Public Access to NEH Records Under the Freedom of Information Act, 9654-9660 [2013-01746]

Agencies

• National Foundation on the Arts and Humanities
• National Endowment for the Humanities

[Federal Register Volume 78, Number 28 (Monday, February 11, 2013)]
[Proposed Rules]
[Pages 9654-9660]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01746]


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NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES

National Endowment for the Humanities

45 CFR Part 1171

RIN 3136-AA32


Public Access to NEH Records Under the Freedom of Information Act

AGENCY: National Endowment for the Humanities.

ACTION: Proposed rule.

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SUMMARY: The National Endowment for the Humanities (NEH) is 
unilaterally rescinding its joint Freedom of Information Act (FOIA) 
regulations with the National Endowment for the Arts (NEA) and the 
Institute of Museum and Library Services (IMLS), and issuing its own 
FOIA regulations. The new regulations provide the NEH's proposed 
procedures for disclosure of its records, as required by the FOIA, 5 
U.S.C. 552, as amended. These regulations also provide the proposed 
procedures for disclosing records of the Federal Council on the Arts 
and the Humanities (FCAH), an agency for which NEH provides legal 
counsel.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before April 12, 2013.

ADDRESSES: You may submit comments by any of the following methods:
     Email: Gencounsel@neh.gov. Please include ``FOIA 
Regulations'' in the subject line of the message.
     FAX: (202) 606-8600. Please send your comments to the 
attention of Michelle Ghim.
     Mail: Michelle Ghim, Office of the General Counsel, 
National Endowment for the Humanities, 1100 Pennsylvania Ave. NW., Room 
529, Washington, DC 20506. To ensure proper handling, please reference 
``FOIA Regulations'' on your correspondence.

FOR FURTHER INFORMATION CONTACT: Michelle Ghim, Office of the General 
Counsel, National Endowment for the Humanities, 202-606-8322.

SUPPLEMENTARY INFORMATION: The NEH along with the NEA, the IMLS, and 
the FCAH make up the National Foundation on the Arts and Humanities 
(Foundation). The Foundation was established by the National Foundation 
on the Arts and Humanities Act of 1965, 20 U.S.C. 951 et seq. The NEH 
along with the NEA and the IMLS last issued joint FOIA regulations, 45 
CFR part 1100, on December 21, 1987. Each agency has now decided to 
issue its own separate FOIA regulations. The NEH's regulations 
incorporate changes brought by the amendments to the FOIA under the 
OPEN Government Act of 2007, Public Law 110-175, 121 Stat. 2524. These 
regulations also include changes to the NEH's fee schedule for 
processing FOIA requests, provide procedures under which the agency 
will process requests for the NEH Office of the Inspector General 
records, and reflect developments in FOIA case law.

E.O. 12866, Regulatory Review

    The NEH has determined that the proposed rule is not a 
``significant regulatory action'' under Executive Order 12866 and 
therefore is not subject to Office of Management and Budget (OMB) 
Review.

Regulatory Flexibility Act

    The NEH Chairman, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), certifies that this proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
Under the FOIA, NEH may recover only the direct costs of searching for, 
reviewing, and duplicating the records that agencies process for 
requesters. NEH's fee schedules for such costs are consistent with OMB 
guidelines on FOIA fees, and provide criteria by which requesters may 
receive a fee waiver or reduction of fees. Furthermore, the rule will 
only affect persons and organizations who file FOIA requests with NEH, 
which receives relatively few requests each year (generally less than 
fifty (50) per year) in comparison to other Federal departments and 
agencies.

Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, Pub. L. 
104-4, the proposed rule will not result in the expenditure by State, 
local, and Tribal governments, in the aggregate, or by the private 
sector, of $100,000,000 million or more in any one year, and it will 
not significantly or uniquely affect small governments.

[[Page 9655]]

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 251 of 
the Small Business Regulatory Enforcement Fairness Act of 1996, 5 
U.S.C. 804, as amended. This rule will not result in an annual effect 
on the economy of $100,000,000 million or more; a major increase in 
costs or prices; or significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based companies to compete with foreign-based companies 
in domestic and export markets.

