81_FR_75139 81 FR 74930 - Freedom of Information Regulations

81 FR 74930 - Freedom of Information Regulations

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary

Federal Register Volume 81, Issue 209 (October 28, 2016)

Page Range74930-74949
FR Document2016-25684

This rule amends the Department of Health and Human Services (HHS's) Freedom of Information Act (FOIA) regulations. The regulations have been revised in order to incorporate changes made to the FOIA by the Electronic FOIA Act of 1996 (E-FOIA Act), the Openness Promotes Effectiveness in our National Government Act of 2007 (OPEN Government Act), and the FOIA Improvement Act of 2016 (FOIA Improvement Act). Additionally, the regulations have been updated to reflect changes to the organization, to make the FOIA process easier for the public to navigate, to update HHS's fee schedule, and to make provisions clearer.

Federal Register, Volume 81 Issue 209 (Friday, October 28, 2016)
[Federal Register Volume 81, Number 209 (Friday, October 28, 2016)]
[Rules and Regulations]
[Pages 74930-74949]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-25684]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

45 CFR Part 5

RIN 0991-AC04


Freedom of Information Regulations

AGENCY: Office of the Secretary, Department of Health and Human 
Services (HHS).

ACTION: Final rule.

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SUMMARY: This rule amends the Department of Health and Human Services 
(HHS's) Freedom of Information Act (FOIA) regulations. The regulations 
have been revised in order to incorporate changes made to the FOIA by 
the Electronic FOIA Act of 1996 (E-FOIA Act), the Openness

[[Page 74931]]

Promotes Effectiveness in our National Government Act of 2007 (OPEN 
Government Act), and the FOIA Improvement Act of 2016 (FOIA Improvement 
Act). Additionally, the regulations have been updated to reflect 
changes to the organization, to make the FOIA process easier for the 
public to navigate, to update HHS's fee schedule, and to make 
provisions clearer.

DATES: This rule is effective on November 28, 2016.

FOR FURTHER INFORMATION CONTACT: Michael Marquis, Michael Bell, Deborah 
Peters, and/or Brandon Lancey by email to: HHS.ACFO@hhs.gov. These 
individuals also can be reached by telephone at 202-690-7453.

SUPPLEMENTARY INFORMATION: HHS published a proposed rule to amend its 
FOIA regulations for public comment in the Federal Register at 81 FR 
39003 on June 15, 2016. The comment period ended on August 15, 2016. In 
total, we received 10 public comments in response to the proposed rule. 
We have given due consideration to each of the comments we received, 
and, in response, we have made several modifications to the proposed 
rule. These modifications include clarifying, revising, expanding, or 
adding various provisions, withdrawing provisions, and making minor 
technical edits. We have addressed the substantive comments that we 
received in narrative form below; grouped by the section the comment 
corresponds to, as located in the proposed rule.

Purpose (Sec.  5.1)

    One commenter recommended removing a provision that we originally 
proposed in Sec.  5.1(b)(1) concerning records that are subject to a 
statutorily-based fee schedule program. The commenter interpreted this 
provision to suggest that we would withhold records in response to a 
FOIA request simply because a separate statute provided for charging 
fees for those records. In order to help clarify the meaning of that 
provision, the commenter's recommendation has been accepted and the 
proposed provision has been removed. An additional provision relating 
to records that are subject to other statutes specifically providing 
for fees has been added at Sec.  5.52(f). In addition to the language 
in Sec.  5.1(b)(1) concerning records that are subject to a 
statutorily-based fee schedule program, we have also removed the 
language concerning Sec. Sec.  5.1(b)(2), (3) and (5), as we consider 
the provisions of Sec.  5.2 to adequately address proactive disclosures 
and the provisions of Sec.  5.5 and Sec.  5.22 to adequately address 
the interrelationship between the FOIA and the Privacy Act and how to 
make a first-party request.

Presumption of Openness and Proactive Disclosures (Sec.  5.2)

    Three commenters suggested revising the language of this section to 
more closely conform to the provisions of the FOIA Improvement Act, 
which codified the presumption of openness into the statute. This 
recommended change has been made and the rule reflects the statutory 
language at 5 U.S.C. 552(a)(8).
    Two commenters suggested that we add language concerning proactive 
disclosures to this section. One of these commenters provided suggested 
language, which included a reference to two types of records that 
government agencies are required to make available to the public in an 
electronic format pursuant to the FOIA Improvement Act and 5 U.S.C. 
552(a)(2)(D). Another commenter suggested that we consider the 
Department of Justice's FOIA regulation and government-wide guidance 
when drafting language on the subject. After considering these 
comments, we have added additional language to this section describing 
the responsibility of HHS Operating and Staff Divisions to proactively 
make certain records available to the public under the FOIA. This 
includes describing the responsibility for HHS Operating and Staff 
Divisions to identify additional records of interest to the public that 
are appropriate for public disclosure and referencing frequently 
requested records, which the rule defines in Sec.  5.3 to include 
records, regardless of form or format, that have been released to any 
person and have been requested three or more times. This conforms with 
the proactive disclosure provisions of the FOIA, as amended by the FOIA 
Improvement Act.
    One commenter suggested that requesters who make requests for 
records that ultimately become frequently requested records should have 
the option to receive credit for their FOIA requests, or, in the event 
that that seems like too much work, the Department should simply always 
give credit. We decline to accept the commenter's suggestion. There is 
no provision in the FOIA requiring agencies to give ``credit'' to 
requests for records that ultimately become frequently requested 
records. There also does not appear to be any policy rationale behind 
this suggestion. The purpose of the FOIA is not to provide ``credit'' 
to individuals or entities that make requests. Rather, it is to ensure 
an informed citizenry and inform the public about the operations and 
activities of the government.
    One commenter, in connection with the requirements that we make 
certain records available proactively for public inspection in an 
electronic format and make available in an electronic format frequently 
requested records, suggested that we properly track and make available 
Public Use Files (PUFs) and ensure that they are adequately maintained. 
In addition, the commenter suggested we proactively track and publish 
score cards for PUF release reliability alongside data about FOIA 
performance. This comment is outside the scope of the rule. The purpose 
of this rule is to provide guidelines for the processing of agency 
records under the FOIA. The rule does not specify how we will treat 
specific category of records unless those categories are specifically 
delineated in the FOIA statute.
    One commenter suggested that the Department should use the systems 
it has to proactively release information pursuant to 5 U.S.C. 
552(a)(2) to highlight types of records that HHS is obligated to have 
but could not locate in response to a FOIA request. After reviewing 
this comment, we have decided not to accept the suggestion. The purpose 
of 5 U.S.C. 552(a)(2) is to make certain categories of records 
available to the public automatically and without waiting for a FOIA 
request. Our main goal in implementing this provision of the FOIA is to 
determine which records we must make publicly available (including 
frequently requested records), to identify additional records of 
interest to the public that are appropriate for public disclosure, and 
to post and index such records.
    One commenter stated that HHS should track Structured Query 
Languages (SQLs) used to respond to data FOIA requests. The commenter 
believes these should be tracked to make sure that PUF files released 
as a frequently requested record are consistent over time even after 
contractors or personnel change. The commenter also wanted the SQL and 
schema definitions to be provided with the response to the FOIA 
request/data result and if software was used, that should be provided 
with the data too. This comment is outside the scope of the rule. The 
rule does not specify how we will treat specific category of records 
unless those categories are specifically delineated in the FOIA 
statute.

Definitions (Sec.  5.3)

    One commenter suggested revising the definition of ``educational 
institution'' to include a student who

[[Page 74932]]

makes a request in furtherance of their coursework or other school-
sponsored activities, which reflects a recent development in the case 
law. The suggested change has been accepted.
    In order to comport with a recent development in the case law, two 
commenters suggested removing the following line from the definition of 
``representative of the news media'': ``We decide whether to grant a 
requester media status on a case-by-case basis, based on the 
requester's intended use of the requested records.'' We have accepted 
this suggestion. Another commenter also had a concern with this 
language, but that comment is now moot since the language has been 
removed.
    One commenter recommended including a comprehensive list of 
entities that would qualify as a ``representative of the news media'' 
instead of citing examples such as television, radio stations, and 
periodicals. The commenter noted that modern journalism has moved 
online. We have decided to reject the commenter's suggestion to include 
a comprehensive list of entities that would qualify as 
``representatives of the news media.'' Such a list would be difficult 
to devise and could become quickly outdated, given the ever-changing 
media landscape. We do note, however, that the rule acknowledges the 
presence of online media and makes reference to ``online publications 
that disseminate news''.
    One commenter thought that the following wording used to describe 
the term ``representative of the news media'' was unclear: ``We do not 
consider requests for records that support the news-dissemination 
function of the requester to be a commercial use.'' In response to this 
comment, we do not believe that this wording requires additional 
clarification. This wording was derived from the Uniform Freedom of 
Information Fee Schedule and Guidelines published by the Office of 
Management and Budget (OMB). The OMB has policy-making responsibility 
for issuing fee guidance, and we defer to the OMB for any further 
interpretation of this wording.
    One commenter suggested that the rule include performance metrics 
to evaluate the Chief FOIA Officer and the Deputy Chief FOIA Officer 
and that these metrics be based on objective measures of external 
collaboration (e.g., number of emails answered, average response time 
to answer FOIA requester questions, etc.). While we believe strongly in 
providing good customer service and being held accountable for 
providing timely responses to FOIA requests, we believe the mechanisms 
to achieve these goals are already in place. Requesters can seek 
assistance with the processing of their requests by contacting the 
appropriate FOIA Public Liaison at the FOIA Requester Service Center 
processing their request. Requesters can also seek assistance with 
their FOIA request through the services provided by the Office of 
Government Information Services (OGIS). Moreover, each year we submit 
to the Department of Justice and make available to the public two 
reports evaluating the Department's performance on FOIA: the Annual 
FOIA Report and the Chief FOIA Officer Report. The Annual FOIA Report 
contains detailed statistics on the numbers of requests received and 
processed by the Department, the time taken to respond, and the outcome 
of each request, as well as many other vital statistics regarding the 
administration of the FOIA at the Department. The Chief FOIA Officer 
Report includes detailed descriptions of the steps taken by the 
Department to improve FOIA compliance and transparency. Together, these 
reports provide the public with an accurate representation of the 
Department's performance on FOIA.
    One commenter suggested making a grammatical change to the first 
sentence of the definition of the term ``FOIA request'' and suggested 
removing the second sentence of the definition because it does not 
enhance the reader's understanding of the meaning of the term. The 
commenter also thought that the second sentence of the definition might 
restrict the Department's ability to communicate with requesters. After 
considering this comment, we have made the suggested grammatical change 
to the first sentence of the definition and removed the second 
sentence.
    Two commenters noted that we included a link in the definition of 
``Freedom of Information (FOIA)'' that is no longer active and 
suggested that we either remove the link or update it. In response to 
these comments, we have updated the link. The updated link includes the 
current text of the FOIA.
    One commenter suggested that the term ``Freedom of Information 
Officer'' be replaced with the term ``Freedom of Information Act 
Officer'' for the sake of consistency. The commenter noted that the 
word ``act'' is used in the titles of the Chief Freedom of Information 
Act Officer and the Deputy Chief Freedom of Information Act Officer and 
that the term ``Freedom of Information Officer'' has been shortened to 
``FOIA Officer'' in Sec. Sec.  5.27(b) and 5.28(a). After considering 
this comment, we have decided to accept the suggestion and have 
replaced the term ``Freedom of Information Officer'' with the term 
``Freedom of Information Act Officer''.
    One commenter suggested that the term ``frequently requested 
records'' be modified to include records that have been released to any 
person under the FOIA and that have been requested 3 or more times. The 
FOIA Improvement Act requires federal agencies to make this category of 
records available to the public in an electronic format. In accordance 
with the FOIA Improvement Act, we have amended the term ``frequently 
requested records'' as suggested.
    One commenter recommended changes to the definition of the term 
``submitter''. The commenter suggested clarifying that a person or 
entity that provides financial information qualifies as a submitter 
under the definition. The commenter also recommended adding language to 
the definition stating that a federal agency cannot be considered a 
submitter for the purposes of this rule. After considering this 
comment, the definition of the term submitter has been amended to 
include persons or entities that provide financial information to the 
agency. We have also included language in the definition stating that 
Federal government entities do not qualify as submitters.

Who can file a FOIA request? (Sec.  5.21)

    One commenter noted that two of the three sentences in the section 
state that federal agencies may not submit FOIA requests; the commenter 
thought that one statement to that effect would suffice. At the 
recommendation of the commenter, the second sentence in this section 
has been removed. The revised section only has one sentence stating a 
federal agency may not submit FOIA requests.

How does HHS process my FOIA request? (formerly Sec.  5.25)

    One commenter noted that in Sec.  5.25(b)(1)(iii) we referred to a 
``requestor'' but throughout the rest of the rule, we referred to a 
``requester''. In order to be consistent, we will use ``requester'' for 
all references to the term.
    Two commenters expressed concern with the criteria set forth in 
Sec.  5.25(b)(1) for considering a request perfected and the amount of 
time provided in Sec.  5.25(b)(2) for a requester to respond to a 
request to perfect their request. With regard to Sec.  5.25(b)(1), both 
commenters noted that the FOIA statute states that the twenty-working-
day statutory response period begins to run when the request is 
received by the responsible FOIA office, but not later than ten days 
after it is received by an HHS

[[Page 74933]]

component designated to receive requests. Section 5.25(b)(1) has been 
amended at the recommendation of the commenters and in order to comply 
with the requirements of 5 U.S.C. 552(a)(6)(A). In addition, one of the 
commenters considered the contents of Sec.  5.25(b)(1) to be contrary 
to the FOIA statute itself and recommended that the provision be 
removed from the rule in its entirety. In the view of the commenter, 
the provision added additional requirements to the FOIA that were not 
authorized by law. We disagree with this comment. The FOIA requires 
requesters to satisfy two conditions when submitting a FOIA request: 
that the request reasonably describes the records sought and that it is 
made in accordance with agency's published rule setting forth the 
procedures for filing a FOIA request. If a requester fails to satisfy 
these conditions, Sec.  5.25(b) requires an Operating Division or Staff 
Division to attempt to contact the requester and inform him or her of 
what additional information is needed to meet the requirements of the 
FOIA and this rule. This includes attempts to contact the requester in 
order to reformulate or modify a request in cases where we do not 
consider the records sought to be reasonably described. In addition, in 
instances where we close a request because of a failure to reasonably 
describe the records sought, the requester will be given administrative 
appeal rights to challenge the decision since this is an adverse 
determination. Finally, although such a requirement was legally 
permissible, we have decided to make it easier for requesters to 
perfect their requests by eliminating the requirement that, in order to 
perfect, a requester agree to pay all or an established amount of 
applicable fees or request a fee waiver. We do, however, encourage 
requesters to include such information in their requests and make 
reference to that suggestion in Sec.  5.22.
    As it relates to Sec.  5.25(b)(2), the two commenters expressed 
concern with the amount of time requesters were provided with to 
respond to a request to perfect their requests. One commenter claimed 
that there was no authorization in the FOIA for an agency to 
unilaterally ``administratively close'' a FOIA request; that an agency 
can only grant a request in full or in part or deny it; and that Sec.  
5.25(b)(2) should be removed in its entirety. In the alternative, the 
commenter suggested affording the requester no less than 30 days to 
respond to a request to perfect their request in order to ensure that 
they have sufficient time to respond. The second commenter thought that 
requesters should be given at least 20 working days to respond to 
communications from the agency, and if the agency takes more than 
twenty working days from the date of the request to initiate 
communication with the requester, the requester should receive the same 
amount of time to respond to the agency. The second commenter also 
thought the agency should be required to make at least three good-faith 
efforts to contact a requester by various forms of communication (mail, 
email, telephone), if a communication goes unanswered because it is 
returned as undeliverable. In response to these comments, we have 
increased the amount of time requesters are provided with to respond to 
a request to perfect their request from ``at least 10 working days'' to 
``at least 20 working days''. We believe that this provides requesters 
with a reasonable amount of time to review the request to perfect, 
conduct any necessary research, and respond to the agency. In instances 
where a communication goes unanswered because it is returned as 
undeliverable, we will attempt to reach the requester using any 
alternative contact information provided before administratively 
closing the request. However, we do not think it is necessary to state 
the number of times we will attempt to contact a requester before 
administratively closing the request. Finally, we disagree with the 
comment suggesting that agencies do not have a right to 
administratively close a request. The FOIA specified two requirements 
for an access request: It must reasonably describe the records being 
sought and it must be made in accordance with published rules stating 
the time, place, fees (if any), and procedures to be followed. If a 
requester fails to satisfy these conditions, the rule requires HHS to 
attempt to contact the requester to seek clarification and provides the 
requester with a reasonable amount of time to respond. If a requester 
does not respond to communication within the specified timeframe, it is 
reasonable to deny the request and administratively close it because of 
a failure to reasonably describe the records sought or make the request 
in accordance with the published rules. Such a provision is found in a 
number of agency FOIA regulations throughout the government including 
the regulations of four other cabinet-level departments. Therefore, we 
decline to accept the comment.
    The same two commenters expressed concern with the amount of time 
requesters were provided with in Sec.  5.25(c) to respond to a request 
to respond to requests for additional information or clarification 
regarding the specifics of a request or fee assessment. In response to 
these comments and in order to provide requesters with a reasonable 
amount of time to respond, we have increased the amount of time to 
respond to a request for additional information or clarification 
regarding the specifics of a request or fee assessment from ``at least 
10 working days'' to ``at least 20 working days''. The commenters also 
expressed concern with the language in Sec.  5.25(c) stating ``[s]hould 
you not answer any correspondence, or should the correspondence be 
returned undeliverable, we reserve the right to administratively close 
the FOIA request.'' The concerns expressed about this provision were 
the same as those stated for Sec.  5.25(b)(2), namely that the agency 
should be required to make at least three good-faith efforts to contact 
a requester by various forms of communication (mail, email, telephone), 
if a communication goes unanswered because it is returned as 
undeliverable, and that there is no authorization in the FOIA for an 
agency to unilaterally administratively close a FOIA request. For the 
same reasons stated with regard to Sec.  5.25(b)(2), we decline to 
accept the comment concerning undeliverable communications. With 
respect to whether the agency has the authority to administratively 
close requests when a communication goes unanswered, we again disagree 
with the comment. If a requester does not respond to communication 
within a reasonable amount of time, we have legitimate reason to 
believe that the requester is no longer interested in pursuing their 
request. Moreover, a provision allowing for the administrative closure 
of requests where a request for additional information or clarification 
goes unanswered is commonly included in a number of agency FOIA 
regulations throughout the government including the regulations of four 
other cabinet-level departments.
    Multiple commenters provided input on Sec. Sec.  5.25(e), (f), and 
(h), which describe the Department's procedures for multitrack 
processing and handling requests that involve unusual circumstances. 
One commenter expressed a concern that Sec.  5.25(h) could be read to 
provide the agency with the authority to provide itself with unlimited 
time to respond to complex FOIA requests. Another commenter requested 
that Sec. Sec.  5.25(e) and (f) be modified to include a commitment to 
provide requesters with an estimated completion date if their request 
is

[[Page 74934]]

placed in the complex processing queue or if unusual circumstances 
exist. Additionally, the commenter recommended that Sec.  5.25(h) be 
modified to require an agency to notify a requester of an expected 
delay because of unusual circumstances and that such a notice should 
provide requesters with an explanation of the unusual circumstances and 
an estimated completion date. The commenter recommended providing such 
a notice prior to having any conversations regarding the scope of the 
request. After considering these comments, the contents of Sec. Sec.  
5.25(e), (f), and (h) have been modified to distinguish requests that 
are placed in the complex processing queue from requests involving 
unusual circumstances and to align these sections with the FOIA 
statute. In cases where unusual circumstances require us to extend the 
processing time by more than 10 working days, we have clarified that 
requesters will have an opportunity to modify the request or arrange an 
alternative time period for processing the original or modified 
request. Finally, with regard to estimated completion dates, we have 
clarified the language of the rule indicating that we will provide 
requesters with an estimated completion date when we notify them of the 
unusual circumstances involved with their request. However, we decline 
to accept the commenter's recommendation to provide an estimated 
completion date for all requests placed in the complex processing 
queue. Such a policy is not required by the FOIA and, while we estimate 
the completion date based on our reasonable judgment as to how long it 
will likely take to complete the request, given the uncertainty 
inherent in establishing any estimate, the estimated completion date 
would be subject to change at any time.
    One commenter recommended giving priority to records and data 
requests that give detailed and accurate information about where to 
find the records in question. The commenter believes that requesters 
who make such requests should be rewarded with cheaper fees and faster 
processing time. Requesters who give detailed and accurate information 
receive a number of benefits under the FOIA and this regulation 
already. First, if a request provides detailed and accurate information 
about where to find the records, there is a strong likelihood that the 
request will be considered perfected and quickly routed for search. 
Second, there is a strong likelihood that it will be unnecessary to 
toll the processing time to clarify the scope of the request if the 
requested records are well-described and we are given accurate 
information about where to find the records in question. Third, if the 
request provides accurate information about where to find the records 
in question, the search can be conducted more quickly which could 
reduce search fees, if those are associated with the request, and it 
could speed up the processing time. Finally, we have adopted multitrack 
processing and place requests on the simple or complex track based on 
the estimated amount of work or time needed to process the request. 
Providing information that helps us locate documents responsive to a 
request makes it more likely that the request will be placed on the 
simple track and processed more quickly. Given these advantages, we do 
not believe it is necessary to provide any additional benefits to 
requesters who provide detailed and accurate information about where to 
find the records in question.
    One commenter suggested that the rule be modified to inform 
requesters that they are entitled to judicial review if the agency does 
not meet statutorily imposed deadlines. The commenter further stated 
that HHS should reference 5 U.S.C. 552(a)(6)(C) in the rule and clarify 
how a requester may exhaust his or her administrative remedies. After 
carefully considering this comment, we decline to adopt the commenter's 
suggested change. The FOIA statute itself already makes clear that a 
failure to comply with the time limits for either an initial request or 
an administrative appeal may be treated as a ``constructive 
exhaustion'' of administrative remedies. Once there has been a 
``constructive exhaustion'', a requester may immediately thereafter 
seek judicial review if he or she wishes to do so. It is unnecessary 
for this rule to simply restate information that is already in the FOIA 
statute concerning the exhaustion of administrative remedies.
    One commenter suggested defining the term ``voluminous'' in Sec.  
5.25(f). In revising the rule, we have removed the term ``voluminous'' 
from the referenced section. The term ``voluminous'' was contained in a 
recitation of the statutory definition of unusual circumstances. Since 
the FOIA statute already contains this information, it was unnecessary 
to include in the rule. However, even if the term ``voluminous'' 
remained in the rule, we do not believe it is appropriate to define it 
here. The term ``voluminous'' can be understood by the plain meaning in 
the statute, legislative intent, and any case law interpreting that 
term.
    One commenter suggested we consider adding subsections that fully 
explain referrals, consultations, and coordination with other federal 
agencies or entities. We have accepted the commenter's suggestion. 
Section 5.25 provides a full explanation of the Department's procedures 
for rerouting of misdirected requests, referrals, consultations, and 
coordination.

How does HHS determine estimated completion dates for FOIA requests? 
(Sec.  5.26)

    One commenter expressed a concern about Sec.  5.26(a). In the view 
of the commenter, the language of this provision suggested that 
estimated completion dates are only provided when a requester asks for 
them. The commenter recommended that we provide estimated completion 
dates whenever a request is first placed in the complex processing 
queue, whenever we determine that an estimated completion date must 
change for a request, or when a requester asks for an update on 
expected completion date, and that the language in this section be 
updated to reflect that. In response to this comment, we have amended 
the language in this section to clarify that we will provide estimated 
completion dates when we notify requesters of any unusual circumstances 
involved with their request and when a requester has asked for an 
estimated completion date. However, we decline to accept the 
commenter's recommendation of providing an estimated completion date 
for any request placed in the complex processing queue or whenever an 
estimated completion date must change for a request. As previously 
stated, while we estimate the completion date based on our reasonable 
judgment as to how long it will likely take to complete the request, 
given the uncertainty inherent in establishing any estimate, the 
estimated completion date would be subject to change at any time.

How do I request expedited processing? (Sec.  5.27)

    Multiple commenters submitted comments concerning the criteria for 
granting expedited processing of FOIA request described in Sec.  
5.27(c). One commenter expressed concern that we did not include the 
need to meet a litigation deadline in an administrative appeal or in a 
court action as a case deemed appropriate for granting expedited 
processing. In the opinion of the commenter, a failure to include this 
policy into the rule would contradict the statute and constitute an 
invalid departure from established agency precedent. The commenter 
expressed

[[Page 74935]]

three specific concerns with the rule as it relates to the omission of 
any express provision to grant expedited processing in cases where the 
information is needed to meet a deadline in litigation. First, the 
commenter believes the proposed rule is in conflict with the FOIA 
statute. The FOIA statute provides for expedited processing ``in other 
situations''. The commenter is of the opinion that this meant Congress 
intended for agencies to make expedited processing available for a 
broader range of FOIA requests than just those defined as serving a 
``compelling need.'' Second, the commenter is under the impression that 
HHS has a longstanding policy of allowing expedited processing in cases 
where the information is needed to meet a deadline in litigation. In 
support of this, the commenter cited a stipulated court order in Home 
Health Line, Inc. v. Health Care Financing Admin., 90-cv-1006-LFO 
(D.D.C.1990), and a notice published by the Centers for Medicare & 
Medicaid Services (CMS) (formerly the Health Care Financing 
Administration (HCFA)), as a stipulation of dismissal and settlement of 
the case, outlining its policy for expedited processing. The notice was 
published at 55 FR 51342 (Dec. 13, 1990). The cited notice includes 
language stating that ``HCFA follows its first-in/first-out practice 
for processing requests except where the requester demonstrates 
exceptional need or urgency.'' 55 FR 51342. The notice further states 
that there are three categories of requester needs which HCFA has 
determined frequently [demonstrate exceptional need of urgency].'' Id. 
One of the three categories of requester needs described in the notice 
is ``where the requester needs the specific records in question to meet 
a deadline in litigation, either in a court or before an administrative 
tribunal.'' Id. The commenter asserted that the agency cannot change 
its policy on expedited processing without violating the court order 
and the conditions of settlement in the Home Health Line, Inc. case. 
Finally, the commenter cited the Administrative Procedure Act to state 
that agencies must both acknowledge and explain the reasons for a 
departure from established policies or precedent. In the opinion of the 
commenter, there is no good reason for the agency to depart from a 
policy of granting expedited processing to meet a litigation deadline 
in an administrative appeal or court. The commenter has particular 
concern because, according to the commenter, under HHS regulations 
governing appeals to the PRRB, FOIA is the only means available to 
hospitals and other providers to obtain relevant and material evidence 
concerning the accuracy of Medicare payment determinations by HHS.
    We reject this comment and will discuss each point in the order it 
was raised by the commenter. First, the commenter is incorrect when 
stating that the rule is in conflict with the FOIA statute because the 
rule does not provide for the expedited processing of requests ``in 
other cases determined by the agency.'' 5 U.S.C. Sec. 
552(a)(6)(E)(i)(II). The plain language of the FOIA statute makes clear 
that the decision to provide for expedited processing ``in other 
cases'' is left to the discretion of the agency and the agency is free 
not to deem any other case appropriate. Second, we acknowledge that CMS 
had a policy of ordinarily granting expedited processing on a variety 
of circumstances, both administrative in nature and in response to 
specific needs stated by a requester, and that this policy was 
published in the Federal Register for the public's benefit. However, at 
the time, HHS had not promulgated any rule with respect to expedited 
processing. This rule now promulgates rules for the entire Department 
providing for expedited processing of requests for records and 
supersedes the guidance CMS published at 55 FR 51342. Finally, while 
the adopted regulations do not represent a change in policy for the 
whole Department, we acknowledge that the only circumstance in CMS's 
policy which we have chosen to retain in this rule is when a failure to 
obtain requested records on an expedited basis could reasonably be 
expected to pose an imminent threat to the life or physical safety of 
an individual. We believe that this change to CMS's policy is necessary 
to establish fairness in the FOIA process. When granting expedited 
processing, we must consider the interest of all requesters in having 
their requests treated equally. We must also bear in mind that whenever 
we grant expedited processing to one requester, other requesters 
waiting patiently in line will have to wait longer for a response. As a 
result, the Department must only grant expedited processing in truly 
exceptional circumstances. The basic purpose of FOIA is to ensure that 
there is an informed citizenry, which is vital to the functioning of a 
democratic society, necessary to check against corruption, and needed 
to hold government officials accountable to the public. All members of 
the public are beneficiaries of the FOIA, and while this includes 
parties to a litigation, historically, a requester's rights are not 
affected by his or her litigation need for government records. See NLRB 
v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 n.23 (1978). We 
additionally note that the number of FOIA requests which the Department 
must process has increased exponentially since 1990, which is yet 
another reason why we have decided to only grant expedited processing 
in very limited circumstances. For these reasons, we disagree with the 
commenter's contention that CMS does not have a good reason to depart 
from its current expedited processing policy.
    A second commenter recommended that HHS provide for expedited 
processing of state survey documents such as investigator notes, 
witness statements, witness lists, and documents reviewed during the 
course of the investigation. The commenter believes that HHS should 
commit to responding to these types of requests so that nursing home 
residents can receive these documents before their claims are time 
barred by a statute of limitations. We must, unfortunately, decline to 
accept this recommendation. While specific requesters may have a strong 
personal need to receive responsive records as quickly as possible, the 
agency must consider the interests of all requesters waiting patiently 
in line and make sure that everyone is treated equally. As a result, we 
only grant expedited processing in truly exceptional circumstances. 
Moreover, the FOIA is fundamentally meant to inform the public about 
agency action and not to benefit private litigants. NLRB v. Sears 
Roebuck & Co., 421 U.S. 132, 143 n.10 (1975). For those reasons, we 
decline to accept this recommendation.
    One commenter recommended that a requester's history of making 
requests for expedited processing should be considered when determining 
whether to grant expedited processing. In the opinion of the commenter, 
organizations that always request expedited processing for all requests 
should receive greater scrutiny in their requests for expedited 
processing than organizations that do not request expedited processing 
when their requests are obviously not urgent. In response to this 
comment, we decline to accept the commenter's recommendation. Each 
request for expedited processing is evaluated on its own merits. We do 
not provide special treatment to some requesters over others based on 
their history of making requests.
    When granting expedited processing, one commenter thought that we 
should consider the fact that a requester has a

[[Page 74936]]

history of making requests for records that eventually became 
frequently requested records. In response to this comment, we decline 
to accept the commenter's recommendation. Each request for expedited 
processing is evaluated on its own merits. We do not provide special 
treatment to some requesters over others based on a history of 
requesting records that become frequently requested records.
    One commenter recommended granting expedited processing in 
situations where the requested records implicate an ongoing public 
health issue. We grant expedited processing in two cases: (1) Where a 
failure to obtain requested records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual, and (2) where there is an urgent need 
to inform the public about an actual or alleged Federal Government 
activity. We only grant expedited processing in limited circumstances 
because we must consider the interests of all requesters waiting 
patiently in line and make sure that everyone is treated equally. For 
this reason, we must decline to adopt this comment.
    Finally, one commenter suggested that records released in response 
to a request that receives expedited processing or a fee waiver should 
be made proactively available one year after it is released to the 
requester even if the information has not been requested three or more 
times. We have decided not to accept this comment. Even if a record has 
not been released and requested three or more times, we will make 
available additional records if we believe they are of interest to the 
public and are appropriate for public disclosure. However, not every 
record released in response to a request that receives expedited 
processing or a fee waiver may fall into that category.

