[Federal Register Volume 81, Number 225 (Tuesday, November 22, 2016)]
[Rules and Regulations]
[Pages 83625-83643]
[FR Doc No: 2016-28095]

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

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

U.S. Customs and Border Protection

19 CFR Part 103

Federal Emergency Management Agency

44 CFR Part 5

[Docket No. DHS-2009-0036]
RIN 1601-AA00

Freedom of Information Act Regulations

AGENCY: Office of the Secretary, U.S. Customs and Border Protection,
and Federal Emergency Management Agency, Department of Homeland
Security.

ACTION: Final rule.

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SUMMARY: This rule amends the Department's regulations under the
Freedom of Information Act (FOIA). The regulations have been revised to
update and streamline the language of several procedural provisions,
and to incorporate changes brought about by the amendments to the FOIA
under the OPEN Government Act of 2007. Additionally, the regulations
have been updated to reflect developments in the case law.

DATES: This rule is effective December 22, 2016.

FOR FURTHER INFORMATION CONTACT: James V.M.L. Holzer, Deputy Chief FOIA
Officer, DHS Privacy Office,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

    The Secretary of Homeland Security has authority under 5 U.S.C.
301, 552, and 552a, and 6 U.S.C. 112(e), to issue FOIA and Privacy Act
regulations. On January 27, 2003, the Department of Homeland Security
(Department or DHS) published an interim rule in the Federal Register
(68 FR 4056) that established DHS procedures for obtaining agency
records under the FOIA, 5 U.S.C. 552, or Privacy Act, 5 U.S.C. 552a.
DHS solicited comments on this interim rule, but received none.
    In 2005, Executive Order 13392 called for the designation of a
Chief FOIA Officer and FOIA Public Liaisons, along with the
establishment of FOIA Requester Service Centers as appropriate.
Subsequently, the Openness Promotes Effectiveness in our National
Government Act of 2007 (OPEN Government Act), Public Law 110-175,
required agencies to designate a Chief FOIA Officer who is then to
designate one or more FOIA Public Liaisons (5 U.S.C. 552(j) and
552(k)(6)). Sections 6, 7, 9, and 10 of the OPEN Government Act amended
provisions of the FOIA by setting time limits for agencies to act on
misdirected requests and limiting the tolling of response times (5
U.S.C. 552(a)(6)(A)); requiring tracking numbers for requests that will
take more than 10 days to process (5 U.S.C. 552(a)(7)(A)); providing
requesters a telephone line or Internet service to obtain information
about the status of their requests, including an estimated date of
completion (5 U.S.C. 552(a)(7)(B)); expanding the definition of
``record'' to include records ``maintained for an agency by an entity
under Government contract, for the purposes of records management'' (5
U.S.C. 552(f)(2)); and introducing alternative dispute resolution to
the FOIA process through FOIA Public Liaisons (5 U.S.C.
552(a)(6)(B)(ii) & (l)) and the Office of Government Information
Services (5 U.S.C. 552(h)(3)).
    On July 29, 2015, the Department of Homeland Security published a
proposed rule to amend existing regulations under the FOIA. See 80 FR
45101.\1\ DHS accepted comments on the proposed rule through September
28, 2015. Finally, on June 30, 2016, the President signed into law the
FOIA Improvement Act of 2016, Public Law 114-185, into law. DHS is now
issuing a final rule that responds to public comments on the proposed
rule and incorporates a number of changes required by the FOIA
Improvement Act of 2016.
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    \1\ Except as explicitly stated below, DHS incorporates by
reference the section-by-section analysis contained in the preamble
to the proposed rule.
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II. Discussion of Final Rule

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

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

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

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

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

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

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

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

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

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

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

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

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

III. Regulatory Analyses

Executive Orders 12866 and 13563--Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has not been designated a ``significant
regulatory action,'' under section 3(f) of Executive Order 12866.
Accordingly, the rule has not been reviewed by the Office of Management
and Budget.
    DHS has considered the costs and benefits of this rule. This rule
will not introduce new regulatory mandates. In the proposed rule we
stated that this rule would not result in additional costs on the
public or the government. As explained above, some commenters raised
concerns about the potential burden associated with a streamlined
process for administratively closing unclear requests, though none
offered a quantified estimate of that burden. We continue to believe
that DHS's general assessment of the economic impacts of this rule, as
stated in the proposed rule, is accurate. DHS does acknowledge that
there will be a limited number of cases, however, in which this rule
will result in some requesters clarifying and resubmitting a request,
rather than simply clarifying a request. DHS believes that the burden
associated with resubmitting a request would be minimal, because
requesters that are required to resubmit requests that lack sufficient
information or detail to allow DHS to respond are required to submit
the same information as requesters that are required to provide
clarification (i.e., information that will supplement the information
provided with the original request such that DHS can reasonably
identify the records the requester is seeking and process the request).
Since both sets of requesters must provide additional information in
writing to allow the agency to process their requests, it is difficult
to quantify any additional cost associated with resubmission as
compared to clarification. The rule's benefits include additional
clarity for the public and DHS personnel with respect to DHS's
implementation of the FOIA and subsequent statutory amendments.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, and
section 213(a) of the Small Business Regulatory Enforcement Fairness
Act of 1996, 5 U.S.C. 601 note, agencies must consider the impact of
their rulemakings on ``small entities'' (small businesses, small
organizations and local governments). The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
DHS has reviewed this regulation and by approving it certifies that
this regulation will not have a significant economic impact on a
substantial number of small entities. DHS does not believe this rule
imposes any additional direct costs on small entities. However, as
explained in the previous Executive Orders 12866 and 13563 section, it
is possible that an entity that resubmits a request might incur a
slightly different impact than one that clarifies a request. Such a
cost difference would be so minimal it would be difficult to quantify.
DHS further notes that although one commenter stated that he found the
proposed rule's regulatory flexibility certification ``challenging,''
no commenter stated the proposed rule would cause a significant
economic impact on a substantial number of small entities, or provided
any comments suggesting such an impact on a substantial number of small
entities. Based on the previous analysis and the comments on the
proposed rule, DHS certifies this rule will not have a significant
economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996 (as
amended), 5 U.S.C. 804. This rule will not result in an annual effect
on the economy of $100,000,000 or more; a major increase in costs or
prices; or significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based companies to compete with foreign-based companies in
domestic and export markets.

List of Subjects

6 CFR Part 5

    Classified information, Courts, Freedom of information, Government
employees, Privacy.

19 CFR Part 103

    Administrative practice and procedure, Confidential business
information, Courts, Freedom of information, Law enforcement, Privacy,
Reporting and recordkeeping requirements.