Paperwork Reduction Act

    The NEH has determined that the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., does not apply to the proposed rule because the rule does 
not contain information collection requirements that require OMB 
approval.

List of Subjects in 45 CFR Part 1171

    Administrative practice and procedure, Freedom of Information.

    For the reasons stated in the preamble, the National Endowment for 
the Humanities proposes to amend 45 CFR Subchapter D by adding part 
1171 as follows:

PART 1171--PUBLIC ACCESS TO NEH RECORDS UNDER THE FREEDOM OF 
INFORMATION ACT

Sec.
1171.1 About the National Endowment for the Humanities.
1171.2 General provisions.
1171.3 Information policy.
1171.4 Public availability of records.
1171.5 Requests for records.
1171.6 Responsibilities for processing and responding to requests.
1171.7 Timing of responses to requests.
1171.8 Responses to requests.
1171.9 Confidential commercial information.
1171.10 Administrative appeals.
1171.11 Fees.
1171.12 Other Rights and Services.

    Authority:  5 U.S.C. 552, 31 U.S.C. 3717, E.O. 12600.


Sec.  1171.1  About the National Endowment for the Humanities.

    The National Endowment for the Humanities (NEH) was established by 
the National Foundation on the Arts and Humanities Act of 1965, 20 
U.S.C. 951 et seq., and is an independent grant-making agency of the 
United States government dedicated to supporting research, education, 
preservation, and public programs in the humanities. The NEH is 
directed by a Chairman and has an advisory council composed of twenty-
six presidentially-appointed and Senate-confirmed members.


Sec.  1171.2  General provisions.

    This part contains the regulations the NEH follows in processing 
requests for NEH records under the Freedom of Information Act (FOIA), 5 
U.S.C. 552, as amended. The NEH also follows these regulations to 
process all FOIA requests made to the Federal Council on the Arts and 
the Humanities (FCAH), an organization established by the National 
Foundation on the Arts and Humanities Act of 1965 for which the NEH 
provides legal counsel. These regulations should be read together with 
the FOIA, which provides additional information about access to NEH and 
FCAH records.


Sec.  1171.3  Information policy.

    The NEH may provide information the agency routinely makes 
available to the public through its regular activities (for example, 
program announcements and solicitations, press releases, and summaries 
of awarded grant applications) without following this part. As a matter 
of policy, the NEH makes discretionary disclosures of records or 
information otherwise exempt under the FOIA whenever disclosure would 
not foreseeably harm an interest protected by a FOIA exemption. This 
policy, however, does not create any right enforceable in court.


Sec.  1171.4  Public availability of records.

    (a) In accordance with 5 U.S.C. 552(a)(2), the NEH will make the 
following records available for public inspection and copying (unless 
they are published and copies are offered for sale) without a FOIA 
request:
    (1) Final opinions, including concurring and dissenting opinions, 
as well as orders made in the adjudication of cases,
    (2) Statements of policy and interpretations which have been 
adopted by the agency and are not published in the Federal Register,
    (3) Administrative staff manuals and instructions to staff that 
affect a member of the public,
    (4) Copies of all records, regardless of format, which have been 
released to any person under 5 U.S.C. 552(a)(3) and which, because of 
the nature of their subject matter, the NEH determines have become or 
are likely to become the subject of subsequent requests for 
substantially the same records, and
    (5) a general index of the records referred to in paragraph (b)(4) 
of this paragraph.
    (b) The NEH will also maintain and make available for public 
inspection and copying current indexes as required by 5 U.S.C. 
552(a)(2) of the FOIA. However, since the NEH has determined that 
publication and distribution of these indexes is unnecessary and 
impracticable, the NEH will provide these indexes upon request at a 
cost not to exceed the direct cost of the duplication.
    (c) Many NEH records, including past awards, press releases, grant 
guidelines, and grant terms and conditions, are available on the NEH's 
Web site at www.neh.gov. In addition, copies of the NEH's policy 
statements, frequently requested records, and information about the 
NEH's FOIA program are available in the NEH's Electronic Reading Room.