How does HHS respond to my request? (Sec.  5.28)

    Several commenters recommended modifying the rule to incorporate 
changes made to the FOIA as a result of the FOIA Improvement Act. As a 
result of the FOIA Improvement Act, we have modified the language of 
Sec.  5.28(a) to indicate that we will provide requesters with a 
notification of their right to seek assistance from the appropriate 
FOIA Public Liaison in all disclosure determination letters, and we 
have modified Sec.  5.28(b) to indicate that we will provide requesters 
with a notification of their right to seek dispute resolution services 
from the appropriate FOIA Public Liaison and the Office of Government 
Information Services in all disclosure determination letters that 
include an adverse determination.

How may I request assistance with the FOIA process? (Sec.  5.29)

    One commenter wanted to know who at the various offices is 
available for helping to ensure that the FOIA is processed properly. 
The commenter can seek assistance from the FOIA Requester Service 
Center that is processing the request. Each FOIA Requester Service 
Center also has a FOIA Public Liaison who can assist in reducing 
delays, clarifying the scope of a request, increasing transparency, 
providing status updates, and assisting in dispute resolution. The 
contact information for each FOIA Requester Service Center and the name 
of each FOIA Public Liaison is available through the web link included 
in this section. In addition, requesters can seek assistance from the 
Office of Government Information Services (OGIS) including mediation 
services.
    Several commenters suggested modifying the rule to incorporate the 
requirements of the FOIA resulting from the FOIA Improvement Act. 
Section 3 of the FOIA Improvement Act requires each agency to include 
procedures for engaging in dispute resolution with the FOIA Public 
Liaison and the Office of Government Information Services (OGIS). These 
procedures are included in this section of the rule. In addition, 
throughout the rule, we have included provisions that provide for the 
assistance of the appropriate FOIA Public Liaison and the Office of 
Government Information Services (OGIS) or give notification of their 
services.

What are the reasons records may be withheld? (Sec.  5.31)

    One commenter stated that a section describing the exemptions to 
the FOIA was unnecessary, and at most should simply restate the 
exemptions set forth in 5 U.S.C. 552(b). The commenter further stated 
that the scope of the exemptions is determined by the courts and not 
agency regulations. After considering this comment and other comments 
concerning this section, we have removed language describing the scope 
of each exemption and simply restated the exemptions as set forth in 
the FOIA statute.
    One commenter suggested revising the opening paragraph of Sec.  
5.31 to reflect the presumption of openness codified in the FOIA 
Improvement Act. Another commenter suggested adding similar language to 
the end of the section. We have made the recommended change and have 
included a reference to the foreseeable harm standard in this section. 
We have chosen to place this reference in the opening paragraph of the 
section.
    One commenter noted that all FOIA exemptions are discretionary, not 
mandatory. Therefore, all language describing an Exemption should state 
that an Exemption ``authorizes'' the withholding of information instead 
of ``requires''. We have accepted this comment and made the recommended 
change. We note, however, that the ability to make a discretionary 
release will vary according to the exemption involved and whether the 
information is required to be protected by some other legal authority. 
Some of the FOIA's exemptions, such as Exemption 2 and Exemption 5, 
protect a type of information that is not generally subject to a 
disclosure prohibition. By contrast, the exemptions covering national 
security, commercial and financial information, personal privacy, and 
matters within the scope of nondisclosure statutes protect records that 
are also encompassed within other legal authorities that restrict their 
disclosure to the public. See Attorney General Holder's FOIA 
Guidelines, 74 FR 51879, (October 8, 2009) (describing exemptions where 
discretionary disclosure can most readily be made and those for which 
discretionary disclosure is not available). Thus, agencies are 
constrained in their ability to make discretionary disclosures of 
records covered by Exemptions 1, 3, 4, 6, and & certain subparts of 
Exemption 7.
    Several commenters expressed concern regarding the descriptions of 
the scope of Exemptions 4, 5, and 6. These comments have been rendered 
moot, however, since the language in this section now simply restates 
the Exemptions as they are set forth in the FOIA statute.
    One commenter provided feedback on Sec.  5.31(d)(4)(ii) concerning 
the amount of time we provide submitters to respond to a predisclosure 
notification. The provision states that submitters have ten working 
days to object to disclosure and that HHS FOIA Offices may extend this 
period as appropriate and necessary. The commenter thought that we 
should take into consideration the time limits within which agencies 
must respond to FOIA requests. Furthermore, the commenter recommended 
that the regulation state that the agency will expeditiously provide 
predisclosure notification and should make clear that the amount of 
time provided to a submitter to respond to a predisclosure notification 
should not exceed the remaining amount of time in which the

[[Page 74937]]

agency is required by law to process the request. After considering 
this comment, we have decided not to accept it. We attempt to process 
all FOIA requests as expeditiously as possible. However, it sometimes 
is not possible to know whether a predisclosure notification is 
necessary to process a request or where a predisclosure notification 
needs to be sent until a search for records has been conducted and a 
review of the records has begun. It is unclear how adding a requirement 
that we expeditiously provide predisclosure notification would speed up 
that process. We also do not think it is reasonable to restrict a 
submitter's opportunity to object to disclosure based on the amount of 
time in which we are required by law to process the request. All 
submitters should be given ten working days (or where appropriate and 
necessary, ten or more working days) to object to the disclosure of 
information they provided to the government regardless of how long it 
takes for HHS to conduct the search or determine that a predisclosure 
notification is required.
    One commenter provided input regarding Sec.  5.41(d)(4)(iii). More 
specifically, the commenter expressed concern with the rule's language 
regarding the requirements of a notice of intent to disclose. The 
language, as written, suggested that we would release information over 
the objection of a submitter within five days of the date of the notice 
of intent to disclose. The commenter suggested that this could 
potentially allow for a release of information less than five days 
after the notice of intent to release, which would be unreasonable. The 
commenter also noted that the timeframe for the release of records 
after a notice of intent to disclose was based on the date of the 
notice whereas with Sec.  5.41(d)(4)(ii), the date to provide 
objections to a predisclosure notification was based on the date of 
receipt of the notification. Moreover, as written, FOIA Offices were 
given the authority to extend the timeframe for responding to a 
predisclosure notification letter but not for releasing records after 
providing a notice of intent to release. In accordance with Executive 
Order 12600 and in response to this comment, we have modified the 
requirements regarding the notice of intent to disclose to require that 
the notice include a specified disclosure date and that the date be at 
least five working days after the date of the notice. This will provide 
a reasonable number of days before a release and it gives flexibility 
to FOIA Offices to provide more than five working days when necessary. 
In order to be consistent, we also have revised the predisclosure 
notification procedures to base the amount of time to object on the 
date of the notice rather than the date of receipt. This is 
administratively easier to track and, as communication has become more 
electronic, the date of the notice and the date of receipt are often 
the same. Finally, all provisions regarding confidential commercial 
information are now located in their own subpart, Subpart D.
    Multiple commenters suggested modifying the description of 
Exemption 5 to include the restriction on applying the deliberative 
process privilege to records that were created 25 years or more before 
the date on which the records were requested. This limitation to the 
deliberative process privilege was added by the FOIA Improvement Act 
and it is now reflected in this rule.

Records Not Subject to the Requirements of the FOIA--Law Enforcement 
Exclusions (Sec.  5.32)

    One commenter stated that they found it unusual and highly 
irregular for HHS to include a description of the law enforcement 
record exclusions. In response to this comment, we have removed the 
descriptions of the exclusions and have simply included a citation to 
the section of the FOIA statute that references exclusions.

General Information on Fees for All FOIA Requests (Formerly Sec.  5.41)

    One commenter recommended that requesters be given at least 20 
working days to make an advance payment (Sec.  5.41(b)) or respond to 
an agency communication in the course of negotiating fees (Sec.  
5.41(e)) and, if the agency takes more than twenty working days from 
the date of the request to initiate these actions with the requester, 
the requester should receive the same amount of time to respond to the 
agency. In response to this comment, we have increased the number of 
days to make an advance payment and respond to an agency communication 
from at least 10 working days to at least 20 working days. We believe 
that this provides requesters with a reasonable amount of time to 
respond to us before we assume that they are no longer interested in 
pursuing their request.

What Fee Policies Apply to HHS Records? (Formerly Sec.  5.42)

    One commenter suggested editing the provision on minimum fees to 
state that ``[w]e do not send an invoice to requesters if assessable 
processing fees are less than $25.'' We have accepted the commenter's 
suggestion and made the change.

What is the FOIA Fee Schedule for Obtaining Records? (Formerly Sec.  
5.43)

    Two commenters recommended removing language related to the fees we 
charge for the use of a computer to conduct a search in Sec.  
5.43(a)(2). One commenter thought that the language was archaic and 
should be removed. The second commenter considered the cost of a 
computer to be a sunk cost to the Department and stated that the 
computer would have been running anyway if it hadn't been used to 
conduct the search. We decline to accept the commenters' 
recommendations. When establishing the fee schedule, we follow the 
Uniform Freedom of Information Fee Schedule and Guidelines published by 
the Office of Management and Budget (OMB), which establishes 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). The OMB Fee 
Guidelines state that with regard to computer searches for records 
``[a]gencies should charge at the actual direct cost of providing the 
service. This will include the cost of operating the [computer] for 
that portion of operating time that is directly attributable to 
searching for records responsive to a FOIA request and operator/
programmer salary apportionable to the search.'' In order to conform 
with the OMB Fee Guidelines, we have included the same provision in our 
rule.

How does HHS Calculate FOIA Fees for Different Categories of 
Requesters? (Formerly Sec.  5.44)

    The commenter thought that some of the language in Sec.  5.44(c) 
was potentially redundant and ambiguous. The commenter did not consider 
it necessary to state both that if you do not fall into the categories 
in paragraphs (a) and (b) of this section (a commercial requester or an 
educational or noncommercial scientific institution requester, or a 
member of the news media), you are an ``other requester''. The 
commenter believed that this language suggested a conjunctive 
relationship when none was intended to exist. The commenter suggested 
using ``i.e.'' instead of ``and are'' to clarify things. In response to 
this comment, we have edited Sec.  5.44(c) to make the language 
identifying an ``other requester'' clearer.
    Multiple commenters recommended amending this section in order to 
reference new provisions to the FOIA created by the FOIA Improvement 
Act that place further limitations on assessing search fees (or, for a 
requester

[[Page 74938]]

with preferred status, duplication fees) if response time is delayed. 
At the recommendation of the commenters and in accordance with the FOIA 
Improvement Act, the recommended change has been made to this section.

How may I request a fee waiver? (formerly Sec.  5.45)

    One commenter expressed concern with the description of the factors 
described in Sec.  5.45(b) used to determine whether a requester is 
eligible for a fee waiver or a reduction in fees. The commenter 
specifically pointed out an issue with Sec.  5.45(b)(5) which stated 
that, to be eligible for a fee waiver, a requester must explain how the 
requester ``intend[s] to disseminate the requested information to a 
broad spectrum of the public.'' The commenter noted that in Cause of 
Action v. FTC, the D.C. Circuit specifically held that ``proof of the 
ability to disseminate the released information to a broad cross-
section of the public is not required.'' 799 F.3d 1108, 1116 (D.C. Cir. 
2015). Rather, ``the relevant inquiry . . . is whether the requester 
will disseminate the disclosed records to a reasonably broad audience 
of persons interested in the subject.'' Id. In addition to noticing an 
issue with Sec.  5.45(b)(5), the commenter also thought Sec.  
5.45(b)(5) and Sec.  5.45(b)(4) were duplicative. Likewise, the 
commenter thought that Sec.  5.45(b)(3) should be deleted because it 
duplicated Sec. Sec.  5.45(b)(1), (2), (4) & (6). The commenter 
expressed concern that if these duplicative provisions remained in the 
rule, requesters would have to repeat the same information numerous 
times in order to be eligible for a fee waiver. In response to this 
comment, we have modified this section to include a streamlined list of 
the fee waiver factors based on Cause of Action v. FTC. We believe that 
this streamlined list satisfies the commenter's concerns of correctly 
stating the standard for being able to disseminate information and 
reducing redundancy.

How do I file an appeal? (formerly Sec.  5.52)

    As a result of an amendment to the FOIA by the FOIA Improvement 
Act, two commenters recommended increasing the number of days to appeal 
an adverse determination to no less than 90 days after the date of an 
adverse determination. We have accepted this comment and increased the 
number of days to appeal to 90 days after the date of an adverse 
determination. Note that the contents of this provision have moved to 
Sec.  5.61 (When may I appeal HHS's FOIA determination?).
    One commenter suggested that we use the postmark date rather than 
the date the appeal is received by the agency when determining whether 
an appeal has been submitted in a timely manner. The same commenter 
suggested that the appeal timeframe commence once the disclosure 
determination is received by the requester instead of the date of the 
adverse determination letter. After considering this comment, we have 
decided to partially accept it. The rule has been modified to indicate 
that we will base the timeliness of an appeal on the postmark date or, 
in the case of an electronic submission, the transmittal date. The rule 
has been further modified, however, to stipulate that if a postmark 
date is illegible, we will revert to using the date of receipt to 
determine the timeliness of the appeal submission. We also specify that 
an electronic submission transmitted after normal business hours will 
be considered transmitted on the next day for the purposes of 
determining the timeliness of an appeal submission. Finally, we reject 
the commenter's suggestion that the appeal timeframe commence once 
notice of the adverse determination is received by the requester. The 
FOIA statute itself bases the minimum timeframe that agencies must 
provide for a requester to appeal a request on a specific number of 
days ``after the date of such adverse determination'', not on the date 
such determination is received by the requester. Moreover, we believe 
that a 90 day appeal timeframe, as currently structured, provides 
requesters with a reasonable amount of time to submit a timely request. 
Note that the provision discussed by this comment has moved to Sec.  
5.61 (When may I appeal HHS's FOIA determination?).
    One commenter observed that Sec.  5.52(b) stated that an appeal 
could be submitted electronically; however, in the opinion of the 
commenter, the rule failed to identify a means of submitting 
administrative appeals electronically. In response to this comment, we 
have clarified that instructions on how to submit a FOIA appeal 
electronically can be found by using the web links provided in the 
section.

What avenues are available to me if I disagree with HHS's appeal 
decision? (formerly Sec.  5.54)

    One commenter expressed concern with the language in paragraph (a) 
of Sec.  5.54, which states that a requester must submit an 
administrative appeal in order to seek judicial review. In expressing 
this concern, the commenter suggested that this language was dubious 
and referenced examples cited in the Department of Justice Guide to the 
Freedom of Information Act where multiple courts had held that 
``exhaustion of administrative remedies is not required prior to 
seeking court review of an agency's denial of requested expedited 
access.'' U.S. DEP'T OF JUSTICE, Litigation Considerations 44 & n. 144, 
GUIDE TO THE FREEDOM OF INFORMATION ACT (last updated Nov. 26, 2013), 
available at https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/litigation-considerations.pdf#p29. In response to this 
comment, we have amended the language to state that ``[b]efore seeking 
review by a court of an adverse determination, you generally must first 
submit a timely administrative appeal.'' The modified language informs 
requesters of the need to generally submit an administrative appeal 
prior to seeking judicial review without suggesting that this is 
required in all cases.

Miscellaneous

    One commenter suggested that we provide our understanding of what 
the term ``due diligence'' means. Based on the context of the comment, 
it appears that the commenter was referring to the use of the term in 
the FOIA statute at 5 U.S.C. 552(a)(6)(C)(i), which states that ``[i]f 
the Government can show exceptional circumstances exist and that the 
agency is exercising due diligence in responding to the request, the 
court may retain jurisdiction and allow the agency additional time to 
complete its review of the records.'' We believe that the concept of 
exceptional circumstances is adequately explained in the FOIA statute 
and it is unnecessary to include a provision about that subject in this 
rule. With regard to the term ``due diligence'', we believe that the 
term can best be understood by the plain meaning in the statute, 
legislative intent, and any case law interpreting that term. We, 
therefore, decline to provide any further interpretation of this term.
    One commenter noted that in certain cases we spelled out numbers 
and in other cases we used figures. Compare, e.g., Sec.  
5.31(d)(4)(iii)(``5 working days''), and Sec.  5.23(b)(``10 working 
days''), with Sec.  5.31(d)(5)(iv)(``five working days''), and Sec.  
5.25(f)(``ten working days''). In response to this comment, we have 
replaced the referenced spelled out numbers with figures.
    Finally, in response to public comments and feedback from within 
the Department, we have made the following changes: moved and clarified 
the provision on oral requests from Sec.  5.2(a) to Sec.  5.22(e); 
clarified the definition of non-commercial scientific

[[Page 74939]]

institution (Sec.  5.3); clarified the definition of fee waiver (Sec.  
5.3); removed references to the Program Support Center (PSC) 
(Sec. Sec.  5.3, 5.62(b)(2) (formerly Sec.  5.52(b)(2))) (the PSC FOIA 
Office has been dissolved and its responsibilities have transferred to 
the Office of the Secretary (OS) FOIA Office); renamed ``reading room'' 
``FOIA Library'' (Sec.  5.3, Sec.  5.22(i)); clarified the definition 
of ``record'' (Sec.  5.3); clarified the definition of ``submitter'' 
(Sec.  5.3); clarified that an individual seeking records under the 
Privacy Act has access rights under the FOIA (Sec.  5.5); clarified the 
information needed to make a first-party request (Sec.  5.22(f)) and a 
third-party request (Sec.  5.22(g)); added additional information 
describing when a requester should provide a HIPAA Authorization Form 
(Sec.  5.22(h) (formerly Sec.  5.22(c)); merged the contents of Sec.  
5.24 (Does HHS accept electronic FOIA requests?) with Sec.  5.23 (Where 
do I send my FOIA request?); removed unnecessary language from Sec.  
5.25(a); revised language in Sec. Sec.  5.24(b) and (c) (formerly 
Sec. Sec.  5.25 (b) and (c)) to distinguish the procedures used to 
assist a requester in perfecting their request from those used to 
clarify a reasonably described request through tolling; removed 
unnecessary language from Sec. Sec.  5.27(a) and 5.28(a); clarified the 
language in Sec.  5.28(d); moved confidential commercial information 
procedures to its own subpart (Sec. Sec.  5.41-5.42); removed former 
Sec.  5.31(d)(4)(iv) because it was redundant to Sec.  5.31(d)(4)(v) 
(now located at Sec.  5.42(a)(4)); removed unnecessary language from 
former Sec.  5.31(d)(4)(iii) (now located at Sec.  5.42(a)(3)); merged 
former Sec.  5.42 (What fee policies apply to HHS records?) with former 
Sec.  5.41 (General information on fees for all FOIA requests.) (now 
located at Sec.  5.51); clarified the notice provisions of Sec.  
5.51(a) (formerly Sec.  5.41(a)) to conform with the OMB Fee 
Guidelines; removed Sec.  5.51(i) (formerly Sec.  5.42(c)) as a result 
of the clarification of Sec.  5.51(a) (formerly Sec.  5.41(a)); 
replaced a reference to a Web site where FOIA fee rates would be posted 
with a description of the calculation used to determine hourly rates 
for manual searching, computer operator/programmer time, and time spent 
reviewing records (Sec.  5.52 What is the FOIA fee schedule for 
obtaining records?) (formerly Sec.  5.43); and clarified Sec.  
5.52(c)(2) (formerly Sec.  5.43(c)(2)).

Regulatory Analysis

Executive Order 12866

    The rule has been drafted and reviewed in accordance with Executive 
Order 12866, 58 FR 51735 (Sept. 30, 1993), section 1(b), Principles of 
Regulation, and Executive Order 13563, 76 FR 3821 (January 18, 2011), 
Improving Regulation and Regulatory Review. The rule is not a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866. Accordingly, the rulemaking has not been reviewed by the Office 
of Management and Budget.

Regulatory Flexibility Act

    The Department certifies under 5 U.S.C. 605(b) that the rule will 
not have a significant economic impact on a substantial number of small 
entities because the proposed revisions do not impose any burdens upon 
FOIA requesters, including those that might be small entities. 
Therefore, a regulatory flexibility analysis is not required by the 
Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

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

Executive Order 12612

    This rule has been reviewed under Executive Order 12612, 
Federalism, and it has been determined that it does not have sufficient 
implications for federalism to warrant preparation of a Federalism 
Assessment.

Paperwork Reduction Act

    The rule contains no new information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 45 CFR Part 5

    Freedom of information.

0
In consideration of the foregoing, HHS revises part 5 of title 45, Code 
of Federal Regulations, to read as follows:

PART 5--FREEDOM OF INFORMATION REGULATIONS

Subpart A--General Information About Freedom of Information Act 
Requests Sec.
5.1 Purpose.
5.2 Presumption of openness and proactive disclosures.
5.3 Definitions.
5.4 Regulatory scope.
5.5 Interrelationship between the FOIA and the Privacy Act of 1974.
Subpart B--How to Request Records under FOIA
5.21 Who can file a FOIA request?
5.22 What do I include in my FOIA request?
5.23 Where do I send my FOIA request?
5.24 How does HHS process my FOIA request?
5.25 How does HHS handle requests that involve more than one OpDiv, 
StaffDiv, or Federal agency?
5.26 How does HHS determine estimated completion dates for FOIA 
requests?
5.27 How do I request expedited processing?
5.28 How does HHS respond to my request?
5.29 How may I request assistance with the FOIA process?
Subpart C --Exemptions to Disclosure
5.31 What are the reasons records may be withheld?
5.32 Records not subject to the requirements of the FOIA--law 
enforcement exclusions.
Subpart D--Confidential Commercial Information
5.41 How does a submitter identify records containing confidential 
commercial information?
5.42 How does HHS process FOIA requests for confidential commercial 
information?
Subpart E--Fees
5.51 General information on fees for all FOIA requests.
5.52 What is the FOIA fee schedule for obtaining records?
5.53 How does HHS calculate FOIA fees for different categories of 
requesters?
5.54 How may I request a fee waiver?
Subpart F--Appeals
5.61 When may I appeal HHS's FOIA determination?
5.62 How do I file an appeal?
5.63 How does HHS process appeals?
5.64 What avenues are available to me if I disagree with HHS's 
appeal decision?
Subpart G--Records Retention
5.71 How does HHS retain FOIA records?

    Authority:  5 U.S.C. 552, 18 U.S.C. 1905, 31 U.S.C. 9701, 42 
U.S.C. 1306(c), E.O. 12600, E.O.13392

Subpart A -- General Information About Freedom of Information Act 
Requests


Sec.  5.1  Purpose.

    This part implements the provisions of the Freedom of Information 
Act (FOIA), 5 U.S.C. 552, as amended, for Department of Health and 
Human Services (HHS) records that are subject to the FOIA. This part 
should be read in conjunction with the text of the FOIA and the Uniform 
Freedom of Information Fee Schedule and Guidelines published by the 
Office of Management and Budget. This part contains the rules that we 
follow to process FOIA requests, such as the amount of time we have to 
make a determination regarding the release of records, who can decide 
to release

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records and who can decide not to release them, the fees we may charge, 
if applicable, the reasons why some records are exempt from disclosure 
under the FOIA, and the administrative and legal remedies available 
should a requester disagree with our initial disclosure determination.
    (a) The FOIA provides a right of access to agency records, except 
to the extent that any portions of the records are protected from 
public disclosure by an exemption or exclusion in the statute. The FOIA 
does not require us to perform research for you or to answer your 
questions. The FOIA does not require agencies to create new records or 
to perform analysis of existing records; for example, by extrapolating 
information from existing agency records, reformatting publicly 
available information, preparing new electronic programs or databases, 
or creating data through calculations of ratios, proportions, 
percentages, trends, frequency distributions, correlations, or 
comparisons. However, at our discretion and if it would conserve 
government resources, we may decide to supply requested information by 
consolidating information from various records.
    (b) This part does not apply to data generated by an agency grant 
recipient under the provisions of 45 CFR part 75 to the extent the 
requirements of 45 CFR 75.322(e) do not apply to the data. We will not 
process your request under the FOIA or these regulations if that data 
is already available to the public through an archive or other source. 
In that situation, we will refer you to that other source. The 
procedures for requesting research data made available under the 
provisions of 45 CFR 75.322(e) are referenced in Sec.  5.23(a).


Sec.  5.2  Presumption of openness and proactive disclosures.

    (a) We will administer the FOIA with a presumption of openness. In 
accordance with 5 U.S.C. 552(a)(8) we will disclose records or 
information exempt from disclosure under the FOIA whenever disclosure 
would not foreseeably harm an interest protected by a FOIA exemption 
and disclosure is not prohibited by law. We also will consider whether 
partial disclosure of information is possible whenever we determine 
that a full disclosure of a requested record is not possible. This 
includes taking reasonable steps to segregate and release nonexempt 
information.
    (b) Records that the FOIA requires agencies to make available for 
public inspection in an electronic format may be accessed through each 
OpDiv's and Staff Div's Web site. Each OpDiv and StaffDiv is 
responsible for determining which of its records must be made publicly 
available (including frequently requested records), for identifying 
additional records of interest to the public that are appropriate for 
public disclosure, and for posting and indexing such records. Each 
OpDiv and StaffDiv must ensure that its Web site of posted records and 
indices is reviewed and updated on an ongoing basis. Each OpDiv and 
StaffDiv has a FOIA Requester Service Center or FOIA Public Liaison who 
can assist individuals in locating records. A list of agency FOIA 
Public Liaisons is available at http://www.foia.gov/report-makerequest.html.


Sec.  5.3  Definitions.

    The following definitions apply to this part:
    Agency is defined at 5 U.S.C. 551(1). HHS is an agency. Private 
entities performing work under a contractual agreement with the 
government are not agencies for the purpose of this definition. 
However, information maintained on behalf of an agency under Government 
contract, for the purposes of records management, is considered an 
agency record.
    Chief FOIA Officer means a senior official of HHS, at the Assistant 
Secretary or equivalent level, who has agency-wide responsibility for 
ensuring efficient and appropriate compliance with the FOIA, monitoring 
implementation of the FOIA throughout the agency, and making 
recommendations to the head of the agency to improve the agency's 
implementation of the FOIA. The Secretary of HHS has designated the 
Assistant Secretary, Office of the Assistant Secretary for Public 
Affairs (ASPA), as the Agency Chief FOIA Officer (ACFO); that official 
may be contacted at HHS.ACFO@hhs.gov.
    Commercial use means a use or purpose that furthers a commercial, 
trade, or profit interest of the requester or the person or entity on 
whose behalf the request is made.
    Department or HHS means the U.S. Department of Health and Human 
Services.
    Deputy Agency Chief FOIA Officer (DACFO) means a designated 
official within the Office of the Assistant Secretary for Public 
Affairs, who has been authorized by the Chief FOIA Officer to act upon 
their behalf to implement compliance with the FOIA, as described above.
    This official is also the approving review authority for FOIA 
administrative appeals.
    Direct costs mean those expenses that an agency incurs 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.
    Duplication means the process of making a copy of a record and 
sending it to the requester, to the extent necessary to respond to the 
request. Such copies include both paper copies and electronic records. 
Fees for duplication are further explained within Sec.  5.52.
    Educational institution means 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. Agencies may seek assurance 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.
    Example 2. A request from the same professor of geology seeking 
drug information from the Food and Drug Administration 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.
    Expedited processing means the process set forth in the FOIA that 
allows requesters to request faster processing of their FOIA request, 
if they can demonstrate a specific compelling need.
    Fee category means one of the four categories established by the 
FOIA to determine whether a requester will be charged fees for search, 
review, and duplication. The categories are: commercial use requests; 
non-commercial scientific or educational institutions requests; news 
media requests; and all other requests. Fee categories are further 
explained within Sec.  5.53.

