[Code of Federal Regulations]
[Title 43, Volume 1, Parts 1 to 999]
[Revised as of October 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR2]

[Page 8-20]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
           Subtitle A--Office of the Secretary of the Interior
 
PART 2--RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT--Table of Contents
 
Subpart B--Requests for Records

    Source: 52 FR 45586, Nov. 30, 1987, unless otherwise noted.

Sec. 2.11  Purpose and scope.

    (a) This subpart contains the procedures for submission to and 
consideration by the Department of the Interior of requests for records 
under the Freedom of Information Act.

[[Page 9]]

    (b) Before invoking the formal procedures set out below, persons 
seeking records from the Department may find it useful to consult with 
the appropriate bureau FOIA officer. Bureau offices are listed in 
Appendix B to this part.
    (c) The procedures in this subpart do not apply to:
    (1) Records published in the Federal Register, opinions in the 
adjudication of cases, statements of policy and interpretations, and 
administrative staff manuals that have been published or made available 
under subpart A of this part.
    (2) Records or information compiled for law enforcement purposes and 
covered by the disclosure exemption described in Sec. 2.13(c)(7) if--
    (i) The investigation or proceeding involves a possible violation of 
criminal law; and
    (ii) There is reason to believe that--
    (A) The subject of the investigation or proceeding is not aware of 
its pendency, and
    (B) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings.
    (3) Informant records maintained by a criminal law enforcement 
component of the Department under an informant's name or personal 
identifier, if requested by a third party according to the informant's 
name or personal identifier, unless the informant's status as an 
informant has been officially confirmed.

Sec. 2.12  Definitions.

    (a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552.
    (b) Bureau refers to all constituent bureaus of the Department of 
the Interior, the Office of the Secretary, and the other Departmental 
offices. A list of bureaus is contained in Appendix B to this part.
    (c) Working day means a regular Federal workday. It does not include 
Saturdays, Sundays or public legal holidays.

Sec. 2.13  Records available.

    (a) Department policy. It is the policy of the Department of the 
Interior to make the records of the Department available to the public 
to the greatest extent possible, in keeping with the spirit of the 
Freedom of Information Act.
    (b) Statutory disclosure requirement. The Act requires that the 
Department, on a request from a member of the public submitted in 
accordance with the procedures in this subpart, make requested records 
available for inspection and copying.
    (c) Statutory exemptions. Exempted from the Act's statutory 
disclosure requirement are matters that are:
    (1)(i) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and
    (ii) Are in fact properly classified pursuant to such Executive 
order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (other than the 
Privacy Act), provided that such statute--
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information--
    (i) Could reasonably be expected to interfere with enforcement 
proceedings,
    (ii) Would deprive a person of a right to a fair or an impartial 
adjudication,
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy,

[[Page 10]]

    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigtion, information furnished by a confidential 
source,
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law, or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (d) Decisions on requests. It is the policy of the Department to 
withhold information falling within an exemption only if--
    (1) Disclosure is prohibited by statute or Executive order or
    (2) Sound grounds exist for invocation of the exemption.
    (e) Disclosure of reasonably segregable nonexempt material. If a 
requested record contains material covered by an exemption and material 
that is not exempt, and it is determined under the procedures in this 
subpart to withhold the exempt material, any reasonably segregable 
nonexempt material shall be separated from the exempt material and 
released.

Sec. 2.14  Requests for records.

    (a) Submission of requests. (1) A request to inspect or copy records 
shall be made to the installation where the records are located. If the 
records are located at more than one installation or if the specific 
location of the records is not known to the requester, he or she may 
direct a request to the head of the appropriate bureau or to the 
bureau's FOIA officer. Addresses for bureau heads and FOIA officers are 
contained in Appendix B to this part.
    (2) Exceptions. (i) A request for records located in all components 
of the Office of the Secretary (other than the Office of Hearings and 
Appeals) shall be submitted to: Director, Office of Administrative 
Services, U.S. Department of the Interior, Washington, DC 20240. A 
request for records located in the Office of Hearings and Appeals shall 
be submitted to: Director, Office of Hearings and Appeals, 4015 Wilson 
Boulevard, Arlington, Virginia 22203.
    (ii) A request for records of the Office of Inspector General shall 
be submitted to: Inspector General, Office of the Inspector General, 
U.S. Department of the Interior, Washington, DC 20240.
    (iii) A request for records of the Office of the Solicitor shall be 
submitted to: Solicitor, Office of the Solicitor, U.S. Department of the 
Interior, Washington, DC 20240.
    (b) Form of requests. (1) Requests under this subpart shall be in 
writing and must specifically invoke the Act.
    (2) A request must reasonably describe the records requested. A 
request reasonably describes the records requested if it will enable an 
employee of the Department familiar with the subject area of the request 
to locate the record with a reasonable amount of effort. If such 
information is available, the request should identify the subject matter 
of the record, the date when it was made, the place where it was made, 
the person or office that made it, the present custodian of the record, 
and any other information that will assist in locating the requested 
record. If the request involves a matter known by the requester to be in 
litigation, the request should also state the case name and court 
hearing the case.
    (3)(i) A request shall--
    (A) Specify the fee category (commercial use, news media, 
educational institution, noncommercial scientific institution, or other) 
in which the requester claims the request to fall and the basis of this 
claim (see Sec. 2.20(b) through (e) for definitions) and