44 CFR Part 5

    Courts, Freedom of information, Government employees.

    For the reasons stated in the preamble, the Department of Homeland
Security amends 6 CFR chapter I, part 5, 19 CFR chapter I, part 103,
and 44 CFR chapter I, part 5, as follows:

Title 6--Domestic Security

PART 5--DISCLOSURE OF MATERIAL OR INFORMATION

0
1. The authority citation for part 5 is revised to read as follows:

    Authority:  5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 301; 6 U.S.C.
101 et seq.; E.O. 13392.

0
2. Revise subpart A of part 5 to read as follows:
Subpart A--Procedures for Disclosure of Records Under the Freedom of
Information Act
Sec.
5.1 General provisions.
5.2 Proactive disclosures of DHS records.
5.3 Requirements for making requests.
5.4 Responsibility for responding to requests.
5.5 Timing of responses to requests.
5.6 Responses to requests.
5.7 Confidential commercial information.
5.8 Administrative appeals.
5.9 Preservation of records.
5.10 FOIA requests for information contained in a Privacy Act system
of records.
5.11 Fees.
5.12 Confidential commercial information; CBP procedures.
5.13 Other rights and services.
Appendix I to Subpart A--FOIA Contact Information

Subpart A--Procedures for Disclosure of Records Under the Freedom
of Information Act

Sec.  5.1   General provisions.

    (a)(1) This subpart contains the rules that the Department of
Homeland Security follows in processing requests for records under the
Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended.
    (2) The rules in this subpart should be read in conjunction with
the text of the FOIA and the Uniform Freedom of Information Fee
Schedule and Guidelines published by the Office of Management and
Budget at 52 FR 10012 (March 27, 1987) (hereinafter ``OMB
Guidelines''). Additionally, DHS has additional policies and procedures
relevant to the FOIA process. These resources are available at http://www.dhs.gov/freedom-information-act-foia. Requests made by individuals
for records about themselves under the Privacy Act of 1974, 5 U.S.C.
552a, are processed under subpart B of part 5 as well as under this
subpart.
    (b) As referenced in this subpart, component means the FOIA office
of each separate organizational entity within DHS that reports directly
to the Office of the Secretary.
    (c) DHS has a decentralized system for processing requests, with
each component handling requests for its records.
    (d) Unofficial release of DHS information. The disclosure of exempt
records, without authorization by the appropriate DHS official, is not
an official release of information; accordingly, it is not a FOIA
release. Such a release does not waive the authority of the Department
of Homeland Security to assert FOIA exemptions to withhold the same
records in response to a FOIA request. In addition, while the authority
may exist to disclose records to individuals in their official
capacity, the provisions of this part apply if the same individual
seeks the records in a private or personal capacity.

Sec.  5.2   Proactive disclosure of DHS records.

    Records that are required by the FOIA to be made available for
public inspection in an electronic format are accessible on DHS's Web
site, http://www.dhs.gov/freedom-information-act-foia-and-privacy-act.
Each component is responsible for determining which of its records are
required to be made publicly available, as well as identifying
additional records of interest to the public that are appropriate for
public disclosure, and for posting and indexing such records. Each
component shall ensure that posted records and indices are updated on
an ongoing basis. Each component has a FOIA Public Liaison who can
assist individuals in locating records particular to a component. A
list of DHS's FOIA Public Liaisons is available at http://www.dhs.gov/foia-contact-information and in appendix I to this subpart. Requesters
who do not have access to the internet may contact the Public Liaison
for the component from which they seek records for assistance with
publicly available records.

Sec.  5.3   Requirements for making requests.

    (a) General information. (1) DHS has a decentralized system for
responding to FOIA requests, with each component designating a FOIA
office to process records from that component. All components have the
capability to receive requests electronically, either through email or
a web portal. To make a request for DHS records, a requester should
write directly to the FOIA office of the component that maintains the
records being sought. A request will receive the quickest possible
response if it is addressed to the FOIA office of the component that
maintains the records sought. DHS's FOIA Reference Guide contains or
refers the reader to descriptions of the functions of each component
and provides other information that is helpful in determining where to
make a request. Each component's FOIA office and any additional
requirements for submitting a request to a given component are listed
in Appendix I of this subpart. These references can all be used by
requesters to determine where to send their requests within DHS.
    (2) A requester may also send his or her request to the Privacy
Office,
    U.S. Department of Homeland Security, 245 Murray Lane SW STOP-0655,
or via the internet at http://www.dhs.gov/dhs-foia-request-submission-form, or via fax to<PHONE_NUMBER>. The Privacy Office will forward the
request to the component(s) that it determines to be most likely to
maintain the records that are sought.
    (3) A requester who is making a request for records about him or
herself must comply with the verification of identity provision set
forth in subpart B of this part.
    (4) Where a request for records pertains to a third party, a
requester may receive greater access by submitting either a notarized
authorization signed by that individual, in compliance with the
verification of identity provision set forth in subpart B of this part,
or a declaration made in compliance with the requirements set forth in
28 U.S.C. 1746 by that individual, authorizing disclosure of the
records to the requester, or by submitting proof that the individual is
deceased (e.g., a copy of a death certificate or an obituary). As an
exercise of its administrative discretion, each component can require a
requester to supply additional information if necessary in order to
verify that a particular individual has consented to disclosure.
    (b) Description of records sought. Requesters must describe the
records sought in sufficient detail to enable DHS personnel to locate
them with a reasonable amount of effort. A reasonable description
contains sufficient information to permit an organized, non-random
search for the record based on the component's filing arrangements and
existing retrieval systems. To the extent possible, requesters should
include specific information that may assist a component in identifying
the requested records, such as the date, title or name, author,
recipient, subject matter of the record, case number, file designation,
or reference number. Requesters should refer to Appendix I of this
subpart for additional component-specific requirements. In general,
requesters should include as much detail as possible about the specific
records or the types of records that they are seeking. Before
submitting their requests, requesters may contact the component's FOIA
Officer or FOIA public liaison to discuss the records they are seeking
and to receive assistance in describing the records. If after receiving
a request, a component determines that it does not reasonably describe
the records sought, the component should inform the requester what
additional information is needed or why the request is otherwise
insufficient. Requesters who are attempting to reformulate or modify
such a request may discuss their request with the component's
designated FOIA Officer, its FOIA Public Liaison, or a representative
of the DHS Privacy Office, each of whom is available to assist the
requester in reasonably describing the records sought.
    (c) If a request does not adequately describe the records sought,
DHS may at its discretion either administratively close the request or
seek additional information from the requester. Requests for
clarification or more information will be made in writing (either via
U.S. mail or electronic mail whenever possible). Requesters may respond
by U.S. Mail or by electronic mail regardless of the method used by DHS
to transmit the request for additional information. In order to be

considered timely, responses to requests for additional information
must be postmarked or received by electronic mail within 30 working
days of the postmark date or date of the electronic mail request for
additional information or received by electronic mail by 11:59:59 p.m.
ET on the 30th working day. If the requester does not respond to a
request for additional information within thirty (30) working days, the
request may be administratively closed at DHS's discretion. This
administrative closure does not prejudice the requester's ability to
submit a new request for further consideration with additional
information.