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    Fee waiver means the waiver or reduction of fees if a requester is 
able to demonstrate that certain standards set forth in the FOIA and 
this part are satisfied, including that disclosure of the records is in 
the public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester.
    First-party request means a request by an individual for records 
pertaining to that individual, or an authorized representative acting 
on such an individual's behalf.
    FOIA Public Liaison means an agency official who reports to the 
agency Chief FOIA Officer and serves as a supervisory official to whom 
a requester can raise concerns about the service the requester has 
received from the FOIA Requester Service Center. This individual is 
responsible for assisting in reducing delays, increasing transparency 
and understanding of the status of requests, and assisting in the 
resolution of disputes.
    FOIA request means a written request that reasonably describes the 
records sought.
    Freedom of Information Act (FOIA) means the law codified at 5 
U.S.C. 552 that provides the public with the right to request agency 
records from Federal executive branch agencies. A link to the text of 
the FOIA is at https://www.justice.gov/oip/freedom-information-act-5-usc-552.
    FOIA library records are records that are required to be made 
available to the public without a specific request under 5 U.S.C. 
552(a)(2). We make FOIA library records available to the public 
electronically through our Web pages (http://www.hhs.gov/foia/reading/index.html) and at certain physical locations. A list of the physical 
locations is available at http://www.hhs.gov/foia/contacts/index.html. 
Other records may also be made available at our discretion through our 
Web pages (http://www.hhs.gov).
    Freedom of Information Act (FOIA) Officer means an HHS official who 
has been delegated the authority to release or withhold records; to 
assess, waive, or reduce fees in response to FOIA requests; and to 
determine whether to grant expedited processing. In that capacity, the 
Freedom of Information Act (FOIA) Officer has the authority to task 
agency organizational components to search for records in response to a 
FOIA request, and to provide records located in their offices. Apart 
from records subject to proactive disclosure pursuant to subsection 
(a)(2) of the FOIA, only FOIA Officers have the authority to release or 
withhold records or to waive fees in response to a FOIA request. Our 
FOIA operations are decentralized, and each FOIA Requester Service 
Center has a designated official with this authority; the contact 
information for each FOIA Requester Service Center is available at 
http://www.hhs.gov/foia/contacts/index.html.
    (1) The HHS Freedom of Information Act (FOIA) Officer in the Office 
of the Secretary means the HHS official who in addition to overseeing 
the daily operations of the FOIA program in that office and having the 
authority of a Freedom of Information Act (FOIA) Officer, is also 
responsible for the Department-wide administration and coordination of 
the FOIA and its implementing regulations and policies as they pertain 
to the programs and activities of the Department. This individual 
serves as the principal resource with respect to the articulation of 
procedures designed to implement and ensure compliance with the FOIA 
and its implementing regulations and policies as they pertain to the 
Department. This individual reports through the DACFO to the ACFO to 
support oversight and compliance with the OPEN Government Act.
    (2) [Reserved]
    Frequently requested records means records, regardless of form or 
format, that have been released to any person under the FOIA and that 
have been requested 3 or more times or because of the nature of their 
subject matter, the agency determines have become or are likely to 
become the subject of subsequent requests for substantially the same 
records.
    Immediate Office of the Secretary (IOS) means offices within the 
Office of the Secretary, responsible for operations and work of the 
Secretary. It includes the Office of the Deputy Secretary, Office of 
the Chief of Staff, the Secretary's Counselors, the Executive 
Secretariat, the Office of Health Reform, and the Office of 
Intergovernmental and External Affairs.
    Non-commercial scientific institution means an institution that is 
not operated to further a commercial, trade, or profit interest 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 are not for a commercial use.
    Office of the Inspector General (OIG) means the Staff Division 
within the Office of the Secretary (OS), which is responsible for 
protecting the integrity of HHS programs and the health and welfare of 
the beneficiaries of those programs. OIG is responsible for processing 
FOIA requests for the records it maintains.
    Office of the Secretary (OS) means the HHS's chief policy officer 
and general manager, who administers and oversees the organization, its 
programs and activities. The Deputy Secretary and a number of Assistant 
Secretaries and Staff Divisions support OS. The HHS FOIA Office within 
ASPA processes FOIA requests for records maintained by OS Staff 
Divisions other than the OIG. In certain circumstances and at the HHS 
FOIA Office's discretion, the HHS FOIA office may also process FOIA 
requests involving other HHS OpDivs, as further described in Sec.  
5.28(a).
    Operating Division (OpDiv) means any of the following divisions 
within HHS which are subject to this regulation:

Office of the Secretary (OS)
Administration for Children and Families (ACF) Administration for 
Community Living (ACL)
Agency for Healthcare Research and Quality (AHRQ)
Agency for Toxic Substances and Disease Registry
(ATSDR) Centers for Disease Control and Prevention (CDC)
Centers for Medicare & Medicaid Services (CMS)
Food and Drug Administration (FDA)
Health Resources and Services Administration (HRSA)
Indian Health Service (IHS)
National Institutes of Health (NIH)
Substance Abuse and Mental Health Services Administration (SAMHSA).

    Operating Division and Staff Division Freedom of Information Act 
(FOIA) Officers means the officials who are responsible for overseeing 
the daily operations of their FOIA programs in their respective 
Operating Divisions or Staff Divisions, with the full authority as 
described in the definition of Freedom of Information Act (FOIA) 
Officer. These individuals serve as the principal resource and 
authority for FOIA operations and implementation within their 
respective Operating Divisions or Staff Divisions.
    Other requester means any individual or organization whose request 
does not qualify as a commercial-use request, representative of the 
news media request (including a request made by a freelance 
journalist), or an educational or non-commercial scientific institution 
request.
    Record means any information that would be an agency record when

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maintained by an agency in any format, including an electronic format; 
and any information that is maintained for an agency by an entity under 
Government contract, for the purposes of records management.
    Redact means delete or mark over.
    Representative of the news media means any person or entity that 
actively gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn 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, including print and online publications 
that disseminate news and make their products available through a 
variety of means to the general public. We do not consider requests for 
records that support the news-dissemination function of the requester 
to be a commercial use. We consider ``freelance'' journalists who 
demonstrate a solid basis for expecting publication through a news 
media entity as working for that entity. A publishing contract provides 
the clearest evidence that a journalist expects publication; however, 
we also consider a requester's past publication record.
    Review means examining records responsive to a request to determine 
whether any portions are exempt from disclosure. Review time includes 
processing a record for disclosure (i.e., doing all that is necessary 
to prepare the record for disclosure), including redacting the record 
and marking the appropriate FOIA exemptions.
    Search means the process of identifying, locating, and retrieving 
records to find records responsive to a request, whether in hard copy 
or in electronic form or format.
    Staff Division (StaffDiv) means an organization component that 
provides leadership, direction, and policy and management guidance to 
the Office of the Secretary and the Department. The following StaffDivs 
are subject to the regulations in this part:

Immediate Office of the Secretary (IOS)
Assistant Secretary for Administration (ASA)
Assistant Secretary for Financial Resources (ASFR)
Assistant Secretary for Health (OASH)
Assistant Secretary for Legislation (ASL)
Assistant Secretary for Planning and Evaluation (ASPE) Assistant 
Secretary for Public Affairs (ASPA)
Assistant Secretary for Preparedness and Response (ASPR)
Departmental Appeals Board (DAB)
Office for Civil Rights (OCR)
Office of the General Counsel (OGC) Office of Global Affairs (OGA)
Office of the Inspector General (OIG)
Office of Medicare Hearings and Appeals (OMHA)
Office of the National Coordinator for Health Information Technology 
(ONC)

    Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides commercial or financial information, 
either directly or indirectly to the Federal Government.
    Tolling means temporarily stopping the running of a time limit. We 
may toll a request to seek clarification or to address fee issues, as 
further described in Sec.  5.24.


Sec.  5.4  Regulatory scope.

    The requirements in this part apply to all OpDivs and StaffDivs of 
HHS. Some OpDivs and StaffDivs may establish or continue to maintain 
additional rules because of unique program requirements, but such rules 
must be consistent with this part and the FOIA. If additional rules are 
issued, they must be published in the Federal Register and you may get 
copies online at https://www.federalregister.gov/, http://www.regulations.gov/or by contacting one of our FOIA Requester Service 
Centers.


Sec.  5.5  Interrelationship between the FOIA and the Privacy Act of 
1974.

    The FOIA allows any person (whether an individual or entity) to 
request access to records. The Privacy Act, at 5 U.S.C. 552a(d), 
provides an additional right of access, allowing individuals to request 
records about themselves, if the records are maintained in a system of 
records (defined in 5 U.S.C. 552a(a)(5)).
    (a) Requesting records about you. If any part of your request 
includes records about yourself that are maintained within a system of 
records as defined by the Privacy Act at 5 U.S.C. 552a(a)(5), you 
should make your request in accordance with the Privacy Act and the 
Department's implementing regulations at 45 CFR part 5b. This includes 
requirements to verify your identity. We will process the request under 
the Privacy Act and, if it is not fully granted under the Privacy Act, 
we will process it under the FOIA. You may obtain, under the FOIA, 
information that is exempt from access under the Privacy Act, if the 
information is not excluded or exempt under the FOIA. If you request 
records about yourself that are not maintained within a system of 
records, we will process your request under the FOIA only.
    (b) Requesting records about another individual. If you request 
records about another individual, we will process your request under 
the FOIA. You may receive greater access by following the procedures 
described in Sec.  5.22(g).

Subpart B--How to Request Records under FOIA


Sec.  5.21  Who can file a FOIA request?

    Any individual, partnership, corporation, association, or public or 
private organization other than a Federal agency, regardless of 
nationality, may submit a FOIA request to us. This includes state and 
local governments.


Sec.  5.22  What do I include in my FOIA request?

    In your FOIA request:
    (a) Provide a written description of the records you seek in 
sufficient detail to enable our staff to locate them with a reasonable 
amount of effort. The more information you provide, the better 
possibility we have of finding the records you are seeking. Information 
that will help us find the records would include:
    (1) The agencies, offices, or individuals involved;
    (2) The approximate date(s) when the records were created;
    (3) The subject, title, or description of the records sought; and
    (4) Author, recipient, case number, file designation, or other 
reference number, if available.
    (b) Include your name, full mailing address, and phone number and 
if available, your email address. This information allows us to reach 
you faster if we have any questions about your request. It is your 
responsibility to keep your current mailing address up to date with the 
office where you have filed the FOIA request.
    (c) State your willingness to pay all fees, or the maximum amount 
of fees you are willing to pay, and/or include a request for a fee 
waiver/reduction.
    (d) Mark both your letter and envelope, or the subject line of your 
email, with the words ``FOIA Request.''
    (e) If you are unable to submit a written request to us due to 
circumstances such as disability or literacy, you may make a request 
orally to a FOIA Officer. FOIA Officers will put in writing an oral 
request made directly to them.
    (f) If you are making a first-party request, you must comply with 
the verification of identity procedures set forth in 45 CFR part 5b.

[[Page 74943]]

    (g) Where your request for records pertains to another individual, 
you may receive greater access by submitting either a notarized 
authorization signed by that individual 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). At our discretion, we may require 
you to supply additional information if necessary to verify that a 
particular individual has consented to disclosure of records about 
them.
    (h) If you are requesting the medical records of an individual 
other than yourself from a government program that pays or provides for 
health care (e.g. Medicare, Indian Health Service) and you are not that 
individual's legally authorized representative, you should submit a 
Health Insurance Portability and Accountability Act (HIPAA) compliant 
release authorization form signed by the subject of records or the 
individual's legally authorized representative. The HIPAA Privacy Rule 
requires that an authorization form contain certain core elements and 
statements which are described in the Privacy Rule's requirements at 45 
CFR 164.508. If you are submitting a request for Medicare records to 
CMS, CMS has a release authorization form at the following link: ttps:/
/www.cms.gov/Medicare/CMS-Forms/CMS-Forms/Downloads/CMS10106.pdf.
    (i) Before filing your request, you may find it helpful to consult 
the HHS FOIA Requester Service Centers online at http://www.hhs.gov/foia/contacts/index.html, which provides additional guidance to assist 
in submitting a FOIA request to a specific OpDiv or StaffDiv or to 
regional offices or divisions within an OpDiv or StaffDiv. You may also 
wish to check in the agency's electronic FOIA libraries available 
online at http://www.hhs.gov/foia/reading/index.html, to see if the 
information you wish to obtain is already available.


Sec.  5.23  Where do I send my FOIA request?

    We have several FOIA Requester Service Centers (FOIA offices) that 
process FOIA requests. You should send your FOIA request to the 
appropriate FOIA Requester Service Center that you believe would have 
the records you seek. An up-to-date listing is maintained online at 
http://www.hhs.gov/foia/contacts/index.html. You also may submit your 
request electronically by emailing it to the appropriate FOIA Requester 
Service Center or by submitting it to the Department's web portal 
located at https://requests.publiclink.hhs.gov/palMain.aspx.
    (a) If you are requesting research data made available under the 
provisions of 45 CFR 75.322(e), requests for such data should be 
addressed to the OpDiv that made the award under which the data were 
first produced. That OpDiv will process your request in accordance with 
established procedures consistent with the FOIA and 45 CFR 75.322(e).
    (b) We officially receive your request when it reaches the FOIA 
Requester Service Center with responsibility for the OpDiv or StaffDiv 
where requested records are likely to be located, but no later than 10 
working days after the request first arrives at any of our FOIA 
Requester Service Centers.
    (c) If you have questions concerning the processing of your FOIA 
request, you may contact the FOIA Requester Service Center processing 
your request. If that initial contact does not resolve your concerns, 
you may wish to contact the designated FOIA Public Liaison for the 
OpDiv or StaffDiv processing your request. You can find a list of our 
FOIA Requester Service Centers and Public Liaisons at http://www.hhs.gov/foia/contacts/index.html.


Sec.  5.24  How does HHS process my FOIA request?

    (a) Acknowledgement. We acknowledge all FOIA requests in writing 
within 10 working days after receipt by the appropriate office. The 
acknowledgement letter or email informs you of your request tracking 
number, provides contact information, and informs you of any complexity 
we are aware of in processing that may lengthen the time required to 
reach a final decision on the release of the records. In addition, the 
acknowledgement letter or email or a subsequent communication may also 
seek additional information to clarify your request.
    (b) Perfected requests. (1) A request is considered to be perfected 
(i.e., the 20 working day statutory response time begins to run) when--
    (i) The request either has been received by the responsible FOIA 
office, or, in any event, not later than 10 working days after the 
request has been received by any HHS FOIA office;
    (ii) The requested records are reasonably described; and
    (iii) The request contains sufficient information to enable the 
FOIA office to contact you and transmit records to you.
    (2) We provide at least 20 working days for you to respond to a 
request to perfect your request, after notification. Requests must 
reasonably describe the records sought and contain sufficient 
information to enable the FOIA office to contact you and transmit 
records to you. If we determine that a request does not meet these 
requirements, we will attempt to contact you if possible. Should you 
not answer any correspondence, or should the correspondence be returned 
as undeliverable, we reserve the right to administratively close the 
FOIA request.
    (c) Stops in processing time (tolling). We may stop the processing 
of your request one time if we require additional information regarding 
the specifics of the request. The processing time resumes upon our 
receipt of your response. We also may stop the processing of your 
request if we require clarification regarding fee assessments. If 
additional information or clarification is required, we will attempt to 
contact you using the contact information you have provided. The 
processing time will resume upon our receipt of your response. We will 
provide at least 20 working days after notification for you to respond 
to a request for additional information or clarification regarding the 
specifics of your request or fee assessment. Should you not answer any 
correspondence, or should the correspondence be returned as 
undeliverable, we may administratively close the FOIA request.
    (d) Search cut-off date. As the end or cut-off date for a records 
search, we use the date on which we first begin our search for 
documents responsive to your request, unless you specify an earlier 
cut-off date, or a specific date range for the records search. We will 
use the date of the first search in those cases when you request 
records ``through the present,'' ``through today,'' or similar 
language. The FOIA allows you to request existing agency records. The 
FOIA cannot be used to request records which the agency may create in 
the future in the course of carrying out its mission.
    (e) Processing queues. We place FOIA requests in simple or complex 
processing queues to be processed in the order received, on a first-in, 
first-out basis, absent approval for expedited processing based upon a 
compelling need, as further explained and defined in Sec.  5.27. We 
will place your request in the simple or complex processing queue based 
on the estimated amount of work or time needed to process the request. 
Among the factors we may consider are the number of records requested, 
the number of pages involved in processing the request, and the need 
for consultations or referrals. We will advise requesters of potential 
complicating factors in our

[[Page 74944]]

acknowledgement letter or email, or in subsequent communications 
regarding your request and, when appropriate, we will offer requesters 
an opportunity to narrow or modify their request so that it can be 
placed in the simple processing track.
    (f) Unusual Circumstances. Whenever we cannot meet the statutory 
time limit for processing a request because of ``unusual 
circumstances,'' as defined in the FOIA, and we extend the time limit 
on that basis, we will notify you, before expiration of the 20-day 
period to respond and in writing of the unusual circumstances involved 
and of the date by which we estimate processing of the request will be 
completed. Where the extension exceeds 10 working days, we will provide 
you, as described by the FOIA, with an opportunity to modify the 
request or arrange an alternative time period for processing the 
original or modified request. We will make available a designated FOIA 
contact in the appropriate FOIA Requester Service Center or the 
appropriate FOIA Public Liaison for this purpose. In addition, we will 
inform you of the right to seek dispute resolution services from the 
Office of Government Information Services (OGIS).
    (g) Aggregating requests. For the purposes of satisfying unusual 
circumstances, we 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, 
involving clearly related matters, that would otherwise involve unusual 
circumstances. In the event that requests are aggregated, they will be 
treated as one request for the purposes of calculating both response 
time and fees.


Sec.  5.25  How does HHS handle requests that involve more than one 
OpDiv, StaffDiv, or Federal agency?

    (a) Re-routing of misdirected requests. When a FOIA Requester 
Service Center determines that a request was misdirected within HHS, 
the receiving FOIA Requester Service Center must route the request to 
the FOIA Requester Service Center of the proper OpDiv or StaffDiv 
within HHS.
    (b) Consultation, referral, and coordination. When reviewing 
records located by an OpDiv or StaffDiv in response to a request, the 
OpDiv or StaffDiv will determine whether another agency of the Federal 
Government is better able to determine whether the record is exempt 
from disclosure under the FOIA. As to any such record, the OpDiv or 
StaffDiv must proceed in one of the following ways:
    (1) Consultation. When records originated with an OpDiv or StaffDiv 
processing the request, but contain within them information of interest 
to another OpDiv, StaffDiv, agency or other Federal Government office, 
the OpDiv or StaffDiv processing the request should typically consult 
with that other entity prior to making a release determination.
    (2) Referral. (i) When the OpDiv or StaffDiv processing the request 
believes that a different OpDiv, StaffDiv, or agency is best able to 
determine whether to disclose the record, the OpDiv or StaffDiv 
typically should refer the responsibility for responding to the request 
regarding that record to that other entity. Ordinarily, the entity that 
originated the record is presumed to be the best entity to make the 
disclosure determination. However, if the OpDiv or StaffDiv processing 
the request and the originating entity jointly agree that the OpDiv or 
StaffDiv processing the request is in the best position to respond 
regarding the record, then the record may be handled as a consultation.
    (ii) Whenever an OpDiv or StaffDiv refers any part of the 
responsibility for responding to a request to another OpDiv, StaffDiv, 
or federal agency, it must document the referral, maintain a copy of 
the record that it refers, and notify the requester of the referral; 
informing the requester of the name(s) of the entity to which the 
record was referred, including that entity's FOIA contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the OpDiv, StaffDiv, or 
federal 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. In such 
instances, in order to avoid harm to an interest protected by an 
applicable exemption, the OpDiv or StaffDiv that received the request 
should coordinate with the originating entity 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 OpDiv or StaffDiv that originally received the 
request.
    (c) Classified information. On receipt of any request involving 
classified information, the OpDiv or StaffDiv must determine whether 
the information is currently and properly classified in accordance with 
applicable classification rules. Whenever a request involves a record 
containing information that has been classified or may be appropriate 
for classification by another agency under any applicable executive 
order concerning the classification of records, the OpDiv or StaffDiv 
must refer the responsibility for responding to the request regarding 
that information to the agency that classified the information, or 
which should consider the information for classification. Whenever an 
OpDiv's or StaffDiv's record contains information that has been 
derivatively classified (for example, when it contains information 
classified by another agency), the OpDiv or StaffDiv must refer the 
responsibility for responding to that portion of the request to the 
agency that classified the underlying information.
    (d) Timing of responses to consultations and referrals. All 
consultations and referrals received by the Department will be handled 
according to the date that the FOIA request initially was received by 
the first OpDiv, StaffDiv, or federal agency.
    (e) Agreements regarding consultations and referrals. OpDivs or 
StaffDivs may establish agreements with other OpDivs, StaffDivs, or 
federal agencies to eliminate the need for consultations or referrals 
with respect to particular types of records.


Sec.  5.26  How does HHS determine estimated completion dates for FOIA 
requests?

    (a) When we provide an estimated completion date, in accordance 
with Sec.  5.24(f) and upon request, for the processing of records that 
do not require consultation with another agency, we estimate the 
completion date on the basis of our reasonable judgment as to how long 
it will take to complete the request. Given the uncertainty inherent in 
establishing any estimate, the estimated completion date is subject to 
change at any time.
    (b) When we provide an estimated completion date, in accordance 
with Sec.  5.24(f) and upon request, for records that must be reviewed 
by another agency, our estimate may also be based on information from 
the other agency.


Sec.  5.27  How do I request expedited processing?

    (a) To request expedited processing, you must submit a statement, 
certified to be true and correct, explaining the basis for your need 
for expedited processing. You must send the request to the appropriate 
FOIA Officer at the address listed at http://www.hhs.gov/foia/contacts/index.html. You may request expedited processing when you first request 
records or at any time during our processing of your request or appeal.
    (b) We process requests on an expedited basis whenever we determine

[[Page 74945]]

that one or more of the following criteria exist:
    (1) That a failure to obtain requested records on an expedited 
basis could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or
    (2) There is an urgent need to inform the public about an actual or 
alleged Federal Government activity (this criterion applies only to 
those requests made by a person primarily engaged in disseminating 
information to the public).
    (c) We will respond to your request for expedited processing within 
10 calendar days of our receipt of your request to expedite. If we 
grant your request, the OpDiv or StaffDiv responsible for the review of 
the requested records will process your request as a priority, and it 
will be processed as soon as practicable. We will inform you if we deny 
your request for expedited processing and provide you with appeal 
rights. If you decide to appeal that denial, we will expedite our 
review of your appeal.
    (d) If we must refer records to another agency, we will inform you 
and suggest that you seek expedited review from that agency.


Sec.  5.28  How does HHS respond to my request?

    (a) The appropriate FOIA Officer will send you a response informing 
you of our release determination, including whether any responsive 
records were located, how much responsive material was located, whether 
the records are being released in full or withheld in full or in part, 
any fees you must pay for processing of the request, and your right to 
seek assistance from the appropriate FOIA Public Liaison.
    (b) If we deny any part of your request, our response will explain 
the reasons for the denial, which FOIA exemptions apply to the withheld 
records, your right to appeal that determination, and your right to 
seek dispute resolution services from the appropriate FOIA Public 
Liaison or the Office of Government Information Services (OGIS). We 
will advise you of the number of pages withheld or the estimated volume 
of withheld records, unless providing such information would harm an 
interest protected by an applicable FOIA exemption.
    (c) Records may be withheld in full or in part if any of the nine 
FOIA exemptions apply. If we determine to withhold part of a record 
pursuant to an exemption, we will provide access to reasonably 
segregable non-exempt information contained in the record. On the 
released portion of the record, we indicate where the information has 
been redacted and the exemption(s) we applied, unless including that 
indication would harm an interest the exemption protects. In Subpart C 
of this part, we list the exemptions to disclosure that may apply to 
agency records.
    (d) We also may deny your request for other reasons, including that 
a request does not reasonably describe the records sought; the 
information requested is not a record subject to the FOIA; the 
requested records do not exist, cannot be located, or have been 
destroyed; or that the requested records are not readily reproducible 
in the form or format requested.
    (e) If a request involves a voluminous amount of material or 
searches in multiple locations, we may provide you with interim 
responses if feasible and reasonably possible, releasing the records on 
a rolling basis.
    (f) Copies of records in the format you request will be provided if 
the records already exist in that format or if they are reasonably and 
readily reproducible in the format you request.


Sec.  5.29  How may I request assistance with the FOIA process?

    (a) If you have questions concerning the processing of your FOIA 
request, you should first contact the FOIA Requester Service Center 
processing your request. Additionally, for assistance at any point in 
the FOIA process, you may contact the FOIA Public Liaison at the FOIA 
Requester Service Center processing your request. The FOIA Public 
Liaison is responsible for assisting you to reduce delays, increasing 
transparency and understanding of the status of requests, and assisting 
to resolve any FOIA disputes. Some FOIA Requester Service Centers allow 
you to check the status of your request online. You can find a list of 
our FOIA Requester Service Centers and Public Liaisons at http://www.hhs.gov/foia/contacts/index.html.
    (b) The Office of Government Information Services (OGIS), which is 
part of the National Archives and Records Administration, serves as the 
Federal FOIA ombudsman and assists requesters and agencies to prevent 
and resolve FOIA disputes through mediation. Mediation is a voluntary 
process. If we participate in the dispute resolution services provided 
by OGIS, we will actively engage as a partner to the process in an 
attempt to resolve the dispute and will follow the principles of 
confidentiality in accordance with the Administrative Dispute 
Resolution Act, 5 U.S.C. 571-8. You may contact OGIS at the following 
address: National Archives and Records Administration, Office of 
Government Information Services, 8601 Adelphi Road--OGIS, College Park, 
MD 20740-6001, or by email at ogis@nara.gov, or by telephone at 202-
741-5770 or 1-877-684-6448 (toll free).

Subpart C--Exemptions to Disclosure


Sec.  5.31  What are the reasons records may be withheld?

    While we are committed to providing public access to as many of our 
records as possible, there are instances in which information falls 
within one or more of the FOIA's nine exemptions and disclosure would 
either foreseeably harm an interest protected by a FOIA exemption or 
disclosure is prohibited by law. We review all records and weigh and 
assess all legal and policy requirements prior to making a final 
disclosure determination. A description of the nine FOIA exemptions is 
provided in paragraphs (a) through (i) of this section.
    (a) Exemption 1. Exemption 1 protects from disclosure information 
specifically authorized under criteria established by an Executive 
order to be kept secret in the interest of national defense or foreign 
policy and are in fact properly classified pursuant to such Executive 
order.
    (b) Exemption 2. Exemption 2 authorizes our agency to withhold 
records that are related solely to the internal personnel rules and 
practices of an agency.
    (c) Exemption 3. Exemption 3 authorizes our agency to withhold 
records which are specifically exempted from disclosure by statute 
(other than 5 U.S.C. 552(b)) provided that such statute requires that 
the matters be withheld from the public in such a manner as to leave no 
discretion on the issue; or establishes particular criteria for 
withholding or refers to particular types of matters to be withheld; 
and if enacted after the date of enactment of the OPEN FOIA Act of 
2009, October 28, 2009, specifically cites to 5 U.S.C. 552(b)(3).
    (d) Exemption 4. Exemption 4 authorizes our agency to withhold 
trade secrets and commercial or financial information obtained from a 
person and privileged or confidential.
    (e) Exemption 5. Exemption 5 authorizes our agency to withhold 
inter-agency or intra agency memorandums or letters that would not be 
available by law to a party other than an agency in litigation with the 
agency, provided that the deliberative process privilege shall not 
apply to records created 25 years or more before the date on which the 
records were requested.

[[Page 74946]]

    (f) Exemption 6. Exemption 6 authorizes our agency to protect 
information in personnel and medical files and similar files when the 
disclosure of such information would constitute a clearly unwarranted 
invasion of personal privacy.
    (g) Exemption 7. Exemption 7 authorizes our agency to withhold 
records or information compiled for law enforcement purposes, but only 
to the extent that the production of such law enforcement records or 
information would cause the following harm(s):
    (1) Could reasonably be expected to interfere with enforcement 
proceedings;
    (2) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (3) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (4) 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 lawful national 
security intelligence investigation, information furnished by a 
confidential source;
    (5) 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
    (6) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (h) Exemption 8. Exemption 8 authorizes our agency to withhold 
records that are 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.
    (i) Exemption 9. Exemption 9 authorizes our agency to withhold 
geological and geophysical information and data, including maps, 
concerning wells.


Sec.  5.32  Records not subject to the requirements of the FOIA--law 
enforcement exclusions.

    Under the FOIA, there is special protection for narrow categories 
of law enforcement and national security records. The provisions 
protecting those records are known as ``exclusions'' and are described 
in 5 U.S.C. 552(c). These exclusions expressly authorize Federal law 
enforcement agencies, under these exceptional circumstances, to treat 
the records as not subject to the requirements of the FOIA.
    (a) Should an HHS OpDiv or StaffDiv maintain records which are 
subject to a FOIA exclusion, and consider employing an exclusion or 
have a question as to the implementation of an exclusion, the OpDiv or 
StaffDiv will consult with the Office of Information Policy, U.S. 
Department of Justice.
    (b) Because records falling within an exclusion are not subject to 
the requirements of the FOIA, should any HHS OpDiv or StaffDiv maintain 
such excluded records, the OpDiv or StaffDiv will limit its response to 
those records that are subject to the FOIA.