Sec.  1171.5  Requests for records.

    (a) How to make a request. Your FOIA request need not be in any 
particular format, but it must:
    (1) Be in writing;
    (2) Include your full name, mailing address, and daytime telephone 
number;
    (3) Include your email address if you choose to submit your request 
on the NEH Web site;
    (4) Be clearly identified as a FOIA request both in the text of the 
request and on the envelope (or on the facsimile or in the subject 
heading of an email message); and
    (5) Describe the requested records in enough detail to enable NEH 
staff to locate them with a reasonable amount of effort. Whenever 
possible, your request should include specific information about each 
record sought, such as the date, title or name, author, recipient, and 
subject matter of the record. The NEH has no obligation to answer 
questions posed as FOIA requests or to create, compile, or obtain a 
record to satisfy a FOIA request.
    (b) Agreement to pay fees. If you make a FOIA request, the NEH will 
consider it an agreement by you to pay all applicable fees charged 
under this part, up to and including the amount of $25.00, unless you 
seek a waiver or reduction of fees. When making a request, you may 
specify a willingness to pay a greater or lesser amount.
    (c) Where to send a request. (1) For NEH records (except NEH Office 
of the Inspector General records) and/or FCAH records, write to: The 
General Counsel, Office of the General Counsel, National Endowment for 
the Humanities, 1100 Pennsylvania Ave. NW., Room 529, Washington, DC 
20506. You may also send your request to the NEH General Counsel by 
facsimile at 202-606-8600, by email at gencounsel@neh.gov, or through 
the NEH's electronic FOIA

[[Page 9656]]

request system, which is available on the NEH Web site at www.neh.gov.
    (2) For NEH Office of the Inspector General records, write to: The 
Inspector General, Office of the Inspector General, National Endowment 
for the Humanities, 1100 Pennsylvania Ave. NW., Room 419, Washington, 
DC 20506. You may also send your request to the Inspector General by 
facsimile at 202-606-8329 or by email at oig@neh.gov.


Sec.  1171.6  Responsibilities for processing and responding to 
requests.

    (a) Processing requests. The NEH Office of the General Counsel 
(OGC) is the central office for processing requests for records, except 
when it's necessary for the NEH Office of Inspector General (OIG) to 
process a request to maintain the OIG's independence or ability to 
carry out its statutorily mandated duties. If the request is for OIG 
records, the NEH will inform the requester which office will be 
processing the request.
    (b) Authority to grant or deny requests. The NEH General Counsel 
(or designee) is authorized to grant or deny requests for NEH records 
(excluding requests for OIG records), and/or FCAH records. The NEH 
Deputy Inspector General (or designee) is authorized to grant or deny 
requests for OIG records. The NEH General Counsel (or designee) is 
authorized to grant or deny requests on any fee matters and requests 
for expedited treatment, including OIG-related requests.
    (c) Consultations and referrals. When the NEH receives a request 
for a record in its possession, the agency will determine whether 
another Federal government agency is better able to decide whether the 
record should or should not be disclosed under the FOIA.
    (1) If the NEH determines that it is the agency best able to 
process the record in response to the request, then it will do so, 
after consultation with the other agency that has a substantial 
interest in the requested records.
    (2) If the NEH determines that it is not the agency best able to 
process the record, then it will refer the record (or portion thereof) 
to the other Federal agency, but only if that agency is subject to the 
FOIA.
    (d) Notice of referral. Whenever the NEH refers all or any part of 
the responsibility for responding to a request to another agency, the 
NEH will notify the requester of the referral and of the name of each 
agency to which the NEH has referred the request.


Sec.  1171.7  Timing of responses to requests.

