news 
media requesters: these pay only duplication fees.
    (3) All other requesters: these pay search and duplication fees.
    (b) The fee schedule for search, review, and duplication is as 
follows:

                                            Table 1 to Paragraph (b)
----------------------------------------------------------------------------------------------------------------
              Requester                       Search fee               Review fee            Duplication fee
----------------------------------------------------------------------------------------------------------------
Commercial use requester.............  $70.00 per hour........  $70.00 per hour........  For photocopies,
                                                                                          20[cent] per page.
Educational & Non-Commercial           No fee.................  No fee.................  For photocopies, the
 Scientific institutions.                                                                 first 100 pages are
                                                                                          free; after that,
                                                                                          20[cent] per page.
Representatives of the news media....  No fee.................  No fee.................  For photocopies, the
                                                                                          first 100 pages are
                                                                                          free; after that,
                                                                                          20[cent] per page.
All others...........................  The first two hours are  No fee.................  For photocopies, the
                                        free; after that,                                 first 100 pages are
                                        $70.00 per hour.                                  free; after that,
                                                                                          20[cent] per page.
----------------------------------------------------------------------------------------------------------------

Sec.  2507.19  Circumstances in which fees may not be charged.

    (a) If AmeriCorps fails to comply with the time limits for 
responding to a request, and if no unusual or exceptional 
circumstances, as defined by the FOIA, apply to processing the request, 
it may not charge search fees (or, for requesters with preferred fee 
status, may not charge duplication fees).
    (b) If AmeriCorps fails to comply with the extended time limit for 
unusual circumstances under Sec.  2705.10(c), it may not charge search 
fees (or, for requesters with preferred fee status, may not charge 
duplication fees), except as follows:
    (1) If unusual circumstances apply and more than 5,000 pages are 
necessary to respond to the request, AmeriCorps may charge search fees 
(or, for requesters with preferred fee status, may charge duplication 
fees), so long as AmeriCorps has given the requester timely written 
notice and has discussed with the requester via email, telephone, or 
paper mail (or made at least three good-faith attempts to do so) how 
the requester could limit the scope of the request.
    (2) If a court determines that exceptional circumstances exist,

[[Page 55316]]

AmeriCorps' failure to comply with a time limit will be excused for the 
length of time provided by the court order.
    (c) AmeriCorps will charge search or review fees for a quarter-hour 
period only when more than half of that period is required for search 
or review.
    (d) AmeriCorps will not charge any fee if the total fee calculated 
according to Sec.  2507.18 is $25.00 or less for any request.


Sec.  2507.20  Notice of anticipated fees in excess of $25.00.

    (a) When AmeriCorps estimates that fees will exceed $25.00 and the 
requester has not stated in writing their willingness to pay fees as 
high as anticipated, it will inform the requester of the estimated 
fees, including a breakdown for search, review, or duplication.
    (1) AmeriCorps will inform the requester if only a portion of the 
fee can be readily estimated.
    (2) For non-commercial-use requesters subject to search fees, the 
notice will tell them that they are entitled to two hours of search 
time at no charge. For all requesters who ask for non-electronic copies 
of the records, AmeriCorps will inform them that they are entitled to 
100 pages of duplication at no charge. In both cases, AmeriCorps will 
tell the requester whether those entitlements are included in the 
estimate.
    (b) When AmeriCorps notifies a requester that the actual or 
estimated total fee exceeds $25.00, it will stop work on the request 
and the processing time will be tolled until the requester, in writing:
    (1) Commits to paying the actual or estimated total fee; or
    (2) Designates a specific dollar amount of fees they are willing to 
pay; or
    (3) Tells AmeriCorps that they seek only that which can be provided 
with two free hours of search time and 100 free pages of duplication, 
in the case that they are eligible for these entitlements.
    (c) If the requester has specified a fee amount they are willing to 
pay, but AmeriCorps estimates that the total fee will be greater than 
that:
    (1) It will notify the requester of the estimated excess and ask if 
they wish to either revise the amount of fees they are willing to pay 
or modify the request, and
    (2) The Agency will stop work on the request and toll the 
processing time according to Sec.  2507.10(f).
    (d) The FOIA Officer or FOIA Public Liaison will be available to 
help any requester reformulate a request to meet the requester's needs 
at a lower cost.


Sec.  2507.21  Other charges.

    (a) Charges for other services. Although it is not required to 
provide special services, if AmeriCorps chooses as a matter of 
administrative discretion to do so, it will charge the direct costs of 
providing those services. Examples of such services include certifying 
that records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (b) Charging interest. AmeriCorps may charge interest on any unpaid 
bill starting on the 31st day following the billing date. Interest 
charges will be assessed at the rate provided in 31 U.S.C. 3717 and 
will accrue from the billing date until payment is received by the 
agency. AmeriCorps will follow the provisions of the Debt Collection 
Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its 
administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.


Sec.  2507.22  Aggregating requests to ensure payment of fees.

    (a) When AmeriCorps reasonably believes that a requester or a group 
of requesters acting together is attempting to divide a single request 
into multiple smaller requests so as to avoid fees, AmeriCorps may 
aggregate those requests and charge accordingly.
    (1) AmeriCorps may presume that multiple requests of this type made 
within a 30-day period have been made in order to avoid fees.
    (2) For requests separated by more than 30 days, AmeriCorps will 
aggregate them only where there is a reasonable basis for determining 
that aggregation is justified in view of all the circumstances 
involved.
    (b) Multiple requests involving unrelated matters will not be 
aggregated.