Subpart D--Confidential Commercial Information


Sec.  5.41  How does a submitter identify records containing 
confidential commercial information?

    A person who submits records to the government may designate part 
or all of the information in such records that they may consider to be 
exempt from disclosure under Exemption 4 of the FOIA. The person may 
make this designation either at the time the records are submitted to 
the government or within a reasonable time thereafter. The designation 
must be in writing. Any such designation will expire 10 years after the 
records were submitted to the government.


Sec.  5.42  How does HHS process FOIA requests for confidential 
commercial information?

    (a) Predisclosure notification. The procedures in this section 
apply to records on which the submitter has designated information as 
provided in Sec.  5.41. They also apply to records that were submitted 
to the government where we have substantial reason to believe that 
information in the records could reasonably be considered exempt under 
Exemption 4. Certain exceptions to these procedures are stated in 
paragraph (b) of this section.
    (1) When we receive a request for such records, and we determine 
that we may be required to disclose them, we will make reasonable 
efforts to notify the submitter about these facts. The notice will 
include a copy of the request, and it will inform the submitter about 
the procedures and time limits for submission and consideration of 
objections to disclosure. If we must notify a large number of 
submitters, we may do this by posting or publishing a notice in a place 
where the submitters are reasonably likely to become aware of it.
    (2) The submitter has 10 working days from the date of the notice 
to object to disclosure of any part of the records and to state all 
bases for its objections. FOIA Offices in HHS and its organizational 
components may extend this period as appropriate and necessary.
    (3) We review and consider all objections to release that we 
receive within the time limit. If a submitter fails to respond within 
the time period specified in the notice, we will consider the submitter 
to have no objection to disclosure of the information. If we decide to 
release the records, we inform the submitter in writing, along with our 
reasons for the decision to release. We include with the notice a 
description of the information to be disclosed or copies of the records 
as we intend to release them. We also provide the submitter with a 
specific date that we intend to disclose the records, which must be at 
least 5 working days after the date of the notice. We do not consider 
any information we receive after the date of a disclosure decision.
    (4) If the requester files a lawsuit under the FOIA for access to 
records submitted to HHS, we promptly notify the submitter.
    (5) We will notify the requester in these circumstances:
    (i) When we notify a submitter that we may be required to disclose 
information under the FOIA, we will also notify the requester that 
notice and opportunity to comment are being provided to the submitter;
    (ii) When the agency notifies a submitter of a final disclosure 
decision under the FOIA,
    and;
    (iii) When a submitter files a lawsuit to prevent the disclosure of 
the information.
    (b) Exceptions to predisclosure notification. The notice 
requirements in paragraph
    (a) of this section do not apply in the following situations:
    (1) We determine that we should withhold the information under a 
FOIA exemption;
    (2) The information has been lawfully published or made available 
to the public
    (3) We are required by a statute (other than the FOIA), or by a 
regulation issued in accordance with the requirements of Executive 
Order 12600, to disclose the information; or
    (4) The designation made by the submitter appears obviously 
frivolous. However, in such a case, the agency must provide the 
submitter with written notice of any final disclosure determination and 
intent to release, at least 5 working days prior to the

[[Page 74947]]

specified disclosure date. We will notify the submitter as referenced 
in Sec.  5.42(a)(3).

Subpart E--Fees


Sec.  5.51  General information on fees for all FOIA requests.

    (a) We generally assume that when you request records you are 
willing to pay the fees we charge for services associated with your 
request. You may specify a limit on the amount you are willing to 
spend. We will notify you if it appears that the fees will exceed 
$25.00 or your specified limit and ask whether you nevertheless want us 
to proceed with the search.
    (b) If you have failed to pay FOIA fees in the past, we will 
require you to pay your past due bill and we may also require you to 
pay the anticipated fee before we begin processing your current 
request. If we estimate that your fees may be greater than $250.00, we 
also may require advance payment or a deposit before we begin 
processing your request. If you fail to make an advance payment within 
20 working days after the date of our fee letter, we will close the 
request.
    (c) We may charge interest on unpaid bills beginning on the 31st 
calendar day following the day the FOIA fee invoice was sent. We may 
assess interest, administrative costs, and penalties for overdue FOIA 
fee costs.
    (d) If we determine that you (either acting alone or with a group 
of requesters) are breaking down a single request into a series of 
requests in order to avoid or reduce fees, we may aggregate all of 
these requests when calculating the fees. In aggregating requests, we 
may consider the subject matter of the requests and whether the 
requests were filed close in time to one another.
    (e) If, in the course of negotiating fees, you do not respond to 
the agency within 20 working days of our last communication, your 
request will be closed.
    (f) We may stop the processing of your request, if necessary, to 
clarify fee issues with you, and to confirm your willingness to pay 
applicable fees. Fee related issues may arise sequentially over the 
course of processing a request, and the FOIA allows agencies to stop 
the processing time as many times as necessary in order to clarify 
issues regarding fee assessment and willingness to pay fees.
    (g) We may charge search fees even if the records are exempt from 
disclosure, or if we do not find any responsive records during our 
search.
    (h) We do not send an invoice to requesters if assessable 
processing fees are less than $25.00.


Sec.  5.52  What is the FOIA fee schedule for obtaining records?

    In responding to FOIA requests for records, we charge the following 
fees, where applicable, unless we have given you a reduction or waiver 
of fees. The fees we charge for search and review are three-tiered, and 
the hourly charge is determined by the classification and grade level 
of the employee performing the search or review. When the search or 
review is performed by employees at grade GS-1 through GS-8 (or 
equivalent), an hourly rate will be charged based on the salary of a 
GS-5, step 7, employee; when done by a GS-9 through GS-14 (or 
equivalent), an hourly rate will be charged based on the salary of a 
GS-12, step 4,employee; and when done by a GS-15 or above (or 
equivalent), an hourly rate will be charged based on the salary of a 
GS-15, step 7, employee. In each case, the hourly rate will be computed 
by taking the current hourly rate listed for the specified grade and 
step in the General Schedule Locality Pay Table for the Locality of 
Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA, adding 16% of 
that rate to cover benefits, and rounding to the nearest whole dollar.
    (a) Search fees--(1) Manual searches. Fees will be assessed to 
search agency files and records in both hardcopy and electronic format. 
Such fees will be at the rate or rates for the classification of the 
employee(s) performing the search, as established in this section.
    (2) Computer searches. We base the fees for computer searches on 
the actual cost to our agency of operating the computer and the salary 
of the operator.
    (b) Review fees. (1) We charge review fees for time we spend 
examining documents that are responsive to a request to determine 
whether we must apply any FOIA exemptions to withhold information. 
Review time includes processing any record for disclosure (i.e., doing 
all that is necessary to prepare the record for disclosure), including 
redacting the record and marking the appropriate FOIA exemptions. We 
charge review fees even if we ultimately are unable to disclose a 
record.
    (2) We do not charge review fees for time we spend resolving 
general legal or policy issues regarding the application of exemptions. 
However, we do charge review fees for time we spend obtaining and 
considering any formal objection to disclosure made by a confidential 
commercial information submitter.
    (c) Duplication fees--(1) Photocopying standard-sized pages. The 
current charge for photocopying records is $0.10 per page.
    (2) Reproduction of electronic records. We will attempt to provide 
records in the format you sought, if the records are reasonably and 
readily reproducible in the requested format. We charge you for our 
direct costs for staff time and to organize, convert, and format data 
for release, per requester instructions, and for printouts or 
electronic media necessary to reproduce electronic records requested 
under the FOIA.
    (3) Copying other media. We will charge you the direct cost of 
copying other media.
    (d) Mailing and special delivery fees. We release records by United 
States Postal Service or, when appropriate, by electronic means, such 
as electronic mail or web portal. If a requester seeks special 
delivery, such as overnight shipping, we reserve the right to pass on 
the actual costs of special delivery to the requester. Requesters may 
provide their mailing account and billing information to the agency, so 
that they may pay directly for special delivery options.
    (e) Certification of records. The FOIA does not require agencies to 
certify records as true copies. We may elect, as a matter of 
administrative discretion, to certify records upon request; however, 
such a request must be submitted in writing. Further, we will only 
certify as true copies records that have not left the agency's chain of 
custody. The charge for certification is $25.00 per record certified.
    (f) 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 OpDiv or StaffDiv 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 OpDiv or StaffDiv must inform the requester of 
the contact information for that program.


Sec.  5.53  How does HHS calculate FOIA fees for different categories 
of requesters?

    (a) If you are a commercial use requester, we charge you fees for 
searching, reviewing, and duplicating responsive records.
    (b) If you are an educational or noncommercial scientific 
institution requester, or a member of the news media, you are entitled 
to search time, review time, and up to 100 pages of duplication (or the 
cost equivalent for other media) without charge. We charge

[[Page 74948]]

duplication fees after the first 100 pages (or its cost equivalent).
    (c) If you do not fall into either of the categories in paragraphs 
(a) and (b) of this section (i.e. you are an ``other requester''), you 
are entitled to two hours of free search time, up to 100 pages of 
duplication (or the cost equivalent of other media) without charge, and 
you will not be charged for review time. We may charge for search time 
beyond the first two hours and for duplication beyond the first 100 
pages (or its cost equivalent).
    (d)(1) If we fail to comply with the FOIA's time limits in which to 
respond to a request, we may not charge search fees, or, in the 
instances of the requester categories referenced in paragraph (b) of 
this section, may not charge duplication fees, except as described in 
(d)(2)-(4).
    (2) If we have determined that unusual circumstances as defined by 
the FOIA apply and we 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.
    (3) If we have determined that unusual circumstances, as defined by 
the FOIA, apply and more than 5,000 pages are necessary to respond to 
the request, we may charge search fees, or, in the instances of 
requests from requesters described in paragraph (b) of this section, 
may charge duplication fees if the following steps are taken: we must 
have provided timely written notice to the requester in accordance with 
the FOIA and 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, we may charge all applicable fees incurred in 
the processing of the request.
    (4) 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.


Sec.  5.54  How may I request a fee waiver?

    (a) Requesters may seek a waiver of fees by submitting a written 
application demonstrating how disclosure of the requested information 
is in the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities 
of the government and is not primarily in the commercial interest of 
the requester.
    (b) We must furnish records responsive to a request without charge 
or at a reduced rate when we determine, based on all available 
information, that the following three factors are satisfied:
    (1) Disclosure of the requested information would shed light on the 
operations or activities of the government. 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.
    (2) Disclosure of the requested information would be likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (i) Disclosure of the requested records must be meaningfully 
informative about government 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 be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (ii) 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 the requester's ability and 
intention to effectively convey information to the public must be 
considered. We will presume that a representative of the news media 
will satisfy this consideration.
    (3) The disclosure must not be primarily in the commercial interest 
of the requester. To determine whether disclosure of the requested 
information is primarily in the commercial interest of the requester, 
we will consider the following criteria:
    (i) We will identify whether the requester has any commercial 
interest that would be furthered by the requested disclosure. A 
commercial interest includes any commercial, trade, or profit interest. 
Requesters will be given an opportunity to provide explanatory 
information regarding this consideration.
    (ii) If there is an identified commercial interest, we will 
determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (b)(1) and (2) of this section are satisfied 
and any commercial interest is not the primary interest furthered by 
the request. We ordinarily will presume that when a news media 
requester has satisfied factors (b)(1) and (2) of this section, the 
request is not primarily in the commercial interest of the requester. 
Disclosure to data brokers or others who merely compile and market 
government information for direct economic return will not be presumed 
to primarily serve the public interest.
    (c) You should ask for waiver or reduction of fees when you first 
submit your request to HHS, and should address the criteria referenced 
in this section.

Subpart F--Appeals


Sec.  5.61  When may I appeal HHS's FOIA determination?

    In order to fully exhaust all of your administrative remedies, you 
must file an appeal of an adverse agency determination in writing, and 
to be considered timely it must be postmarked, or in the case of 
electronic submissions, transmitted within 90 calendar days from the 
date of such determination. Any electronic transmission made after 
normal business hours will be considered to have been transmitted on 
the next calendar day. If a postmark is not legible, the timeliness of 
a submission will be based on the date that we receive the appeal. 
Adverse determinations include:
    (a) Refusal to release a record, either in whole or in part;
    (b) Determination that a record does not exist or cannot be found;
    (c) Determination that a request does not reasonably describe the 
records sought;
    (d) Determination that the record you sought was not subject to the 
FOIA;
    (e) Denial of a request for expedited processing;
    (f) Denial of a fee waiver request; or
    (g) Fee category determination.


Sec.  5.62  How do I file an appeal?

    (a) You have the right to appeal an adverse agency determination of 
your FOIA request.
    (b) You may submit your appeal via mail or electronically.
    (1) Please send your appeal to the review official at the address 
provided in your denial letter. If you are unsure who is the 
appropriate review official, please contact the FOIA Requester Service 
Center that processed your request to obtain that information.
    (2) The addresses to mail FOIA appeals for CMS and OS are, 
respectively: Centers for Medicare & Medicaid Services, Attn: Principal 
Deputy Administrator, Room C5-16- 03, 7500 Security Boulevard, 
Baltimore, MD 21244; and U.S. Department of Health and Human Services, 
Deputy Agency Chief FOIA Officer, Office of the Assistant Secretary for 
Public Affairs, Room 729H, 200 Independence Avenue SW., Washington, DC 
20201.

[[Page 74949]]

Additionally, information, including how to submit a FOIA appeal 
electronically, can be found at the following online locations for CMS 
and OS: https://www.cms.gov/Regulations-and-Guidance/Legislation/FOIA/filehow.html and https://requests.publiclink.hhs.gov/palMain.aspx.
    (3) When submitting an appeal, you should mark both your letter and 
envelope with the words ``FOIA Appeal'' or include the words ``FOIA 
Appeal'' in the subject line of your email. You should also include 
your FOIA request tracking number, a copy of your initial request, and 
a copy of our final determination letter.
    (c) Your appeal should clearly identify the agency determination 
that is being appealed. It would be helpful if you provide specific 
reasons explaining why you believe the agency's adverse determination 
should be reconsidered.


Sec.  5.63  How does HHS process appeals?

    (a) We respond to your appeal within 20 working days after the 
appeal official designated in your appeal letter receives it. If, 
however, your appeal is based on a denial of a request for expedited 
processing, we will act on your appeal of that decision expeditiously. 
Before making a decision on an appeal of an adverse determination, the 
designated review official will consult with the Office of the General 
Counsel. Also, the concurrence of the Office of the Assistant Secretary 
for Public Affairs is required in all appeal decisions, including those 
on fees. When the review official responds to an appeal, that 
constitutes the Department's final action on the request.
    (b) If we reverse or modify the initial decision, we will inform 
you in writing and, if applicable, reprocess your request. If we do not 
change our initial decision, we will respond in writing to you, explain 
the reasons for the decision, set out any FOIA exemptions that apply, 
and inform you of the provisions for judicial review. If a requester 
files a FOIA lawsuit in reference to an appeal, we will cease 
processing the appeal.


Sec.  5.64  What avenues are available to me if I disagree with HHS's 
appeal decision?

    (a) In our response letter, we notify you of your right to seek 
judicial review of an adverse determination as set forth in the FOIA at 
5 U.S.C. 552(a)(4)(B). Before seeking review by a court of an adverse 
determination, you generally must first submit a timely administrative 
appeal.
    (b) We also inform you that the Office of Government Information 
Services (OGIS) offers mediation services to resolve disputes between 
FOIA requesters and Federal agencies as a non-exclusive alternative to 
litigation. As referenced in Sec.  5.29(b) you may contact OGIS via 
mail, email, or telephone for assistance.

Subpart G--Records Retention


Sec.  5.71  How does HHS retain FOIA records?

    We will preserve records created in administering the Department's 
Freedom of Information program until disposition is authorized under an 
applicable General Records Schedule or other records schedule duly 
approved by the Archivist of the United States.

    Dated: June 7, 2016.
Sylvia M. Burwell,
Secretary, Department of Health and Human Services.

    Note:  This document was received for publication by the Office 
of the Federal Register on October 19, 2016.
[FR Doc. 2016-25684 Filed 10-27-16; 8:45 am]
 BILLING CODE 4150-25-P



                                           74930             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations

                                            TABLE 1 TO PARAGRAPH (a)—EPA-APPROVED KENTUCKY SDWA § 1425 UNDERGROUND INJECTION CONTROL PROGRAM
                                                                    STATUTES AND REGULATIONS FOR CLASS II WELLS—Continued
                                                 State citation                                Title/subject                            State effective date                      EPA approval date 1

                                           805 Kentucky Adminis-         Well location and as-drilled location plat, prepa-          October 23, 2009 .........        [Insert Federal Register citation].
                                             trative Regulations          ration, form and contents.
                                             1:030.
                                           805 Kentucky Adminis-         Plugging wells; non-coal-bearing strata .............       June 11, 1975 ..............      [Insert Federal Register citation].
                                             trative Regulations
                                             1:060.
                                           805 Administrative Reg-       Plugging wells; coal bearing strata ....................    October 23, 1975 .........        [Insert Federal Register citation].
                                             ulations 1:070.
                                           805 Kentucky Adminis-         Underground Injection Control ...........................   April 4, 2008 .................   [Insert Federal Register citation].
                                             trative Regulations
                                             1:110.
                                             1 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register document cited in this
                                           column for the particular provision.


                                              (b) Memorandum of Agreement                             (1) The following eight aquifers                          mile radius areal extent (125.6 acres)
                                           (MOA). The MOA between EPA Region                       (underground sources of drinking water)                      that is located at latitude 37.5778 and
                                           4 and the Commonwealth of Kentucky                      in the Commonwealth of Kentucky have                         longitude ¥87.1379. The formation has
                                           Department of Natural Resources signed                  been exempted in accordance with the                         a true vertical depth from surface of
                                           by EPA Regional Administrator on                        provisions of §§ 144.7(b) and 146.4 of                       1,080 feet.
                                           October 20, 2015.                                       this chapter for Class II injection                             (8) A portion of the Caseyville
                                              (c) Statements of Legal Authority.                   activities only: A portion of the Tar                        sandstone formation that has a quarter
                                           ‘‘Underground Injection Control                         Springs sandstone formation that has a                       mile radius areal extent (125.6 acres)
                                           Program, Attorney General’s                             quarter mile radius areal extent (125.6                      that is located at latitude 37.5652 and
                                           Statement,’’ signed by General Counsel                  acres) that is located at latitude 37.7261                   longitude ¥87.1222. The formation has
                                           of Kentucky Energy and Environmental                    and longitude ¥86.6914. The formation                        a true vertical depth from surface of
                                           Cabinet on June 7, 2010.                                has a true vertical depth from surface of                    1,060 feet.
                                              (d) Program Description. The Program                 280 feet.                                                       (b) [Reserved]
                                           Description submitted as part of                           (2) A portion of the Tar Springs                          ■ 5. Section 147.903 is amended by
                                           Kentucky’s application, and any other                   sandstone formation that has a quarter                       revising the section heading to read as
                                           materials submitted as part of this                     mile radius areal extent (125.6 acres)                       follows:
                                           application or as a supplement thereto.                 that is located at latitude 37.7294 and
                                                                                                   longitude ¥867212. The formation has                         § 147.903. Existing Class I and III wells
                                           ■ 3. Section 147.901 is amended by                                                                                   authorized by rule.
                                                                                                   a true vertical depth from surface of 249
                                           revising the section heading and the                    feet.
                                           first sentence of paragraph (a) to read as                                                                           § 147.904     [Removed and reserved]
                                                                                                      (3) A portion of the Tar Springs
                                           follows:                                                sandstone formation that has a quarter                       ■ 6. Section 147.904 is removed and
                                                                                                   mile radius areal extent (125.6 acres)                       reserved.
                                           § 147.901 EPA-administered program—
                                           Class I, III, IV, V, and VI wells and Indian            that is located at latitude 37.7055 and                      [FR Doc. 2016–25931 Filed 10–27–16; 8:45 am]
                                           lands.                                                  longitude ¥86.7177. The formation has                        BILLING CODE 6560–50–P

                                             (a) Contents. The UIC program for                     a true vertical depth from surface of 210
                                           Class I, III, IV, V and VI wells and all                feet.
                                           wells on Indian lands in the                               (4) A portion of the Pennsylvanian                        DEPARTMENT OF HEALTH AND
                                           Commonwealth of Kentucky is                             Age sandstone formation that has a                           HUMAN SERVICES
                                           administered by the EPA. * * *                          quarter mile radius areal extent (125.6
                                                                                                   acres) that is located at latitude 37.5402                   Office of the Secretary
                                           *     *       *     *    *                              and longitude ¥87.2551. The formation
                                           ■ 4. Add § 147.902 to read as follows:                  has a true vertical depth from surface of                    45 CFR Part 5
                                                                                                   1,050 feet.
                                           § 147.902   Aquifer Exemptions.                                                                                      RIN 0991–AC04
                                                                                                      (5) A portion of the Tar Springs
                                              (a) This section identifies any aquifers             sandstone formation that has a quarter
                                           or their portions exempted in                                                                                        Freedom of Information Regulations
                                                                                                   mile radius areal extent (125.6 acres)
                                           accordance with §§ 144.7(b) and 146.4                   that is located at latitude 37.7301 and                      AGENCY:  Office of the Secretary,
                                           of this chapter. These aquifers are not                 longitude ¥87.6922. The formation has                        Department of Health and Human
                                           being proposed for exemption under the                  a true vertical depth from surface of 240                    Services (HHS).
                                           Commonwealth of Kentucky’s primacy                      feet.                                                        ACTION: Final rule.
                                           approval. Rather, the exempted aquifers                    (6) A portion of the Caseyville
                                           listed below were previously approved                   sandstone formation that has a quarter                       SUMMARY:  This rule amends the
                                           while EPA had primary enforcement                       mile radius areal extent (125.6 acres)                       Department of Health and Human
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                                           authority for the Class II UIC program in               that is located at latitude 37.5776 and                      Services (HHS’s) Freedom of
                                           the Commonwealth of Kentucky and are                    longitude ¥87.1321. The formation had                        Information Act (FOIA) regulations. The
                                           included here for reference. Additional                 a true vertical depth from surface of 350                    regulations have been revised in order
                                           information pertinent to these exempted                 feet.                                                        to incorporate changes made to the
                                           aquifers or their portions resides in EPA                  (7) A portion of the Caseyville                           FOIA by the Electronic FOIA Act of
                                           Region 4.                                               sandstone formation that has a quarter                       1996 (E–FOIA Act), the Openness


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                                                             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations                                        74931

                                           Promotes Effectiveness in our National                  interrelationship between the FOIA and                public about the operations and
                                           Government Act of 2007 (OPEN                            the Privacy Act and how to make a first-              activities of the government.
                                           Government Act), and the FOIA                           party request.                                           One commenter, in connection with
                                           Improvement Act of 2016 (FOIA                                                                                 the requirements that we make certain
                                                                                                   Presumption of Openness and Proactive                 records available proactively for public
                                           Improvement Act). Additionally, the                     Disclosures (§ 5.2)
                                           regulations have been updated to reflect                                                                      inspection in an electronic format and
                                           changes to the organization, to make the                   Three commenters suggested revising                make available in an electronic format
                                           FOIA process easier for the public to                   the language of this section to more                  frequently requested records, suggested
                                           navigate, to update HHS’s fee schedule,                 closely conform to the provisions of the              that we properly track and make
                                           and to make provisions clearer.                         FOIA Improvement Act, which codified                  available Public Use Files (PUFs) and
                                           DATES: This rule is effective on
                                                                                                   the presumption of openness into the                  ensure that they are adequately
                                           November 28, 2016.                                      statute. This recommended change has                  maintained. In addition, the commenter
                                                                                                   been made and the rule reflects the                   suggested we proactively track and
                                           FOR FURTHER INFORMATION CONTACT:
                                                                                                   statutory language at 5 U.S.C. 552(a)(8).             publish score cards for PUF release
                                           Michael Marquis, Michael Bell, Deborah                     Two commenters suggested that we                   reliability alongside data about FOIA
                                           Peters, and/or Brandon Lancey by email                  add language concerning proactive                     performance. This comment is outside
                                           to: HHS.ACFO@hhs.gov. These                             disclosures to this section. One of these             the scope of the rule. The purpose of
                                           individuals also can be reached by                      commenters provided suggested                         this rule is to provide guidelines for the
                                           telephone at 202–690–7453.                              language, which included a reference to               processing of agency records under the
                                           SUPPLEMENTARY INFORMATION: HHS                          two types of records that government                  FOIA. The rule does not specify how we
                                           published a proposed rule to amend its                  agencies are required to make available               will treat specific category of records
                                           FOIA regulations for public comment in                  to the public in an electronic format                 unless those categories are specifically
                                           the Federal Register at 81 FR 39003 on                  pursuant to the FOIA Improvement Act                  delineated in the FOIA statute.
                                           June 15, 2016. The comment period                       and 5 U.S.C. 552(a)(2)(D). Another                       One commenter suggested that the
                                           ended on August 15, 2016. In total, we                  commenter suggested that we consider                  Department should use the systems it
                                           received 10 public comments in                          the Department of Justice’s FOIA                      has to proactively release information
                                           response to the proposed rule. We have                  regulation and government-wide                        pursuant to 5 U.S.C. 552(a)(2) to
                                           given due consideration to each of the                  guidance when drafting language on the                highlight types of records that HHS is
                                           comments we received, and, in                           subject. After considering these                      obligated to have but could not locate in
                                           response, we have made several                          comments, we have added additional                    response to a FOIA request. After
                                           modifications to the proposed rule.                     language to this section describing the               reviewing this comment, we have
                                           These modifications include clarifying,                 responsibility of HHS Operating and                   decided not to accept the suggestion.
                                           revising, expanding, or adding various                  Staff Divisions to proactively make                   The purpose of 5 U.S.C. 552(a)(2) is to
                                           provisions, withdrawing provisions, and                 certain records available to the public               make certain categories of records
                                           making minor technical edits. We have                   under the FOIA. This includes                         available to the public automatically
                                           addressed the substantive comments                      describing the responsibility for HHS                 and without waiting for a FOIA request.
                                           that we received in narrative form                      Operating and Staff Divisions to identify             Our main goal in implementing this
                                           below; grouped by the section the                       additional records of interest to the                 provision of the FOIA is to determine
                                           comment corresponds to, as located in                   public that are appropriate for public                which records we must make publicly
                                           the proposed rule.                                      disclosure and referencing frequently                 available (including frequently
                                                                                                   requested records, which the rule                     requested records), to identify
                                           Purpose (§ 5.1)
                                                                                                   defines in § 5.3 to include records,                  additional records of interest to the
                                             One commenter recommended                             regardless of form or format, that have               public that are appropriate for public
                                           removing a provision that we originally                 been released to any person and have                  disclosure, and to post and index such
                                           proposed in § 5.1(b)(1) concerning                      been requested three or more times.                   records.
                                           records that are subject to a statutorily-              This conforms with the proactive                         One commenter stated that HHS
                                           based fee schedule program. The                         disclosure provisions of the FOIA, as                 should track Structured Query
                                           commenter interpreted this provision to                 amended by the FOIA Improvement                       Languages (SQLs) used to respond to
                                           suggest that we would withhold records                  Act.                                                  data FOIA requests. The commenter
                                           in response to a FOIA request simply                       One commenter suggested that                       believes these should be tracked to
                                           because a separate statute provided for                 requesters who make requests for                      make sure that PUF files released as a
                                           charging fees for those records. In order               records that ultimately become                        frequently requested record are
                                           to help clarify the meaning of that                     frequently requested records should                   consistent over time even after
                                           provision, the commenter’s                              have the option to receive credit for                 contractors or personnel change. The
                                           recommendation has been accepted and                    their FOIA requests, or, in the event that            commenter also wanted the SQL and
                                           the proposed provision has been                         that seems like too much work, the                    schema definitions to be provided with
                                           removed. An additional provision                        Department should simply always give                  the response to the FOIA request/data
                                           relating to records that are subject to                 credit. We decline to accept the                      result and if software was used, that
                                           other statutes specifically providing for               commenter’s suggestion. There is no                   should be provided with the data too.
                                           fees has been added at § 5.52(f). In                    provision in the FOIA requiring                       This comment is outside the scope of
                                           addition to the language in § 5.1(b)(1)                 agencies to give ‘‘credit’’ to requests for           the rule. The rule does not specify how
                                           concerning records that are subject to a                records that ultimately become                        we will treat specific category of records
                                           statutorily-based fee schedule program,                 frequently requested records. There also              unless those categories are specifically
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                                           we have also removed the language                       does not appear to be any policy                      delineated in the FOIA statute.
                                           concerning §§ 5.1(b)(2), (3) and (5), as                rationale behind this suggestion. The
                                           we consider the provisions of § 5.2 to                  purpose of the FOIA is not to provide                 Definitions (§ 5.3)
                                           adequately address proactive                            ‘‘credit’’ to individuals or entities that              One commenter suggested revising
                                           disclosures and the provisions of § 5.5                 make requests. Rather, it is to ensure an             the definition of ‘‘educational
                                           and § 5.22 to adequately address the                    informed citizenry and inform the                     institution’’ to include a student who


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                                           74932             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations

                                           makes a request in furtherance of their                 achieve these goals are already in place.             Officer’’ with the term ‘‘Freedom of
                                           coursework or other school-sponsored                    Requesters can seek assistance with the               Information Act Officer’’.
                                           activities, which reflects a recent                     processing of their requests by                          One commenter suggested that the
                                           development in the case law. The                        contacting the appropriate FOIA Public                term ‘‘frequently requested records’’ be
                                           suggested change has been accepted.                     Liaison at the FOIA Requester Service                 modified to include records that have
                                              In order to comport with a recent                    Center processing their request.                      been released to any person under the
                                           development in the case law, two                        Requesters can also seek assistance with              FOIA and that have been requested 3 or
                                           commenters suggested removing the                       their FOIA request through the services               more times. The FOIA Improvement Act
                                           following line from the definition of                   provided by the Office of Government                  requires federal agencies to make this
                                           ‘‘representative of the news media’’:                   Information Services (OGIS). Moreover,                category of records available to the
                                           ‘‘We decide whether to grant a requester                each year we submit to the Department                 public in an electronic format. In
                                           media status on a case-by-case basis,                   of Justice and make available to the                  accordance with the FOIA Improvement
                                           based on the requester’s intended use of                public two reports evaluating the                     Act, we have amended the term
                                           the requested records.’’ We have                        Department’s performance on FOIA: the                 ‘‘frequently requested records’’ as
                                           accepted this suggestion. Another                       Annual FOIA Report and the Chief                      suggested.
                                           commenter also had a concern with this                  FOIA Officer Report. The Annual FOIA                     One commenter recommended
                                           language, but that comment is now moot                  Report contains detailed statistics on the            changes to the definition of the term
                                           since the language has been removed.                    numbers of requests received and                      ‘‘submitter’’. The commenter suggested
                                              One commenter recommended                            processed by the Department, the time                 clarifying that a person or entity that
                                           including a comprehensive list of                       taken to respond, and the outcome of                  provides financial information qualifies
                                           entities that would qualify as a                        each request, as well as many other vital             as a submitter under the definition. The
                                           ‘‘representative of the news media’’                    statistics regarding the administration of            commenter also recommended adding
                                           instead of citing examples such as                      the FOIA at the Department. The Chief                 language to the definition stating that a
                                           television, radio stations, and                         FOIA Officer Report includes detailed                 federal agency cannot be considered a
                                           periodicals. The commenter noted that                   descriptions of the steps taken by the                submitter for the purposes of this rule.
                                           modern journalism has moved online.                     Department to improve FOIA                            After considering this comment, the
                                           We have decided to reject the                           compliance and transparency. Together,                definition of the term submitter has
                                           commenter’s suggestion to include a                     these reports provide the public with an              been amended to include persons or
                                           comprehensive list of entities that                     accurate representation of the                        entities that provide financial
                                           would qualify as ‘‘representatives of the               Department’s performance on FOIA.                     information to the agency. We have also
                                           news media.’’ Such a list would be                                                                            included language in the definition
                                                                                                      One commenter suggested making a
                                           difficult to devise and could become                                                                          stating that Federal government entities
                                                                                                   grammatical change to the first sentence
                                           quickly outdated, given the ever-                                                                             do not qualify as submitters.
                                                                                                   of the definition of the term ‘‘FOIA
                                           changing media landscape. We do note,
                                                                                                   request’’ and suggested removing the                  Who can file a FOIA request? (§ 5.21)
                                           however, that the rule acknowledges the
                                           presence of online media and makes                      second sentence of the definition                       One commenter noted that two of the
                                           reference to ‘‘online publications that                 because it does not enhance the reader’s              three sentences in the section state that
                                           disseminate news’’.                                     understanding of the meaning of the                   federal agencies may not submit FOIA
                                              One commenter thought that the                       term. The commenter also thought that                 requests; the commenter thought that
                                           following wording used to describe the                  the second sentence of the definition                 one statement to that effect would
                                           term ‘‘representative of the news media’’               might restrict the Department’s ability to            suffice. At the recommendation of the
                                           was unclear: ‘‘We do not consider                       communicate with requesters. After                    commenter, the second sentence in this
                                           requests for records that support the                   considering this comment, we have                     section has been removed. The revised
                                           news-dissemination function of the                      made the suggested grammatical change                 section only has one sentence stating a
                                           requester to be a commercial use.’’ In                  to the first sentence of the definition               federal agency may not submit FOIA
                                           response to this comment, we do not                     and removed the second sentence.                      requests.
                                           believe that this wording requires                         Two commenters noted that we
                                           additional clarification. This wording                  included a link in the definition of                  How does HHS process my FOIA
                                           was derived from the Uniform Freedom                    ‘‘Freedom of Information (FOIA)’’ that is             request? (formerly § 5.25)
                                           of Information Fee Schedule and                         no longer active and suggested that we                   One commenter noted that in
                                           Guidelines published by the Office of                   either remove the link or update it. In               § 5.25(b)(1)(iii) we referred to a
                                           Management and Budget (OMB). The                        response to these comments, we have                   ‘‘requestor’’ but throughout the rest of
                                           OMB has policy-making responsibility                    updated the link. The updated link                    the rule, we referred to a ‘‘requester’’. In
                                           for issuing fee guidance, and we defer                  includes the current text of the FOIA.                order to be consistent, we will use
                                           to the OMB for any further                                 One commenter suggested that the                   ‘‘requester’’ for all references to the
                                           interpretation of this wording.                         term ‘‘Freedom of Information Officer’’               term.
                                              One commenter suggested that the                     be replaced with the term ‘‘Freedom of                   Two commenters expressed concern
                                           rule include performance metrics to                     Information Act Officer’’ for the sake of             with the criteria set forth in § 5.25(b)(1)
                                           evaluate the Chief FOIA Officer and the                 consistency. The commenter noted that                 for considering a request perfected and
                                           Deputy Chief FOIA Officer and that                      the word ‘‘act’’ is used in the titles of             the amount of time provided in
                                           these metrics be based on objective                     the Chief Freedom of Information Act                  § 5.25(b)(2) for a requester to respond to
                                           measures of external collaboration (e.g.,               Officer and the Deputy Chief Freedom                  a request to perfect their request. With
                                           number of emails answered, average                      of Information Act Officer and that the               regard to § 5.25(b)(1), both commenters
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                                           response time to answer FOIA requester                  term ‘‘Freedom of Information Officer’’               noted that the FOIA statute states that
                                           questions, etc.). While we believe                      has been shortened to ‘‘FOIA Officer’’ in             the twenty-working-day statutory
                                           strongly in providing good customer                     §§ 5.27(b) and 5.28(a). After considering             response period begins to run when the
                                           service and being held accountable for                  this comment, we have decided to                      request is received by the responsible
                                           providing timely responses to FOIA                      accept the suggestion and have replaced               FOIA office, but not later than ten days
                                           requests, we believe the mechanisms to                  the term ‘‘Freedom of Information                     after it is received by an HHS


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                                                             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations                                        74933

                                           component designated to receive                         commenter thought that requesters                     information or clarification regarding
                                           requests. Section 5.25(b)(1) has been                   should be given at least 20 working days              the specifics of a request or fee
                                           amended at the recommendation of the                    to respond to communications from the                 assessment. In response to these
                                           commenters and in order to comply                       agency, and if the agency takes more                  comments and in order to provide
                                           with the requirements of 5 U.S.C.                       than twenty working days from the date                requesters with a reasonable amount of
                                           552(a)(6)(A). In addition, one of the                   of the request to initiate communication              time to respond, we have increased the
                                           commenters considered the contents of                   with the requester, the requester should              amount of time to respond to a request
                                           § 5.25(b)(1) to be contrary to the FOIA                 receive the same amount of time to                    for additional information or
                                           statute itself and recommended that the                 respond to the agency. The second                     clarification regarding the specifics of a
                                           provision be removed from the rule in                   commenter also thought the agency                     request or fee assessment from ‘‘at least
                                           its entirety. In the view of the                        should be required to make at least three             10 working days’’ to ‘‘at least 20
                                           commenter, the provision added                          good-faith efforts to contact a requester             working days’’. The commenters also
                                           additional requirements to the FOIA                     by various forms of communication                     expressed concern with the language in
                                           that were not authorized by law. We                     (mail, email, telephone), if a                        § 5.25(c) stating ‘‘[s]hould you not
                                           disagree with this comment. The FOIA                    communication goes unanswered                         answer any correspondence, or should
                                           requires requesters to satisfy two                      because it is returned as undeliverable.              the correspondence be returned
                                           conditions when submitting a FOIA                       In response to these comments, we have                undeliverable, we reserve the right to
                                           request: that the request reasonably                    increased the amount of time requesters               administratively close the FOIA
                                           describes the records sought and that it                are provided with to respond to a                     request.’’ The concerns expressed about
                                           is made in accordance with agency’s                     request to perfect their request from ‘‘at            this provision were the same as those
                                           published rule setting forth the                        least 10 working days’’ to ‘‘at least 20              stated for § 5.25(b)(2), namely that the
                                           procedures for filing a FOIA request. If                working days’’. We believe that this                  agency should be required to make at
                                           a requester fails to satisfy these                      provides requesters with a reasonable                 least three good-faith efforts to contact
                                           conditions, § 5.25(b) requires an                       amount of time to review the request to               a requester by various forms of
                                           Operating Division or Staff Division to                 perfect, conduct any necessary research,              communication (mail, email,
                                           attempt to contact the requester and                    and respond to the agency. In instances               telephone), if a communication goes
                                           inform him or her of what additional                    where a communication goes                            unanswered because it is returned as
                                           information is needed to meet the                       unanswered because it is returned as                  undeliverable, and that there is no
                                           requirements of the FOIA and this rule.                 undeliverable, we will attempt to reach               authorization in the FOIA for an agency
                                           This includes attempts to contact the                   the requester using any alternative                   to unilaterally administratively close a
                                           requester in order to reformulate or                    contact information provided before                   FOIA request. For the same reasons
                                           modify a request in cases where we do                   administratively closing the request.                 stated with regard to § 5.25(b)(2), we
                                           not consider the records sought to be                   However, we do not think it is necessary              decline to accept the comment
                                           reasonably described. In addition, in                   to state the number of times we will                  concerning undeliverable
                                           instances where we close a request                      attempt to contact a requester before                 communications. With respect to
                                           because of a failure to reasonably                      administratively closing the request.                 whether the agency has the authority to
                                           describe the records sought, the                        Finally, we disagree with the comment                 administratively close requests when a
                                           requester will be given administrative                  suggesting that agencies do not have a                communication goes unanswered, we
                                           appeal rights to challenge the decision                 right to administratively close a request.            again disagree with the comment. If a
                                           since this is an adverse determination.                 The FOIA specified two requirements                   requester does not respond to
                                           Finally, although such a requirement                    for an access request: It must reasonably             communication within a reasonable
                                           was legally permissible, we have                        describe the records being sought and it              amount of time, we have legitimate
                                           decided to make it easier for requesters                must be made in accordance with                       reason to believe that the requester is no
                                           to perfect their requests by eliminating                published rules stating the time, place,              longer interested in pursuing their
                                           the requirement that, in order to perfect,              fees (if any), and procedures to be                   request. Moreover, a provision allowing
                                           a requester agree to pay all or an                      followed. If a requester fails to satisfy             for the administrative closure of
                                           established amount of applicable fees or                these conditions, the rule requires HHS               requests where a request for additional
                                           request a fee waiver. We do, however,                   to attempt to contact the requester to                information or clarification goes
                                           encourage requesters to include such                    seek clarification and provides the                   unanswered is commonly included in a
                                           information in their requests and make                  requester with a reasonable amount of                 number of agency FOIA regulations
                                           reference to that suggestion in § 5.22.                 time to respond. If a requester does not              throughout the government including
                                              As it relates to § 5.25(b)(2), the two               respond to communication within the                   the regulations of four other cabinet-
                                           commenters expressed concern with the                   specified timeframe, it is reasonable to              level departments.
                                           amount of time requesters were                          deny the request and administratively                    Multiple commenters provided input
                                           provided with to respond to a request to                close it because of a failure to                      on §§ 5.25(e), (f), and (h), which
                                           perfect their requests. One commenter                   reasonably describe the records sought                describe the Department’s procedures
                                           claimed that there was no authorization                 or make the request in accordance with                for multitrack processing and handling
                                           in the FOIA for an agency to unilaterally               the published rules. Such a provision is              requests that involve unusual
                                           ‘‘administratively close’’ a FOIA                       found in a number of agency FOIA                      circumstances. One commenter
                                           request; that an agency can only grant a                regulations throughout the government                 expressed a concern that § 5.25(h) could
                                           request in full or in part or deny it; and              including the regulations of four other               be read to provide the agency with the
                                           that § 5.25(b)(2) should be removed in                  cabinet-level departments. Therefore,                 authority to provide itself with
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                                           its entirety. In the alternative, the                   we decline to accept the comment.                     unlimited time to respond to complex
                                           commenter suggested affording the                          The same two commenters expressed                  FOIA requests. Another commenter
                                           requester no less than 30 days to                       concern with the amount of time                       requested that §§ 5.25(e) and (f) be
                                           respond to a request to perfect their                   requesters were provided with in                      modified to include a commitment to
                                           request in order to ensure that they have               § 5.25(c) to respond to a request to                  provide requesters with an estimated
                                           sufficient time to respond. The second                  respond to requests for additional                    completion date if their request is


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                                           74934             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations

                                           placed in the complex processing queue                  scope of the request if the requested                   One commenter suggested we
                                           or if unusual circumstances exist.                      records are well-described and we are                 consider adding subsections that fully
                                           Additionally, the commenter                             given accurate information about where                explain referrals, consultations, and
                                           recommended that § 5.25(h) be modified                  to find the records in question. Third, if            coordination with other federal agencies
                                           to require an agency to notify a                        the request provides accurate                         or entities. We have accepted the
                                           requester of an expected delay because                  information about where to find the                   commenter’s suggestion. Section 5.25
                                           of unusual circumstances and that such                  records in question, the search can be                provides a full explanation of the
                                           a notice should provide requesters with                 conducted more quickly which could                    Department’s procedures for rerouting
                                           an explanation of the unusual                           reduce search fees, if those are                      of misdirected requests, referrals,
                                           circumstances and an estimated                          associated with the request, and it could             consultations, and coordination.
                                           completion date. The commenter                          speed up the processing time. Finally,                How does HHS determine estimated
                                           recommended providing such a notice                     we have adopted multitrack processing                 completion dates for FOIA requests?
                                           prior to having any conversations                       and place requests on the simple or                   (§ 5.26)
                                           regarding the scope of the request. After               complex track based on the estimated
                                           considering these comments, the                         amount of work or time needed to                         One commenter expressed a concern
                                           contents of §§ 5.25(e), (f), and (h) have               process the request. Providing                        about § 5.26(a). In the view of the
                                           been modified to distinguish requests                   information that helps us locate                      commenter, the language of this
                                           that are placed in the complex                          documents responsive to a request                     provision suggested that estimated
                                           processing queue from requests                          makes it more likely that the request                 completion dates are only provided
                                           involving unusual circumstances and to                  will be placed on the simple track and                when a requester asks for them. The
                                           align these sections with the FOIA                      processed more quickly. Given these                   commenter recommended that we
                                           statute. In cases where unusual                         advantages, we do not believe it is                   provide estimated completion dates
                                           circumstances require us to extend the                  necessary to provide any additional                   whenever a request is first placed in the
                                           processing time by more than 10                         benefits to requesters who provide                    complex processing queue, whenever
                                           working days, we have clarified that                    detailed and accurate information about               we determine that an estimated
                                           requesters will have an opportunity to                  where to find the records in question.                completion date must change for a
                                           modify the request or arrange an                                                                              request, or when a requester asks for an
                                                                                                      One commenter suggested that the
                                                                                                                                                         update on expected completion date,
                                           alternative time period for processing                  rule be modified to inform requesters                 and that the language in this section be
                                           the original or modified request. Finally,              that they are entitled to judicial review             updated to reflect that. In response to
                                           with regard to estimated completion                     if the agency does not meet statutorily               this comment, we have amended the
                                           dates, we have clarified the language of                imposed deadlines. The commenter                      language in this section to clarify that
                                           the rule indicating that we will provide                further stated that HHS should reference              we will provide estimated completion
                                           requesters with an estimated completion                 5 U.S.C. 552(a)(6)(C) in the rule and                 dates when we notify requesters of any
                                           date when we notify them of the                         clarify how a requester may exhaust his               unusual circumstances involved with
                                           unusual circumstances involved with                     or her administrative remedies. After                 their request and when a requester has
                                           their request. However, we decline to                   carefully considering this comment, we                asked for an estimated completion date.
                                           accept the commenter’s                                  decline to adopt the commenter’s                      However, we decline to accept the
                                           recommendation to provide an                            suggested change. The FOIA statute                    commenter’s recommendation of
                                           estimated completion date for all                       itself already makes clear that a failure             providing an estimated completion date
                                           requests placed in the complex                          to comply with the time limits for either             for any request placed in the complex
                                           processing queue. Such a policy is not                  an initial request or an administrative               processing queue or whenever an
                                           required by the FOIA and, while we                      appeal may be treated as a ‘‘constructive             estimated completion date must change
                                           estimate the completion date based on                   exhaustion’’ of administrative remedies.              for a request. As previously stated,
                                           our reasonable judgment as to how long                  Once there has been a ‘‘constructive                  while we estimate the completion date
                                           it will likely take to complete the                     exhaustion’’, a requester may                         based on our reasonable judgment as to
                                           request, given the uncertainty inherent                 immediately thereafter seek judicial                  how long it will likely take to complete
                                           in establishing any estimate, the                       review if he or she wishes to do so. It               the request, given the uncertainty
                                           estimated completion date would be                      is unnecessary for this rule to simply                inherent in establishing any estimate,
                                           subject to change at any time.                          restate information that is already in the            the estimated completion date would be
                                              One commenter recommended giving                     FOIA statute concerning the exhaustion                subject to change at any time.
                                           priority to records and data requests that              of administrative remedies.
                                           give detailed and accurate information                     One commenter suggested defining                   How do I request expedited processing?
                                           about where to find the records in                      the term ‘‘voluminous’’ in § 5.25(f). In              (§ 5.27)
                                           question. The commenter believes that                   revising the rule, we have removed the                   Multiple commenters submitted
                                           requesters who make such requests                       term ‘‘voluminous’’ from the referenced               comments concerning the criteria for
                                           should be rewarded with cheaper fees                    section. The term ‘‘voluminous’’ was                  granting expedited processing of FOIA
                                           and faster processing time. Requesters                  contained in a recitation of the statutory            request described in § 5.27(c). One
                                           who give detailed and accurate                          definition of unusual circumstances.                  commenter expressed concern that we
                                           information receive a number of benefits                Since the FOIA statute already contains               did not include the need to meet a
                                           under the FOIA and this regulation                      this information, it was unnecessary to               litigation deadline in an administrative
                                           already. First, if a request provides                   include in the rule. However, even if the             appeal or in a court action as a case
                                           detailed and accurate information about                 term ‘‘voluminous’’ remained in the                   deemed appropriate for granting
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                                           where to find the records, there is a                   rule, we do not believe it is appropriate             expedited processing. In the opinion of
                                           strong likelihood that the request will be              to define it here. The term                           the commenter, a failure to include this
                                           considered perfected and quickly routed                 ‘‘voluminous’’ can be understood by the               policy into the rule would contradict
                                           for search. Second, there is a strong                   plain meaning in the statute, legislative             the statute and constitute an invalid
                                           likelihood that it will be unnecessary to               intent, and any case law interpreting                 departure from established agency
                                           toll the processing time to clarify the                 that term.                                            precedent. The commenter expressed


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                                                             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations                                        74935

                                           three specific concerns with the rule as                providers to obtain relevant and                      affected by his or her litigation need for
                                           it relates to the omission of any express               material evidence concerning the                      government records. See NLRB v.
                                           provision to grant expedited processing                 accuracy of Medicare payment                          Robbins Tire & Rubber Co., 437 U.S.
                                           in cases where the information is                       determinations by HHS.                                214, 242 n.23 (1978). We additionally
                                           needed to meet a deadline in litigation.                   We reject this comment and will                    note that the number of FOIA requests
                                           First, the commenter believes the                       discuss each point in the order it was                which the Department must process has
                                           proposed rule is in conflict with the                   raised by the commenter. First, the                   increased exponentially since 1990,
                                           FOIA statute. The FOIA statute provides                 commenter is incorrect when stating                   which is yet another reason why we
                                           for expedited processing ‘‘in other                     that the rule is in conflict with the FOIA            have decided to only grant expedited
                                           situations’’. The commenter is of the                   statute because the rule does not                     processing in very limited
                                           opinion that this meant Congress                        provide for the expedited processing of               circumstances. For these reasons, we
                                           intended for agencies to make expedited                 requests ‘‘in other cases determined by               disagree with the commenter’s
                                           processing available for a broader range                the agency.’’ 5 U.S.C. Sec.                           contention that CMS does not have a
                                           of FOIA requests than just those defined                552(a)(6)(E)(i)(II). The plain language of            good reason to depart from its current
                                           as serving a ‘‘compelling need.’’ Second,               the FOIA statute makes clear that the                 expedited processing policy.
                                           the commenter is under the impression                   decision to provide for expedited                        A second commenter recommended
                                           that HHS has a longstanding policy of                   processing ‘‘in other cases’’ is left to the          that HHS provide for expedited
                                           allowing expedited processing in cases                  discretion of the agency and the agency               processing of state survey documents
                                           where the information is needed to meet                                                                       such as investigator notes, witness
                                                                                                   is free not to deem any other case
                                                                                                                                                         statements, witness lists, and
                                           a deadline in litigation. In support of                 appropriate. Second, we acknowledge
                                                                                                                                                         documents reviewed during the course
                                           this, the commenter cited a stipulated                  that CMS had a policy of ordinarily
                                                                                                                                                         of the investigation. The commenter
                                           court order in Home Health Line, Inc. v.                granting expedited processing on a
                                                                                                                                                         believes that HHS should commit to
                                           Health Care Financing Admin., 90–cv–                    variety of circumstances, both
                                                                                                                                                         responding to these types of requests so
                                           1006–LFO (D.D.C.1990), and a notice                     administrative in nature and in response
                                                                                                                                                         that nursing home residents can receive
                                           published by the Centers for Medicare &                 to specific needs stated by a requester,
                                                                                                                                                         these documents before their claims are
                                           Medicaid Services (CMS) (formerly the                   and that this policy was published in
                                                                                                                                                         time barred by a statute of limitations.
                                           Health Care Financing Administration                    the Federal Register for the public’s
                                                                                                                                                         We must, unfortunately, decline to
                                           (HCFA)), as a stipulation of dismissal                  benefit. However, at the time, HHS had                accept this recommendation. While
                                           and settlement of the case, outlining its               not promulgated any rule with respect                 specific requesters may have a strong
                                           policy for expedited processing. The                    to expedited processing. This rule now                personal need to receive responsive
                                           notice was published at 55 FR 51342                     promulgates rules for the entire                      records as quickly as possible, the
                                           (Dec. 13, 1990). The cited notice                       Department providing for expedited                    agency must consider the interests of all
                                           includes language stating that ‘‘HCFA                   processing of requests for records and                requesters waiting patiently in line and
                                           follows its first-in/first-out practice for             supersedes the guidance CMS published                 make sure that everyone is treated
                                           processing requests except where the                    at 55 FR 51342. Finally, while the                    equally. As a result, we only grant
                                           requester demonstrates exceptional                      adopted regulations do not represent a                expedited processing in truly
                                           need or urgency.’’ 55 FR 51342. The                     change in policy for the whole                        exceptional circumstances. Moreover,
                                           notice further states that there are three              Department, we acknowledge that the                   the FOIA is fundamentally meant to
                                           categories of requester needs which                     only circumstance in CMS’s policy                     inform the public about agency action
                                           HCFA has determined frequently                          which we have chosen to retain in this                and not to benefit private litigants.
                                           [demonstrate exceptional need of                        rule is when a failure to obtain                      NLRB v. Sears Roebuck & Co., 421 U.S.
                                           urgency].’’ Id. One of the three                        requested records on an expedited basis               132, 143 n.10 (1975). For those reasons,
                                           categories of requester needs described                 could reasonably be expected to pose an               we decline to accept this
                                           in the notice is ‘‘where the requester                  imminent threat to the life or physical               recommendation.
                                           needs the specific records in question to               safety of an individual. We believe that                 One commenter recommended that a
                                           meet a deadline in litigation, either in                this change to CMS’s policy is necessary              requester’s history of making requests
                                           a court or before an administrative                     to establish fairness in the FOIA                     for expedited processing should be
                                           tribunal.’’ Id. The commenter asserted                  process. When granting expedited                      considered when determining whether
                                           that the agency cannot change its policy                processing, we must consider the                      to grant expedited processing. In the
                                           on expedited processing without                         interest of all requesters in having their            opinion of the commenter, organizations
                                           violating the court order and the                       requests treated equally. We must also                that always request expedited
                                           conditions of settlement in the Home                    bear in mind that whenever we grant                   processing for all requests should
                                           Health Line, Inc. case. Finally, the                    expedited processing to one requester,                receive greater scrutiny in their requests
                                           commenter cited the Administrative                      other requesters waiting patiently in                 for expedited processing than
                                           Procedure Act to state that agencies                    line will have to wait longer for a                   organizations that do not request
                                           must both acknowledge and explain the                   response. As a result, the Department                 expedited processing when their
                                           reasons for a departure from established                must only grant expedited processing in               requests are obviously not urgent. In
                                           policies or precedent. In the opinion of                truly exceptional circumstances. The                  response to this comment, we decline to
                                           the commenter, there is no good reason                  basic purpose of FOIA is to ensure that               accept the commenter’s
                                           for the agency to depart from a policy                  there is an informed citizenry, which is              recommendation. Each request for
                                           of granting expedited processing to meet                vital to the functioning of a democratic              expedited processing is evaluated on its
                                           a litigation deadline in an                             society, necessary to check against                   own merits. We do not provide special
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                                           administrative appeal or court. The                     corruption, and needed to hold                        treatment to some requesters over others
                                           commenter has particular concern                        government officials accountable to the               based on their history of making
                                           because, according to the commenter,                    public. All members of the public are                 requests.
                                           under HHS regulations governing                         beneficiaries of the FOIA, and while this                When granting expedited processing,
                                           appeals to the PRRB, FOIA is the only                   includes parties to a litigation,                     one commenter thought that we should
                                           means available to hospitals and other                  historically, a requester’s rights are not            consider the fact that a requester has a


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                                           74936             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations

                                           history of making requests for records                  disclosure determination letters that                 included a reference to the foreseeable
                                           that eventually became frequently                       include an adverse determination.                     harm standard in this section. We have
                                           requested records. In response to this                                                                        chosen to place this reference in the
                                                                                                   How may I request assistance with the
                                           comment, we decline to accept the                                                                             opening paragraph of the section.
                                                                                                   FOIA process? (§ 5.29)                                   One commenter noted that all FOIA
                                           commenter’s recommendation. Each
                                           request for expedited processing is                        One commenter wanted to know who                   exemptions are discretionary, not
                                           evaluated on its own merits. We do not                  at the various offices is available for               mandatory. Therefore, all language
                                           provide special treatment to some                       helping to ensure that the FOIA is                    describing an Exemption should state
                                           requesters over others based on a history               processed properly. The commenter can                 that an Exemption ‘‘authorizes’’ the
                                           of requesting records that become                       seek assistance from the FOIA Requester               withholding of information instead of
                                           frequently requested records.                           Service Center that is processing the                 ‘‘requires’’. We have accepted this
                                              One commenter recommended                            request. Each FOIA Requester Service                  comment and made the recommended
                                           granting expedited processing in                        Center also has a FOIA Public Liaison                 change. We note, however, that the
                                           situations where the requested records                  who can assist in reducing delays,                    ability to make a discretionary release
                                           implicate an ongoing public health                      clarifying the scope of a request,                    will vary according to the exemption
                                           issue. We grant expedited processing in                 increasing transparency, providing                    involved and whether the information is
                                           two cases: (1) Where a failure to obtain                status updates, and assisting in dispute              required to be protected by some other
                                           requested records on an expedited basis                 resolution. The contact information for               legal authority. Some of the FOIA’s
                                           could reasonably be expected to pose an                 each FOIA Requester Service Center and                exemptions, such as Exemption 2 and
                                           imminent threat to the life or physical                 the name of each FOIA Public Liaison                  Exemption 5, protect a type of
                                           safety of an individual, and (2) where                  is available through the web link                     information that is not generally subject
                                           there is an urgent need to inform the                   included in this section. In addition,                to a disclosure prohibition. By contrast,
                                           public about an actual or alleged                       requesters can seek assistance from the               the exemptions covering national
                                           Federal Government activity. We only                    Office of Government Information                      security, commercial and financial
                                           grant expedited processing in limited                   Services (OGIS) including mediation                   information, personal privacy, and
                                           circumstances because we must                           services.                                             matters within the scope of
                                           consider the interests of all requesters                   Several commenters suggested                       nondisclosure statutes protect records
                                           waiting patiently in line and make sure                 modifying the rule to incorporate the                 that are also encompassed within other
                                           that everyone is treated equally. For this              requirements of the FOIA resulting from               legal authorities that restrict their
                                           reason, we must decline to adopt this                   the FOIA Improvement Act. Section 3 of                disclosure to the public. See Attorney
                                           comment.                                                the FOIA Improvement Act requires                     General Holder’s FOIA Guidelines, 74
                                              Finally, one commenter suggested                     each agency to include procedures for                 FR 51879, (October 8, 2009) (describing
                                           that records released in response to a                  engaging in dispute resolution with the               exemptions where discretionary
                                           request that receives expedited                         FOIA Public Liaison and the Office of                 disclosure can most readily be made
                                           processing or a fee waiver should be                    Government Information Services                       and those for which discretionary
                                           made proactively available one year                     (OGIS). These procedures are included                 disclosure is not available). Thus,
                                           after it is released to the requester even              in this section of the rule. In addition,             agencies are constrained in their ability
                                           if the information has not been                         throughout the rule, we have included                 to make discretionary disclosures of
                                           requested three or more times. We have                  provisions that provide for the                       records covered by Exemptions 1, 3, 4,
                                           decided not to accept this comment.                     assistance of the appropriate FOIA                    6, and & certain subparts of Exemption
                                           Even if a record has not been released                  Public Liaison and the Office of                      7.
                                           and requested three or more times, we                   Government Information Services                          Several commenters expressed
                                           will make available additional records if               (OGIS) or give notification of their                  concern regarding the descriptions of
                                           we believe they are of interest to the                  services.                                             the scope of Exemptions 4, 5, and 6.
                                           public and are appropriate for public                                                                         These comments have been rendered
                                                                                                   What are the reasons records may be                   moot, however, since the language in
                                           disclosure. However, not every record
                                           released in response to a request that                  withheld? (§ 5.31)                                    this section now simply restates the
                                           receives expedited processing or a fee                    One commenter stated that a section                 Exemptions as they are set forth in the
                                           waiver may fall into that category.                     describing the exemptions to the FOIA                 FOIA statute.
                                                                                                   was unnecessary, and at most should                      One commenter provided feedback on
                                           How does HHS respond to my request?                     simply restate the exemptions set forth               § 5.31(d)(4)(ii) concerning the amount of
                                           (§ 5.28)                                                in 5 U.S.C. 552(b). The commenter                     time we provide submitters to respond
                                              Several commenters recommended                       further stated that the scope of the                  to a predisclosure notification. The
                                           modifying the rule to incorporate                       exemptions is determined by the courts                provision states that submitters have ten
                                           changes made to the FOIA as a result of                 and not agency regulations. After                     working days to object to disclosure and
                                           the FOIA Improvement Act. As a result                   considering this comment and other                    that HHS FOIA Offices may extend this
                                           of the FOIA Improvement Act, we have                    comments concerning this section, we                  period as appropriate and necessary.
                                           modified the language of § 5.28(a) to                   have removed language describing the                  The commenter thought that we should
                                           indicate that we will provide requesters                scope of each exemption and simply                    take into consideration the time limits
                                           with a notification of their right to seek              restated the exemptions as set forth in               within which agencies must respond to
                                           assistance from the appropriate FOIA                    the FOIA statute.                                     FOIA requests. Furthermore, the
                                           Public Liaison in all disclosure                          One commenter suggested revising                    commenter recommended that the
                                           determination letters, and we have                      the opening paragraph of § 5.31 to                    regulation state that the agency will
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                                           modified § 5.28(b) to indicate that we                  reflect the presumption of openness                   expeditiously provide predisclosure
                                           will provide requesters with a                          codified in the FOIA Improvement Act.                 notification and should make clear that
                                           notification of their right to seek dispute             Another commenter suggested adding                    the amount of time provided to a
                                           resolution services from the appropriate                similar language to the end of the                    submitter to respond to a predisclosure
                                           FOIA Public Liaison and the Office of                   section. We have made the                             notification should not exceed the
                                           Government Information Services in all                  recommended change and have                           remaining amount of time in which the