    (a) In general. The NEH customarily will respond to requests 
according to their order of receipt. In determining which records are 
responsive to a request, the NEH will include only those records in its 
possession as of the date it begins its search for records. If any 
other date is used, the NEH will inform the requester of that date.
    (b) Timing for initial response. Ordinarily, the NEH will determine 
whether to grant or deny a request for records within twenty (20) days 
(weekends and Federal holidays excluded) of when the NEH receives a 
request.
    (c) Tolling of time limits. The NEH may toll the 20-day time period 
to:
    (1) Make one request for information it reasonably requests from 
the requester; or
    (2) Clarify the applicability or amount of any fees, if necessary, 
with the requester.
    (3) Under paragraphs (c)(1) or (2) of this section, the tolling 
period ends upon the NEH's receipt of the information or clarification 
from the requester.
    (d) Unusual circumstances. (1) When the NEH cannot meet the 
statutory time limits for processing a request because of unusual 
circumstances as defined in the FOIA, the NEH may extend the response 
time as follows:
    (i) if the extension will be for ten (10) or less working days 
(i.e., weekends and Federal holidays excluded), the NEH will notify the 
requester as soon as practicable in writing of the unusual 
circumstances and the expected response date; and
    (ii) if the extension will be for more than ten (10) working days, 
the NEH will provide the requester with an opportunity either to modify 
the request so that it may be processed within the time limit or to 
arrange an alternative time period to process the request or a modified 
request.
    (2) If the NEH reasonably believes that multiple requests submitted 
by a requester, or a group of requesters acting in concert, constitute 
a single request that would otherwise involve unusual circumstances, 
and the requests involve clearly related matters, the NEH may aggregate 
the requests. The NEH will not aggregate multiple requests involving 
unrelated matters.
    (e) Expedited processing. (1) The NEH will take requests and 
appeals out of order and give them expedited treatment whenever it 
determines that they involve:
    (i) circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) an urgency to inform the public about actual or alleged 
Federal government activity if the expedited processing request is made 
by a person primarily engaged in disseminating information.
    (2) A requester may seek expedited processing at the time of the 
requester's initial request for records or at any later time.
    (3) To request expedited processing, a requester must submit a 
statement, certified to be true and correct to the requester's best 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing.
    (4) Within ten (10) calendar days of receipt of a request for 
expedited processing, the NEH will decide whether to grant it and will 
notify the requester of the decision. If the NEH grants a request for 
expedited processing, the NEH will give the request priority and will 
process the request as soon as practicable. If the NEH denies a request 
for expedited processing, the NEH will act upon any appeal of that 
decision expeditiously.


Sec.  1171.8  Responses to requests.

    (a) Acknowledgment of requests. Upon receipt of a request that will 
take longer than ten (10) days to process, the NEH will send the 
requester an acknowledgment letter that assigns the request an 
individualized tracking number.
    (b) Grants of requests. If the NEH makes a determination to grant a 
request in whole or in part, it will notify the requester in writing. 
The NEH will inform the requester of any applicable fees and will 
disclose records to the requester promptly on payment of any applicable 
fees. The NEH will mark or annotate records disclosed in part to show 
the amount of information deleted pursuant to a FOIA exemption, unless 
doing so would harm an interest protected by an applicable FOIA 
exemption. If technically feasible, the NEH will also indicate, on the 
agency record(s) it provides, the location of the information deleted.
    (c) Denials of requests. If the NEH makes a determination to deny a 
request in any respect, the NEH will also notify the requester in 
writing of: (1) the name and title or position of the person 
responsible for the denial; (2) a brief statement of the reason(s) for 
the denial, including any FOIA exemption applied by the NEH in denying 
the request; (3) an estimate of the volume of records or information 
withheld, if applicable. This estimate need not be provided if the 
volume is otherwise indicated through deletion on the records disclosed 
in part, or if providing an

[[Page 9657]]

estimate would harm an interest protected by an applicable exemption; 
(4) a statement that the requester may appeal the denial under Sec.  
1171.10 and a description of the requirements to appeal.


Sec.  1171.9  Confidential commercial information.

