43 C.F.R. §§ 2.47–2.57

§2.47. How will the bureau notify you if it denies your fee waiver request?

43 C.F.R. § 2.47

If the bureau denies your request for a fee waiver, it will notify you, in writing, of the following:

(a)

The basis for the denial, including a full explanation of why the fee waiver request does not meet the Department's fee waiver criteria in § 2.48 of this subpart;

(b)

The name and title or position of each person responsible for the denial;

(c)

The name and title of the Office of the Solicitor attorney consulted;

(d)

Your right to appeal the denial under subpart H of this part and a description of the requirements set forth therein, within 90 workdays from the date of the fee waiver denial letter; and

(e)

Your anticipated fees, in accordance with § 2.49 of this subpart.

Notes, amendments, and revision history

Amendments

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016; 84 FR 61828, Nov. 14, 2019]

Source

Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 552, 552a, 553, 31 U.S.C. 3717, 43 U.S.C. 1460, 1461, the Social Security Number Fraud Prevention Act of 2017, Pub. L. 115-59, September 15, 2017.

Source

Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.

Amendments

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016; 84 FR 61828, Nov. 14, 2019]

§2.48. How will the bureau evaluate your fee waiver request?

43 C.F.R. § 2.48

(a)

In deciding whether your fee waiver request meets the requirements of § 2.45(a)(1) of this subpart, the bureau will consider the criteria listed in paragraphs (a)(1) through (a)(4) of this section. You must address and meet each of these criteria in order to demonstrate that you are entitled to a fee waiver.

(1)

How the records concern the operations or activities of the Federal government. The subject of the request must concern discrete, identifiable agency activities, operations, or programs with a connection that is direct and clear, not remote or attenuated.

(2)

How disclosure is likely to contribute significantly to public understanding of those operations or activities, including:

(i)

How the contents of the records are meaningfully informative. The disclosure of information that is already readily available to you from other sources or easily accessible to the public, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding and the bureau informs you of where the requested information is already available;

(ii)

What the logical connection is between the content of the records and the operations or activities of the Federal government;

(iii)

How disclosure will contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to your individual understanding;

(iv)

Your expertise in the subject area as well as your identity, vocation, qualifications, and your plan to disclose the information in a manner that will be informative to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to furthering your individual understanding;

(v)

Your ability and intent to disseminate the information to a reasonably broad audience of persons interested in the subject (for example, how and to whom you intend to disseminate the information). If we have categorized you as a representative of the news media under § 2.38, we will presume you have this ability and intent;

(vi)

Whether the records would confirm or clarify data that has been released previously; and

(vii)

How the public's understanding of the subject in question will be enhanced to a significant extent by the disclosure.

(b)

In deciding whether the fee waiver request meets the requirements in § 2.45(a)(2) of this subpart, the bureau will consider any commercial interest of yours that would be furthered by the requested disclosure. To determine whether disclosure of the requested records is primarily in your commercial interest (based on your intended use of the information), the bureau will consider:

(1)

Whether the requested disclosure would further any commercial interest of yours.

(2)

If you have a commercial interest, the bureau must determine whether that is the primary interest furthered by the request by balancing the commercial interest against the public interest in disclosure of the records. When the requirements of paragraph (a) are satisfied and any commercial interest is not the primary interest furthered by the request, this balancing test shows a waiver or reduction of fees is justified. Bureaus ordinarily will presume that, when a news media requester has satisfied paragraph (a) above, the request is not primarily in the commercial interest of the requester.

(3)

You are encouraged to provide explanatory information regarding these considerations.

(4)

The bureau will not find that disclosing the requested records will be primarily in your commercial interest where the public interest is greater than any identified commercial interest in disclosure.

(5)

If you have a commercial interest that would be furthered by disclosure, explain how the public interest in disclosure would be greater than any commercial interest you may have in the documents.

(i)

Your identity, vocation, and intended use of the requested records are all factors to be considered in determining whether disclosure would be primarily in your commercial interest.

(ii)

If you are a representative of a news media organization seeking records as part of the news gathering process, we will ordinarily presume that the public interest outweighs your commercial interest. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.