[[Page 11]]

    (B) State the maximum amount of fees that the requester is willing 
to pay or include a request for a fee waiver.
    (ii) Requesters are advised that, under Sec. 2.20 (f) and (g), the 
time for responding to requests may be delayed--
    (A) If a requester has not sufficiently identified the fee category 
applicable to the request,
    (B) If a requester has not stated a willingness to pay fees as high 
as anticipated by the Department or
    (C) If a fee waiver request is denied and the requester has not 
included an alternative statement of willingness to pay fees as high as 
anticipated by the Department.
    (4) A request seeking a fee waiver shall, to the extent possible, 
address why the requester believes that the criteria for fee waivers set 
out in Sec. 2.21 are met.
    (5) To ensure expeditious handling, requests should be prominently 
marked, both the envelope and on the face of the request, with the 
legend ``FREEDOM OF INFORMATION REQUEST.''
    (c) Creation of records. A request may seek only records that are in 
existence at the time the request is received. A request may not seek 
records that come into existence after the date on which it is received 
and may not require that new records be created in response to the 
request by, for example, combining or compiling selected items from 
manual files, preparing a new computer program, or calculating 
proportions, percentages, frequency distributions, trends or 
comparisons. In those instances where the Department determines that 
creating a new record will be less burdensome than disclosing large 
volumes of unassembled material, the Department may, in its discretion, 
agree to creation of a new record as an alternative to disclosing 
existing records.

Sec. 2.15  Preliminary processing of requests.

    (a) Scope of requests. (1) Unless a request clearly specifies 
otherwise, requests to field installations of a bureau may be presumed 
to seek only records at that installation and requests to a bureau head 
or bureau FOIA officer may be presumed to seek only records of that 
bureau.
    (2) If a request to a field installation of a bureau specifies that 
it seeks records located at other installations of the same bureau, the 
installation shall refer the request to the other installation(s) or the 
bureau FOIA officer for appropriate processing. The time limit provided 
in Sec. 2.17(a) does not start until the request is received at the 
installation having the records or by the bureau FOIA officer.
    (3) If a request to a bureau specifies that it seeks records of 
another bureau, the bureau may return the request (or the relevant 
portion thereof) to the requester with instructions as to how the 
request may be resubmitted to the other bureau.
    (b) Intradepartmental consultation and referral. (1) If a bureau 
(other than the Office of Inspector General) receives a request for 
records in its possession that originated with or are of substantial 
concern to another bureau, it shall consult with that bureau before 
deciding whether to release or withhold the records.
    (2) As an alternative to consultation, a bureau may refer the 
request (or the relevant protion thereof) to the bureau that originated 
or is substantially concerned with the records. Such referrals shall be 
made expeditiously and the requester shall be notified in writing that a 
referral has been made. A referral under this paragraph does not restart 
the time limit provided in Sec. 2.17.
    (c) Records of other departments and agencies. (1) If a requested 
record in the possession of the Department of the Interior originated 
with another Federal department or agency, the request shall be referred 
to that agency unless--
    (i) The record is of primary interest to the Department,
    (ii) The Department is in a better position than the originating 
agency to assess whether the record is exempt from disclosure, or
    (iii) The originating agency is not subject to the Act.

The Department has primary interest in a record if it was developed or 
prepared pursuant to Department regulations, directives or request.

