Revision of Department of Energy's Freedom of Information Act Regulations

AGENCY:

Office of FOIA and Privacy Act, Office of Information Resources, Department of Energy.

ACTION:

Notice of proposed rulemaking and opportunity for comment.

SUMMARY:

The Department of Energy (DOE) publishes a proposed rule to amend the existing regulations at Part 1004 that establish procedures by which records may be requested from all DOE offices pursuant to the Freedom of Information Act (FOIA). This proposed rule would streamline DOE's procedures for determining the releasability of information and update the fee requirements for the reproduction of documents.

This proposed rule would remove the so-called “extra balancing test” in section 1004.1 which states: “To the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under 5 U.S.C. 552 whenever it determines that such disclosure is in the public interest.” This sentence imposes an additional burden on DOE to reconsider a determination to legally withhold information in accordance with 5 U.S.C. 552.

In addition, this proposed rule would amend section 1004.9(a)(4) to raise the per page rate for paper copy reproductions and microform to paper copies to the rate of 20 cents per page.

Additional administrative changes which do not require notice and comment will be promulgated in the Final Rule to bring DOE's regulations into compliance with the 1996 Amendments to the FOIA and to reflect minor alterations in DOE's internal organizational structure.

DATES:

Public comment on this proposed rule will be accepted until January 8, 2009. See section III of the SUPPLEMENTARY INFORMATION section of this notice for additional information about public comment procedures.

ADDRESSES:

You may submit comments, identified by RIN 1901-AA32, by any of the following methods:

1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

2. E-mail to kevin.hagerty@hq.doe.gov. Include RIN 1901-AA32 in the subject line of the e-mail. Please include the full body of your comments in the text of the message or as an attachment.

3. Mail: Address written comments to Mr. Kevin Hagerty, U.S. Department of Energy, Office of Information Resources, Mailstop MA-90, Room 1G-051, 1000 Independence Avenue, SW., Washington, DC 20585. Due to potential delays in DOE's receipt and processing of mail sent through the U.S. Postal Service, we encourage respondents to submit comments electronically to ensure timely receipt.

This notice of proposed rulemaking, public comments, and any other material that DOE receives about this rulemaking are being made available on the Office of Information Resources Web site at: http://www.management.energy.gov/foia_pa.htm. You also may obtain copies of comments by contacting Ms. Verlette Gatlin.

FOR FURTHER INFORMATION CONTACT:

Ms. Verlette Gatlin, Department of Energy, Office of Information Resources, Mailstop MA-90, Room 1G-051, 1000 Independence Avenue, SW., Washington, DC 20585; verlette.gatlin@hq.doe.gov, (202) 586-5958.

SUPPLEMENTARY INFORMATION:

I. Introduction

II. Discussion of Proposed Rule

III. Public Comment Procedures

IV. Regulatory Review

I. Introduction

Part 1004 contains the regulations of the Department of Energy (DOE) that implement 5 U.S.C. 552. This part provides information concerning the procedures by which the public may request records from DOE offices, and the policies under which records shall be furnished to members of the public.

Section 1004.1, Purpose and Scope, requires DOE to perform an additional balancing test, to the extent permitted by law, when determining whether to withhold information under the nine enumerated exemptions to the FOIA. This additional test requires DOE to make available records that could be withheld under the FOIA exemptions, if DOE determines that disclosure would be in the public interest. DOE is proposing to remove the extra balancing test, because it goes beyond the requirements of the FOIA, and imposes unnecessary administrative requirements on DOE.

DOE also is proposing to amend 10 CFR 1004.9(a)(4), which provides for DOE to charge requesters for paper copy reproduction of documents. At present, the charge for paper to paper copies is five cents per page and the charge for microform to paper copies is ten cents per page. DOE is proposing to raise the per page rate for both paper copy reproductions and microform to paper copies to 20 cents per page.

II.- Discussion of Proposed Rule

In determining how to revise the existing regulation in 10 CFR 1004.1, DOE reached this conclusion because the extra balancing test does not alter the outcome of the decision to withhold information, as DOE already incorporates Department of Justice guidance in applying exemptions when determining whether or not to make a discretionary release of information. Therefore, the imposition of an extra balancing test is cumbersome and unnecessary.