Sec.  5.4   Responsibility for responding to requests.

    (a) In general. Except in the instances described in paragraphs (c)
and (d) of this section, the component that first receives a request
for a record and maintains that record is the component responsible for
responding to the request. In determining which records are responsive
to a request, a component ordinarily will include only records in its
possession as of the date that it begins its search. If any other date
is used, the component shall inform the requester of that date. A
record that is excluded from the requirements of the FOIA pursuant to 5
U.S.C. 552(c), shall not be considered responsive to a request.
    (b) Authority to grant or deny requests. The head of a component,
or designee, is authorized to grant or to deny any requests for records
that are maintained by that component.
    (c) Re-routing of misdirected requests. Where a component's FOIA
office determines that a request was misdirected within DHS, the
receiving component's FOIA office shall route the request to the FOIA
office of the proper component(s).
    (d) Consultations, coordination and referrals. When a component
determines that it maintains responsive records that either originated
with another component or agency, or which contains information
provided by, or of substantial interest to, another component or
agency, then it shall proceed in accordance with either paragraph
(d)(1), (2), or (3) of this section, as appropriate:
    (1) The component may respond to the request, after consulting with
the component or the agency that originated or has a substantial
interest in the records involved.
    (2) The component may respond to the request after coordinating
with the other components or agencies that originated the record. This
may include situations where the standard referral procedure is not
appropriate where disclosure of the identity of the component or agency
to which the referral would be made could harm an interest protected by
an applicable exemption, such as the exemptions that protect personal
privacy or national security interests. For example, if a non-law
enforcement component responding to a request for records on a living
third party locates records within its files originating with a law
enforcement agency, and if the existence of that law enforcement
interest in the third party was not publicly known, then to disclose
that law enforcement interest could cause an unwarranted invasion of
the personal privacy of the third party. Similarly, if a component
locates material within its files originating with an Intelligence
Community agency, and the involvement of that agency in the matter is
classified and not publicly acknowledged, then to disclose or give
attribution to the involvement of that Intelligence Community agency
could cause national security harms. In such instances, in order to
avoid harm to an interest protected by an applicable exemption, the
component that received the request should coordinate with the
originating component or agency to seek its views on the disclosability
of the record. The release determination for the record that is the
subject of the coordination should then be conveyed to the requester by
the component that originally received the request.
    (3) The component may refer the responsibility for responding to
the request or portion of the request to the component or agency best
able to determine whether to disclose the relevant records, or to the
agency that created or initially acquired the record as long as that
agency is subject to the FOIA. Ordinarily, the component or agency that
created or initially acquired the record will be presumed to be best
able to make the disclosure determination. The referring component
shall document the referral and maintain a copy of the records that it
refers.
    (e) Classified information. On receipt of any request involving
classified information, the component shall determine whether
information is currently and properly classified and take appropriate
action to ensure compliance with 6 CFR part 7. Whenever a request
involves a record containing information that has been classified or
may be appropriate for classification by another component or agency
under any applicable executive order concerning the classification of
records, the receiving component shall refer the responsibility for
responding to the request regarding that information to the component
or agency that classified the information, or should consider the
information for classification. Whenever a component's record contains
information classified by another component or agency, the component
shall coordinate with or refer the responsibility for responding to
that portion of the request to the component or agency that classified
the underlying information.
    (f) Notice of referral. Whenever a component refers any part of the
responsibility for responding to a request to another component or
agency, it will notify the requester of the referral and inform the
requester of the name of each component or agency to which the records
were referred, unless disclosure of the identity of the component or
agency would harm an interest protected by an applicable exemption, in
which case the component should coordinate with the other component or
agency, rather than refer the records.
    (g) Timing of responses to consultations and referrals. All
consultations and referrals received by DHS will be handled according
to the date that the FOIA request initially was received by the first
component or agency, not any later date.
    (h) Agreements regarding consultations and referrals. Components
may establish agreements with other components or agencies to eliminate
the need for consultations or referrals with respect to particular
types of records.
    (i) Electronic records and searches-(1) Significant interference.
The FOIA allows components to not conduct a search for responsive
documents if the search would cause significant interference with the
operation of the component's automated information system.
    (2) Business as usual approach. A ``business as usual'' approach
exists when the component has the capability to process a FOIA request
for electronic records without a significant expenditure of monetary or
personnel resources. Components are not required to conduct a search
that does not meet this business as usual criterion.
    (i) Creating computer programs or purchasing additional hardware to
extract email that has been archived for emergency retrieval usually
are not considered business as usual if extensive monetary or personnel
resources are needed to complete the project.
    (ii) Creating a computer program that produces specific requested
fields or records contained within a well-defined database structure
usually is considered

business as usual. The time to create this program is considered as
programmer or operator search time for fee assessment purposes and the
FOIA requester may be assessed fees in accordance with Sec.
5.11(c)(1)(iii). However, creating a computer program to merge files
with disparate data formats and extract specific elements from the
resultant file is not considered business as usual, but a special
service, for which additional fees may be imposed as specified in Sec.
5.11. Components are not required to perform special services and
creation of a computer program for a fee is up to the discretion of the
component and is dependent on component resources and expertise.
    (3) Data links. Components are not required to expend DHS funds to
establish data links that provide real time or near-real-time data to a
FOIA requester.

Sec.  5.5   Timing of responses to requests.