[[Page 12]]

    (2) In accordance with Execuctive Order 12356, a request for 
documents that were classified by another agency shall be referred to 
that agency.
    (d) Consultation with submitters of commercial and financial 
information. (1) If a request seeks a record containing trade secrets or 
commercial or financial information submitted by a person outside of the 
Federal government, the bureau processing the request shall provide the 
submitter with notice of the request whenever--
    (i) The submitter has made a good faith designation of the 
information as commercially or financially sensitive, or
    (ii) The bureau has reason to believe that disclosure of the 
information may result in commercial or financial injury to the 
submitter.

Where notification of a voluminous number of submitters is required, 
such notification may be accomplished by posting or publishing the 
notice in a place reasonably calculated to accomplish notification.
    (2) The notice to the submitter shall afford the submitter a 
reasonable period within which to provide a detailed statement of any 
objection to disclosure. The submitter's statement shall explain the 
basis on which the information is claimed to be exempt under the FOIA, 
including a specification of any claim of competitive or other business 
harm that would result from disclosure. The statement shall also include 
a certification that the information is confidential, has not been 
disclosed to the public by the submitter, and is not routinely available 
to the public from other sources.
    (3) If a submitter's statement cannot be obtained within the time 
limit for processing the request under Sec. 2.17, the requester shall be 
notified of the delay as provided in Sec. 2.17(f).
    (4) Notification to a submitter is not required if:
    (i) The bureau determines, prior to giving notice, that the request 
for the record should be denied;
    (ii) The information has previously been lawfully published or 
officially made available to the public;
    (iii) Disclosure is required by a statute (other than the FOIA) or 
regulation (other than this subpart);
    (iv) Disclosure is clearly prohibited by a statute, as described in 
Sec. 2.13(c)(3);
    (v) The information was not designated by the submitter as 
confidential when it was submitted, or a reasonable time thereafter, if 
the submitter was specifically afforded an opportunity to make such a 
designation; however, a submitter will be notified of a request for 
information that was not designated as confidential at the time of 
submission, or a reasonable time thereafter, if there is substantial 
reason to believe that disclosure of the information would result in 
competitive harm.
    (vi) The designation of confidentiality made by the submitter is 
obviously frivolous; or
    (vii) The information was submitted to the Department more than 10 
years prior to the date of the request, unless the bureau has reason to 
believe that it continues to be confidential.
    (5) If a requester brings suit to compel disclosure of information, 
the submitter of the information will be promptly notified.

Sec. 2.16  Action on initial requests.

    (a) Authority. (1) Requests to field installations shall be decided 
by the head of the installation or by such higher authority as the head 
of the bureau may designate in writing.
    (2) Requests to the headquarters of a bureau shall be decided only 
by the head of the bureau or an official whom the head of the bureau has 
in writing designated.
    (3) Requests to the Office of the Secretary may be decided by the 
Director of Administrative Services, an Assistant Secretary or Assistant 
Secretary's designee, and any official whom the Secretary has in writing 
designated.
    (4) A decision to withhold a requested record, to release a record 
that is exempt from disclosure, or to deny a fee waiver shall be made 
only after consultation with the office of the appropriate associate, 
regional, or field solicitor.
    (b) Form of grant. (1) When a requested record has been determined 
to be available, the official processing the request shall notify the 
requester as to when and where the record is available for inspection 
or, as the case may be,

[[Page 13]]

when and how copies will be provided. If fees are due, the official 
shall state the amount of fees due and the procedures for payment, as 
described in Sec. 2.20.
    (2) If a requested record (or portion thereof) is being made 
available over the objections of a submitter made in accordance with 
Sec. 2.15(d), both the requester and the submitter shall be notified of 
the decision. The notice to the submitter (a copy of which shall be made 
available to the requester) shall be forwarded a reasonable number of 
days prior to the date on which disclosure is to be made and shall 
include:
    (i) A statement of the reasons why the submitter's objections were 
not sustained;
    (ii) A specification of the portions of the record to be disclosed, 
if the submitter's objections were sustained in part; and
    (iii) A specified disclosure date.
    (3) If a claim of confidentiality has been found frivolous in 
accordance with Sec. 2.15(d)(4)(vi) and a determination is made to 
release the information without consultation with the submitter, the 
submitter of the information shall be notified of the decision and the 
reasons therefor a reasonable number of days prior to the date on which 
disclosure is to be made.
    (c) Form of denial. (1) A decision withholding a requested record 
shall be in writing and shall include:
    (i) A reference to the specific exemption or exemptions authorizing 
the withholding;
    (ii) If neither a statute or an Executive order requires 
withholding, the sound ground for withholding;
    (iii) A listing of the names and titles or positions of each person 
responsible for the denial; and
    (iv) A statement that the denial may be appealed to the Assistant 
Secretary--Policy, Budget and Administration and a description of the 
procedures in Sec. 2.18 for appeal.
    (2) A decision denying a request for failure to reasonably describe 
requested records or for other procedural deficiency or because 
requested records cannot be located shall be in writing and shall 
include:
    (i) A description of the basis of the decision;
    (ii) A list of the names and titles or positions of each person 
responsible; and
    (iii) A statement that the matter may be appealed to the Assistant 
Secretary--Policy, Budget and Administration and a description of the 
procedures in Sec. 2.18 for appeal.