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                                                             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations                                          74937

                                           agency is required by law to process the                working days when necessary. In order                 the commenter’s suggestion and made
                                           request. After considering this                         to be consistent, we also have revised                the change.
                                           comment, we have decided not to                         the predisclosure notification
                                                                                                                                                         What is the FOIA Fee Schedule for
                                           accept it. We attempt to process all                    procedures to base the amount of time
                                                                                                                                                         Obtaining Records? (Formerly § 5.43)
                                           FOIA requests as expeditiously as                       to object on the date of the notice rather
                                           possible. However, it sometimes is not                  than the date of receipt. This is                        Two commenters recommended
                                           possible to know whether a                              administratively easier to track and, as              removing language related to the fees we
                                           predisclosure notification is necessary                 communication has become more                         charge for the use of a computer to
                                           to process a request or where a                         electronic, the date of the notice and the            conduct a search in § 5.43(a)(2). One
                                           predisclosure notification needs to be                  date of receipt are often the same.                   commenter thought that the language
                                           sent until a search for records has been                Finally, all provisions regarding                     was archaic and should be removed.
                                           conducted and a review of the records                   confidential commercial information are               The second commenter considered the
                                           has begun. It is unclear how adding a                   now located in their own subpart,                     cost of a computer to be a sunk cost to
                                           requirement that we expeditiously                       Subpart D.                                            the Department and stated that the
                                           provide predisclosure notification                         Multiple commenters suggested                      computer would have been running
                                           would speed up that process. We also                    modifying the description of Exemption                anyway if it hadn’t been used to
                                           do not think it is reasonable to restrict               5 to include the restriction on applying              conduct the search. We decline to
                                           a submitter’s opportunity to object to                  the deliberative process privilege to                 accept the commenters’
                                           disclosure based on the amount of time                  records that were created 25 years or                 recommendations. When establishing
                                           in which we are required by law to                      more before the date on which the                     the fee schedule, we follow the Uniform
                                           process the request. All submitters                     records were requested. This limitation               Freedom of Information Fee Schedule
                                           should be given ten working days (or                    to the deliberative process privilege was             and Guidelines published by the Office
                                           where appropriate and necessary, ten or                 added by the FOIA Improvement Act                     of Management and Budget (OMB),
                                           more working days) to object to the                     and it is now reflected in this rule.                 which establishes uniform standards for
                                           disclosure of information they provided                                                                       fee matters. Conformity with the OMB
                                                                                                   Records Not Subject to the                            Guidelines is required by the FOIA. See
                                           to the government regardless of how                     Requirements of the FOIA—Law
                                           long it takes for HHS to conduct the                                                                          5 U.S.C. 552(a)(4)(A)(i). The OMB Fee
                                                                                                   Enforcement Exclusions (§ 5.32)                       Guidelines state that with regard to
                                           search or determine that a predisclosure
                                                                                                      One commenter stated that they found               computer searches for records
                                           notification is required.
                                                                                                   it unusual and highly irregular for HHS               ‘‘[a]gencies should charge at the actual
                                              One commenter provided input                         to include a description of the law                   direct cost of providing the service. This
                                           regarding § 5.41(d)(4)(iii). More                       enforcement record exclusions. In                     will include the cost of operating the
                                           specifically, the commenter expressed                   response to this comment, we have                     [computer] for that portion of operating
                                           concern with the rule’s language                        removed the descriptions of the                       time that is directly attributable to
                                           regarding the requirements of a notice of               exclusions and have simply included a                 searching for records responsive to a
                                           intent to disclose. The language, as                    citation to the section of the FOIA                   FOIA request and operator/programmer
                                           written, suggested that we would release                statute that references exclusions.                   salary apportionable to the search.’’ In
                                           information over the objection of a                                                                           order to conform with the OMB Fee
                                           submitter within five days of the date of               General Information on Fees for All                   Guidelines, we have included the same
                                           the notice of intent to disclose. The                   FOIA Requests (Formerly § 5.41)                       provision in our rule.
                                           commenter suggested that this could                        One commenter recommended that
                                           potentially allow for a release of                      requesters be given at least 20 working               How does HHS Calculate FOIA Fees for
                                           information less than five days after the               days to make an advance payment                       Different Categories of Requesters?
                                           notice of intent to release, which would                (§ 5.41(b)) or respond to an agency                   (Formerly § 5.44)
                                           be unreasonable. The commenter also                     communication in the course of                           The commenter thought that some of
                                           noted that the timeframe for the release                negotiating fees (§ 5.41(e)) and, if the              the language in § 5.44(c) was potentially
                                           of records after a notice of intent to                  agency takes more than twenty working                 redundant and ambiguous. The
                                           disclose was based on the date of the                   days from the date of the request to                  commenter did not consider it necessary
                                           notice whereas with § 5.41(d)(4)(ii), the               initiate these actions with the requester,            to state both that if you do not fall into
                                           date to provide objections to a                         the requester should receive the same                 the categories in paragraphs (a) and (b)
                                           predisclosure notification was based on                 amount of time to respond to the                      of this section (a commercial requester
                                           the date of receipt of the notification.                agency. In response to this comment, we               or an educational or noncommercial
                                           Moreover, as written, FOIA Offices were                 have increased the number of days to                  scientific institution requester, or a
                                           given the authority to extend the                       make an advance payment and respond                   member of the news media), you are an
                                           timeframe for responding to a                           to an agency communication from at                    ‘‘other requester’’. The commenter
                                           predisclosure notification letter but not               least 10 working days to at least 20                  believed that this language suggested a
                                           for releasing records after providing a                 working days. We believe that this                    conjunctive relationship when none was
                                           notice of intent to release. In accordance              provides requesters with a reasonable                 intended to exist. The commenter
                                           with Executive Order 12600 and in                       amount of time to respond to us before                suggested using ‘‘i.e.’’ instead of ‘‘and
                                           response to this comment, we have                       we assume that they are no longer                     are’’ to clarify things. In response to this
                                           modified the requirements regarding the                 interested in pursuing their request.                 comment, we have edited § 5.44(c) to
                                           notice of intent to disclose to require                                                                       make the language identifying an ‘‘other
                                           that the notice include a specified                     What Fee Policies Apply to HHS                        requester’’ clearer.
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                                           disclosure date and that the date be at                 Records? (Formerly § 5.42)                               Multiple commenters recommended
                                           least five working days after the date of                  One commenter suggested editing the                amending this section in order to
                                           the notice. This will provide a                         provision on minimum fees to state that               reference new provisions to the FOIA
                                           reasonable number of days before a                      ‘‘[w]e do not send an invoice to                      created by the FOIA Improvement Act
                                           release and it gives flexibility to FOIA                requesters if assessable processing fees              that place further limitations on
                                           Offices to provide more than five                       are less than $25.’’ We have accepted                 assessing search fees (or, for a requester


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                                           74938             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations

                                           with preferred status, duplication fees)                   One commenter suggested that we use                in the Department of Justice Guide to
                                           if response time is delayed. At the                     the postmark date rather than the date                the Freedom of Information Act where
                                           recommendation of the commenters and                    the appeal is received by the agency                  multiple courts had held that
                                           in accordance with the FOIA                             when determining whether an appeal                    ‘‘exhaustion of administrative remedies
                                           Improvement Act, the recommended                        has been submitted in a timely manner.                is not required prior to seeking court
                                           change has been made to this section.                   The same commenter suggested that the                 review of an agency’s denial of
                                                                                                   appeal timeframe commence once the                    requested expedited access.’’ U.S. DEP’T
                                           How may I request a fee waiver?
                                                                                                   disclosure determination is received by               OF JUSTICE, Litigation Considerations
                                           (formerly § 5.45)
                                                                                                   the requester instead of the date of the              44 & n. 144, GUIDE TO THE FREEDOM
                                              One commenter expressed concern                      adverse determination letter. After                   OF INFORMATION ACT (last updated
                                           with the description of the factors                     considering this comment, we have                     Nov. 26, 2013), available at https://
                                           described in § 5.45(b) used to determine                decided to partially accept it. The rule              www.justice.gov/sites/default/files/oip/
                                           whether a requester is eligible for a fee               has been modified to indicate that we                 legacy/2014/07/23/litigation-
                                           waiver or a reduction in fees. The                      will base the timeliness of an appeal on              considerations.pdf#p29. In response to
                                           commenter specifically pointed out an                   the postmark date or, in the case of an               this comment, we have amended the
                                           issue with § 5.45(b)(5) which stated that,              electronic submission, the transmittal                language to state that ‘‘[b]efore seeking
                                           to be eligible for a fee waiver, a                      date. The rule has been further                       review by a court of an adverse
                                           requester must explain how the                          modified, however, to stipulate that if a             determination, you generally must first
                                           requester ‘‘intend[s] to disseminate the                postmark date is illegible, we will revert            submit a timely administrative appeal.’’
                                           requested information to a broad                        to using the date of receipt to determine             The modified language informs
                                           spectrum of the public.’’ The                           the timeliness of the appeal submission.              requesters of the need to generally
                                           commenter noted that in Cause of                        We also specify that an electronic                    submit an administrative appeal prior to
                                           Action v. FTC, the D.C. Circuit                         submission transmitted after normal                   seeking judicial review without
                                           specifically held that ‘‘proof of the                   business hours will be considered                     suggesting that this is required in all
                                           ability to disseminate the released                     transmitted on the next day for the                   cases.
                                           information to a broad cross-section of                 purposes of determining the timeliness
                                           the public is not required.’’ 799 F.3d                                                                        Miscellaneous
                                                                                                   of an appeal submission. Finally, we
                                           1108, 1116 (D.C. Cir. 2015). Rather, ‘‘the              reject the commenter’s suggestion that                  One commenter suggested that we
                                           relevant inquiry . . . is whether the                   the appeal timeframe commence once                    provide our understanding of what the
                                           requester will disseminate the disclosed                notice of the adverse determination is                term ‘‘due diligence’’ means. Based on
                                           records to a reasonably broad audience                  received by the requester. The FOIA                   the context of the comment, it appears
                                           of persons interested in the subject.’’ Id.             statute itself bases the minimum                      that the commenter was referring to the
                                           In addition to noticing an issue with                   timeframe that agencies must provide                  use of the term in the FOIA statute at
                                           § 5.45(b)(5), the commenter also thought                for a requester to appeal a request on a              5 U.S.C. 552(a)(6)(C)(i), which states
                                           § 5.45(b)(5) and § 5.45(b)(4) were                      specific number of days ‘‘after the date              that ‘‘[i]f the Government can show
                                           duplicative. Likewise, the commenter                    of such adverse determination’’, not on               exceptional circumstances exist and that
                                           thought that § 5.45(b)(3) should be                     the date such determination is received               the agency is exercising due diligence in
                                           deleted because it duplicated                           by the requester. Moreover, we believe                responding to the request, the court may
                                           §§ 5.45(b)(1), (2), (4) & (6). The                      that a 90 day appeal timeframe, as                    retain jurisdiction and allow the agency
                                           commenter expressed concern that if                     currently structured, provides                        additional time to complete its review of
                                           these duplicative provisions remained                   requesters with a reasonable amount of                the records.’’ We believe that the
                                           in the rule, requesters would have to                   time to submit a timely request. Note                 concept of exceptional circumstances is
                                           repeat the same information numerous                    that the provision discussed by this                  adequately explained in the FOIA
                                           times in order to be eligible for a fee                 comment has moved to § 5.61 (When                     statute and it is unnecessary to include
                                           waiver. In response to this comment, we                 may I appeal HHS’s FOIA                               a provision about that subject in this
                                           have modified this section to include a                 determination?).                                      rule. With regard to the term ‘‘due
                                           streamlined list of the fee waiver factors                 One commenter observed that                        diligence’’, we believe that the term can
                                           based on Cause of Action v. FTC. We                     § 5.52(b) stated that an appeal could be              best be understood by the plain meaning
                                           believe that this streamlined list                      submitted electronically; however, in                 in the statute, legislative intent, and any
                                           satisfies the commenter’s concerns of                   the opinion of the commenter, the rule                case law interpreting that term. We,
                                           correctly stating the standard for being                failed to identify a means of submitting              therefore, decline to provide any further
                                           able to disseminate information and                     administrative appeals electronically. In             interpretation of this term.
                                           reducing redundancy.                                    response to this comment, we have                       One commenter noted that in certain
                                                                                                   clarified that instructions on how to                 cases we spelled out numbers and in
                                           How do I file an appeal? (formerly                                                                            other cases we used figures. Compare,
                                                                                                   submit a FOIA appeal electronically can
                                           § 5.52)                                                                                                       e.g., § 5.31(d)(4)(iii)(‘‘5 working days’’),
                                                                                                   be found by using the web links
                                             As a result of an amendment to the                    provided in the section.                              and § 5.23(b)(‘‘10 working days’’), with
                                           FOIA by the FOIA Improvement Act,                                                                             § 5.31(d)(5)(iv)(‘‘five working days’’),
                                           two commenters recommended                              What avenues are available to me if I                 and § 5.25(f)(‘‘ten working days’’). In
                                           increasing the number of days to appeal                 disagree with HHS’s appeal decision?                  response to this comment, we have
                                           an adverse determination to no less than                (formerly § 5.54)                                     replaced the referenced spelled out
                                           90 days after the date of an adverse                       One commenter expressed concern                    numbers with figures.
                                           determination. We have accepted this                    with the language in paragraph (a) of                   Finally, in response to public
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                                           comment and increased the number of                     § 5.54, which states that a requester                 comments and feedback from within the
                                           days to appeal to 90 days after the date                must submit an administrative appeal in               Department, we have made the
                                           of an adverse determination. Note that                  order to seek judicial review. In                     following changes: moved and clarified
                                           the contents of this provision have                     expressing this concern, the commenter                the provision on oral requests from
                                           moved to § 5.61 (When may I appeal                      suggested that this language was                      § 5.2(a) to § 5.22(e); clarified the
                                           HHS’s FOIA determination?).                             dubious and referenced examples cited                 definition of non-commercial scientific


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                                                             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations                                           74939

                                           institution (§ 5.3); clarified the                      Regulation, and Executive Order 13563,                5.22  What do I include in my FOIA request?
                                           definition of fee waiver (§ 5.3); removed               76 FR 3821 (January 18, 2011),                        5.23  Where do I send my FOIA request?
                                           references to the Program Support                       Improving Regulation and Regulatory                   5.24  How does HHS process my FOIA
                                           Center (PSC) (§§ 5.3, 5.62(b)(2) (formerly              Review. The rule is not a ‘‘significant                   request?
                                                                                                                                                         5.25 How does HHS handle requests that
                                           § 5.52(b)(2))) (the PSC FOIA Office has                 regulatory action’’ under section 3(f) of                 involve more than one OpDiv, StaffDiv,
                                           been dissolved and its responsibilities                 Executive Order 12866. Accordingly,                       or Federal agency?
                                           have transferred to the Office of the                   the rulemaking has not been reviewed                  5.26 How does HHS determine estimated
                                           Secretary (OS) FOIA Office); renamed                    by the Office of Management and                           completion dates for FOIA requests?
                                           ‘‘reading room’’ ‘‘FOIA Library’’ (§ 5.3,               Budget.                                               5.27 How do I request expedited
                                           § 5.22(i)); clarified the definition of                                                                           processing?
                                                                                                   Regulatory Flexibility Act                            5.28 How does HHS respond to my request?
                                           ‘‘record’’ (§ 5.3); clarified the definition
                                           of ‘‘submitter’’ (§ 5.3); clarified that an                The Department certifies under 5                   5.29 How may I request assistance with the
                                           individual seeking records under the                    U.S.C. 605(b) that the rule will not have                 FOIA process?
                                           Privacy Act has access rights under the                 a significant economic impact on a                    Subpart C —Exemptions to Disclosure
                                           FOIA (§ 5.5); clarified the information                 substantial number of small entities
                                                                                                                                                         5.31 What are the reasons records may be
                                           needed to make a first-party request                    because the proposed revisions do not                     withheld?
                                           (§ 5.22(f)) and a third-party request                   impose any burdens upon FOIA                          5.32 Records not subject to the
                                           (§ 5.22(g)); added additional information               requesters, including those that might                    requirements of the FOIA—law
                                           describing when a requester should                      be small entities. Therefore, a regulatory                enforcement exclusions.
                                           provide a HIPAA Authorization Form                      flexibility analysis is not required by the
                                                                                                                                                         Subpart D—Confidential Commercial
                                           (§ 5.22(h) (formerly § 5.22(c)); merged                 Regulatory Flexibility Act.                           Information
                                           the contents of § 5.24 (Does HHS accept                 Unfunded Mandates Reform Act of 1995                  5.41 How does a submitter identify records
                                           electronic FOIA requests?) with § 5.23                                                                            containing confidential commercial
                                           (Where do I send my FOIA request?);                       The rule will not result in the
                                                                                                                                                             information?
                                           removed unnecessary language from                       expenditure by State, local, or tribal
                                                                                                                                                         5.42 How does HHS process FOIA requests
                                           § 5.25(a); revised language in §§ 5.24(b)               governments in the aggregate, or by the                   for confidential commercial information?
                                           and (c) (formerly §§ 5.25 (b) and (c)) to               private sector, of $100 million or more
                                                                                                   in any one year, and it will not                      Subpart E—Fees
                                           distinguish the procedures used to assist
                                           a requester in perfecting their request                 significantly or uniquely affect small                5.51 General information on fees for all
                                                                                                   governments. Therefore, no actions are                    FOIA requests.
                                           from those used to clarify a reasonably                                                                       5.52 What is the FOIA fee schedule for
                                           described request through tolling;                      deemed necessary under the provisions
                                                                                                   of the Unfunded Mandates Reform Act                       obtaining records?
                                           removed unnecessary language from                                                                             5.53 How does HHS calculate FOIA fees for
                                           §§ 5.27(a) and 5.28(a); clarified the                   of 1995.
                                                                                                                                                             different categories of requesters?
                                           language in § 5.28(d); moved                            Executive Order 12612                                 5.54 How may I request a fee waiver?
                                           confidential commercial information                        This rule has been reviewed under                  Subpart F—Appeals
                                           procedures to its own subpart (§§ 5.41–                 Executive Order 12612, Federalism, and                5.61 When may I appeal HHS’s FOIA
                                           5.42); removed former § 5.31(d)(4)(iv)                  it has been determined that it does not                   determination?
                                           because it was redundant to                             have sufficient implications for                      5.62 How do I file an appeal?
                                           § 5.31(d)(4)(v) (now located at                         federalism to warrant preparation of a                5.63 How does HHS process appeals?
                                           § 5.42(a)(4)); removed unnecessary                      Federalism Assessment.                                5.64 What avenues are available to me if I
                                           language from former § 5.31(d)(4)(iii)                                                                            disagree with HHS’s appeal decision?
                                           (now located at § 5.42(a)(3)); merged                   Paperwork Reduction Act
                                                                                                                                                         Subpart G—Records Retention
                                           former § 5.42 (What fee policies apply to                 The rule contains no new information
                                           HHS records?) with former § 5.41                                                                              5.71 How does HHS retain FOIA records?
                                                                                                   collection requirements subject to
                                           (General information on fees for all                    review by the Office of Management and                  Authority: 5 U.S.C. 552, 18 U.S.C. 1905,
                                           FOIA requests.) (now located at § 5.51);                Budget under the Paperwork Reduction                  31 U.S.C. 9701, 42 U.S.C. 1306(c), E.O.
                                           clarified the notice provisions of                                                                            12600, E.O.13392
                                                                                                   Act (44 U.S.C. chapter 35).
                                           § 5.51(a) (formerly § 5.41(a)) to conform
                                           with the OMB Fee Guidelines; removed                    List of Subjects in 45 CFR Part 5                     Subpart A — General Information
                                           § 5.51(i) (formerly § 5.42(c)) as a result                Freedom of information.                             About Freedom of Information Act
                                           of the clarification of § 5.51(a) (formerly                                                                   Requests
                                                                                                   ■ In consideration of the foregoing, HHS
                                           § 5.41(a)); replaced a reference to a Web               revises part 5 of title 45, Code of Federal           § 5.1    Purpose.
                                           site where FOIA fee rates would be                      Regulations, to read as follows:                        This part implements the provisions
                                           posted with a description of the                                                                              of the Freedom of Information Act
                                           calculation used to determine hourly                    PART 5—FREEDOM OF INFORMATION                         (FOIA), 5 U.S.C. 552, as amended, for
                                           rates for manual searching, computer                    REGULATIONS                                           Department of Health and Human
                                           operator/programmer time, and time                                                                            Services (HHS) records that are subject
                                                                                                   Subpart A—General Information About
                                           spent reviewing records (§ 5.52 What is                 Freedom of Information Act Requests Sec.              to the FOIA. This part should be read
                                           the FOIA fee schedule for obtaining                                                                           in conjunction with the text of the FOIA
                                                                                                   5.1 Purpose.
                                           records?) (formerly § 5.43); and clarified              5.2 Presumption of openness and proactive             and the Uniform Freedom of
                                           § 5.52(c)(2) (formerly § 5.43(c)(2)).                       disclosures.                                      Information Fee Schedule and
                                           Regulatory Analysis                                     5.3 Definitions.                                      Guidelines published by the Office of
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                                                                                                   5.4 Regulatory scope.                                 Management and Budget. This part
                                           Executive Order 12866                                   5.5 Interrelationship between the FOIA and            contains the rules that we follow to
                                                                                                       the Privacy Act of 1974.
                                             The rule has been drafted and                                                                               process FOIA requests, such as the
                                           reviewed in accordance with Executive                   Subpart B—How to Request Records under                amount of time we have to make a
                                           Order 12866, 58 FR 51735 (Sept. 30,                     FOIA                                                  determination regarding the release of
                                           1993), section 1(b), Principles of                      5.21 Who can file a FOIA request?                     records, who can decide to release


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                                           74940             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations

                                           records and who can decide not to                       StaffDiv is responsible for determining               duplicating (and, in the case of
                                           release them, the fees we may charge, if                which of its records must be made                     commercial use requests, reviewing)
                                           applicable, the reasons why some                        publicly available (including frequently              records in order to respond to a FOIA
                                           records are exempt from disclosure                      requested records), for identifying                   request. For example, direct costs
                                           under the FOIA, and the administrative                  additional records of interest to the                 include the salary of the employee
                                           and legal remedies available should a                   public that are appropriate for public                performing the work (i.e., the basic rate
                                           requester disagree with our initial                     disclosure, and for posting and indexing              of pay for the employee, plus 16 percent
                                           disclosure determination.                               such records. Each OpDiv and StaffDiv                 of that rate to cover benefits) and the
                                              (a) The FOIA provides a right of                     must ensure that its Web site of posted               cost of operating computers and other
                                           access to agency records, except to the                 records and indices is reviewed and                   electronic equipment, such as
                                           extent that any portions of the records                 updated on an ongoing basis. Each                     photocopiers and scanners. Direct costs
                                           are protected from public disclosure by                 OpDiv and StaffDiv has a FOIA                         do not include overhead expenses such
                                           an exemption or exclusion in the                        Requester Service Center or FOIA Public               as the costs of space, and of heating or
                                           statute. The FOIA does not require us to                Liaison who can assist individuals in                 lighting a facility.
                                           perform research for you or to answer                   locating records. A list of agency FOIA                  Duplication means the process of
                                           your questions. The FOIA does not                       Public Liaisons is available at http://               making a copy of a record and sending
                                           require agencies to create new records                  www.foia.gov/report-makerequest.html.                 it to the requester, to the extent
                                           or to perform analysis of existing                                                                            necessary to respond to the request.
                                           records; for example, by extrapolating                  § 5.3   Definitions.                                  Such copies include both paper copies
                                           information from existing agency                           The following definitions apply to                 and electronic records. Fees for
                                           records, reformatting publicly available                this part:                                            duplication are further explained within
                                           information, preparing new electronic                      Agency is defined at 5 U.S.C. 551(1).              § 5.52.
                                           programs or databases, or creating data                 HHS is an agency. Private entities                       Educational institution means any
                                           through calculations of ratios,                         performing work under a contractual                   school that operates a program of
                                           proportions, percentages, trends,                       agreement with the government are not                 scholarly research. A requester in this
                                           frequency distributions, correlations, or               agencies for the purpose of this                      fee category must show that the request
                                           comparisons. However, at our discretion                 definition. However, information                      is made in connection with his or her
                                           and if it would conserve government                     maintained on behalf of an agency                     role at the educational institution.
                                           resources, we may decide to supply                      under Government contract, for the                    Agencies may seek assurance from the
                                           requested information by consolidating                  purposes of records management, is                    requester that the request is in
                                           information from various records.                       considered an agency record.                          furtherance of scholarly research.
                                              (b) This part does not apply to data                    Chief FOIA Officer means a senior                     Example 1. A request from a professor
                                           generated by an agency grant recipient                  official of HHS, at the Assistant                     of geology at a university for records
                                           under the provisions of 45 CFR part 75                  Secretary or equivalent level, who has                relating to soil erosion, written on
                                           to the extent the requirements of 45 CFR                agency-wide responsibility for ensuring               letterhead of the Department of Geology,
                                           75.322(e) do not apply to the data. We                  efficient and appropriate compliance                  would be presumed to be from an
                                           will not process your request under the                 with the FOIA, monitoring                             educational institution.
                                           FOIA or these regulations if that data is               implementation of the FOIA throughout                    Example 2. A request from the same
                                           already available to the public through                 the agency, and making                                professor of geology seeking drug
                                           an archive or other source. In that                     recommendations to the head of the                    information from the Food and Drug
                                           situation, we will refer you to that other              agency to improve the agency’s                        Administration in furtherance of a
                                           source. The procedures for requesting                   implementation of the FOIA. The                       murder mystery he is writing would not
                                           research data made available under the                  Secretary of HHS has designated the                   be presumed to be an institutional
                                           provisions of 45 CFR 75.322(e) are                      Assistant Secretary, Office of the                    request, regardless of whether it was
                                           referenced in § 5.23(a).                                Assistant Secretary for Public Affairs                written on institutional stationery.
                                                                                                   (ASPA), as the Agency Chief FOIA                         Example 3. A student who makes a
                                           § 5.2 Presumption of openness and                       Officer (ACFO); that official may be                  request in furtherance of their
                                           proactive disclosures.                                  contacted at HHS.ACFO@hhs.gov.                        coursework or other school-sponsored
                                             (a) We will administer the FOIA with                     Commercial use means a use or                      activities and provides a copy of a
                                           a presumption of openness. In                           purpose that furthers a commercial,                   course syllabus or other reasonable
                                           accordance with 5 U.S.C. 552(a)(8) we                   trade, or profit interest of the requester            documentation to indicate the research
                                           will disclose records or information                    or the person or entity on whose behalf               purpose for the request, would qualify
                                           exempt from disclosure under the FOIA                   the request is made.                                  as part of this fee category.
                                           whenever disclosure would not                              Department or HHS means the U.S.                      Expedited processing means the
                                           foreseeably harm an interest protected                  Department of Health and Human                        process set forth in the FOIA that allows
                                           by a FOIA exemption and disclosure is                   Services.                                             requesters to request faster processing of
                                           not prohibited by law. We also will                        Deputy Agency Chief FOIA Officer                   their FOIA request, if they can
                                           consider whether partial disclosure of                  (DACFO) means a designated official                   demonstrate a specific compelling need.
                                           information is possible whenever we                     within the Office of the Assistant                       Fee category means one of the four
                                           determine that a full disclosure of a                   Secretary for Public Affairs, who has                 categories established by the FOIA to
                                           requested record is not possible. This                  been authorized by the Chief FOIA                     determine whether a requester will be
                                           includes taking reasonable steps to                     Officer to act upon their behalf to                   charged fees for search, review, and
                                           segregate and release nonexempt                         implement compliance with the FOIA,                   duplication. The categories are:
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                                           information.                                            as described above.                                   commercial use requests; non-
                                             (b) Records that the FOIA requires                       This official is also the approving                commercial scientific or educational
                                           agencies to make available for public                   review authority for FOIA                             institutions requests; news media
                                           inspection in an electronic format may                  administrative appeals.                               requests; and all other requests. Fee
                                           be accessed through each OpDiv’s and                       Direct costs mean those expenses that              categories are further explained within
                                           Staff Div’s Web site. Each OpDiv and                    an agency incurs in searching for and                 § 5.53.