    (a) In general. The NEH will not disclose confidential commercial 
information in response to a FOIA request, except as described in this 
section.
    (b) Definitions. For purposes of this section:
    (1) Confidential commercial information means commercial or 
financial information obtained by the NEH from a submitter that may be 
protected from disclosure under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from whom the NEH obtains 
confidential commercial information, directly or indirectly. The term 
includes corporations; state, local, and tribal governments; and 
foreign governments.
    (c) Designation of confidential commercial information. A submitter 
of confidential commercial information will use good-faith efforts to 
designate by appropriate markings, either at the time of submission or 
at a reasonable time thereafter, any portions of its submission that it 
considers to be protected from disclosure under Exemption 4. These 
designations will expire ten years after the date of the submission 
unless the submitter requests, and provides justification for, a longer 
designation period.
    (d) When notice to submitters is required.
    (1) The NEH will give notice to a submitter whenever: (i) The 
submitter, in good faith, has designated the requested information as 
information considered protected from disclosure under Exemption 4; or
    (ii) The NEH has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (2) The notice will either describe the confidential commercial 
information requested or include copies of the requested records or 
record portions containing the information. In cases involving a 
voluminous number of submitters, the NEH may make notice by posting or 
publishing the notice in a place reasonably likely to accomplish it.
    (e) Exceptions to submitter notice requirements. The notice 
requirements of this section will not apply if:
    (1) The NEH determines that the requested information is exempt 
under the FOIA;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than the FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous, except that, in such a case, 
the NEH will give the submitter written notice of any final decision to 
disclose the information within a reasonable number of days prior to a 
specified disclosure date.
    (f) Opportunity to object to disclosure. (1) The NEH will specify a 
reasonable time period within which the submitter must respond to the 
notice described in paragraph (d)(2) of this section. If a submitter 
has any objection to disclosure, it must submit a detailed written 
statement to the NEH specifying all grounds for withholding any portion 
of the information under any exemption of the FOIA. If the submitter 
relies on Exemption 4 as a basis of nondisclosure, the submitter must 
explain why the information constitutes a trade secret, or commercial 
or financial information that is privileged or confidential.
    (2) The NEH will consider a submitter who fails to respond with the 
time period specified on the notice to have no objection to disclosure 
of the information. The NEH will not consider information it receives 
from a submitter after the date of any disclosure decision. Any 
information provided by a submitter under this section may itself be 
subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. The NEH will consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose confidential commercial information. 
Whenever the NEH decides to disclose confidential commercial 
information over the objection of a submitter, the NEH will provide the 
submitter written notice, which will include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which will be a reasonable time 
after the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, the NEH will promptly notify the submitter.
    (i) Requester notification. The NEH will notify the requester 
whenever the NEH provides the submitter with notice and an opportunity 
to object to disclosure; whenever the NEH notifies the submitter of its 
intent to disclose the requested information; and whenever a submitter 
files a lawsuit to prevent the disclosure of the information.


Sec.  1171.10  Administrative appeals.

    (a) Appeals of denials. You may appeal a denial of your request for 
NEH records (except NEH OIG records) and/or FCAH records to The Deputy 
Chairman, National Endowment for the Humanities, 1100 Pennsylvania Ave. 
NW., Room 503, Washington, DC 20506. For a denial of your request for 
OIG records, you may appeal to The Inspector General, National 
Endowment for the Humanities, 1100 Pennsylvania Ave. NW., Room 419, 
Washington DC 20506. You must make your appeal in writing no later than 
ten (10) days following the date that you receive the letter denying 
your request (weekends and Federal holidays excluded). Your appeal 
letter must clearly identify the NEH decision that you are appealing 
and contain the assigned tracking number. You should clearly mark your 
appeal letter and envelope ``Freedom of Information Act Appeal.''
    (b) Responses to appeals. The Deputy Chairman (or designee) or the 
Inspector General (or designee) will make a written determination on 
your appeal within twenty (20) days (weekends and Federal holidays 
excluded) after the agency receives your appeal. If the appeal decision 
affirms the denial of your request, the NEH will notify you in writing 
of the reason(s) for the decision, including the applicable FOIA 
exemption(s), and inform you of the FOIA provisions for court review of 
the decision. If the denial of your request is reversed or modified, in 
whole or in part, the NEH will reprocess your request in accordance 
with that appeal decision and notify you of that decision in writing.
    (c) When appeal is required. If you wish to seek review by a court 
of any denial by the NEH, you must first submit a timely administrative 
appeal to the NEH.