Sec. 2.17  Time limits for processing initial requests.

    (a) Basic limit. Requests for records shall be processed promptly. A 
determination whether to grant or deny a request shall be made within no 
more than 10 working days after receipt of a request. This determination 
shall be communicated immediately to the requester.
    (b) Running of basic time limit. (1) The 10 working day time limit 
begins to run when a request meeting the requirements of Sec. 2.14(b) is 
received at a field installation or bureau headquarters designated in 
Sec. 2.14(a) to receive the request.
    (2) The running of the basic time limit may be delayed or tolled as 
explained in Sec. 2.20 (f), (g) and (h) if a requester--
    (i) Has not stated a willingnes to pay fees as high as are 
anticipated and has not sought and been granted a full fee waiver, or
    (ii) Has not made a required advance payment.
    (c) Extensions of time. In the following unusual circumstances, the 
time limit for acting on an initial request may be extended to the 
extent reasonably necessary to the proper processing of the request, but 
in no case may the time limit be extended for more than 10 working days:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
installation processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records demanded in a single 
request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or

[[Page 14]]

more components of the Department having substantial subject-matter 
interest therein.
    (d) Notice of extension. A requester shall be notified in writing of 
an extension under paragraph (c) of this section. The notice shall state 
the reason for the extension and the date on which a determination on 
the request is expected to be made.
    (e) Treatment of delay as denial. If no determination has been 
reached at the end of the 10 working day period for deciding an initial 
request, or an extension thereof under paragraph (c) of this section, 
the requester may deem the request denied and may exercise a right of 
appeal in accordance with Sec. 2.18.
    (f) Notice of delay. When a determination cannot be reached within 
the time limit, or extension thereof, the requester shall be notified of 
the reason for the delay, of the date on which a determination may be 
expected, and of the right to treat the delay as a denial for purposes 
of appeal to the Assistant Secretary--Policy, Budget and Administration, 
including a description of the procedures for filing an appeal in 
Sec. 2.18.

Sec. 2.18  Appeals.

    (a) Right of appeal. A requester may appeal to the Assistant 
Secretary--Policy, Budget and Administration when--
    (1) Records have been withheld,
    (2) A request has been denied for failure to describe requested 
records or for other procedural deficiency or because requested records 
cannot be located,
    (3) A fee waiver has been denied, or
    (4) A request has not been decided within the time limits provided 
in Sec. 2.17.
    (b) Time for appeal. An appeal must be received no later than 20 
working days after the date of the initial denial, in the case of a 
denial of an entire request, or 20 working days after records have been 
made available, in the case of a partial denial.
    (c) Form of appeal. (1) An appeal shall be initiated by filing a 
written notice of appeal. The notice shall be accompanied by copies of 
the original request and the initial denial and should, in order to 
expedite the appellate process and give the requester an opportunity to 
present his or her arguments, contain a brief statement of the reasons 
why the requester believes the initial denial to have been in error.
    (2) The appeal shall be addressed to the Freedom of Information Act 
Appeals Officer, Office of the Assistant Secretary--Policy, Budget and 
Administration, U.S. Department of the Interior, Washington, DC 20240.
    (3) To expedite processing, both the envelope containing a notice of 
appeal and the face of the notice should bear the legend ``FREEDOM OF 
INFORMATION APPEAL.''

Sec. 2.19  Action on appeals.