    (a) In general. Components ordinarily will respond to requests
according to their order of receipt. Appendix I to this subpart
contains the list of components that are designated to accept requests.
In instances involving misdirected requests that are re-routed pursuant
to Sec.  5.4(c), the response time will commence on the date that the
request is received by the proper component, but in any event not later
than ten working days after the request is first received by any DHS
component designated in appendix I of this subpart.
    (b) Multitrack processing. All components must designate a specific
track for requests that are granted expedited processing, in accordance
with the standards set forth in paragraph (e) of this section. A
component may also designate additional processing tracks that
distinguish between simple and more complex requests based on the
estimated amount of work or time needed to process the request. Among
the factors a component may consider are the number of pages involved
in processing the request or the need for consultations or referrals.
Components shall advise requesters of the track into which their
request falls, and when appropriate, shall offer requesters an
opportunity to narrow their request so that the request can be placed
in a different processing track.
    (c) Unusual circumstances. Whenever the statutory time limits for
processing a request cannot be met because of ``unusual
circumstances,'' as defined in the FOIA, and the component extends the
time limits on that basis, the component shall, before expiration of
the twenty-day period to respond, notify the requester in writing of
the unusual circumstances involved and of the date by which processing
of the request can be expected to be completed. Where the extension
exceeds ten working days, the component shall, as described by the
FOIA, provide the requester with an opportunity to modify the request
or agree to an alternative time period for processing. The component
shall make available its designated FOIA Officer and its FOIA Public
Liaison for this purpose. The component shall also alert requesters to
the availability of the Office of Government Information Services
(OGIS) to provide dispute resolution services.
    (d) Aggregating requests. For the purposes of satisfying unusual
circumstances under the FOIA, components may aggregate requests in
cases where it reasonably appears that multiple requests, submitted
either by a requester or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances. Components will not aggregate multiple requests that
involve unrelated matters.
    (e) Expedited processing. (1) Requests and appeals will be
processed on an expedited basis whenever the component determines that
they involve:
    (i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person who is primarily
engaged in disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which
there exist possible questions about the government's integrity which
affect public confidence.
    (2) A request for expedited processing may be made at any time.
Requests based on paragraphs (e)(1)(i), (ii), and (iii) of this section
must be submitted to the component that maintains the records
requested. When making a request for expedited processing of an
administrative appeal, the request should be submitted to the DHS
Office of General Counsel or the component Appeals Officer. Address
information is available at the DHS Web site, http://www.dhs.gov/freedom-information-act-foia, or by contacting the component FOIA
officers via the information listed in Appendix I. Requests for
expedited processing that are based on paragraph (e)(1)(iv) of this
section must be submitted to the Senior Director of FOIA Operations,
the Privacy Office, U.S. Department of Homeland Security, 245 Murray
Lane SW STOP-0655, Washington, DC 20598-0655. A component that receives
a misdirected request for expedited processing under the standard set
forth in paragraph (e)(1)(iv) of this section shall forward it
immediately to the DHS Senior Director of FOIA Operations, the Privacy
Office, for determination. The time period for making the determination
on the request for expedited processing under paragraph (e)(1)(iv) of
this section shall commence on the date that the Privacy Office
receives the request, provided that it is routed within ten working
days, but in no event shall the time period for making a determination
on the request commence any later than the eleventh working day after
the request is received by any component designated in appendix I of
this subpart.
    (3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. For example,
under paragraph (e)(1)(ii) of this section, a requester who is not a
full-time member of the news media must establish that he or she is a
person who primarily engages in information dissemination, though it
need not be his or her sole occupation. Such a requester also must
establish a particular urgency to inform the public about the
government activity involved in the request--one that extends beyond
the public's right to know about government activity generally. The
existence of numerous articles published on a given subject can be
helpful to establishing the requirement that there be an ``urgency to
inform'' the public on the topic. As a matter of administrative
discretion, a component may waive the formal certification requirement.
    (4) A component shall notify the requester within ten calendar days
of the receipt of a request for expedited processing of its decision
whether to grant or deny expedited processing. If expedited processing
is granted, the request shall be given priority, placed in the
processing track for expedited requests, and shall be processed as soon
as practicable. If a request for expedited processing is denied, any
appeal of that decision shall be acted on expeditiously.

Sec.  5.6   Responses to requests.

    (a) In general. Components should, to the extent practicable,
communicate with requesters having access to the

Internet using electronic means, such as email or web portal.
    (b) Acknowledgments of requests. A component shall acknowledge the
request and assign it an individualized tracking number if it will take
longer than ten working days to process. Components shall include in
the acknowledgment a brief description of the records sought to allow
requesters to more easily keep track of their requests.
    (c) Grants of requests. Ordinarily, a component shall have twenty
(20) working days from when a request is received to determine whether
to grant or deny the request unless there are unusual or exceptional
circumstances. Once a component makes a determination to grant a
request in full or in part, it shall notify the requester in writing.
The component also shall inform the requester of any fees charged under
Sec.  5.11 and shall disclose the requested records to the requester
promptly upon payment of any applicable fees. The component shall
inform the requester of the availability of its FOIA Public Liaison to
offer assistance.
    (d) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect shall notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, include decisions that the requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject
to the FOIA; the requested record does not exist, cannot be located, or
has been destroyed; or the requested record is not readily reproducible
in the form or format sought by the requester. Adverse determinations
also include denials involving fees, including requester categories or
fee waiver matters, or denials of requests for expedited processing.
    (e) Content of denial. The denial shall be signed by the head of
the component, or designee, and shall include:
    (1) The name and title or position of the person responsible for
the denial;
    (2) A brief statement of the reasons for the denial, including any
FOIA exemption applied by the component in denying the request;
    (3) An estimate of the volume of any records or information
withheld, for example, by providing the number of pages or some other
reasonable form of estimation. This estimation is not required if the
volume is otherwise indicated by deletions marked on records that are
disclosed in part, or if providing an estimate would harm an interest
protected by an applicable exemption; and
    (4) A statement that the denial may be appealed under Sec.  5.8(a),
and a description of the requirements set forth therein.
    (5) A statement notifying the requester of the assistance available
from the agency's FOIA Public Liaison and the dispute resolution
services offered by OGIS.
    (f) Markings on released documents. Markings on released documents
must be clearly visible to the requester. Records disclosed in part
shall be marked to show the amount of information deleted and the
exemption under which the deletion was made unless doing so would harm
an interest protected by an applicable exemption. The location of the
information deleted also shall be indicated on the record, if
technically feasible.
    (g) Use of record exclusions. (1) In the event that a component
identifies records that may be subject to exclusion from the
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the head of the
FOIA office of that component must confer with Department of Justice's
Office of Information Policy (OIP) to obtain approval to apply the
exclusion.
    (2) Any component invoking an exclusion shall maintain an
administrative record of the process of invocation and approval of the
exclusion by OIP.

Sec.  5.7   Confidential commercial information.

