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9 December 2008

[Federal Register: December 9, 2008 (Volume 73, Number 237)]
[Proposed Rules]               
[Page 74658-74661]
From the Federal Register Online via GPO Access []



10 CFR Part 1004

RIN 1901-AA32

Revision of Department of Energy's Freedom of Information Act 

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

[[Page 74659]]

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 

ADDRESSES: You may submit comments, identified by RIN 1901-AA32, by any 
of the following methods:
    1. Federal eRulemaking Portal: Follow 
the instructions for submitting comments.
    2. E-mail to 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:// 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;, (202) 586-5958.


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 

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 

[[Page 74660]]

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://
    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. 

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, 

    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 

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 

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

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most dissemination

[[Page 74661]]

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 

List of Subjects in 10 CFR Part 1004

    Electric power, Electric utilities, Energy, Freedom of Information, 
Reporting and recordkeeping requirements.

    Issued in Washington, DC.
Ingrid Kolb,
Director, Office of Management.

    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.


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

    Authority: 5 U.S.C. 552.

Sec.  1004.1   [Amended]

    2. Section 1004.1 is amended by removing the last sentence.

Sec.  1004.9   [Amended]

    3. Section 1004.9(a)(4) is amended by removing ``five'' and ``ten'' 
in the first sentence and adding in both places ``twenty''.

 [FR Doc. E8-28940 Filed 12-8-08; 8:45 am]