(iii)

If you represent a business/corporation/association or you are an attorney representing such an organization, we will presume that your commercial interest outweighs the public interest unless you demonstrate otherwise.

Notes, amendments, and revision history

Amendments

[84 FR 61828, Nov. 14, 2019]

Source

Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 552, 552a, 553, 31 U.S.C. 3717, 43 U.S.C. 1460, 1461, the Social Security Number Fraud Prevention Act of 2017, Pub. L. 115-59, September 15, 2017.

Source

Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.

Amendments

[84 FR 61828, Nov. 14, 2019]

§2.49. When will you be notified of anticipated fees?

43 C.F.R. § 2.49

(a)

The bureau will notify you under this section unless:

(1)

The anticipated fee is less than $50 (see § 2.37(g) of this subpart).

(2)

You have been granted a full fee waiver;

(3)

Your request does not reasonably describe the records sought and/or does not explicitly state that you will pay all fees associated with the processing of the request, that you will pay fees up to a specified amount, and/or that you are seeking a fee waiver; or

(4)

You have already agreed to pay all the fees associated with the request.

(b)

If none of the above exceptions apply, the bureau will:

(1)

Promptly notify you of the estimated costs for search, review, and/or duplication;

(2)

Ask you to provide written assurance within 20 workdays that you will pay all fees or fees up to a designated amount;

(3)

Notify you that it will not be able to comply with your FOIA request unless you provide the written assurance requested; and

(4)

Give you an opportunity to reduce the fee by modifying the request.

(c)

If the bureau does not receive your written response containing the additional information that resolves any fee issues, in accordance with paragraphs (b)(2) and/or (b)(4) of this section, within 20 workdays after the bureau has requested it, the bureau will presume that you are no longer interested in the records and will close the file on the request.

(d)

After the bureau begins processing a request, if it finds that the actual cost will exceed the amount you previously agreed to pay, the bureau will:

(1)

Stop processing the request;

(2)

Promptly notify you of the higher amount and ask you to provide written assurance of payment; and

(3)

Notify you that it will not be able to fully comply with your FOIA request unless you provide the written assurance requested; and

(4)

Give you an opportunity to reduce the fee by modifying the request.

(e)

If you wish to modify your request in an effort to reduce fees, the bureau's FOIA Requester Center can assist you.

Notes, amendments, and revision history

Amendments

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016; 84 FR 61829, Nov. 14, 2019]

Source

Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 552, 552a, 553, 31 U.S.C. 3717, 43 U.S.C. 1460, 1461, the Social Security Number Fraud Prevention Act of 2017, Pub. L. 115-59, September 15, 2017.

Source

Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.

Amendments

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016; 84 FR 61829, Nov. 14, 2019]

§2.50. When will the bureau require advance payment?

43 C.F.R. § 2.50

(a)

The bureau will require advance payment before starting further work when it finds the estimated fee is over $250 and:

(1)

You have never made a FOIA request to the Department requiring the payment of fees; or

(2)

You did not pay a previous FOIA fee within 30 calendar days of the date of billing.

(b)

If the bureau believes that you did not pay a previous FOIA fee within 30 calendar days of the date of billing, the bureau will require you to either:

(1)

Demonstrate you paid prior fee within 30 calendar days of the date of billing; or

(2)

Pay any unpaid amount of the previous fee, plus any applicable interest penalties (see § 2.53 of this subpart), and pay in advance the estimated fee for the new request.

(c)

When the bureau notifies you that an advance payment is due under paragraph (a) of this section, it will give you an opportunity to reduce the fee by modifying the request.

(d)

Your payment of the funds you owe the bureau for work it has already completed before records are sent to you is not an advance payment under paragraph (a) of this section.

(e)

If the bureau requires advance payment, it will start further work only after receiving the advance payment. It will also notify you that it will not be able to comply with your FOIA request unless you provide the advance payment. Unless you pay the advance payment within 20 workdays after the date of the bureau's fee letter, the bureau will presume that you are no longer interested and will close the file on the request.

Notes, amendments, and revision history

Amendments

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]

Source

Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 552, 552a, 553, 31 U.S.C. 3717, 43 U.S.C. 1460, 1461, the Social Security Number Fraud Prevention Act of 2017, Pub. L. 115-59, September 15, 2017.