Sec.  1171.11  Fees.

    (a) In general. The NEH will assess fees for processing FOIA 
requests in accordance with this section and with the Uniform Freedom 
of Information Fee Schedule and Guidelines published by the Office of 
Management and Budget at 52 FR 10012 (Mar. 27, 1987). In order to 
resolve any fee issues that arise under this section, the NEH may

[[Page 9658]]

contact a requester for additional information. The NEH ordinarily will 
collect all applicable fees before sending copies of records to a 
requester. Requesters must pay fees by check or money order made 
payable to the Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interest, which can include furthering 
those interests through litigation. When it appears that the requester 
will put the records to a commercial use, either because of the nature 
of the request itself or because the NEH has reasonable cause to doubt 
a requester's stated use, the NEH will provide the requester a 
reasonable opportunity to submit further clarification.
    (2) Direct costs means those expenses that an agency actually 
incurs in searching for and duplicating (and, in the case of commercial 
use requests, reviewing) records to respond to a FOIA request. Direct 
costs include, for example, the salary of the employee performing the 
work (the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating duplication 
machinery. Not included in direct costs are overhead expenses such as 
the costs of space and heating or lighting of the facility in which the 
records are kept.
    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records among others.
    (4) Educational institution means any school that operates a 
program of scholarly research. A requester in this category must show 
that the request is authorized by and made under the auspices of a 
qualifying institution and that the records are not sought for a 
commercial use, but are sought to further scholarly research.
    (5) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as defined in paragraph 
(b)(1) above, 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 made under the auspices of a 
qualifying institution and that the records are not sought for a 
commercial use or to promote any particular product or industry, but 
are sought to further scientific research.
    (6) Representative of the news media means any person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the 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 broadcasting to the public at 
large, and publishers of periodicals (but only if such entities qualify 
as disseminators of ``news'') who make their products available for 
purchase or by subscription or by free distribution to the general 
public. The NEH will regard ``freelance'' journalists as working for a 
news-media organization if they demonstrate a solid basis for expecting 
publication though that organization. A publication contract would 
provide the clearest evidence, but the NEH will also consider a 
requester's past publication record in making this determination.
    (7) Review means the process of examining a record located in 
response to a request in order to determine whether any portion of it 
is exempt from disclosure. Review includes processing any record for 
disclosure, such as doing all that is necessary to redact it and 
prepare it for disclosure. It also includes time spent both obtaining 
and considering any formal objection to disclosure made by a 
confidential commercial information submitter under Sec.  1171.9 of 
this part, but it does not include time spent resolving general legal 
or policy issues regarding the application of exemptions. Review costs 
are recoverable even if the NEH ultimately does not disclose a record.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records. The NEH will ensure that searches are done in the 
most efficient and least expensive manner reasonably possible.
    (c) Fee Schedule. In responding to FOIA requests, the NEH will 
charge the following fees for requests, subject to paragraphs (d), (e), 
and (f) of this section:
    (1) Search. (i) The NEH will charge $4.00 for each quarter hour 
spent by clerical personnel in searching for and retrieving a requested 
record. When clerical personnel cannot perform the search and retrieval 
(e.g. identification of records within scope of request requires 
professional personnel), the NEH will charge $7.00 for each quarter 
hour of search time spent by professional personnel. Where the time of 
managerial personnel is required, the fee will be $10.00 for each 
quarter hour of time spent by those personnel. The NEH may charge for 
time spent searching even if it does not locate any responsive records 
or if it determines that the records are entirely exempt from 
disclosure.
    (ii) For computer searches of records, the NEH will charge the 
actual direct cost of conducting the search. This includes the cost of 
operating the central processing unit for the portion of operating time 
that is directly attributed to searching for the records responsive to 
a FOIA request and the operator/programmer salary apportionable to the 
search.
    (2) Duplication. The fee for a photocopy of a record on one-side of 
an 8\1/2\ x 11 inch sheet of paper is ten cents per page. For copies of 
records produced on tapes, disks, or other electronic media, the NEH 
will charge the direct costs of producing the copy, including operator 
time. For other forms of duplication, the NEH will charge the direct 
costs of that duplication. The NEH will honor a requester's preference 
for receiving a record in a particular form or format where it is 
readily reproducible by the NEH in the form or format requested.
    (3) Review. The NEH will charge review fees to requesters who make 
a commercial use request. Review fees will be charged only for the 
initial record review (i.e., the review the NEH conducted to determine 
whether an exemption applies to a particular record or record portion 
at the initial request stage). No charge will be made for review at the 
administrative appeal stage for exemptions applied at the initial 
review stage. However, if the NEH re-reviews the records for the 
applicability of other exemptions that it did not previously consider, 
then the costs for the subsequent review are assessable. Review fees 
will be charged at the same rates as those charged for a search under 
paragraph (c)(1)(i). The NEH may charge for review even if it 
ultimately decides not to disclose a record.
    (d) Limitations on charging requesters. (1) Except for requesters 
seeking records for commercial use, the NEH will provide without 
charge: (i) The first 100 pages of duplication (or the cost 
equivalent); and (ii) The first two hours of search (or the cost 
equivalent).
    (2) When, after first deducting the 100 pages (or its cost 
equivalent) and the

