Freedom of Information Act

DEFENSE NUCLEAR FACILITIES SAFETY BOARD <CFR>10 CFR Part 1703</CFR> <DEPDOC>[Docket No. DNFSB-2025-01]</DEPDOC> <RIN>RIN 3155-AA04</RIN> <SUBJECT>Freedom of Information Act</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Defense Nuclear Facilities Safety Board. <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This proposed rule amends the Defense Nuclear Facilities Board's (the Board or DNFSB) Freedom of Information Act (FOIA) regulations to incorporate certain changes made by the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. This proposed rule also amends certain provisions to reflect developments in case law and changes in position titles to align with changes made by the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2022 to the Atomic Energy Act of 1954 (AEA) and an agency reorganization. The proposed rule is amending a section to permit submission of FOIA requests by electronic mail to the Board or the government-wide portal. This proposed rule also adds multitrack processing which allows the Board to quickly process simple requests. Finally, the proposed rule defines what information should be included in a denial letter. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments will be accepted until December 24, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments at any time prior to the comment deadline by the following methods: <E T="03">Email:</E> Send an email to <E T="03">comment@dnfsb.gov.</E> Please include “FOIA Regulations Comments” in the subject line of your email. <E T="03">Mail:</E> Send hard copy comments to the Defense Nuclear Facilities Safety Board, Attn: Office of the General Counsel, 625 Indiana Avenue NW, Suite 700, Washington, DC 20004-2901. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Patricia A. Hargrave, Associate General Counsel, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW, Suite 700, Washington, DC 20004-2901, (202) 694-7000. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> This proposed rule amends the Board's regulations under the Freedom of Information Act to incorporate changes made to the FOIA, 5 U.S.C. 552, by the Open Government Act of 2007, Public Law, 110-175 and the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 (June 30, 2016). The OPEN Government Act of 2007 states that agencies may not charge fees for searches or copies if they miss the statutory timeframe for responding to a FOIA request unless unusual or exceptional circumstances exist. The FOIA Improvement Act of 2016 provides that agencies must allow a minimum of 90 days for requesters to file an administrative appeal. The FOIA Improvement Act also requires that agencies notify requesters of the availability of dispute resolution services and the FOIA public liaison at various times throughout the FOIA process. Finally, the FOIA Improvement Act provided additional duties for the Chief FOIA Officer. This proposed rule updates the DNFSB's regulations in 10 CFR part 1703 to reflect those statutory changes. In addition, this proposed rule changes position titles to incorporate amendments to the AEA and to incorporate changes made after a reorganization. It also corrects a regulatory citation error that incorrectly referenced a reserved section. This proposed rule incorporates the new statutory restrictions on charging fees in certain circumstances. Finally, this proposed rule removes language overruled by the Supreme Court regarding exemption 4 and revises the definitions of “representative of the news media” and “educational institution” to reflect developments in case law and to be consistent with definitions contained in the OPEN Government Act of 2007. This proposed rule defines processing order and provides for multi-track processing and aggregating requests to provide for faster processing. Finally, this proposed rule defines what information should be included in denial letters as required by the FOIA and corrects a citation reference to align with the proposed new subsection added to 1703.108. <HD SOURCE="HD1">III. Description of the Rule</HD> <HD SOURCE="HD2">§ 1703.102 Definitions; Words Denoting Number, Gender and Tense</HD> The section heading is revised to remove “words denoting number, gender and tense.” The definitions paragraph is revised to change word “Chairman” to Chairperson. The DNFSB's enabling legislation was amended by the FY 2022 NDAA, and it changed the word “Chairman” to Chairperson. This proposed rule is also revised to state the Designated FOIA Officer serves as the Chief FOIA Officer and to state that the Chief Administrative Officer, not the General Manager, is the chief administrative officer. The General Manager position was abolished during an agency reorganization. The proposed rule adds the responsibilities of the Chief FOIA Officer contained in the FOIA Improvement Act of 2016. These responsibilities include offering