    (a) Definitions--(1) Confidential commercial information means
commercial or financial information obtained by DHS from a submitter
that may be protected from disclosure under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from whom DHS obtains
confidential commercial information, directly or indirectly.
    (b) Designation of confidential commercial information. A submitter
of confidential commercial information must use good faith efforts to
designate by appropriate markings, either at the time of submission or
within a reasonable time thereafter, any portion of its submission that
it considers to be protected from disclosure under Exemption 4. These
designations will expire ten years after the date of the submission
unless the submitter requests and provides justification for a longer
designation period.
    (c) When notice to submitters is required. (1) A component shall
promptly provide written notice to a submitter whenever records
containing such information are requested under the FOIA if, after
reviewing the request, the responsive records, and any appeal by the
requester, the component determines that it may be required to disclose
the records, provided:
    (i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
    (ii) The component has a reason to believe that the requested
information may be protected from disclosure under Exemption 4.
    (2) The notice shall either describe the commercial information
requested or include a copy of the requested records or portions of
records containing the information. In cases involving a voluminous
number of submitters, notice may be made by posting or publishing the
notice in a place or manner reasonably likely to accomplish it.
    (d) Exceptions to submitter notice requirements. The notice
requirements of paragraphs (c) and (g) of this section shall not apply
if:
    (1) The component determines that the information is exempt under
the FOIA;
    (2) The information lawfully has been published or has been
officially made available to the public;
    (3) Disclosure of the information is required by a statute other
than the FOIA or by a regulation issued in accordance with the
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous, except that, in such a case,
the component shall give the submitter written notice of any final
decision to disclose the information and must provide that notice
within a reasonable number of days prior to a specified disclosure
date.
    (e) Opportunity to object to disclosure. (1) A component will
specify a reasonable time period, but no fewer than 10 working days,
within which the submitter must respond to the notice referenced above.
If a submitter has any objections to disclosure, it should provide the
component a detailed written statement that specifies all grounds for
withholding the particular information under any exemption of the FOIA.
In order to rely on Exemption 4 as basis for nondisclosure, the
submitter must explain why the information constitutes a trade secret,
or commercial or financial information that is privileged or
confidential.
    (2) A submitter who fails to respond within the time period
specified in the notice shall be considered to have no

objection to disclosure of the information. Information received by the
component after the date of any disclosure decision will not be
considered by the component. Any information provided by a submitter
under this subpart may itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. A component shall consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose the requested information.
    (g) Notice of intent to disclose. Whenever a component decides to
disclose information over the objection of a submitter, the component
shall provide the submitter written notice, which shall include:
    (1) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice, but no fewer than 10 working days.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial
information, the component shall promptly notify the submitter.
    (i) Requester notification. The component shall notify a requester
whenever it provides the submitter with notice and an opportunity to
object to disclosure; whenever it notifies the submitter of its intent
to disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
    (j) Scope. This section shall not apply to any confidential
commercial information provided to CBP by a business submitter. Section
5.12 applies to such information. Section 5.12 also defines
``confidential commercial information'' as used in this paragraph.

Sec.  5.8   Administrative appeals.

    (a) Requirements for filing an appeal. (1) A requester may appeal
adverse determinations denying his or her request or any part of the
request to the appropriate Appeals Officer. A requester may also appeal
if he or she questions the adequacy of the component's search for
responsive records, or believes the component either misinterpreted the
request or did not address all aspects of the request (i.e., it issued
an incomplete response), or if the requester believes there is a
procedural deficiency (e.g., fees were improperly calculated). For the
address of the appropriate component Appeals Officer, contact the
applicable component FOIA liaison using the information in appendix I
to this subpart, visit www.dhs.gov/foia, or call 1-866-431-0486. An
appeal must be in writing, and to be considered timely it must be
postmarked or, in the case of electronic submissions, transmitted to
the Appeals Officer within 90 working days after the date of the
component's response. An electronically filed appeal will be considered
timely if transmitted to the Appeals Officer by 11:59:59 p.m. ET or EDT
on the 90th working day. The appeal should clearly identify the
component determination (including the assigned request number if the
requester knows it) that is being appealed and should contain the
reasons the requester believes the determination was erroneous. To
facilitate handling, the requester should mark both the letter and the
envelope, or the transmittal line in the case of electronic
transmissions ``Freedom of Information Act Appeal.''
    (2) An adverse determination by the component appeals officer will
be the final action of DHS.
    (b) Adjudication of appeals. (1) The DHS Office of the General
Counsel or its designee (e.g., component Appeals Officers) is the
authorized appeals authority for DHS;
    (2) On receipt of any appeal involving classified information, the
Appeals Officer shall consult with the Chief Security Officer, and take
appropriate action to ensure compliance with 6 CFR part 7;
    (3) If the appeal becomes the subject of a lawsuit, the Appeals
Officer is not required to act further on the appeal.
    (c) Appeal decisions. The decision on the appeal will be made in
writing. A decision that upholds a component's determination will
contain a statement that identifies the reasons for the affirmance,
including any FOIA exemptions applied. The decision will provide the
requester with notification of the statutory right to file a lawsuit
and will inform the requester of the mediation services offered by the
Office of Government Information Services, of the National Archives and
Records Administration, as a non-exclusive alternative to litigation.
Should the requester elect to mediate any dispute related to the FOIA
request with the Office of Government Information Services, DHS and its
components will participate in the mediation process in good faith. If
the adverse decision is reversed or modified on appeal, in whole or in
part, the requester will be notified in a written decision and the
request will be thereafter be further processed in accordance with that
appeal decision.
    (d) Time limit for issuing appeal decision. The statutory time
limit for responding to appeals is generally 20 working days after
receipt. However, the Appeals Officer may extend the time limit for
responding to an appeal provided the circumstances set forth in 5
U.S.C. 552(a)(6)(B)(i) are met.
    (e) Appeal necessary before seeking court review. If a requester
wishes to seek court review of a component's adverse determination on a
matter appealable under paragraph (a)(1) of this section, the requester
must generally first appeal it under this subpart. However, a requester
is not required to first file an appeal of an adverse determination of
a request for expedited processing prior to seeking court review.

Sec.  5.9   Preservation of records.

    Each component shall preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized
pursuant to title 44 of the United States Code or the General Records
Schedule 4.2 and/or 14 of the National Archives and Records
Administration. Records will not be disposed of or destroyed while they
are the subject of a pending request, appeal, or lawsuit under the
FOIA.

Sec.  5.10   FOIA requests for information contained in a Privacy Act
system of records.