[[Page 9659]]

first two hours of search, the total fee is $14.00 or less for any 
request, the NEH will not charge a fee.
    (e) Categories of requesters. There are four categories of FOIA 
requesters: commercial use requesters; educational and non-commercial 
scientific institutions; representatives of the news media; and all 
other requesters. The NEH will assess fees for these categories of 
requesters as follows:
    (1) Commercial use requesters. The NEH will charge the full direct 
costs for searching for, reviewing, and duplicating requested records.
    (2) Educational and non-commercial scientific institution 
requesters. The NEH will charge for duplication only, excluding costs 
for the first 100 pages.
    (3) News media requesters. The NEH will charge for duplication 
only, excluding costs for the first 100 pages.
    (4) All other requesters. The NEH will charge requesters who do not 
fit into any of the categories above the full reasonable direct cost of 
searching for and reproducing records, excluding costs for the first 
100 pages and the first two hours of search time.
    (f) Requirements for fee waivers or reduction of fees.
    (1) The NEH will furnish responsive records without charge or at a 
reduced charge if it determines, based on all available information, 
that the requester has demonstrated that:
    (i) 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
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the first fee requirement is met, the NEH 
will consider the following factors:
    (i) The subject of the requested records must concern identifiable 
operations or activities of the Federal government, with a connection 
that is direct and clear, not remote or attenuated.
    (ii) The disclosable portions of the requested records must be 
meaningfully informative about government operations or activities in 
order to be ``likely to contribute'' to an increased public 
understanding of those operations or activities. Disclosure of 
information already in the public domain, in either duplicative or 
substantially identical form, is unlikely to contribute to such 
understanding where nothing new would be added to the public's 
understanding.
    (iii) 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 his or her ability and 
intention to effectively convey information to the public will be 
considered. It will ordinarily be presumed that a representative of the 
news media satisfies this consideration.
    (iv) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant extent. The NEH will make 
no value judgments about whether the information at issue is 
``important'' enough to be made public.
    (3) To determine whether the second fee waiver requirement is met, 
the NEH will consider the following factors:
    (i) The NEH will identify any commercial interest of the requester, 
as defined in paragraph (b)(1) of this section, that would be furthered 
by the requested disclosure. Requesters will be given an opportunity to 
provide explanatory information regarding this consideration.
    (ii) A fee waiver or reduction is justified where the public 
interest is greater than any identified commercial interest in 
disclosure.
    (4) Where only some of the requested records satisfy the 
requirements for a fee waiver, a waiver will be granted for those 
records.
    (5) Requesters should make fee waiver or reduction requests when 
they first submit a FOIA request to the NEH. Fee waiver or reduction 
requests should address the factors listed in (f)(2) and (3) above. Fee 
waiver or reduction requests may be submitted at a later time so long 
as the underlying record request is pending or on administrative 
appeal.
    (g) Notice of anticipated fees in excess of $25.00. (1) When the 
NEH determines or estimates that the fees to be charged under this 
section will exceed $25.00, it will notify the requester of the actual 
or estimated fees, unless the requester has indicated a willingness to 
pay fees as high as those anticipated. If the NEH can only readily 