Source

Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.

Amendments

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]

§2.51. What if the bureau needs clarification about fee issues?

43 C.F.R. § 2.51

(a)

If your FOIA request does not contain sufficient information for the bureau to determine your proper fee category or leaves another fee issue unclear, the bureau may ask you to provide additional clarification. If it does so, the bureau will notify you that it will not be able to comply with your FOIA request unless you provide the clarification requested.

(b)

If the bureau asks you to provide clarification, the 20-workday statutory time limit for the bureau to respond to the request is temporarily suspended.

(1)

If the bureau receives a written response within 20 workdays after the bureau has requested the additional clarification, the 20-workday statutory time limit for processing the request will resume (see § 2.16 of this part).

(2)

If you still have not provided sufficient information to resolve the fee issue, the bureau may ask you again to provide additional clarification and notify you that it will not be able to comply with your FOIA request unless you provide the additional information requested within 20 workdays after the bureau has requested the additional clarification.

(3)

If the bureau asks you again for additional clarification, the statutory time limit for response will be temporarily suspended again and will resume again if the bureau receives a written response from you within 20 workdays after the bureau has requested the additional clarification.

(c)

If the bureau asks for clarification about a fee issue and does not receive a written response from you within 20 workdays after the bureau has requested the additional clarification, it will presume that you are no longer interested and will close the file on the request.

Notes, amendments, and revision history

Amendments

[77 FR 76906, Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013; 81 FR 11130, Mar. 3, 2016]

Source

Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 552, 552a, 553, 31 U.S.C. 3717, 43 U.S.C. 1460, 1461, the Social Security Number Fraud Prevention Act of 2017, Pub. L. 115-59, September 15, 2017.

Source

Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.

Amendments

[77 FR 76906, Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013; 81 FR 11130, Mar. 3, 2016]

§2.52. How will you be billed?

43 C.F.R. § 2.52

If you are required to pay a fee associated with a FOIA request, the bureau processing the request will send a bill for collection.

Notes, amendments, and revision history

Source

Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 552, 552a, 553, 31 U.S.C. 3717, 43 U.S.C. 1460, 1461, the Social Security Number Fraud Prevention Act of 2017, Pub. L. 115-59, September 15, 2017.

Source

Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.

§2.53. How will the bureau collect fees owed?

43 C.F.R. § 2.53

(a)

The bureau may charge interest on any unpaid bill starting on the 31st day following the billing date.

(b)

The bureau will assess interest charges at the rate provided in 31 U.S.C. 3717 and implementing regulations and interest will accrue from the billing date until the bureau receives payment.

(c)

The bureau will follow the provisions of the Debt Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset to collect overdue amounts and interest.

(d)

This section does not apply if you are a state, local, or tribal government.

Notes, amendments, and revision history

Source

Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 552, 552a, 553, 31 U.S.C. 3717, 43 U.S.C. 1460, 1461, the Social Security Number Fraud Prevention Act of 2017, Pub. L. 115-59, September 15, 2017.

Source

Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.

§2.54. When will the bureau combine or aggregate requests?

43 C.F.R. § 2.54

(a)

The bureau may aggregate requests and charge accordingly when it reasonably believes that you, or a group of requesters acting in concert with you, are attempting to avoid fees by dividing a single request into a series of requests on a single subject or related subjects.

(1)

The bureau may presume that multiple requests of this type made within a 30-day period have been made to avoid fees.

(2)

The bureau may aggregate requests separated by a longer period only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved.

(b)

The bureau will not aggregate multiple requests involving unrelated matters.

(c)

The bureau may administratively aggregate requests without charging fees accordingly when it reasonably believes you, or a group of requesters acting in concert with you, are dividing a single request into a series of requests on a single subject or related subjects.

(1)

The bureau may presume that multiple requests on a single subject or related subjects made within a 30-day period are dividing a single request into a series of requests.

(2)

The bureau may administratively aggregate requests separated by a longer period only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved.