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                                                             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations                                       74941

                                              Fee waiver means the waiver or                       authority to release or withhold records              Office of the Secretary (OS), which is
                                           reduction of fees if a requester is able to             or to waive fees in response to a FOIA                responsible for protecting the integrity
                                           demonstrate that certain standards set                  request. Our FOIA operations are                      of HHS programs and the health and
                                           forth in the FOIA and this part are                     decentralized, and each FOIA Requester                welfare of the beneficiaries of those
                                           satisfied, including that disclosure of                 Service Center has a designated official              programs. OIG is responsible for
                                           the records is in the public interest                   with this authority; the contact                      processing FOIA requests for the records
                                           because it is likely to contribute                      information for each FOIA Requester                   it maintains.
                                           significantly to public understanding of                Service Center is available at http://                   Office of the Secretary (OS) means the
                                           the operations or activities of the                     www.hhs.gov/foia/contacts/index.html.                 HHS’s chief policy officer and general
                                           government and is not primarily in the                     (1) The HHS Freedom of Information                 manager, who administers and oversees
                                           commercial interest of the requester.                   Act (FOIA) Officer in the Office of the               the organization, its programs and
                                              First-party request means a request by               Secretary means the HHS official who in               activities. The Deputy Secretary and a
                                           an individual for records pertaining to                 addition to overseeing the daily                      number of Assistant Secretaries and
                                           that individual, or an authorized                       operations of the FOIA program in that                Staff Divisions support OS. The HHS
                                           representative acting on such an                        office and having the authority of a                  FOIA Office within ASPA processes
                                           individual’s behalf.                                    Freedom of Information Act (FOIA)                     FOIA requests for records maintained by
                                              FOIA Public Liaison means an agency                  Officer, is also responsible for the                  OS Staff Divisions other than the OIG.
                                           official who reports to the agency Chief                Department-wide administration and                    In certain circumstances and at the HHS
                                           FOIA Officer and serves as a                            coordination of the FOIA and its                      FOIA Office’s discretion, the HHS FOIA
                                           supervisory official to whom a requester                implementing regulations and policies                 office may also process FOIA requests
                                           can raise concerns about the service the                as they pertain to the programs and                   involving other HHS OpDivs, as further
                                           requester has received from the FOIA                    activities of the Department. This                    described in § 5.28(a).
                                           Requester Service Center. This                          individual serves as the principal                       Operating Division (OpDiv) means
                                           individual is responsible for assisting in              resource with respect to the articulation             any of the following divisions within
                                           reducing delays, increasing                             of procedures designed to implement                   HHS which are subject to this
                                           transparency and understanding of the                   and ensure compliance with the FOIA                   regulation:
                                           status of requests, and assisting in the                and its implementing regulations and                  Office of the Secretary (OS)
                                           resolution of disputes.                                 policies as they pertain to the                       Administration for Children and
                                              FOIA request means a written request                 Department. This individual reports                      Families (ACF) Administration for
                                           that reasonably describes the records                   through the DACFO to the ACFO to                         Community Living (ACL)
                                           sought.                                                 support oversight and compliance with                 Agency for Healthcare Research and
                                              Freedom of Information Act (FOIA)                    the OPEN Government Act.                                 Quality (AHRQ)
                                           means the law codified at 5 U.S.C. 552                     (2) [Reserved]                                     Agency for Toxic Substances and
                                           that provides the public with the right                    Frequently requested records means                    Disease Registry
                                           to request agency records from Federal                  records, regardless of form or format,                (ATSDR) Centers for Disease Control
                                           executive branch agencies. A link to the                that have been released to any person                    and Prevention (CDC)
                                           text of the FOIA is at https://                         under the FOIA and that have been                     Centers for Medicare & Medicaid
                                           www.justice.gov/oip/freedom-                            requested 3 or more times or because of                  Services (CMS)
                                           information-act-5-usc-552.                              the nature of their subject matter, the               Food and Drug Administration (FDA)
                                              FOIA library records are records that                agency determines have become or are                  Health Resources and Services
                                           are required to be made available to the                likely to become the subject of                          Administration (HRSA)
                                           public without a specific request under                 subsequent requests for substantially the             Indian Health Service (IHS)
                                           5 U.S.C. 552(a)(2). We make FOIA                        same records.                                         National Institutes of Health (NIH)
                                           library records available to the public                    Immediate Office of the Secretary                  Substance Abuse and Mental Health
                                           electronically through our Web pages                    (IOS) means offices within the Office of                 Services Administration (SAMHSA).
                                           (http://www.hhs.gov/foia/reading/                       the Secretary, responsible for operations                Operating Division and Staff Division
                                           index.html) and at certain physical                     and work of the Secretary. It includes                Freedom of Information Act (FOIA)
                                           locations. A list of the physical                       the Office of the Deputy Secretary,                   Officers means the officials who are
                                           locations is available at http://                       Office of the Chief of Staff, the                     responsible for overseeing the daily
                                           www.hhs.gov/foia/contacts/index.html.                   Secretary’s Counselors, the Executive                 operations of their FOIA programs in
                                           Other records may also be made                          Secretariat, the Office of Health Reform,             their respective Operating Divisions or
                                           available at our discretion through our                 and the Office of Intergovernmental and               Staff Divisions, with the full authority
                                           Web pages (http://www.hhs.gov).                         External Affairs.                                     as described in the definition of
                                              Freedom of Information Act (FOIA)                       Non-commercial scientific institution              Freedom of Information Act (FOIA)
                                           Officer means an HHS official who has                   means an institution that is not operated             Officer. These individuals serve as the
                                           been delegated the authority to release                 to further a commercial, trade, or profit             principal resource and authority for
                                           or withhold records; to assess, waive, or               interest and that is operated solely for              FOIA operations and implementation
                                           reduce fees in response to FOIA                         the purpose of conducting scientific                  within their respective Operating
                                           requests; and to determine whether to                   research the results of which are not                 Divisions or Staff Divisions.
                                           grant expedited processing. In that                     intended to promote any particular                       Other requester means any individual
                                           capacity, the Freedom of Information                    product or industry. A requester in this              or organization whose request does not
                                           Act (FOIA) Officer has the authority to                 category must show that the request is                qualify as a commercial-use request,
                                           task agency organizational components                   authorized by and is made under the                   representative of the news media
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                                           to search for records in response to a                  auspices of a qualifying institution and              request (including a request made by a
                                           FOIA request, and to provide records                    that the records are sought to further                freelance journalist), or an educational
                                           located in their offices. Apart from                    scientific research and are not for a                 or non-commercial scientific institution
                                           records subject to proactive disclosure                 commercial use.                                       request.
                                           pursuant to subsection (a)(2) of the                       Office of the Inspector General (OIG)                 Record means any information that
                                           FOIA, only FOIA Officers have the                       means the Staff Division within the                   would be an agency record when


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                                           74942             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations

                                           maintained by an agency in any format,                  Departmental Appeals Board (DAB)                      records, we will process your request
                                           including an electronic format; and any                 Office for Civil Rights (OCR)                         under the FOIA only.
                                           information that is maintained for an                   Office of the General Counsel (OGC)                     (b) Requesting records about another
                                           agency by an entity under Government                       Office of Global Affairs (OGA)                     individual. If you request records about
                                           contract, for the purposes of records                   Office of the Inspector General (OIG)                 another individual, we will process
                                           management.                                             Office of Medicare Hearings and                       your request under the FOIA. You may
                                              Redact means delete or mark over.                       Appeals (OMHA)                                     receive greater access by following the
                                              Representative of the news media                     Office of the National Coordinator for                procedures described in § 5.22(g).
                                           means any person or entity that actively                   Health Information Technology (ONC)
                                           gathers information of potential interest                                                                     Subpart B—How to Request Records
                                           to a segment of the public, uses its                       Submitter means any person or entity,              under FOIA
                                           editorial skills to turn raw materials into             including a corporation, State, or foreign
                                                                                                   government, but not including another                 § 5.21   Who can file a FOIA request?
                                           a distinct work, and distributes that
                                           work to an audience. The term ‘‘news’’                  Federal Government entity, that                         Any individual, partnership,
                                           means information that is about current                 provides commercial or financial                      corporation, association, or public or
                                           events or that would be of current                      information, either directly or indirectly            private organization other than a
                                           interest to the public. Examples of news                to the Federal Government.                            Federal agency, regardless of
                                           media entities include television or                       Tolling means temporarily stopping                 nationality, may submit a FOIA request
                                           radio stations that broadcast news to the               the running of a time limit. We may toll              to us. This includes state and local
                                           public at large and publishers of                       a request to seek clarification or to                 governments.
                                           periodicals, including print and online                 address fee issues, as further described
                                                                                                   in § 5.24.                                            § 5.22 What do I include in my FOIA
                                           publications that disseminate news and                                                                        request?
                                           make their products available through a                 § 5.4   Regulatory scope.                                In your FOIA request:
                                           variety of means to the general public.
                                                                                                      The requirements in this part apply to                (a) Provide a written description of
                                           We do not consider requests for records
                                                                                                   all OpDivs and StaffDivs of HHS. Some                 the records you seek in sufficient detail
                                           that support the news-dissemination
                                                                                                   OpDivs and StaffDivs may establish or                 to enable our staff to locate them with
                                           function of the requester to be a
                                                                                                   continue to maintain additional rules                 a reasonable amount of effort. The more
                                           commercial use. We consider
                                                                                                   because of unique program                             information you provide, the better
                                           ‘‘freelance’’ journalists who demonstrate
                                                                                                   requirements, but such rules must be                  possibility we have of finding the
                                           a solid basis for expecting publication
                                                                                                   consistent with this part and the FOIA.               records you are seeking. Information
                                           through a news media entity as working
                                                                                                   If additional rules are issued, they must             that will help us find the records would
                                           for that entity. A publishing contract
                                                                                                   be published in the Federal Register                  include:
                                           provides the clearest evidence that a
                                                                                                   and you may get copies online at                         (1) The agencies, offices, or
                                           journalist expects publication; however,
                                                                                                   https://www.federalregister.gov/, http://             individuals involved;
                                           we also consider a requester’s past                                                                              (2) The approximate date(s) when the
                                           publication record.                                     www.regulations.gov/or by contacting
                                                                                                   one of our FOIA Requester Service                     records were created;
                                              Review means examining records
                                                                                                   Centers.                                                 (3) The subject, title, or description of
                                           responsive to a request to determine
                                                                                                                                                         the records sought; and
                                           whether any portions are exempt from                    § 5.5 Interrelationship between the FOIA                 (4) Author, recipient, case number,
                                           disclosure. Review time includes                        and the Privacy Act of 1974.                          file designation, or other reference
                                           processing a record for disclosure (i.e.,                 The FOIA allows any person (whether                 number, if available.
                                           doing all that is necessary to prepare the              an individual or entity) to request access               (b) Include your name, full mailing
                                           record for disclosure), including                       to records. The Privacy Act, at 5 U.S.C.              address, and phone number and if
                                           redacting the record and marking the                    552a(d), provides an additional right of              available, your email address. This
                                           appropriate FOIA exemptions.                            access, allowing individuals to request
                                              Search means the process of                                                                                information allows us to reach you
                                                                                                   records about themselves, if the records              faster if we have any questions about
                                           identifying, locating, and retrieving
                                                                                                   are maintained in a system of records                 your request. It is your responsibility to
                                           records to find records responsive to a
                                                                                                   (defined in 5 U.S.C. 552a(a)(5)).                     keep your current mailing address up to
                                           request, whether in hard copy or in
                                           electronic form or format.                                (a) Requesting records about you. If                date with the office where you have
                                              Staff Division (StaffDiv) means an                   any part of your request includes                     filed the FOIA request.
                                           organization component that provides                    records about yourself that are                          (c) State your willingness to pay all
                                           leadership, direction, and policy and                   maintained within a system of records                 fees, or the maximum amount of fees
                                           management guidance to the Office of                    as defined by the Privacy Act at 5 U.S.C.             you are willing to pay, and/or include
                                           the Secretary and the Department. The                   552a(a)(5), you should make your                      a request for a fee waiver/reduction.
                                           following StaffDivs are subject to the                  request in accordance with the Privacy                   (d) Mark both your letter and
                                           regulations in this part:                               Act and the Department’s implementing                 envelope, or the subject line of your
                                                                                                   regulations at 45 CFR part 5b. This                   email, with the words ‘‘FOIA Request.’’
                                           Immediate Office of the Secretary (IOS)
                                           Assistant Secretary for Administration                  includes requirements to verify your                     (e) If you are unable to submit a
                                              (ASA)                                                identity. We will process the request                 written request to us due to
                                           Assistant Secretary for Financial                       under the Privacy Act and, if it is not               circumstances such as disability or
                                              Resources (ASFR)                                     fully granted under the Privacy Act, we               literacy, you may make a request orally
                                           Assistant Secretary for Health (OASH)                   will process it under the FOIA. You may               to a FOIA Officer. FOIA Officers will
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                                           Assistant Secretary for Legislation (ASL)               obtain, under the FOIA, information                   put in writing an oral request made
                                           Assistant Secretary for Planning and                    that is exempt from access under the                  directly to them.
                                              Evaluation (ASPE) Assistant Secretary                Privacy Act, if the information is not                   (f) If you are making a first-party
                                              for Public Affairs (ASPA)                            excluded or exempt under the FOIA. If                 request, you must comply with the
                                           Assistant Secretary for Preparedness                    you request records about yourself that               verification of identity procedures set
                                              and Response (ASPR)                                  are not maintained within a system of                 forth in 45 CFR part 5b.


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                                              (g) Where your request for records                   portal located at https://                            records sought and contain sufficient
                                           pertains to another individual, you may                 requests.publiclink.hhs.gov/                          information to enable the FOIA office to
                                           receive greater access by submitting                    palMain.aspx.                                         contact you and transmit records to you.
                                           either a notarized authorization signed                    (a) If you are requesting research data            If we determine that a request does not
                                           by that individual or a declaration made                made available under the provisions of                meet these requirements, we will
                                           in compliance with the requirements set                 45 CFR 75.322(e), requests for such data              attempt to contact you if possible.
                                           forth in 28 U.S.C. 1746 by that                         should be addressed to the OpDiv that                 Should you not answer any
                                           individual authorizing disclosure of the                made the award under which the data                   correspondence, or should the
                                           records to the requester, or by                         were first produced. That OpDiv will                  correspondence be returned as
                                           submitting proof that the individual is                 process your request in accordance with               undeliverable, we reserve the right to
                                           deceased (e.g., a copy of a death                       established procedures consistent with                administratively close the FOIA request.
                                           certificate or an obituary). At our                     the FOIA and 45 CFR 75.322(e).                           (c) Stops in processing time (tolling).
                                           discretion, we may require you to                          (b) We officially receive your request             We may stop the processing of your
                                           supply additional information if                        when it reaches the FOIA Requester                    request one time if we require
                                           necessary to verify that a particular                   Service Center with responsibility for                additional information regarding the
                                           individual has consented to disclosure                  the OpDiv or StaffDiv where requested                 specifics of the request. The processing
                                           of records about them.                                  records are likely to be located, but no              time resumes upon our receipt of your
                                              (h) If you are requesting the medical                later than 10 working days after the                  response. We also may stop the
                                           records of an individual other than                     request first arrives at any of our FOIA              processing of your request if we require
                                           yourself from a government program                      Requester Service Centers.                            clarification regarding fee assessments.
                                           that pays or provides for health care                      (c) If you have questions concerning               If additional information or clarification
                                           (e.g. Medicare, Indian Health Service)                  the processing of your FOIA request,                  is required, we will attempt to contact
                                           and you are not that individual’s legally               you may contact the FOIA Requester                    you using the contact information you
                                           authorized representative, you should                   Service Center processing your request.               have provided. The processing time will
                                           submit a Health Insurance Portability                   If that initial contact does not resolve              resume upon our receipt of your
                                           and Accountability Act (HIPAA)                          your concerns, you may wish to contact                response. We will provide at least 20
                                           compliant release authorization form                    the designated FOIA Public Liaison for                working days after notification for you
                                           signed by the subject of records or the                 the OpDiv or StaffDiv processing your                 to respond to a request for additional
                                           individual’s legally authorized                         request. You can find a list of our FOIA              information or clarification regarding
                                           representative. The HIPAA Privacy Rule                  Requester Service Centers and Public                  the specifics of your request or fee
                                           requires that an authorization form                     Liaisons at http://www.hhs.gov/foia/                  assessment. Should you not answer any
                                           contain certain core elements and                       contacts/index.html.                                  correspondence, or should the
                                           statements which are described in the                                                                         correspondence be returned as
                                           Privacy Rule’s requirements at 45 CFR                   § 5.24 How does HHS process my FOIA                   undeliverable, we may administratively
                                           164.508. If you are submitting a request                request?                                              close the FOIA request.
                                           for Medicare records to CMS, CMS has                       (a) Acknowledgement. We                               (d) Search cut-off date. As the end or
                                           a release authorization form at the                     acknowledge all FOIA requests in                      cut-off date for a records search, we use
                                           following link: ttps://www.cms.gov/                     writing within 10 working days after                  the date on which we first begin our
                                           Medicare/CMS-Forms/CMS-Forms/                           receipt by the appropriate office. The                search for documents responsive to your
                                           Downloads/CMS10106.pdf.                                 acknowledgement letter or email                       request, unless you specify an earlier
                                              (i) Before filing your request, you may              informs you of your request tracking                  cut-off date, or a specific date range for
                                           find it helpful to consult the HHS FOIA                 number, provides contact information,                 the records search. We will use the date
                                           Requester Service Centers online at                     and informs you of any complexity we                  of the first search in those cases when
                                           http://www.hhs.gov/foia/contacts/                       are aware of in processing that may                   you request records ‘‘through the
                                           index.html, which provides additional                   lengthen the time required to reach a                 present,’’ ‘‘through today,’’ or similar
                                           guidance to assist in submitting a FOIA                 final decision on the release of the                  language. The FOIA allows you to
                                           request to a specific OpDiv or StaffDiv                 records. In addition, the                             request existing agency records. The
                                           or to regional offices or divisions within              acknowledgement letter or email or a                  FOIA cannot be used to request records
                                           an OpDiv or StaffDiv. You may also                      subsequent communication may also                     which the agency may create in the
                                           wish to check in the agency’s electronic                seek additional information to clarify                future in the course of carrying out its
                                           FOIA libraries available online at http://              your request.                                         mission.
                                           www.hhs.gov/foia/reading/index.html,                       (b) Perfected requests. (1) A request is              (e) Processing queues. We place FOIA
                                           to see if the information you wish to                   considered to be perfected (i.e., the 20              requests in simple or complex
                                           obtain is already available.                            working day statutory response time                   processing queues to be processed in the
                                                                                                   begins to run) when—                                  order received, on a first-in, first-out
                                           § 5.23   Where do I send my FOIA request?                  (i) The request either has been                    basis, absent approval for expedited
                                             We have several FOIA Requester                        received by the responsible FOIA office,              processing based upon a compelling
                                           Service Centers (FOIA offices) that                     or, in any event, not later than 10                   need, as further explained and defined
                                           process FOIA requests. You should send                  working days after the request has been               in § 5.27. We will place your request in
                                           your FOIA request to the appropriate                    received by any HHS FOIA office;                      the simple or complex processing queue
                                           FOIA Requester Service Center that you                     (ii) The requested records are                     based on the estimated amount of work
                                           believe would have the records you                      reasonably described; and                             or time needed to process the request.
                                           seek. An up-to-date listing is maintained                  (iii) The request contains sufficient              Among the factors we may consider are
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                                           online at http://www.hhs.gov/foia/                      information to enable the FOIA office to              the number of records requested, the
                                           contacts/index.html. You also may                       contact you and transmit records to you.              number of pages involved in processing
                                           submit your request electronically by                      (2) We provide at least 20 working                 the request, and the need for
                                           emailing it to the appropriate FOIA                     days for you to respond to a request to               consultations or referrals. We will
                                           Requester Service Center or by                          perfect your request, after notification.             advise requesters of potential
                                           submitting it to the Department’s web                   Requests must reasonably describe the                 complicating factors in our


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                                           acknowledgement letter or email, or in                    (1) Consultation. When records                      another agency under any applicable
                                           subsequent communications regarding                     originated with an OpDiv or StaffDiv                  executive order concerning the
                                           your request and, when appropriate, we                  processing the request, but contain                   classification of records, the OpDiv or
                                           will offer requesters an opportunity to                 within them information of interest to                StaffDiv must refer the responsibility for
                                           narrow or modify their request so that                  another OpDiv, StaffDiv, agency or other              responding to the request regarding that
                                           it can be placed in the simple                          Federal Government office, the OpDiv                  information to the agency that classified
                                           processing track.                                       or StaffDiv processing the request                    the information, or which should
                                              (f) Unusual Circumstances. Whenever                  should typically consult with that other              consider the information for
                                           we cannot meet the statutory time limit                 entity prior to making a release                      classification. Whenever an OpDiv’s or
                                           for processing a request because of                     determination.                                        StaffDiv’s record contains information
                                           ‘‘unusual circumstances,’’ as defined in                  (2) Referral. (i) When the OpDiv or                 that has been derivatively classified (for
                                           the FOIA, and we extend the time limit                  StaffDiv processing the request believes              example, when it contains information
                                           on that basis, we will notify you, before               that a different OpDiv, StaffDiv, or                  classified by another agency), the OpDiv
                                           expiration of the 20-day period to                      agency is best able to determine whether              or StaffDiv must refer the responsibility
                                           respond and in writing of the unusual                   to disclose the record, the OpDiv or                  for responding to that portion of the
                                           circumstances involved and of the date                  StaffDiv typically should refer the                   request to the agency that classified the
                                           by which we estimate processing of the                  responsibility for responding to the                  underlying information.
                                           request will be completed. Where the                    request regarding that record to that                    (d) Timing of responses to
                                           extension exceeds 10 working days, we                   other entity. Ordinarily, the entity that             consultations and referrals. All
                                           will provide you, as described by the                   originated the record is presumed to be               consultations and referrals received by
                                           FOIA, with an opportunity to modify                     the best entity to make the disclosure                the Department will be handled
                                           the request or arrange an alternative                   determination. However, if the OpDiv or               according to the date that the FOIA
                                           time period for processing the original                 StaffDiv processing the request and the               request initially was received by the
                                           or modified request. We will make                       originating entity jointly agree that the             first OpDiv, StaffDiv, or federal agency.
                                           available a designated FOIA contact in                  OpDiv or StaffDiv processing the                         (e) Agreements regarding
                                           the appropriate FOIA Requester Service                  request is in the best position to respond            consultations and referrals. OpDivs or
                                           Center or the appropriate FOIA Public                   regarding the record, then the record                 StaffDivs may establish agreements with
                                           Liaison for this purpose. In addition, we               may be handled as a consultation.                     other OpDivs, StaffDivs, or federal
                                           will inform you of the right to seek                      (ii) Whenever an OpDiv or StaffDiv                  agencies to eliminate the need for
                                           dispute resolution services from the                    refers any part of the responsibility for             consultations or referrals with respect to
                                           Office of Government Information                        responding to a request to another                    particular types of records.
                                           Services (OGIS).                                        OpDiv, StaffDiv, or federal agency, it
                                              (g) Aggregating requests. For the                    must document the referral, maintain a                § 5.26 How does HHS determine estimated
                                           purposes of satisfying unusual                          copy of the record that it refers, and                completion dates for FOIA requests?
                                           circumstances, we may aggregate                         notify the requester of the referral;                   (a) When we provide an estimated
                                           requests in cases where it reasonably                   informing the requester of the name(s)                completion date, in accordance with
                                           appears that multiple requests,                         of the entity to which the record was                 § 5.24(f) and upon request, for the
                                           submitted either by a requester or by a                 referred, including that entity’s FOIA                processing of records that do not require
                                           group of requesters acting in concert,                  contact information.                                  consultation with another agency, we
                                           constitute a single request, involving                    (3) Coordination. The standard                      estimate the completion date on the
                                           clearly related matters, that would                     referral procedure is not appropriate                 basis of our reasonable judgment as to
                                           otherwise involve unusual                               where disclosure of the identity of the               how long it will take to complete the
                                           circumstances. In the event that requests               OpDiv, StaffDiv, or federal agency to                 request. Given the uncertainty inherent
                                           are aggregated, they will be treated as                 which the referral would be made could                in establishing any estimate, the
                                           one request for the purposes of                         harm an interest protected by an                      estimated completion date is subject to
                                           calculating both response time and fees.                applicable exemption, such as the                     change at any time.
                                                                                                   exemptions that protect personal                        (b) When we provide an estimated
                                           § 5.25 How does HHS handle requests that                privacy or national security interests. In            completion date, in accordance with
                                           involve more than one OpDiv, StaffDiv, or               such instances, in order to avoid harm                § 5.24(f) and upon request, for records
                                           Federal agency?                                         to an interest protected by an applicable             that must be reviewed by another
                                             (a) Re-routing of misdirected requests.               exemption, the OpDiv or StaffDiv that                 agency, our estimate may also be based
                                           When a FOIA Requester Service Center                    received the request should coordinate                on information from the other agency.
                                           determines that a request was                           with the originating entity to seek its
                                           misdirected within HHS, the receiving                   views on the disclosability of the record.            § 5.27 How do I request expedited
                                           FOIA Requester Service Center must                      The release determination for the record              processing?
                                           route the request to the FOIA Requester                 that is the subject of the coordination                  (a) To request expedited processing,
                                           Service Center of the proper OpDiv or                   should then be conveyed to the                        you must submit a statement, certified
                                           StaffDiv within HHS.                                    requester by the OpDiv or StaffDiv that               to be true and correct, explaining the
                                             (b) Consultation, referral, and                       originally received the request.                      basis for your need for expedited
                                           coordination. When reviewing records                      (c) Classified information. On receipt              processing. You must send the request
                                           located by an OpDiv or StaffDiv in                      of any request involving classified                   to the appropriate FOIA Officer at the
                                           response to a request, the OpDiv or                     information, the OpDiv or StaffDiv must               address listed at http://www.hhs.gov/
                                           StaffDiv will determine whether another                 determine whether the information is                  foia/contacts/index.html. You may
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                                           agency of the Federal Government is                     currently and properly classified in                  request expedited processing when you
                                           better able to determine whether the                    accordance with applicable                            first request records or at any time
                                           record is exempt from disclosure under                  classification rules. Whenever a request              during our processing of your request or
                                           the FOIA. As to any such record, the                    involves a record containing                          appeal.
                                           OpDiv or StaffDiv must proceed in one                   information that has been classified or                  (b) We process requests on an
                                           of the following ways:                                  may be appropriate for classification by              expedited basis whenever we determine


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                                                             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations                                       74945