    (a) Information subject to Privacy Act. (1) If a requester submits
a FOIA request for information about him or herself that is contained
in a Privacy Act system of records applicable to the requester (i.e.,
the information contained in the system of records is retrieved by the
component using the requester's name or other personal identifier, and
the information pertains to an individual covered by the Privacy Act)
the request will be processed under both the FOIA and the Privacy Act.
    (2) If the information the requester is seeking is not subject to
the Privacy Act (e.g., the information is filed under another subject,
such as an organization, activity, event, or an investigation not
retrievable by the requester's name or personal identifier), the
request, if otherwise properly made, will be treated only as a FOIA
request. In addition, if the information is covered by the Privacy Act
and the requester does not provide proper verification of the
requester's identity, the request, if otherwise properly made, will be
processed only under the FOIA.
    (b) When both Privacy Act and FOIA exemptions apply. Only if both a
Privacy Act exemption and a FOIA

exemption apply can DHS withhold information from a requester if the
information sought by the requester is about him or herself and is
contained in a Privacy Act system of records applicable to the
requester.
    (c) Conditions for release of Privacy Act information to third
parties in response to a FOIA request. If a requester submits a FOIA
request for Privacy Act information about another individual, the
information will not be disclosed without that person's prior written
consent that provides the same verification information that the person
would have been required to submit for information about him or
herself, unless--
    (1) The information is required to be released under the FOIA, as
provided by 5 U.S.C. 552a (b)(2); or
    (2) In most circumstances, if the individual is deceased.
    (d) Privacy Act requirements. See DHS's Privacy Act regulations in
5 CFR part 5, subpart B for additional information regarding the
requirements of the Privacy Act.

Sec.  5.11   Fees.

    (a) In general. Components shall charge for processing requests
under the FOIA in accordance with the provisions of this section and
with the OMB Guidelines. Components will ordinarily use the most
efficient and least expensive method for processing requested records.
In order to resolve any fee issues that arise under this section, a
component may contact a requester for additional information. A
component ordinarily will collect all applicable fees before sending
copies of records to a requester. If you make a FOIA request, it shall
be considered a firm commitment to pay all applicable fees charged
under Sec.  5.11, up to $25.00, unless you seek a waiver of fees.
Requesters must pay fees by check or money order made payable to the
Treasury of the United States.
    (b) Definitions. Generally, ``requester category'' means one of the
three categories in which agencies place requesters for the purpose of
determining whether a requester will be charged fees for search, review
and duplication; categories include commercial requesters,
noncommercial scientific or educational institutions or news media
requesters, and all other requesters. The term ``fee waiver'' means
that processing fees will be waived, or reduced, if a requester can
demonstrate that certain statutory standards are satisfied including
that the information is in the public interest and is not requested for
a primarily commercial interest. For purposes of this section:
    (1) Commercial use request is a request that asks for information
for a use or a purpose that furthers a commercial, trade, or profit
interest, which can include furthering those interests through
litigation. A component's decision to place a requester in the
commercial use category will be made on a case-by-case basis based on
the requester's intended use of the information.
    (2) Direct costs are those expenses that an agency expends in
searching for and duplicating (and, in the case of commercial use
requests, reviewing) records in order to respond to a FOIA request. For
example, direct costs include the salary of the employee performing the
work (i.e., the basic rate of pay for the employee, plus 16 percent of
that rate to cover benefits) and the cost of operating computers and
other electronic equipment, such as photocopiers and scanners. Direct
costs do not include overhead expenses such as the costs of space, and
of heating or lighting a facility.
    (3) Duplication is reproducing a copy of a record or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, audiovisual materials, or electronic
records, among others.
    (4) Educational institution is any school that operates a program
of scholarly research. A requester in this fee category must show that
the request is made in connection with his or her role at the
educational institution. Components may seek verification from the
requester that the request is in furtherance of scholarly research.

    Example 1. A request from a professor of geology at a university
for records relating to soil erosion, written on letterhead of the
Department of Geology, would be presumed to be from an educational
institution if the request adequately describes how the requested
information would further a specific research goal of the
educational institution.
    Example 2. A request from the same professor of geology seeking
immigration information from the U.S. Immigration and Customs
Enforcement in furtherance of a murder mystery he is writing would
not be presumed to be an institutional request, regardless of
whether it was written on institutional stationery.
    Example 3. A student who makes a request in furtherance of their
coursework or other school-sponsored activities and provides a copy
of a course syllabus or other reasonable documentation to indicate
the research purpose for the request, would qualify as part of this
fee category.

    Note:  These examples are provided for guidance purposes only.
Each individual request will be evaluated under the particular
facts, circumstances, and information provided by the requester.

    (5) Noncommercial scientific institution is an institution that is
not operated on a ``commercial'' basis, as defined in paragraph (b)(1)
of this section, and that is operated solely for the purpose of
conducting scientific research the results of which are not intended to
promote any particular product or industry. A requester in this
category must show that the request is authorized by and is made under
the auspices of a qualifying institution and that the records are
sought to further scientific research and not for a commercial use.
    (6) Representative of the news media is any person or entity that
actively gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. The term
``news'' means information that is about current events or that would
be of current interest to the public. Examples of news media entities
include television or radio stations that broadcast ``news'' to the
public at large and publishers of periodicals that disseminate ``news''
and make their products available through a variety of means to the
general public, including but not limited to, news organizations that
disseminate solely on the Internet. A request for records that supports
the news-dissemination function of the requester shall not be
considered to be for a commercial use. In contrast, data brokers or
others who merely compile and market government information for direct
economic return shall not be presumed to be news media entities.
``Freelance'' journalists must demonstrate a solid basis for expecting
publication through a news media entity in order to be considered as
working for a news media entity. A publication contract would provide
the clearest evidence that publication is expected; however, components
shall also consider a requester's past publication record in making
this determination.
    (7) Review is the page-by-page, line-by-line examination of a
record located in response to a request in order to determine whether
any portion of it is exempt from disclosure. Review time includes
processing any record for disclosure, such as doing all that is
necessary to prepare the record for disclosure, including the process
of redacting the record and marking the appropriate exemptions. Review
costs are properly charged even if a record ultimately is not
disclosed. Review time also includes time spent both obtaining

