Implementing the Freedom of Information Act, 9421-9426 [2014-03545]

Agencies

• National Foundation on the Arts and the Humanities
• Institute of Museum and Library Services

[Federal Register Volume 79, Number 33 (Wednesday, February 19, 2014)]
[Rules and Regulations]
[Pages 9421-9426]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03545]


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NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES

Institute of Museum and Library Services

45 CFR Part 1184

RIN 3137-AA22


Implementing the Freedom of Information Act

AGENCY: Institute of Museum and Library Services (IMLS), NFAH.

ACTION: Final rule.

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SUMMARY: IMLS issues this final rule to implement the Freedom of 
Information Act (FOIA), as amended. The regulations both describe how 
IMLS processes requests for records under FOIA and reaffirm the 
agency's commitment to providing the fullest possible disclosure of 
records to the public. The agency is implementing the regulations to 
replace its existing joint regulations as part of the National 
Foundation on the Arts and the Humanities, and to update, clarify, and 
streamline the language of several procedural provisions, while 
incorporating changes brought about by amendments to the FOIA.

DATES: Effective Date: March 21, 2014.

FOR FURTHER INFORMATION CONTACT: Nancy E. Weiss, General Counsel, 
Institute of Museum and Library Services, 1800 M Street NW., 9th Floor, 
Washington, DC 20036. Email: nweiss@imls.gov. Telephone: (202) 653-
4787. Facsimile: (202) 653-4625.

SUPPLEMENTARY INFORMATION: IMLS operates as part of the National 
Foundation on the Arts and the Humanities under the National Foundation 
on the Arts and Humanities Act of 1965, as amended (20 U.S.C. 951 et 
seq.). The corresponding regulations published at 45 CFR Chapter XI, 
Subchapter A apply to the entire Foundation, while the regulations 
published at 45 CFR Chapter XI, Subchapter E apply only to the 
institute.
    This final rule implements IMLS' FOIA regulations in Subchapter E 
(45 CFR part 1184), replacing the existing regulations in Subchapter A 
(45 CFR part 1100) with regard to IMLS. The final rule provides 
additional detail concerning several provisions of the Freedom of 
Information Act, and is intended to increase understanding of IMLS' 
FOIA policies. IMLS is authorized to issue these regulations under 5 
U.S.C. 552.

I. Why We're Publishing This Rule and What It Does

A. Introduction

    The Institute of Museum and Library Services (IMLS) is adopting 
regulations to implement the Freedom of Information Act (FOIA), 5 
U.S.C. 552, as amended. FOIA requires Federal agencies to make official 
documents and other records available to the public upon request, 
unless the material requested falls under one of several statutorily 
prescribed exemptions. FOIA also requires agencies to publish rules 
stating the time, place, fees, and procedures to apply in making such 
records available. Further, Section 1803 of the Freedom of Information 
Reform Act of 1986 requires each agency to establish a system for 
recovering costs associated with responding to requests for information 
under FOIA. The Office of Management and Budget (OMB) has issued 
guidelines that set standard government-wide definitions for assessing 
and collecting FOIA fees (OMB Fee Guidelines). These regulations 
describe the ways in which records may be requested by the public, and 
explain how IMLS will respond to such requests and assess fees in 
connection with the agency's response.
    The regulations also incorporate the policies expressed in the 
President's January 21, 2009, Executive Memorandum on the Freedom of 
Information Act, and the Attorney General's March 19, 2009, Memorandum 
for Heads of Executive Departments and Agencies. These policies, 
however, do not create any legally enforceable rights.
    By implementing the provisions of the January 21, 2009, Executive 
Memorandum and Attorney General Holder's March 19, 2009, Memorandum to 
the Heads of Executive Departments and Agencies, these regulations will 
improve IMLS's FOIA-related service and performance, thereby 
strengthening the agency's compliance with the law. On April 16, 2013, 
IMLS published a proposed rule in the Federal Register (78 FR 22501) 
and requested public comments on the proposed rule.