    (a) Authority. Appeals shall be decided by the Assistant Secretary--
Policy, Budget and Administration, or the Assistant Secretary's 
designee, after consultation with the Solicitor, the Director of Public 
Affairs and the appropriate program Assistant Secretary.
    (b) Time limit. A final determination shall be made within 20 
working days after receipt of an appeal meeting the requirements of 
Sec. 2.18(c).
    (c) Extensions of time. (1) If the time limit for responding to the 
initial request for a record was not extended under the provisions of 
Sec. 2.17(c) or was extended for fewer than 10 working days, the time 
for processing of the appeal may be extended to the extent reasonably 
necessary to the proper processing of the appeal, but in no event may 
the extension, when taken together with any extension made during 
processing of the initial request, result in an aggregate extension with 
respect to any one request of more than 10 working days. The time for 
processing of an appeal may be extended only if one or more of the 
unusual circumstances listed in Sec. 2.17(c) requires an extension.
    (2) The appellant shall be advised in writing of the reasons for the 
extension and the date on which a final determination on the appeal is 
expected to be dispatched.
    (3) If no determination on the appeal has been reached at the end of 
the 20 working day period, or the extension thereof, the requester is 
deemed to have exhausted his administrative remedies, giving rise to a 
right of review in a district court of the United States, as specified 
in 5 U.S.C. 552(a)(4).

[[Page 15]]

When no determination can be reached within the applicable time limit, 
the appeal will nevertheless continue to be processed. On expiration of 
the time limit, the requester shall be informed of the reason for the 
delay, of the date on which a determination may be reached to be 
dispatched and of the right to seek judicial review.
    (d) Form of decision. (1) The final determination on an appeal shall 
be in writing and shall state the basis for the determination. If the 
determination is to release the requested records or portions thereof, 
the Assistant Secretary--Policy, Budget and Administration shall 
immediately make the records available or instruct the appropriate 
bureau to make them immediately available. If the determination upholds 
in whole or part the initial denial of a request for records, the 
determination shall advise the requester of the right to obtain judicial 
review in the U.S. District Court for the district in which the withheld 
records are located, or in which the requester resides or has his or her 
principal place of business or in the U.S. District Court for the 
District of Columbia, and shall set forth the names and titles or 
positions of each person responsible for the denial.
    (2) If a requested record (or portion thereof) is being made 
available over the objections of a submitter made in accordance with 
Sec. 2.15(d), the submitter shall be provided notice as described in 
Sec. 2.16(b)(2).

Sec. 2.20  Fees.

    (a) Policy. (1) Unless waived pursuant to the provisions of 
Sec. 2.21, fees for responding to FOIA requests shall be charged in 
accordance with the provisions of this section and the schedule of 
charges contained in Appendix A to this part.
    (2) Fees shall not be charged if the total amount chargeable does 
not exceed $15.00.
    (3) Where there is a reasonable basis to conclude that a requester 
or group of requesters acting in concert has divided a request into a 
series of requests on a single subject or related subjects to avoid 
assessment of fees, the requests may be aggregated and fees charged 
accordingly.
    (b) Commercial use requests. (1) A requester seeking records for 
commercial use shall be charged fees for costs incurred in document 
search, duplication and review.
    (2) A commercial use requester may not be charged fees for time 
spent resolving legal and policy issues affecting access to requested 
records.
    (3) A commercial use request is a request from or on behalf of a 
person who seeks information for a use or purpose that further the 
commercial, trade or profit interests of the requester or the person on 
whose behalf the request is made. The intended use of records may be 
determined on the basis of information submitted by a requester and from 
reasonable inferences based on the identity of the requester and any 
other available information.
    (c) Educational and noncommercial scientific institution requests. 
(1) A requester seeking records under the auspices of an educational 
institution in furtherance of scholarly research or a noncommercial 
scientific institution in furtherance of scientific research shall be 
charged for document duplication, except that the first 100 pages of 
paper copies (or the equivalent cost thereof if the records are in some 
other form) shall be provided without charge.
    (2) Such requesters may not be charged fees for costs incurred in--
    (i) Searching for requested records,
    (ii) Examining requested records to determine whether they are 
exempt from mandatory disclosure,
    (iii) Deleting reasonably segregable exempt matter,
    (iv) Monitoring the requesters' inspection of agency records, or
    (v) Resolving legal and policy issues affecting access to requested 
records.
    (3) An ``educational institution'' is a preschool, a public or 
private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education, which operates a program or programs of scholarly research.
    (4) A ``noncommercial scientific institution'' is an institution 
that is not operated for commerce, trade or profit

[[Page 16]]