Notes, amendments, and revision history

Amendments

[77 FR 76906, Dec. 31, 2019, as amended at 84 FR 61829, Nov. 14, 2019]

Source

Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 552, 552a, 553, 31 U.S.C. 3717, 43 U.S.C. 1460, 1461, the Social Security Number Fraud Prevention Act of 2017, Pub. L. 115-59, September 15, 2017.

Source

Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.

Amendments

[77 FR 76906, Dec. 31, 2019, as amended at 84 FR 61829, Nov. 14, 2019]

§2.55. What if other statutes require the bureau to charge fees?

43 C.F.R. § 2.55

(a)

The fee schedule in appendix A to this part does not apply to fees charged under any statute that specifically requires the bureau to set and collect fees for particular types of records.

(b)

If records otherwise responsive to a request are subject to a statutorily-based fee schedule, the bureau will inform you whom to contact to obtain the records.

Notes, amendments, and revision history

Source

Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 552, 552a, 553, 31 U.S.C. 3717, 43 U.S.C. 1460, 1461, the Social Security Number Fraud Prevention Act of 2017, Pub. L. 115-59, September 15, 2017.

Source

Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.

§2.56. May the bureau waive or reduce your fees at its discretion?

43 C.F.R. § 2.56

(a)

The bureau may waive or reduce fees at its discretion if a request involves furnishing:

(1)

A copy of a record that the bureau has reproduced for free distribution;

(2)

One copy of a personal document (for example, a birth certificate) to a person who has been required to furnish it for retention by the Department;

(3)

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)

Records to donors with respect to their gifts;

(5)

Records to individuals or private nonprofit organizations having an official, voluntary, or cooperative relationship with the Department if it will assist their work with the Department;

(6)

A reasonable number of records to members of the U.S. Congress; state, local, and foreign governments; public international organizations; or Indian tribes, when to do so is an appropriate courtesy, or when the recipient is carrying on a function related to a Departmental function and the waiver will help accomplish the Department's work;

(7)

Records in conformance with generally established business custom (for example, furnishing personal reference data to prospective employers of current or former Department employees); or

(8)

One copy of a single record to assist you in obtaining financial benefits to which you may be entitled (for example, veterans or their dependents, employees with Government employee compensation claims).

(b)

You cannot appeal the denial of a discretionary fee waiver or reduction.

Notes, amendments, and revision history

Source

Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 552, 552a, 553, 31 U.S.C. 3717, 43 U.S.C. 1460, 1461, the Social Security Number Fraud Prevention Act of 2017, Pub. L. 115-59, September 15, 2017.

Source

Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.

§2.57. When may you file an appeal?

43 C.F.R. § 2.57

(a)

You may file an appeal when:

(1)

The bureau withholds records, or parts of records;

(2)

The bureau informs you that your request has not adequately described the records sought;

(3)

The bureau informs you that it does not possess or cannot locate responsive records and you have reason to believe this is incorrect or that the search was inadequate;

(4)

The bureau did not address all aspects of the request for records;

(5)

You believe there is a procedural deficiency (for example, fees are improperly calculated or you have been placed in the wrong fee category);

(6)

The bureau denied your request for a fee waiver;

(7)

The bureau did not make a decision within the time limits in § 2.16 or, if applicable, § 2.18; or

(8)

The bureau denied, or was late in responding to, a request for expedited processing filed under the procedures in § 2.20 of this part.

(b)

An appeal under paragraph (a)(8) of this section relates only to the request for expedited processing and does not constitute an appeal of the underlying request for records. Special procedures apply to requests for expedited processing of an appeal (see § 2.63 of this subpart).

(c)

Before filing an appeal, you may wish to communicate with the contact person listed in the FOIA response, the bureau's FOIA Officer, and/or the FOIA Public Liaison to see if the issue can be resolved informally. However, appeals must be received by the FOIA Appeals Officer within the time limits in § 2.58 of this subpart or they will not be processed.

Notes, amendments, and revision history

Amendments

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]

Source

Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 552, 552a, 553, 31 U.S.C. 3717, 43 U.S.C. 1460, 1461, the Social Security Number Fraud Prevention Act of 2017, Pub. L. 115-59, September 15, 2017.

Source

Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.

Amendments

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]