B. Discussion of Comments

    The comment period ended on May 16, 2013, and IMLS received 
comments from one commenter. This section of the preamble discusses 
issues raised in the comments.
Expand Online Disclosures
    The commenter suggested that IMLS revise the regulations to more 
fully embrace the use of online disclosure for public information under 
FOIA, including recommendations to: (1) Adopt a policy to establish 
categories of records that can be disclosed regularly and posted on the 
IMLS Web site; (2) to proactively identify and disclose additional 
records of interest to the public; (3) to publish all records released 
in response to FOIA requests; and (4) to publish online indexes of 
information made available under FOIA. IMLS has carefully considered 
these suggestions, and adopts the recommendations to adopt a policy to 
establish categories of records that can be disclosed regularly and to 
proactively identify and disclose additional records of interest to the 
public. IMLS is committed to continuing to find new ways of proactively 
disclosing records to the public, the agency declines to adopt the 
other recommendations into its regulations, because it believes the 
final rule provides the agency with the necessary flexibility to adopt 
innovative ways of providing useful information.
Improve the Acknowledgment of Requests
    The commenter suggested that IMLS revise the regulations to adopt a 
policy to acknowledge requests as soon as practicable, and to provide 
information about the agency's FOIA Public Liaison. IMLS agrees and 
adopts these recommendations in the final rule.

[[Page 9422]]

Clarify Fees and Fee Waivers
    The commenter suggested that IMLS maintain a database of fee 
waivers granted by the agency to consult for future waiver requests, 
and revise the regulations to provide that it will not charge a fee if 
the total fee is $50 or less. IMLS has carefully considered these 
suggestions, but declines to adopt them. IMLS declines to adopt the 
first suggestion into its regulations, because the agency believes the 
final rule ensures consistent agency practice with regard to fee 
waivers. With regard to the second suggestion, both the proposed and 
final rule reflect IMLS's policy decision to not charge a fee if the 
total fee is $25 or less.
Improve Communication With the Requester
    The commenter suggested that IMLS improve communication with FOIA 
requesters by: (1) Adopting a policy that the agency will contact the 
requester to seek clarification if the agency is unclear as to the 
scope of the request; (2) providing an estimated time to complete the 
request and opportunities to reformulate; (3) informing requesters of 
status updates; (4) communicating with requesters by email where 
appropriate; (5) using plain language in all communications with 
requesters; and (6) notifying requesters when requests are referred. 
After careful consideration of these suggestions, IMLS has revised the 
final rule to clarify that IMLS will provide requesters with a tracking 
number and as appropriate, a brief description of the request, and 
relevant IMLS contact information. The final rule also has been revised 
to reflect that IMLS will communicate with requesters to clarify the 
scope of the request in the event of uncertainty and that the agency 
will notify requesters when a request is referred to another agency. 
IMLS notes that the final rule allows for the agency to communicate, 
where appropriate, with requesters by email, and that the agency is 
governed by the Plain Writing Act of 2010, which directs agencies to 
use plain language when communicating.
Apply the Presumption of Openness
    The commenter suggested that the agency revise the rule to reflect 
a presumption of openness. IMLS agrees and the final rule has been 
revised to adopt this suggestion.
Improve Administrative Appeals
    The commenter suggested that IMLS revise the proposed rule to: (1) 
Clarify that requesters may submit administrative appeals 
electronically; (2) notify requesters of dispute resolution services in 
appeal determinations; and (3) provide a minimum of 60 days for 
requesters to submit administrative appeals.
    IMLS has carefully considered these suggestions, and adopts the 
recommendations that the rule be revised to: (1) Clarify that 
requesters may submit appeals electronically; and (2) notify requesters 
of dispute resolution services in appeal determinations. IMLS declines 
to adopt the recommendation to extend the period of time available for 
a requester to submit an appeal to 60 days. The agency believes the 
final rule, which provides the requester with 30 days to file an 
administrative appeal, allows for sufficient time for a requester to 
gather all the facts relevant to the request and prepare any arguments 
they may wish to make in their appeal.
Provide Information About Dispute Resolution Services
    The commenter suggested that IMLS revise the proposed rule to add a 
new subsection describing how requesters can resolve disputes with 
regard to their request. IMLS agrees and the final rule has been 
revised to adopt this suggestion.
Consultation With the National Archives and Records Administration
    The National Archives and Records Administration's Office of 
Government Information Services (OGIS) reviewed IMLS's proposed 
regulations and made recommendations, which IMLS took into account in 
drafting this final rule.