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.
    (d) News media requests. (1) A representative of the new media shall 
be charged for document duplication, except that the first 100 pages of 
paper copies (or the equivalent cost thereof if the records are in some 
other form) shall be provided without charge.
    (2) Representatives of the news media may not be charged fees for 
costs incurred in--
    (i) Searching for requested records,
    (ii) Examining requested records to determine whether they are 
exempt from mandatory disclosure,
    (iii) Deleting reasonably segregable exempt matter,
    (iv) Monitoring the requester's inspection of agency records, or
    (v) Resolving legal and policy issues affecting access to requested 
records.
    (3)(i) A ``representative of the news media'' is any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term ``news'' means information 
that is about current events or that is (or would be) of current 
interest to the public. Examples of news media entities include, but are 
not limited to, television or radio stations broadcasting to the public 
at large, and publishers of periodicals (but only in those instances 
when they can qualify as disseminators of ``news'') who make their 
products available for purchase or subscription by the general public. 
As traditional methods of news delivery evolve (e.g., electronic 
dissemination of newspapers through telecommunications services), such 
alternative media would be included in this category.
    (ii) Free-lance journalists may be considered ``representatives of 
the news media'' if they demonstrate a solid basis for expecting 
publication through a news organization, even though not actually 
employed by it. A publication contract or past record of publication, or 
evidence of a specific free-lance assignment from a news organization 
may indicate a solid basis for expecting publication.
    (e) Other requests. (1) A requester not covered by paragraphs (b), 
(c) or (d) of this section shall be charged fees for document search and 
duplication, except that the first two hours of search time and the 
first 100 pages of paper copies (or the equivalent cost thereof if the 
records are in some other form) shall be provided without charge.
    (2) Such requesters may not be charged for costs incurred in--
    (i) Examining requested records to determine whether they are exempt 
from disclosure,
    (ii) Deleting reasonably segregable exempt matter,
    (iii) Monitoring the requester's inspection of agency records, or
    (iv) Resolving legal and policy issues affecting access to requested 
records.
    (f) Requests for clarification. Where a request does not provide 
sufficient information to determine whether it is covered by paragraph 
(b), (c), (d) or (e) of this section, the requester should be asked to 
provide additional clarification. If it is necessary to seek such 
clarification, the request may be deemed to have not been received for 
purposes of the time limits established in Sec. 2.17 until the 
clarification is received. Requests to requesters for clarification 
shall be made promptly.
    (g) Notice of anticipated fees. Where a request does not state a 
willingness to pay fees as high as anticipated by the Department, and 
the requester has not sought and been granted a full waiver of fees 
under Sec. 2.21, the request may be deemed to have not been received for 
purposes of the time limits established in Sec. 2.17 until the requester 
has been notified of and agrees to pay the anticipated fee. Advice to 
requesters with respect to anticipated fees shall be provided promptly.
    (h) Advance payment. (1) Where it is anticipated that allowable fees 
are likely to exceed $250.00 and the requester does not have a history 
of prompt payment of FOIA fees, the requester may be required to make an 
advance payment of the entire fee before processing of his or her 
request.
    (2) Where a requester has previously failed to pay a fee within 30 
calendar days of the date of billing, processing of any new request from 
that requester shall ordinarily be suspended until the

[[Page 17]]

requester pays any amount still owed, including applicable interest, and 
makes advance payment of allowable fees anticipated in connection with 
the new request.
    (3) Advance payment of fees may not be required except as described 
in paragraphs (h) (1) and (2) of this section.
    (4) Issuance of a notice requiring payment of overdue fees or 
advance payment shall toll the time limit in Sec. 2.17 until receipt of 
payment.
    (i) Form of payment. Payment of fees should be made by check or 
money order payable to the Department of the Interior or the bureau 
furnishing the information. The term United States or the initials 
``U.S.'' should not be included on the check or money order. Where 
appropriate, the official responsible for handling a request may require 
that payment by check be made in the form of a certified check.
    (j) Billing procedures. A bill for collection, Form DI-1040, shall 
be prepared for each request that requires collection of fees. The 
requester shall be provided the first sheet of the DI-1040. This 
Accounting Copy of the Form shall be transmitted to the agency's finance 
office for entry into accounts receivable records. Upon receipt of 
payment from the requester, the recipient shall forward the payment 
along with a copy of the DI-1040 to the finance office.
    (k) Collection of fees. The bill for collection or an accompanying 
letter to the requester shall include a statement that interest will be 
charged in accordance with the Debt Collection Act of 1982, 31 U.S.C. 
3717, and implementing regulations, 4 CFR 102.13, if the fees are not 
paid within 30 calendar days of the date of the bill for collection is 
mailed or hand-delivered to the requester. This requirement does not 
apply if the requester is a unit of state or local government. Other 
authorities of the Debt Collection Act of 1982 shall be used, as 
appropriate, to collect the fees (see 4 CFR parts 101-105).