and considering any formal objection to disclosure made by a
confidential commercial information submitter under Sec.  5.7 or Sec.
5.12, but it does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
    (8) Search is the process of looking for and retrieving records or
information responsive to a request. Search time includes page-by-page
or line-by-line identification of information within records; and the
reasonable efforts expended to locate and retrieve information from
electronic records. Components shall ensure that searches are done in
the most efficient and least expensive manner reasonably possible by
readily available means.
    (c) Charging fees. In responding to FOIA requests, components shall
charge the following fees unless a waiver or reduction of fees has been
granted under paragraph (k) of this section. Because the fee amounts
provided below already account for the direct costs associated with a
given fee type, unless otherwise stated in Sec.  5.11, components
should not add any additional costs to those charges.
    (1) Search. (i) Search fees shall be charged for all requests
subject to the restrictions of paragraph (d) of this section.
Components may properly charge for time spent searching even if they do
not locate any responsive records or if they determine that the records
are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for
requested records, including electronic searches that do not require
new programming, the fees will be as follows: Managerial--$10.25;
professional--$7.00; and clerical/administrative--$4.00.
    (iii) Requesters will be charged the direct costs associated with
conducting any search that requires the creation of a new computer
program, as referenced in section 5.4, to locate the requested records.
Requesters shall be notified of the costs associated with creating such
a program and must agree to pay the associated costs before the costs
may be incurred.
    (iv) For requests that require the retrieval of records stored by
an agency at a federal records center operated by the National Archives
and Records Administration (NARA), additional costs shall be charged in
accordance with the Transactional Billing Rate Schedule established by
NARA.
    (2) Duplication. Duplication fees will be charged to all
requesters, subject to the restrictions of paragraph (d) of this
section. A component shall honor a requester's preference for receiving
a record in a particular form or format where it is readily
reproducible by the component in the form or format requested. Where
photocopies are supplied, the component will provide one copy per
request at a cost of ten cents per page. For copies of records produced
on tapes, disks, or other media, components will charge the direct
costs of producing the copy, including operator time. Where paper
documents must be scanned in order to comply with a requester's
preference to receive the records in an electronic format, the
requester shall pay the direct costs associated with scanning those
materials. For other forms of duplication, components will charge the
direct costs.
    (3) Review. Review fees will be charged to requesters who make
commercial use requests. Review fees will be assessed in connection
with the initial review of the record, i.e., the review conducted by a
component to determine whether an exemption applies to a particular
record or portion of a record. No charge will be made for review at the
administrative appeal stage of exemptions applied at the initial review
stage. However, when the appellate authority determines that a
particular exemption no longer applies, any costs associated with a
component's re-review of the records in order to consider the use of
other exemptions may be assessed as review fees. Review fees will be
charged at the same rates as those charged for a search under paragraph
(c)(1)(ii) of this section.
    (d) Restrictions on charging fees. (1) No search fees will be
charged for requests by educational institutions, noncommercial
scientific institutions, or representatives of the news media, unless
the records are sought for a commercial use.
    (2) If a component fails to comply with the FOIA's time limits in
which to respond to a request, it may not charge search fees, or, in
the instances of requests from requesters described in paragraph (d)(1)
of this section, may not charge duplication fees, except as described
in (d)(2)(i) through (iii).
    (i) If a component has determined that unusual circumstances as
defined by the FOIA apply and the component provided timely written
notice to the requester in accordance with the FOIA, a failure to
comply with the time limit shall be excused for an additional 10 days.
    (ii) If a component has determined that unusual circumstances, as
defined by the FOIA, apply and more than 5,000 pages are necessary to
respond to the request, a component may charge search fees, or, in the
case of requesters described in paragraph (d)(1) of this section, may
charge duplication fees, if the following steps are taken. The
component must have provided timely written notice of unusual
circumstances to the requester in accordance with the FOIA and the
component must have discussed with the requester via written mail,
email, or telephone (or made not less than three good-faith attempts to
do so) how the requester could effectively limit the scope of the
request in accordance with 5. U.S.C. 552(a)(6)(B)(ii). If this
exception is satisfied, the component may charge all applicable fees
incurred in the processing of the request.
    (iii) If a court has determined that exceptional circumstances
exist, as defined by the FOIA, a failure to comply with the time limits
shall be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
    (4) Except for requesters seeking records for a commercial use,
components will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for
other media); and
    (ii) The first two hours of search.
    (5) When, after first deducting the 100 free pages (or its cost
equivalent) and the first two hours of search, a total fee calculated
under paragraph (c) of this section is $14.00 or less for any request,
no fee will be charged.
    (e) Notice of anticipated fees in excess of $25.00. (1) When a
component determines or estimates that the fees to be assessed in
accordance with this section will exceed $25.00, the component shall
notify the requester of the actual or estimated amount of the fees,
including a breakdown of the fees for search, review and/or
duplication, unless the requester has indicated a willingness to pay
fees as high as those anticipated. If only a portion of the fee can be
estimated readily, the component shall advise the requester
accordingly. If the requester is a noncommercial use requester, the
notice will specify that the requester is entitled to his or her
statutory entitlements of 100 pages of duplication at no charge and, if
the requester is charged search fees, two hours of search time at no
charge, and will advise the requester whether those entitlements have
been provided. Two hours of search time will be provided free of charge
to non-commercial requesters regardless of whether they agree to pay
estimated fees.