In determining how to proceed in raising the per-page rate for paper reproductions, DOE compared the rates of fellow Cabinet-level agencies and found that the rate of 20 cents a page is comparable to the fees charged throughout the executive branch. Changing the per page rate from five and ten cents per page (as set in 1988) to twenty cents per page is a modest and reasonable increase that is more reflective of current costs and would bring DOE into conformity with the rest of the government. This change is wholly consistent with 5 U.S.C. 552(a)(4)(a)(ii)(I): “fees shall be limited to reasonable standard charges for document search, duplication, and review, when records are requested for commercial use.”

III. Public Comment Procedures

Interested persons are invited to participate in this proceeding by submitting data, views, or arguments. Written comments should be submitted to the address, and in the form, indicated in the ADDRESSES section of this notice of proposed rulemaking. To help DOE review the comments, interested persons are asked to refer to specific proposed rule provisions, if possible.

If you submit information that you believe to be exempt by law from public disclosure, you should submit one complete copy, as well as one copy from which the information claimed to be exempt by law from public disclosure has been deleted. DOE is responsible for the final determination with regard to disclosure or nondisclosure of the information and for treating it accordingly under the DOE Freedom of Information regulations at 10 CFR 1004.11.

DOE has determined that this rulemaking does not present a substantial issue of fact or law, or is likely to have the kinds of substantial impacts, that warrant an opportunity for oral presentation of views, data, and arguments pursuant to 42 U.S.C. 7191(b).

IV. Regulatory Review

A. Review Under Executive Order 12866

Today's regulatory action has been determined not to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993), as amended by Executive Order 13258, 67 FR 9385 (February 26, 2002). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget.

B. Review Under the National Environmental Policy Act

DOE has concluded that these proposed regulations fall into the class of actions that do not individually or cumulatively have a significant impact on the human environment as set forth in DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Specifically, the rule is covered under the categorical exclusion in paragraph A5 of Appendix A to subpart D, 10 CFR part 1021, which applies to rulemaking that interprets or amends an existing rule or regulation that does not change the environmental effect of the rule or regulation being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

C. Review Under the Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of General Counsel's Web site: http://www.gc.doe.gov.

DOE has reviewed today's proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. In practice, the majority of FOIA requesters submitting requests to DOE qualify for a waiver of fees under 10 CFR 1004.9(b)(1)-(3). Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE's certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b).

D. Review Under the Paperwork Reduction Act

This rulemaking would impose no new information or recordkeeping requirements. Accordingly, Office of Management and Budget clearance is not required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

E. Review Under the Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written assessment of the effects of any Federal mandate in a proposed or final agency regulation that may result in the expenditure by States, tribal or local governments, in the aggregate, or by the private sector, of $100 million in any one year. The Act also requires Federal agencies to develop an effective process to permit timely input by elected officials of State, tribal, or local governments on a proposed significant intergovernmental mandate, and requires an agency plan for giving notice and opportunity to provide timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. DOE has determined that the proposed rule published today does not contain any Federal mandates affecting States, tribal, or local governments, or the private sector, and, thus, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995.

F. Review Under Executive Order 12988

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” 61 FR 4779 (February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; (4) and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Federal agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting the clarity and general draftsmanship under guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.

G. Review Under Executive Order 13132

Executive Order 13132, “Federalism,” 64 FR 43255 (August 10, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the states and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it would not preempt State law and would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibility among the various levels of government. No further action is required by Executive Order 13132.

H. Review Under the Treasury and General Government Appropriations Act, 1999

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being. This proposed rule would have no impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

I. Review Under Executive Order 13211

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy, Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires preparation and submission to OMB of a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. DOE has determined that the proposed rule published today would not have a significant adverse effect on the supply, distribution, or use of energy and, thus, the requirement to prepare a Statement of Energy Effects does not apply.

J. Review Under the Treasury and General Government Appropriations Act, 2001

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most dissemination of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's proposed rule under the OMB and DOE guidelines, and has concluded that it is consistent with applicable policies in those guidelines.

IV. Approval of the Office of the Secretary

The Secretary of Energy has approved publication of this proposed rule.

List of Subjects in 10 CFR Part 1004

• Electric power
• Electric utilities
• Energy
• Freedom of Information
• Reporting and recordkeeping requirements

For the reasons set forth in the preamble, the Department of Energy proposes to amend Part 1004 of Title 10 of the Code of Federal Regulations as set forth below.

PART 1004—FREEDOM OF INFORMATION

1. The authority citation for part 1004 continues to read as follows:

Authority: 5 U.S.C. 552.