Sec. 2.21  Waiver of fees.

    (a) Statutory fee waiver. (1) Documents shall be furnished without 
charge or at a charge reduced below the fees chargeable under Sec. 2.20 
and appendix A to this part if disclosure of the information is in the 
public interest because it--
    (i) Is likely to contribute significantly to public understanding of 
the operations or activities of the government and
    (ii) Is not primarily in the commercial interest of the requester.
    (2) Factors to be considered in determining whether disclosure of 
information ``is likely to contribute significantly to public 
understanding of the operations or activities of the government'' are 
the following:
    (i) Does the record concern the operations or activities of the 
government? Records concern the operations or activities of the 
government if they relate to or will illuminate the manner in which the 
Department or a bureau is carrying out identifiable operations or 
activities or the manner in which an operation or activity affects the 
public. The connection between the records and the operations and 
activities to which they are said to relate should be clear and direct, 
not remote and attenuated. Records developed outside of the government 
and submitted to or obtained by the Department may relate to the 
operations and activities of the government if they are informative on 
how an agency is carrying out its regulatory, enforcement, procurement 
or other activities that involve private entities.
    (ii) If a record concerns the operations or activities of the 
government, is its disclosure likely to contribute to public 
understanding of these operations and activities? The likelihood of a 
contribution to public understanding will depend on consideration of the 
content of the record, the identity of the requester, and the 
interrelationship between the two. Is there a logical connection between 
the content of the requested record and the operations or activities in 
which the requester is interested? Are the disclosable contents of the 
record meaningfully informative on the operations or activities? Is the 
focus of the requester on contribution to public understanding, rather 
than on the individual understanding of the requester or a narrow 
segment of interested persons? Does the requester have expertise in the 
subject area and the ability and intention to disseminate

[[Page 18]]

the information to the general public or otherwise use the information 
in a manner that will contribute to public understanding of government 
operations or activities? Is the requested information sought by the 
requester because it may be informative on government operations or 
activities or because of the intrinsic value of the information 
independent of the light that it may shed on government operations or 
activities?
    (iii) If there is likely to be a contribution to public 
understanding, will that contribution be significant? A contribution to 
public understanding will be significant if the information disclosed is 
new, clearly supports public oversight of Department operations, 
including the quality of Department activities and the effect of policy 
and regulations on public health and safety, or otherwise confirms or 
clarifies data on past or present operations of the Department. A 
contribution will not be significant if disclosure will not have a 
positive impact on the level of public understanding of the operations 
or activities involved that existed prior to the disclosure. In 
particular, a significant contribution is not likely to arise from 
disclosure of information already in the public domain because it has, 
for example, previously been published or is routinely available to the 
general public in a public reading room.
    (3) Factors to be considered in determining whether disclosure ``is 
primarily in the commercial interest of the requester'' are the 
following:
    (i) Does the requester have a commercial interest that would be 
furthered by the requested disclosure? A commercial interest is a 
commercial, trade or profit interest as these terms are commonly 
understood. An entity's status is not determinative. Not only profit-
making corporations, but also individuals or other organizations, may 
have a commercial interest to be served by disclosure, depending on the 
circumstances involved.
    (ii) If the requester has a commercial interest, will disclosure be 
primarily in that interest? The requester's commercial interest is the 
primary interest if the magnitude of that interest is greater than the 
public interest to be served by disclosure. Where a requester is a 
representative of a news media organization seeking information as part 
of the news gathering process, it may be presumed that the public 
interest outweighs the organization's commercial interest.
    (4) Notice of denial. If a requested statutory fee waiver or 
reduction is denied, the requester shall be notified in writing. The 
notice shall include:
    (i) A statement of the basis on which the waiver or reduction has 
been denied.
    (ii) A listing of the names and titles or positions of each person 
responsible for the denial.
    (iii) A statement that the denial may be appealed to the Assistant 
Secretary--Policy, Budget and Administration and a description of the 
procedures in Sec. 2.18 for appeal.
    (b) Discretionary waivers. Fees otherwise chargeable may be waived 
at the discretion of a bureau if a request involves:
    (1) Furnishing unauthenticated copies of documents reproduced for 
gratuitous distribution;
    (2) Furnishing one copy of a personal document (e.g., a birth 
certificate) to a person who has been required to furnish it for 
retention by the Department;
    (3) Furnishing one copy of the transcript of a hearing before a 
hearing officer in a grievance or similar proceeding to the employee for 
whom the hearing was held.
    (4) Furnishing records to donors with respect to their gifts;
    (5) Furnishing records to individuals or private non-profit 
organizations having an official voluntary or cooperative relationship 
with the Department to assist the individual or organization in its work 
with the Department;
    (6) Furnishing records to state, local and foreign governments, 
public international organizations, and Indian tribes, when to do so 
without charge is an appropriate courtesy, or when the recipient is 
carrying on a function related to that of the Department and to do so 
will help to accomplish the work of the Department;
    (7) Furnishing a record when to do so saves costs and yields income 
equal to the direct cost of providing the records