Sec.  2507.23  Collection and Payment of Fees.

    (a) AmeriCorps must ordinarily receive all applicable fees before 
it sends copies of records to a requester. This is payment for work 
already completed, not an advance payment.
    (b) AmeriCorps may require an advance payment before work begins or 
is continued on a request when one of the following two circumstances 
exists. In these cases, AmeriCorps will not consider the FOIA request 
to have been received and will not conduct further work on the request 
until it receives the required payment. If the requester does not pay 
the advance payment within 30 calendar days after the date of 
AmeriCorps' fee determination, the request will be closed.
    (1) If AmeriCorps determines or estimates that a total fee will be 
greater than $250.00, it may require that the requester pay in advance, 
up to the amount of the entire anticipated fee, before starting to 
process the request. AmeriCorps may choose to process the request 
before it collects fees if it receives a satisfactory assurance of full 
payment from a requester with a history of prompt payment.
    (2) When a requester has previously failed to pay a properly 
charged FOIA fee to the Agency within 30 calendar days of the billing 
date, AmeriCorps may require the requester to pay the full amount past 
due, plus any applicable interest on that prior request, and may also 
require the requester to pay in advance the full amount of any 
anticipated fee before it begins to process a new request or continues 
to process a pending request or any pending appeal. If AmeriCorps has a 
reasonable basis to believe that a requester has misrepresented their 
identity in order to avoid paying outstanding fees, it may require the 
requester to provide proof of identity.
    (c) Requesters must pay fees by check or money order made payable 
to the Treasury of the United States.
    (d) AmeriCorps is not required to accept payments in installments.


Sec.  2507.24  Fee waivers or fee reductions.

    (a) Requests for a waiver or reduction of fees should be made when 
the FOIA request is first submitted to AmeriCorps and should address in 
specific detail the factors below. However, a requester may ask for a 
fee waiver at a later time, if their FOIA request is still pending or 
is on administrative appeal.
    (b) AmeriCorps will grant a waiver of fees, or a one-time reduction 
of the rate established under Sec.  2507.18, when it determines that 
the requester has demonstrated that disclosure of the requested 
information is in the public interest and is not primarily in the 
commercial interest of the requester.
    (1) To determine whether disclosure of the requested information is 
in the public interest because it is likely to contribute significantly 
to public understanding of the operations or activities of the 
government, AmeriCorps will consider the following factors:
    (i) The subject of the request must concern identifiable operations 
or activities of the Federal Government, with a connection that is 
direct and clear, not remote or attenuated.
    (ii) Disclosure of the requested records must be meaningfully 
informative about Federal Government operations or activities in order 
to be

[[Page 55317]]

``likely to contribute'' to an increased public understanding of those 
operations or activities. Disclosure of information that is already in 
the public domain, in either the same or a substantially identical 
form, would not contribute to such understanding.
    (iii) Disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area, as well as their ability and intention 
to effectively convey information to the public, will be considered. A 
representative of the news media making the request for professional 
purposes satisfies this consideration.
    (iv) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant extent. However, AmeriCorps 
will not make value judgments about whether the information at issue is 
``important'' enough to be made public.
    (2) To determine whether disclosure of the requested information is 
primarily in the commercial interest of the requester, AmeriCorps will 
give requesters an opportunity to explain the purpose of the request. 
The Agency will consider the following factors:
    (i) If there is an identified commercial interest, AmeriCorps will 
determine whether that is the primary interest furthered by the 
request.
    (ii) The identified commercial interest is not the primary interest 
furthered by the request (such that a waiver or reduction of fees is 
justified) where the public interest in disclosure is greater than the 
identified commercial interest in disclosure. AmeriCorps ordinarily 
will presume that when a news media requester has satisfied the public 
interest standard, it is a public interest that is primarily served by 
disclosure to that requester. Disclosure to data brokers or others who 
merely compile and market government information for direct economic 
return will not be presumed to primarily serve the public interest.
    (c) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver will be granted for those 
records only.
    (d) A requester may appeal the denial of a fee waiver.

Subpart H--Miscellaneous


Sec.  2507.25  Preservation of records.

    AmeriCorps will preserve all correspondence relating to FOIA 
requests it receives, and all records processed for those requests, 
until the destruction of the correspondence and records is authorized 
by Title 44 of the United States Code and the records disposition 
authority granted by NARA. The records will not be sent to a Federal 
Records Center, transferred to the permanent custody of NARA, or 
destroyed while they are the subject of a pending request, appeal, or 
civil action under the FOIA.


Sec.  2507.26  Reporting requirements.

    (a) AmeriCorps will submit to the Attorney General a statistical 
report on FOIA requests, processing, disposition, and appeals.
    (b) As required, the Chief FOIA Officer will submit to the Attorney 
General a Chief FOIA Officer Report containing a narrative description 
of the steps taken by the agency to support and improve FOIA compliance 
and transparency.


Sec.  2507.27  Rights and services qualified by the FOIA statute.

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

Fernando Laguarda,
General Counsel.
[FR Doc. 2022-19185 Filed 9-8-22; 8:45 am]
BILLING CODE 6050-28-P