estimate a portion of the fees, it will advise the requester that the 
estimated fee may be only a portion of the total fee.
    (2) The notice will offer the requester an opportunity to confer 
with NEH personnel in order to reformulate the request to meet the 
requester's needs at a lower cost. A commitment by the requester to pay 
the anticipated fee must be in writing and must be received by the NEH 
within thirty (30) calendar days from the date of notification of the 
fee estimate. Until the requester agrees to pay the anticipated fee, 
the NEH will not consider the request as received by the agency and no 
further work will be done on the request. If a requester fails to 
respond within this timeframe, the NEH will administratively close the 
request.
    (h) Charges for other services. When the NEH chooses, in its sole 
discretion, to provide a requested special service (e.g. certifying 
that records are true copies or sending them by other than ordinary 
mail), it will charge the direct costs of providing the service to the 
requester.
    (i) Charging interest. The NEH may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. The NEH will assess interest charges at the rate provided in 
31 U.S.C. 3717 and such charges will accrue from the billing date until 
the NEH receives payment from the requester. The NEH will follow the 
provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 
1749), as amended, and its administrative procedures, including the use 
of consumer reporting agencies, collection agencies, and offset.
    (j) Advance payment. (1) For requests other than those described in 
paragraphs (j)(2) and (3) of this section, the NEH will not require the 
requester to make an advance payment before it commences or continues 
work on a request. Payment owed for work already completed (i.e., 
payment before copies are sent to a requester) is not an advance 
payment.
    (2) When the NEH determines or estimates that a total fee to be 
charged under this section will be more than $250.00, it may require 
the requester to make an advance payment of an amount up to the amount 
of the entire anticipated fee before beginning to process the request, 
except where it receives a satisfactory assurance of full payment from 
a requester that has a history of prompt payment.
    (3) When a requester has previously failed to pay a properly 
charged fee to the NEH within thirty (30) days of the billing date, the 
NEH may require the requester to pay the full amount due, plus any 
applicable interest, and to make an advance payment of the full amount 
of any anticipated fee, before the NEH begins to process a new request 
or continues to process a pending request from that requester.
    (4) When there is an advance payment request, the NEH will not 
consider the request as received by the agency and no further work will 
be done on the request until the required payment is received. If the 
requester fails to respond within thirty (30) calendar days after the 
date of the advance payment

[[Page 9660]]

request, the NEH will administratively close the request.
    (k) Aggregating requests. When the NEH reasonably believes that a 
requester or a group of requesters acting together is attempting to 
divide a request into a series of requests for the purpose of avoiding 
fees, the NEH may aggregate those requests and charge accordingly. The 
NEH may presume that multiple requests of this type made within a 30-
day period have been made in order to avoid fees. For requests 
separated by a longer period, the NEH will aggregate them only when 
there is a reasonable basis for determining that aggregation is 
warranted in view of all the circumstances involved. The NEH will not 
aggregate multiple requests involving unrelated matters.


Sec.  1171.12  Other Rights and Services.

    Nothing in this part will be construed to entitle any person, as of 
right, to any service or to the disclosure of any record to which such 
person is not entitled under the FOIA.

Michael P. McDonald,
General Counsel.
[FR Doc. 2013-01746 Filed 2-8-13; 8:45 am]
BILLING CODE 7536-01-P