[[Page 19]]

(e.g., where the Department's fee for the service would be included in a 
billing against the Department);
    (8) Furnishing records when to do so is in conformance with 
generally established business custom (e.g., furnishing personal 
reference data to prospective employers of former Department employees);
    (9) Furnishing one copy of a record in order to assist the requester 
to obtain financial benefits to which he or she is entitled (e.g., 
veterans or their dependents, employees with Government employee 
compensation claims or persons insured by the Government).

Sec. 2.22  Special rules governing certain information concerning coal 
          obtained under the Mineral Leasing Act.

    (a) Definitions. As used in the section:
    (1) Act means the Mineral Leasing Act of February 25, 1920, as 
amended by the Act of August 4, 1976, Pub. L. 94-377, 90 Stat. 1083 (30 
U.S.C. 181 et seq.), and the Mineral Leasing Act for Acquired Lands, as 
amended (30 U.S.C. 351 et seq.)
    (2) Exploration license means a license issued by the Secretary of 
the Interior to conduct coal exploration operations on land subject to 
the Act pursuant to the authority in section 2(b) of the Act, as amended 
(30 U.S.C. 201(b)).
    (3) Fair-market value of coal to be leased means the minimum amount 
of a bid the Secretary has determined he is willing to accept in leasing 
coal within leasing tracts offered in general lease sales or reserved 
and offered for lease to public bodies, including Federal agencies, 
rural electric cooperatives, or non-profit corporations, controlled by 
any of such entities pursuant to section 2(a) of the Act (30 U.S.C. 
201(a)(1)).
    (4) Information means data, statistics, samples and other facts, 
whether analyzed or processed or not, pertaining to Federal coal 
resources, which fit within an exemption to the Freedom of Information 
Act, 5 U.S.C. 552(b).
    (b) Applicability. This section applies to the following categories 
of information:
    (1) Category A. Information provided to or obtained by a bureau 
under section 2(b)(3) of the Act from the holder of an exploration 
license;
    (2) Category B. Information acquired from commercial or other 
sources under service contract with Geological Survey pursuant to 
section 8A(b) of the Act, and information developed by the Geological 
Survey under an exploratory program authorized by section 8A of the Act;
    (3) Category C. Information obtained from commercial sources which 
the commercial source acquired while not under contract with the United 
States Government;
    (4) Category D. Information provided to the Secretary by a federal 
department or agency pursuant to section 8A(e) of the Act; and
    (5) Category E. The fair-market value of coal to be leased and 
comments received by the Secretary with respect to such value.
    (c) Availability of information. Information obtained by the 
Department from various sources will be made available to the public as 
follows:
    (1) Category A--Information. Category A information shall not be 
disclosed to the public until after the areas to which the information 
pertains have been leased by the Department, or until the Secretary 
determines that release of the information to the public would not 
damage the competitive position of the holder of the exploration 
license, whichever comes first.
    (2) Category B--Information. Category B information shall not be 
withheld from the public; it will be made available by means of and at 
the time of open filing or publication by Geological Survey.
    (3) Category C--Information. Category C information shall not be 
made available to the public until after the areas to which the 
information pertains have been leased by the Department.
    (4) Category D--Information. Category D information shall be made 
available to the public under the terms and conditions to which, at the 
time he or she acquired it, the head of the department or agency from 
whom the Secretary later obtained the information agreed.
    (5) Category E--Information. Category E information shall not be 
made public until the lands to which the information pertains have been 
leased, or until the Secretary has determined that its

[[Page 20]]

release prior to the issuance of a lease is in the public interest.