                                           that one or more of the following criteria              indicate where the information has been               Archives and Records Administration,
                                           exist:                                                  redacted and the exemption(s) we                      Office of Government Information
                                             (1) That a failure to obtain requested                applied, unless including that                        Services, 8601 Adelphi Road—OGIS,
                                           records on an expedited basis could                     indication would harm an interest the                 College Park, MD 20740–6001, or by
                                           reasonably be expected to pose an                       exemption protects. In Subpart C of this              email at ogis@nara.gov, or by telephone
                                           imminent threat to the life or physical                 part, we list the exemptions to                       at 202–741–5770 or 1–877–684–6448
                                           safety of an individual; or                             disclosure that may apply to agency                   (toll free).
                                             (2) There is an urgent need to inform                 records.
                                           the public about an actual or alleged                      (d) We also may deny your request for              Subpart C—Exemptions to Disclosure
                                           Federal Government activity (this                       other reasons, including that a request
                                                                                                                                                         § 5.31 What are the reasons records may
                                           criterion applies only to those requests                does not reasonably describe the records
                                                                                                                                                         be withheld?
                                           made by a person primarily engaged in                   sought; the information requested is not
                                           disseminating information to the                        a record subject to the FOIA; the                        While we are committed to providing
                                           public).                                                requested records do not exist, cannot                public access to as many of our records
                                             (c) We will respond to your request                   be located, or have been destroyed; or                as possible, there are instances in which
                                           for expedited processing within 10                      that the requested records are not                    information falls within one or more of
                                           calendar days of our receipt of your                    readily reproducible in the form or                   the FOIA’s nine exemptions and
                                           request to expedite. If we grant your                   format requested.                                     disclosure would either foreseeably
                                           request, the OpDiv or StaffDiv                             (e) If a request involves a voluminous             harm an interest protected by a FOIA
                                           responsible for the review of the                       amount of material or searches in                     exemption or disclosure is prohibited by
                                           requested records will process your                     multiple locations, we may provide you                law. We review all records and weigh
                                           request as a priority, and it will be                   with interim responses if feasible and                and assess all legal and policy
                                           processed as soon as practicable. We                    reasonably possible, releasing the                    requirements prior to making a final
                                           will inform you if we deny your request                 records on a rolling basis.                           disclosure determination. A description
                                           for expedited processing and provide                       (f) Copies of records in the format you            of the nine FOIA exemptions is
                                           you with appeal rights. If you decide to                request will be provided if the records               provided in paragraphs (a) through (i) of
                                           appeal that denial, we will expedite our                already exist in that format or if they are           this section.
                                           review of your appeal.                                  reasonably and readily reproducible in                   (a) Exemption 1. Exemption 1 protects
                                             (d) If we must refer records to another               the format you request.                               from disclosure information specifically
                                           agency, we will inform you and suggest                                                                        authorized under criteria established by
                                                                                                   § 5.29 How may I request assistance with              an Executive order to be kept secret in
                                           that you seek expedited review from
                                                                                                   the FOIA process?                                     the interest of national defense or
                                           that agency.
                                                                                                      (a) If you have questions concerning               foreign policy and are in fact properly
                                           § 5.28 How does HHS respond to my                       the processing of your FOIA request,                  classified pursuant to such Executive
                                           request?                                                you should first contact the FOIA                     order.
                                             (a) The appropriate FOIA Officer will                 Requester Service Center processing                      (b) Exemption 2. Exemption 2
                                           send you a response informing you of                    your request. Additionally, for                       authorizes our agency to withhold
                                           our release determination, including                    assistance at any point in the FOIA                   records that are related solely to the
                                           whether any responsive records were                     process, you may contact the FOIA                     internal personnel rules and practices of
                                           located, how much responsive material                   Public Liaison at the FOIA Requester                  an agency.
                                           was located, whether the records are                    Service Center processing your request.                  (c) Exemption 3. Exemption 3
                                           being released in full or withheld in full              The FOIA Public Liaison is responsible                authorizes our agency to withhold
                                           or in part, any fees you must pay for                   for assisting you to reduce delays,                   records which are specifically exempted
                                           processing of the request, and your right               increasing transparency and                           from disclosure by statute (other than 5
                                           to seek assistance from the appropriate                 understanding of the status of requests,              U.S.C. 552(b)) provided that such statute
                                           FOIA Public Liaison.                                    and assisting to resolve any FOIA                     requires that the matters be withheld
                                             (b) If we deny any part of your                       disputes. Some FOIA Requester Service                 from the public in such a manner as to
                                           request, our response will explain the                  Centers allow you to check the status of              leave no discretion on the issue; or
                                           reasons for the denial, which FOIA                      your request online. You can find a list              establishes particular criteria for
                                           exemptions apply to the withheld                        of our FOIA Requester Service Centers                 withholding or refers to particular types
                                           records, your right to appeal that                      and Public Liaisons at http://                        of matters to be withheld; and if enacted
                                           determination, and your right to seek                   www.hhs.gov/foia/contacts/index.html.                 after the date of enactment of the OPEN
                                           dispute resolution services from the                       (b) The Office of Government                       FOIA Act of 2009, October 28, 2009,
                                           appropriate FOIA Public Liaison or the                  Information Services (OGIS), which is                 specifically cites to 5 U.S.C. 552(b)(3).
                                           Office of Government Information                        part of the National Archives and                        (d) Exemption 4. Exemption 4
                                           Services (OGIS). We will advise you of                  Records Administration, serves as the                 authorizes our agency to withhold trade
                                           the number of pages withheld or the                     Federal FOIA ombudsman and assists                    secrets and commercial or financial
                                           estimated volume of withheld records,                   requesters and agencies to prevent and                information obtained from a person and
                                           unless providing such information                       resolve FOIA disputes through                         privileged or confidential.
                                           would harm an interest protected by an                  mediation. Mediation is a voluntary                      (e) Exemption 5. Exemption 5
                                           applicable FOIA exemption.                              process. If we participate in the dispute             authorizes our agency to withhold inter-
                                             (c) Records may be withheld in full or                resolution services provided by OGIS,                 agency or intra agency memorandums or
                                           in part if any of the nine FOIA                         we will actively engage as a partner to               letters that would not be available by
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                                           exemptions apply. If we determine to                    the process in an attempt to resolve the              law to a party other than an agency in
                                           withhold part of a record pursuant to an                dispute and will follow the principles of             litigation with the agency, provided that
                                           exemption, we will provide access to                    confidentiality in accordance with the                the deliberative process privilege shall
                                           reasonably segregable non-exempt                        Administrative Dispute Resolution Act,                not apply to records created 25 years or
                                           information contained in the record. On                 5 U.S.C. 571–8. You may contact OGIS                  more before the date on which the
                                           the released portion of the record, we                  at the following address: National                    records were requested.


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                                           74946             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations

                                              (f) Exemption 6. Exemption 6                         law enforcement agencies, under these                    (2) The submitter has 10 working days
                                           authorizes our agency to protect                        exceptional circumstances, to treat the               from the date of the notice to object to
                                           information in personnel and medical                    records as not subject to the                         disclosure of any part of the records and
                                           files and similar files when the                        requirements of the FOIA.                             to state all bases for its objections. FOIA
                                           disclosure of such information would                      (a) Should an HHS OpDiv or StaffDiv                 Offices in HHS and its organizational
                                           constitute a clearly unwarranted                        maintain records which are subject to a               components may extend this period as
                                           invasion of personal privacy.                           FOIA exclusion, and consider                          appropriate and necessary.
                                              (g) Exemption 7. Exemption 7                         employing an exclusion or have a                         (3) We review and consider all
                                           authorizes our agency to withhold                       question as to the implementation of an               objections to release that we receive
                                           records or information compiled for law                 exclusion, the OpDiv or StaffDiv will                 within the time limit. If a submitter fails
                                           enforcement purposes, but only to the                   consult with the Office of Information                to respond within the time period
                                           extent that the production of such law                  Policy, U.S. Department of Justice.                   specified in the notice, we will consider
                                           enforcement records or information                        (b) Because records falling within an               the submitter to have no objection to
                                           would cause the following harm(s):                      exclusion are not subject to the                      disclosure of the information. If we
                                              (1) Could reasonably be expected to                  requirements of the FOIA, should any                  decide to release the records, we inform
                                           interfere with enforcement proceedings;                 HHS OpDiv or StaffDiv maintain such                   the submitter in writing, along with our
                                              (2) Would deprive a person of a right                excluded records, the OpDiv or StaffDiv               reasons for the decision to release. We
                                           to a fair trial or an impartial                         will limit its response to those records              include with the notice a description of
                                           adjudication;                                           that are subject to the FOIA.                         the information to be disclosed or
                                              (3) Could reasonably be expected to                                                                        copies of the records as we intend to
                                           constitute an unwarranted invasion of                   Subpart D—Confidential Commercial
                                                                                                                                                         release them. We also provide the
                                           personal privacy;                                       Information
                                                                                                                                                         submitter with a specific date that we
                                              (4) Could reasonably be expected to                  § 5.41 How does a submitter identify                  intend to disclose the records, which
                                           disclose the identity of a confidential                 records containing confidential commercial            must be at least 5 working days after the
                                           source, including a state, local, or                    information?                                          date of the notice. We do not consider
                                           foreign agency or authority, or any                        A person who submits records to the                any information we receive after the
                                           private institution which furnished                     government may designate part or all of               date of a disclosure decision.
                                           information on a confidential basis, and,               the information in such records that                     (4) If the requester files a lawsuit
                                           in the case of a record or information                  they may consider to be exempt from                   under the FOIA for access to records
                                           compiled by a criminal law enforcement                  disclosure under Exemption 4 of the                   submitted to HHS, we promptly notify
                                           authority in the course of a criminal                   FOIA. The person may make this                        the submitter.
                                           investigation, or by an agency                          designation either at the time the                       (5) We will notify the requester in
                                           conducting lawful national security                     records are submitted to the government               these circumstances:
                                           intelligence investigation, information                 or within a reasonable time thereafter.                  (i) When we notify a submitter that
                                           furnished by a confidential source;                     The designation must be in writing. Any               we may be required to disclose
                                              (5) Would disclose techniques and                    such designation will expire 10 years                 information under the FOIA, we will
                                           procedures for law enforcement                          after the records were submitted to the               also notify the requester that notice and
                                           investigations or prosecutions, or would                government.                                           opportunity to comment are being
                                           disclose guidelines for law enforcement                                                                       provided to the submitter;
                                           investigations or prosecutions, if such                 § 5.42 How does HHS process FOIA                         (ii) When the agency notifies a
                                                                                                   requests for confidential commercial                  submitter of a final disclosure decision
                                           disclosure could reasonably be expected                 information?
                                           to risk circumvention of the law; or                                                                          under the FOIA,
                                              (6) Could reasonably be expected to                      (a) Predisclosure notification. The                  and;
                                           endanger the life or physical safety of                 procedures in this section apply to                      (iii) When a submitter files a lawsuit
                                           any individual.                                         records on which the submitter has                    to prevent the disclosure of the
                                              (h) Exemption 8. Exemption 8                         designated information as provided in                 information.
                                           authorizes our agency to withhold                       § 5.41. They also apply to records that                  (b) Exceptions to predisclosure
                                           records that are contained in or related                were submitted to the government                      notification. The notice requirements in
                                           to examination, operating, or condition                 where we have substantial reason to                   paragraph
                                           reports prepared by, on behalf of, or for               believe that information in the records                  (a) of this section do not apply in the
                                           the use of an agency responsible for the                could reasonably be considered exempt                 following situations:
                                           regulation or supervision of financial                  under Exemption 4. Certain exceptions                    (1) We determine that we should
                                           institutions.                                           to these procedures are stated in                     withhold the information under a FOIA
                                              (i) Exemption 9. Exemption 9                         paragraph (b) of this section.                        exemption;
                                           authorizes our agency to withhold                           (1) When we receive a request for                    (2) The information has been lawfully
                                           geological and geophysical information                  such records, and we determine that we                published or made available to the
                                           and data, including maps, concerning                    may be required to disclose them, we                  public
                                           wells.                                                  will make reasonable efforts to notify                   (3) We are required by a statute (other
                                                                                                   the submitter about these facts. The                  than the FOIA), or by a regulation
                                           § 5.32 Records not subject to the                       notice will include a copy of the                     issued in accordance with the
                                           requirements of the FOIA—law enforcement                request, and it will inform the submitter             requirements of Executive Order 12600,
                                           exclusions.                                             about the procedures and time limits for              to disclose the information; or
                                             Under the FOIA, there is special                      submission and consideration of                          (4) The designation made by the
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                                           protection for narrow categories of law                 objections to disclosure. If we must                  submitter appears obviously frivolous.
                                           enforcement and national security                       notify a large number of submitters, we               However, in such a case, the agency
                                           records. The provisions protecting those                may do this by posting or publishing a                must provide the submitter with written
                                           records are known as ‘‘exclusions’’ and                 notice in a place where the submitters                notice of any final disclosure
                                           are described in 5 U.S.C. 552(c). These                 are reasonably likely to become aware of              determination and intent to release, at
                                           exclusions expressly authorize Federal                  it.                                                   least 5 working days prior to the


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                                                             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations                                         74947

                                           specified disclosure date. We will notify                 (h) We do not send an invoice to                       (c) Duplication fees—(1)
                                           the submitter as referenced in                          requesters if assessable processing fees              Photocopying standard-sized pages. The
                                           § 5.42(a)(3).                                           are less than $25.00.                                 current charge for photocopying records
                                                                                                                                                         is $0.10 per page.
                                           Subpart E—Fees                                          § 5.52 What is the FOIA fee schedule for
                                                                                                   obtaining records?                                       (2) Reproduction of electronic records.
                                           § 5.51 General information on fees for all                                                                    We will attempt to provide records in
                                                                                                      In responding to FOIA requests for
                                           FOIA requests.                                                                                                the format you sought, if the records are
                                                                                                   records, we charge the following fees,
                                                                                                                                                         reasonably and readily reproducible in
                                              (a) We generally assume that when                    where applicable, unless we have given
                                                                                                                                                         the requested format. We charge you for
                                           you request records you are willing to                  you a reduction or waiver of fees. The
                                                                                                                                                         our direct costs for staff time and to
                                           pay the fees we charge for services                     fees we charge for search and review are
                                                                                                   three-tiered, and the hourly charge is                organize, convert, and format data for
                                           associated with your request. You may
                                                                                                   determined by the classification and                  release, per requester instructions, and
                                           specify a limit on the amount you are
                                                                                                   grade level of the employee performing                for printouts or electronic media
                                           willing to spend. We will notify you if
                                                                                                   the search or review. When the search                 necessary to reproduce electronic
                                           it appears that the fees will exceed
                                                                                                   or review is performed by employees at                records requested under the FOIA.
                                           $25.00 or your specified limit and ask
                                                                                                   grade GS–1 through GS–8 (or                              (3) Copying other media. We will
                                           whether you nevertheless want us to
                                                                                                   equivalent), an hourly rate will be                   charge you the direct cost of copying
                                           proceed with the search.
                                                                                                   charged based on the salary of a GS–5,                other media.
                                              (b) If you have failed to pay FOIA fees
                                                                                                   step 7, employee; when done by a GS–                     (d) Mailing and special delivery fees.
                                           in the past, we will require you to pay
                                                                                                   9 through GS–14 (or equivalent), an                   We release records by United States
                                           your past due bill and we may also
                                                                                                   hourly rate will be charged based on the              Postal Service or, when appropriate, by
                                           require you to pay the anticipated fee
                                                                                                   salary of a GS–12, step 4,employee; and               electronic means, such as electronic
                                           before we begin processing your current
                                                                                                   when done by a GS–15 or above (or                     mail or web portal. If a requester seeks
                                           request. If we estimate that your fees
                                                                                                   equivalent), an hourly rate will be                   special delivery, such as overnight
                                           may be greater than $250.00, we also
                                                                                                   charged based on the salary of a GS–15,               shipping, we reserve the right to pass on
                                           may require advance payment or a
                                                                                                   step 7, employee. In each case, the                   the actual costs of special delivery to the
                                           deposit before we begin processing your
                                                                                                   hourly rate will be computed by taking                requester. Requesters may provide their
                                           request. If you fail to make an advance
                                                                                                   the current hourly rate listed for the                mailing account and billing information
                                           payment within 20 working days after
                                                                                                   specified grade and step in the General               to the agency, so that they may pay
                                           the date of our fee letter, we will close
                                                                                                   Schedule Locality Pay Table for the                   directly for special delivery options.
                                           the request.
                                                                                                   Locality of Washington-Baltimore-                        (e) Certification of records. The FOIA
                                              (c) We may charge interest on unpaid
                                                                                                   Northern Virginia, DC–MD–VA–WV–                       does not require agencies to certify
                                           bills beginning on the 31st calendar day
                                                                                                   PA, adding 16% of that rate to cover                  records as true copies. We may elect, as
                                           following the day the FOIA fee invoice
                                                                                                   benefits, and rounding to the nearest                 a matter of administrative discretion, to
                                           was sent. We may assess interest,
                                                                                                   whole dollar.                                         certify records upon request; however,
                                           administrative costs, and penalties for
                                                                                                      (a) Search fees—(1) Manual searches.               such a request must be submitted in
                                           overdue FOIA fee costs.
                                                                                                   Fees will be assessed to search agency                writing. Further, we will only certify as
                                              (d) If we determine that you (either                                                                       true copies records that have not left the
                                                                                                   files and records in both hardcopy and
                                           acting alone or with a group of                                                                               agency’s chain of custody. The charge
                                                                                                   electronic format. Such fees will be at
                                           requesters) are breaking down a single                                                                        for certification is $25.00 per record
                                                                                                   the rate or rates for the classification of
                                           request into a series of requests in order                                                                    certified.
                                                                                                   the employee(s) performing the search,
                                           to avoid or reduce fees, we may
                                                                                                   as established in this section.                          (f) Other statutes specifically
                                           aggregate all of these requests when
                                                                                                      (2) Computer searches. We base the                 providing for fees. The fee schedule of
                                           calculating the fees. In aggregating
                                                                                                   fees for computer searches on the actual              this section does not apply to fees
                                           requests, we may consider the subject
                                                                                                   cost to our agency of operating the                   charged under any statute that
                                           matter of the requests and whether the
                                                                                                   computer and the salary of the operator.              specifically requires an OpDiv or
                                           requests were filed close in time to one                   (b) Review fees. (1) We charge review              StaffDiv to set and collect fees for
                                           another.                                                fees for time we spend examining                      particular types of records. In instances
                                              (e) If, in the course of negotiating fees,           documents that are responsive to a                    where records responsive to a request
                                           you do not respond to the agency within                 request to determine whether we must                  are subject to a statutorily-based fee
                                           20 working days of our last                             apply any FOIA exemptions to withhold                 schedule program, the OpDiv or
                                           communication, your request will be                     information. Review time includes                     StaffDiv must inform the requester of
                                           closed.                                                 processing any record for disclosure                  the contact information for that
                                              (f) We may stop the processing of your               (i.e., doing all that is necessary to                 program.
                                           request, if necessary, to clarify fee issues            prepare the record for disclosure),
                                           with you, and to confirm your                           including redacting the record and                    § 5.53 How does HHS calculate FOIA fees
                                           willingness to pay applicable fees. Fee                                                                       for different categories of requesters?
                                                                                                   marking the appropriate FOIA
                                           related issues may arise sequentially                   exemptions. We charge review fees even                  (a) If you are a commercial use
                                           over the course of processing a request,                if we ultimately are unable to disclose               requester, we charge you fees for
                                           and the FOIA allows agencies to stop                    a record.                                             searching, reviewing, and duplicating
                                           the processing time as many times as                       (2) We do not charge review fees for               responsive records.
                                           necessary in order to clarify issues                    time we spend resolving general legal or                (b) If you are an educational or
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                                           regarding fee assessment and                            policy issues regarding the application               noncommercial scientific institution
                                           willingness to pay fees.                                of exemptions. However, we do charge                  requester, or a member of the news
                                              (g) We may charge search fees even if                review fees for time we spend obtaining               media, you are entitled to search time,
                                           the records are exempt from disclosure,                 and considering any formal objection to               review time, and up to 100 pages of
                                           or if we do not find any responsive                     disclosure made by a confidential                     duplication (or the cost equivalent for
                                           records during our search.                              commercial information submitter.                     other media) without charge. We charge


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                                           74948             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations

                                           duplication fees after the first 100 pages              based on all available information, that              information for direct economic return
                                           (or its cost equivalent).                               the following three factors are satisfied:            will not be presumed to primarily serve
                                             (c) If you do not fall into either of the                (1) Disclosure of the requested                    the public interest.
                                           categories in paragraphs (a) and (b) of                 information would shed light on the                     (c) You should ask for waiver or
                                           this section (i.e. you are an ‘‘other                   operations or activities of the                       reduction of fees when you first submit
                                           requester’’), you are entitled to two                   government. The subject of the request                your request to HHS, and should
                                           hours of free search time, up to 100                    must concern identifiable operations or               address the criteria referenced in this
                                           pages of duplication (or the cost                       activities of the Federal Government                  section.
                                           equivalent of other media) without                      with a connection that is direct and
                                           charge, and you will not be charged for                 clear, not remote or attenuated.                      Subpart F—Appeals
                                           review time. We may charge for search                      (2) Disclosure of the requested
                                                                                                   information would be likely to                        § 5.61 When may I appeal HHS’s FOIA
                                           time beyond the first two hours and for                                                                       determination?
                                           duplication beyond the first 100 pages                  contribute significantly to public
                                           (or its cost equivalent).                               understanding of those operations or                     In order to fully exhaust all of your
                                             (d)(1) If we fail to comply with the                  activities. This factor is satisfied when             administrative remedies, you must file
                                           FOIA’s time limits in which to respond                  the following criteria are met:                       an appeal of an adverse agency
                                           to a request, we may not charge search                     (i) Disclosure of the requested records            determination in writing, and to be
                                           fees, or, in the instances of the requester             must be meaningfully informative about                considered timely it must be
                                           categories referenced in paragraph (b) of               government operations or activities. The              postmarked, or in the case of electronic
                                           this section, may not charge duplication                disclosure of information that already is             submissions, transmitted within 90
                                           fees, except as described in (d)(2)-(4).                in the public domain, in either the same              calendar days from the date of such
                                             (2) If we have determined that                        or a substantially identical form, would              determination. Any electronic
                                           unusual circumstances as defined by the                 not be meaningfully informative if                    transmission made after normal
                                           FOIA apply and we provided timely                       nothing new would be added to the                     business hours will be considered to
                                           written notice to the requester in                      public’s understanding.                               have been transmitted on the next
                                           accordance with the FOIA, a failure to                     (ii) The disclosure must contribute to             calendar day. If a postmark is not
                                           comply with the time limit shall be                     the understanding of a reasonably broad               legible, the timeliness of a submission
                                           excused for an additional 10 days.                      audience of persons interested in the                 will be based on the date that we receive
                                             (3) If we have determined that                        subject, as opposed to the individual                 the appeal. Adverse determinations
                                           unusual circumstances, as defined by                    understanding of the requester. A                     include:
                                           the FOIA, apply and more than 5,000                     requester’s expertise in the subject area                (a) Refusal to release a record, either
                                           pages are necessary to respond to the                   as well as the requester’s ability and                in whole or in part;
                                           request, we may charge search fees, or,                 intention to effectively convey                          (b) Determination that a record does
                                           in the instances of requests from                       information to the public must be                     not exist or cannot be found;
                                           requesters described in paragraph (b) of                considered. We will presume that a                       (c) Determination that a request does
                                           this section, may charge duplication                    representative of the news media will                 not reasonably describe the records
                                           fees if the following steps are taken: we               satisfy this consideration.                           sought;
                                           must have provided timely written                          (3) The disclosure must not be                        (d) Determination that the record you
                                           notice to the requester in accordance                   primarily in the commercial interest of               sought was not subject to the FOIA;
                                           with the FOIA and must have discussed                   the requester. To determine whether                      (e) Denial of a request for expedited
                                           with the requester via written mail,                    disclosure of the requested information               processing;
                                           email, or telephone (or made not less                   is primarily in the commercial interest                  (f) Denial of a fee waiver request; or
                                           than three good-faith attempts to do so)                of the requester, we will consider the                   (g) Fee category determination.
                                           how the requester could effectively limit               following criteria:
                                                                                                      (i) We will identify whether the                   § 5.62   How do I file an appeal?
                                           the scope of the request in accordance
                                                                                                   requester has any commercial interest                   (a) You have the right to appeal an
                                           with 5. U.S.C. 552(a)(6)(B)(ii). If this
                                                                                                   that would be furthered by the                        adverse agency determination of your
                                           exception is satisfied, we may charge all
                                                                                                   requested disclosure. A commercial                    FOIA request.
                                           applicable fees incurred in the
                                                                                                   interest includes any commercial, trade,                (b) You may submit your appeal via
                                           processing of the request.
                                             (4) If a court has determined that                    or profit interest. Requesters will be                mail or electronically.
                                           exceptional circumstances exist, as                     given an opportunity to provide                         (1) Please send your appeal to the
                                           defined by the FOIA, a failure to comply                explanatory information regarding this                review official at the address provided
                                           with the time limits shall be excused for               consideration.                                        in your denial letter. If you are unsure
                                           the length of time provided by the court                   (ii) If there is an identified                     who is the appropriate review official,
                                           order.                                                  commercial interest, we will determine                please contact the FOIA Requester
                                                                                                   whether that is the primary interest                  Service Center that processed your
                                           § 5.54   How may I request a fee waiver?                furthered by the request. A waiver or                 request to obtain that information.
                                             (a) Requesters may seek a waiver of                   reduction of fees is justified when the                 (2) The addresses to mail FOIA
                                           fees by submitting a written application                requirements of paragraphs (b)(1) and                 appeals for CMS and OS are,
                                           demonstrating how disclosure of the                     (2) of this section are satisfied and any             respectively: Centers for Medicare &
                                           requested information is in the public                  commercial interest is not the primary                Medicaid Services, Attn: Principal
                                           interest because it is likely to contribute             interest furthered by the request. We                 Deputy Administrator, Room C5–16- 03,
                                           significantly to public understanding of                ordinarily will presume that when a                   7500 Security Boulevard, Baltimore, MD
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                                           the operations or activities of the                     news media requester has satisfied                    21244; and U.S. Department of Health
                                           government and is not primarily in the                  factors (b)(1) and (2) of this section, the           and Human Services, Deputy Agency
                                           commercial interest of the requester.                   request is not primarily in the                       Chief FOIA Officer, Office of the
                                             (b) We must furnish records                           commercial interest of the requester.                 Assistant Secretary for Public Affairs,
                                           responsive to a request without charge                  Disclosure to data brokers or others who              Room 729H, 200 Independence Avenue
                                           or at a reduced rate when we determine,                 merely compile and market government                  SW., Washington, DC 20201.


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                                                             Federal Register / Vol. 81, No. 209 / Friday, October 28, 2016 / Rules and Regulations                                             74949

                                           Additionally, information, including                    of that decision expeditiously. Before                must first submit a timely
                                           how to submit a FOIA appeal                             making a decision on an appeal of an                  administrative appeal.
                                           electronically, can be found at the                     adverse determination, the designated                    (b) We also inform you that the Office
                                           following online locations for CMS and                  review official will consult with the                 of Government Information Services
                                           OS: https://www.cms.gov/Regulations-                    Office of the General Counsel. Also, the              (OGIS) offers mediation services to
                                           and-Guidance/Legislation/FOIA/                          concurrence of the Office of the                      resolve disputes between FOIA
                                           filehow.html and https://                               Assistant Secretary for Public Affairs is             requesters and Federal agencies as a
                                           requests.publiclink.hhs.gov/                            required in all appeal decisions,                     non-exclusive alternative to litigation.
                                           palMain.aspx.                                           including those on fees. When the                     As referenced in § 5.29(b) you may
                                              (3) When submitting an appeal, you                   review official responds to an appeal,                contact OGIS via mail, email, or
                                           should mark both your letter and                        that constitutes the Department’s final               telephone for assistance.
                                           envelope with the words ‘‘FOIA                          action on the request.
                                           Appeal’’ or include the words ‘‘FOIA                      (b) If we reverse or modify the initial             Subpart G—Records Retention
                                           Appeal’’ in the subject line of your                    decision, we will inform you in writing
                                           email. You should also include your                     and, if applicable, reprocess your                    § 5.71   How does HHS retain FOIA records?
                                           FOIA request tracking number, a copy of                 request. If we do not change our initial
                                                                                                   decision, we will respond in writing to                 We will preserve records created in
                                           your initial request, and a copy of our                                                                       administering the Department’s
                                           final determination letter.                             you, explain the reasons for the
                                                                                                   decision, set out any FOIA exemptions                 Freedom of Information program until
                                              (c) Your appeal should clearly                       that apply, and inform you of the                     disposition is authorized under an
                                           identify the agency determination that is               provisions for judicial review. If a                  applicable General Records Schedule or
                                           being appealed. It would be helpful if                  requester files a FOIA lawsuit in                     other records schedule duly approved
                                           you provide specific reasons explaining                 reference to an appeal, we will cease                 by the Archivist of the United States.
                                           why you believe the agency’s adverse                    processing the appeal.                                  Dated: June 7, 2016.
                                           determination should be reconsidered.
                                                                                                                                                         Sylvia M. Burwell,
                                                                                                   § 5.64 What avenues are available to me if
                                           § 5.63   How does HHS process appeals?                  I disagree with HHS’s appeal decision?                Secretary, Department of Health and Human
                                                                                                                                                         Services.
                                              (a) We respond to your appeal within                   (a) In our response letter, we notify
                                           20 working days after the appeal official               you of your right to seek judicial review               Note: This document was received for
                                           designated in your appeal letter receives               of an adverse determination as set forth              publication by the Office of the Federal
                                           it. If, however, your appeal is based on                in the FOIA at 5 U.S.C. 552(a)(4)(B).                 Register on October 19, 2016.
                                           a denial of a request for expedited                     Before seeking review by a court of an                [FR Doc. 2016–25684 Filed 10–27–16; 8:45 am]
                                           processing, we will act on your appeal                  adverse determination, you generally                  BILLING CODE 4150–25–P
ehiers on DSK5VPTVN1PROD with RULES




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Document Created: 2018-02-13 16:39:53
Document Modified: 2018-02-13 16:39:53
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis rule is effective on November 28, 2016.
ContactMichael Marquis, Michael Bell, Deborah Peters, and/or Brandon Lancey by email to: [email protected] These individuals also can be reached by telephone at 202-690-7453.
FR Citation81 FR 74930 
RIN Number0991-AC04

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