training to employees and serving as the primary liaison to the Office of Government Information Services and the Office of Information Policy and as a member of the Chief FOIA Officer Council. <HD SOURCE="HD2">§ 1703.103 Requests for Agency Records Available Through the Electronic Reading Room</HD> Section 103(b)(7) is revised to correct a regulatory citation error by removing 1703.104 and replacing it with 1704.4. <HD SOURCE="HD2">§ 1703.105 Requests for Board Records Not Available Through the Public Reading Room (FOIA Request)</HD> Section 105(b)(2) only permits submission of FOIA requests by mail. The Board is amending this paragraph to permit submission of FOIA requests by electronic mail at <E T="03">FOIA@dnfsb.gov</E> and the government-wide <E T="03">FOIA.gov</E> portal. <HD SOURCE="HD2">§ 1703.107 Fees for Record Requests</HD> Section 107(b)(1) is also revised to conform to recent D.C. Circuit Court of Appeals decisions addressing two FOIA fee categories: representative of the news media and educational institution. <E T="03">Cause of Action</E> v. <E T="03">FTC,</E> 799 F.3d 1108 (D.C. Cir. 2015) and <E T="03">Sack</E> v. <E T="03">DOD,</E> 823 F.3d 687 (D.C. Cir. 2016). The rule is also revised to conform with the definition of representative of news media under the OPEN Government Act of 2007. The Board's existing regulations define a representative of the news media as “any person actively gathering news for an entity that is organized and operated to publish or broadcast to news to the public.” In <E T="03">Cause of Action,</E> the Court held that a representative of the news media need not work for an entity that is “organized and operated” to publish or broadcast news. Therefore, the definition of “representative of the news media” is revised to remove the “organized and operated” requirement and to adopt the definition contained in the OPEN Government Act of 2007. The definition of a representative of the news media is expanded to include gathering information, using editorial skills to turn raw materials into a distinct work, and distributing the work to an audience. The definition of “educational institution” is revised to reflect the holding, in <E T="03">Sack,</E> 823 F.3d at 688, that students who make FOIA requests in furtherance of their coursework or other school-sponsored activities may qualify under this requester category. Section (b)(2)(iv) is revised to conform with the OPEN Government Act. It is revised to state that the Board will not assess search fees or duplication fees from educational and noncommercial scientific institution if it has failed to meet the regulatory deadline. Sections (b)(2)(ix) and (x) are added to state that Board may charge search fees or may charge duplication fees for requesters with preferred fee status if unusual circumstances apply and more than 5000 pages are necessary to respond to the request provided it has given notice of the unusual circumstances and how to limit the request. Similarly, if a court determines that “exceptional circumstances” exist, the Board's failure to comply with a time limit will be excused by the court order. <HD SOURCE="HD2">§ 1703.108 Processing of FOIA Requests </HD> Sections (c), (d), and (e) are added to include that requests will be processed in order of receipt. There will be a specific track for expedited requests and a different process track for simple and more complex requests based upon amount time and work needed to process the request. The proposed rule also provides for aggregating multiple requests for purposes of satisfying unusual circumstances when there are multiple requests by one requester or a group of requests acting in concert constitute a single request that would otherwise constitute unusual circumstances. Other sections are renumbered, and section (g) adds a sentence that alerts the requester to the availability of Office of Government Information Services (OGIS) to provide dispute resolution services. Section (i) is added and provides the information to be included in the denial of a request. It includes the identity of the person denying the request, the reason for denial and exemption used, number of pages being withheld, appeal procedures and the availability dispute resolution services from OGIS and assistance from the FOIA public liaison. <HD SOURCE="HD2">§ 1703.109 Procedure for Appeal of Denial of Requests for Board Records and Denial of Requests for Fee Waiver or Reduction</HD> Section (a)(1) is revised by removing 30 days to appeal a fee waiver denial and replacing it with 90 days as required by the FOIA Improvement Act. Section (b) is revised by removing the reference to § 1703.108(c) and replacing it with 1703.108(f). The proposed revisions to § 1703.108 redesignated paragraphs (c) through (f). <HD SOURCE="H ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 28k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━