    (2) In cases in which a requester has been notified that the actual
or estimated fees are in excess of $25.00, the request shall not be
considered received and further work will not be completed until the
requester commits in writing to pay the actual or estimated total fee,
or designates some amount of fees he or she is willing to pay, or in
the case of a noncommercial use requester who has not yet been provided
with his or her statutory entitlements, designates that he or she seeks
only that which can be provided by the statutory entitlements. The
requester must provide the commitment or designation in writing, and
must, when applicable, designate an exact dollar amount the requester
is willing to pay. Components are not required to accept payments in
installments.
    (3) If the requester has indicated a willingness to pay some
designated amount of fees, but the component estimates that the total
fee will exceed that amount, the component will toll the processing of
the request while it notifies the requester of the estimated fees in
excess of the amount the requester has indicated a willingness to pay.
The component shall inquire whether the requester wishes to revise the
amount of fees he or she is willing to pay and/or modify the request.
Once the requester responds, the time to respond will resume from where
it was at the date of the notification.
    (4) Components will make available their FOIA Public Liaison or
other FOIA professional to assist any requester in reformulating a
request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide
special services, if a component chooses to do so as a matter of
administrative discretion, the direct costs of providing the service
will be charged. Examples of such services include certifying that
records are true copies, providing multiple copies of the same
document, or sending records by means other than first class mail.
    (g) Charging interest. Components may charge interest on any unpaid
bill starting on the 31st day following the date of billing the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the billing date until payment is
received by the component. Components will follow the provisions of the
Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as
amended, and its administrative procedures, including the use of
consumer reporting agencies, collection agencies, and offset.
    (h) Aggregating requests. When a component reasonably believes that
a requester or a group of requesters acting in concert is attempting to
divide a single request into a series of requests for the purpose of
avoiding fees, the component may aggregate those requests and charge
accordingly. Components may presume that multiple requests of this type
made within a 30-day period have been made in order to avoid fees. For
requests separated by a longer period, components will aggregate them
only where there is a reasonable basis for determining that aggregation
is warranted in view of all the circumstances involved. Multiple
requests involving unrelated matters will not be aggregated.
    (i) Advance payments. (1) For requests other than those described
in paragraphs (i)(2) and (3) of this section, a component shall not
require the requester to make an advance payment before work is
commenced or continued on a request. Payment owed for work already
completed (i.e., payment before copies are sent to a requester) is not
an advance payment.
    (2) When a component determines or estimates that a total fee to be
charged under this section will exceed $250.00, it may require that the
requester make an advance payment up to the amount of the entire
anticipated fee before beginning to process the request. A component
may elect to process the request prior to collecting fees when it
receives a satisfactory assurance of full payment from a requester with
a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly
charged FOIA fee to any component or agency within 30 calendar days of
the billing date, a component may require that the requester pay the
full amount due, plus any applicable interest on that prior request and
the component may require that the requester make an advance payment of
the full amount of any anticipated fee, before the component begins to
process a new request or continues to process a pending request or any
pending appeal. Where a component has a reasonable basis to believe
that a requester has misrepresented his or her identity in order to
avoid paying outstanding fees, it may require that the requester
provide proof of identity.
    (4) In cases in which a component requires advance payment, the
request shall not be considered received and further work will not be
completed until the required payment is received. If the requester does
not pay the advance payment within 30 calendar days after the date of
the component's fee determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires an agency to set and collect fees
for particular types of records. In instances where records responsive
to a request are subject to a statutorily-based fee schedule program,
the component will inform the requester of the contact information for
that source.
    (k) Requirements for waiver or reduction of fees. (1) Records
responsive to a request shall be furnished without charge or at a
reduced rate below that established under paragraph (c) of this
section, where a component determines, on a case-by-case basis, based
on all available information, that the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government; and
    (ii) Disclosure of the information is not primarily in the
commercial interest of the requester.
    (2) In deciding whether disclosure of the requested information is
in the public interest because it is likely to contribute significantly
to public understanding of operations or activities of the government,
components will consider the following factors:
    (i) The subject of the request must concern identifiable operations
or activities of the federal government, with a connection that is
direct and clear, not remote or attenuated.
    (ii) Disclosure of the requested records must be meaningfully
informative about government operations or activities in order to be
``likely to contribute'' to an increased public understanding of those
operations or activities. The disclosure of information that already is
in the public domain, in either the same or a substantially identical
form, would not contribute to such understanding where nothing new
would be added to the public's understanding.
    (iii) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as his or her ability and
intention to effectively convey information to the public shall be
considered. It shall be presumed that a representative of the news
media will satisfy this consideration.
    (iv) The public's understanding of the subject in question must be
enhanced by

the disclosure to a significant extent. However, components shall not
make value judgments about whether the information at issue is
``important'' enough to be made public.
    (3) To determine whether disclosure of the requested information is
primarily in the commercial interest of the requester, components will
consider the following factors:
    (i) Components shall identify any commercial interest of the
requester, as defined in paragraph (b)(1) of this section, that would
be furthered by the requested disclosure. Requesters shall be given an
opportunity to provide explanatory information regarding this
consideration.
    (ii) A waiver or reduction of fees is justified where the public
interest is greater than any identified commercial interest in
disclosure. Components ordinarily shall presume that where a news media
requester has satisfied the public interest standard, the public
interest will be the interest primarily served by disclosure to that
requester. Disclosure to data brokers or others who merely compile and
market government information for direct economic return shall not be
presumed to primarily serve the public interest.
    (4) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
    (5) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the component and should address the
criteria referenced above. A requester may submit a fee waiver request
at a later time so long as the underlying record request is pending or
on administrative appeal. When a requester who has committed to pay
fees subsequently asks for a waiver of those fees and that waiver is
denied, the requester will be required to pay any costs incurred up to
the date the fee waiver request was received.
    (6) Summary of fees. The following table summarizes the chargeable
fees (excluding direct fees identified in Sec.  5.11) for each
requester category.

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               Category                                Search fees                        Review fees                      Duplication fees
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial-use.......................  Yes.......................................  Yes......................  Yes.
Educational or Non-Commercial          No........................................  No.......................  Yes (100 pages free).
 Scientific Institution.
News Media...........................  No........................................  No.......................  Yes (100 pages free).
Other requesters.....................  Yes (2 hours free)........................  No.......................  Yes (100 pages free).
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Sec.  5.12   Confidential commercial information; CBP procedures.

    (a) In general. For purposes of this section, ``commercial
information'' is defined as trade secret, commercial, or financial
information obtained from a person. Commercial information provided to
CBP by a business submitter and that CBP determines is privileged or
confidential commercial or financial information will be treated as
privileged or confidential and will not be disclosed pursuant to a
Freedom of Information Act request or otherwise made known in any
manner except as provided in this section.
    (b) Notice to business submitters of FOIA requests for disclosure.
Except as provided in paragraph (b)(2) of this section, CBP will
provide business submitters with prompt written notice of receipt of
FOIA requests or appeals that encompass their commercial information.
The written notice will describe either the exact nature of the
commercial information requested, or enclose copies of the records or
those portions of the records that contain the commercial information.
The written notice also will advise the business submitter of its right
to file a disclosure objection statement as provided under paragraph
(c)(1) of this section. CBP will provide notice to business submitters
of FOIA requests for the business submitter's commercial information
for a period of not more than 10 years after the date the business
submitter provides CBP with the information, unless the business
submitter requests, and provides acceptable justification for, a
specific notice period of greater duration.
    (1) When notice is required. CBP will provide business submitters
with notice of receipt of a FOIA request or appeal whenever:
    (i) The business submitter has in good faith designated the
information as commercially- or financially-sensitive information. The
business submitter's claim of confidentiality should be supported by a
statement by an authorized representative of the business entity
providing specific justification that the information in question is
considered confidential commercial or financial information and that
the information has not been disclosed to the public; or
    (ii) CBP has reason to believe that disclosure of the commercial
information could reasonably be expected to cause substantial
competitive harm.
    (2) When notice is not required. The notice requirements of this
section will not apply if:
    (i) CBP determines that the commercial information will not be
disclosed;
    (ii) The commercial information has been lawfully published or
otherwise made available to the public; or
    (iii) Disclosure of the information is required by law (other than
5 U.S.C. 552).
    (c) Procedure when notice given. (1) Opportunity for business
submitter to object to disclosure. A business submitter receiving
written notice from CBP of receipt of a FOIA request or appeal
encompassing its commercial information may object to any disclosure of
the commercial information by providing CBP with a detailed statement
of reasons within 10 days of the date of the notice (exclusive of
Saturdays, Sundays, and legal public holidays). The statement should
specify all the grounds for withholding any of the commercial
information under any exemption of the FOIA and, in the case of
Exemption 4, should demonstrate why the information is considered to be
a trade secret or commercial or financial information that is
privileged or confidential. The disclosure objection information