II. Compliance With Laws and Executive Orders

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs will review all significant rules. The Office of 
Information and Regulatory Affairs has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.
Paperwork Reduction Act
    IMLS has determined that the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., does not apply because these regulations do not contain 
any information collection requirements subject to approval by OMB.
Civil Justice Reform (Executive Order 12988)
    These regulations meet the applicable standards set forth in 
Executive Order 12988, Civil Justice Reform.
Federalism (Executive Order 13132)
    These regulations will 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 responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, IMLS has determined that these regulations do not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.
Regulatory Flexibility Act
    IMLS, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 
605(b), has reviewed these regulations and certifies that they will not 
have a significant economic impact on a substantial number of small 
entities because they pertain to administrative matters affecting the 
agency.
Unfunded Mandates Reform Act of 1995
    These regulations will not result in the expenditure by State, 
local, and 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 necessary under the provisions of the Unfunded Mandates 
Reform Act of 1995, 2 U.S.C. 1501, et seq.
Small Business Regulatory Enforcement Fairness Act of 1996
    These regulations are not major regulations as defined by section 
251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 
5 U.S.C. 804. They will not result in an annual effect on the economy 
of $100 million or more, a major increase in costs or prices, or 
significant adverse effects on competition, employment,

[[Page 9423]]

investment, productivity, innovation, or the ability of United States-
based enterprises to compete with foreign-based enterprises in domestic 
and export markets.
National Environmental Policy Act of 1969
    IMLS has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347, and has 
determined that this action will not have a significant effect on the 
human environment.
Takings (E.O. 21630)
    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required.
Consultation With Indian Tribes (E.O. 13175)
    Under the criteria in Executive Order 13175, we have evaluated this 
rule and determined that it has no potential effects on federally 
recognized Indian tribes. This rule does not have tribal implications 
that impose substantial direct compliance costs on Indian Tribal 
governments.
Effects on the Energy Supply (E.O. 13211)
    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required. This rule will not have a significant effect on the nation's 
energy supply, distribution, or use.
Clarity of This Regulation
    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must: (a) Be logically 
organized; (b) use the active voice to address readers directly; (c) 
use clear language rather than jargon; (d) be divided into short 
sections and sentences; and (e) use lists and tables wherever possible.

List of Subjects in 45 CFR Part 1184

    Administrative practice and procedure, Freedom of Information.

    For the reasons stated in the preamble, IMLS amends 45 CFR chapter 
XI, subchapter E to add part 1184 as follows:

PART 1184--IMPLEMENTATION OF THE FREEDOM OF INFORMATION ACT

Sec.
1184.1 What is the purpose and scope of these regulations?
1184.2 What are IMLS's general policies with respect to FOIA?
1184.3 How do I request records?
1184.4 When will I receive a response to my request?
1184.5 How will my request be processed?
1184.6 How can I appeal a denial of my request?
1184.7 How will fees be charged?
1184.8 How can I address concerns regarding my request?
1184.9 What are IMLS' policies regarding disclosure of confidential 
business information?
1184.10 Disclaimer

    Authority: 5 U.S.C. 552.


Sec.  1184.1  What is the purpose and scope of these regulations?

    (a) The regulations in this part describe how the Institute of 
Museum and Library Services (IMLS) processes requests for records under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended. The 
regulations in this part apply only to records that are both:
    (1) Created or obtained by IMLS; and
    (2) Under the agency's control at the time of the FOIA request.
    (b) The rules in this part should be read in conjunction with the 
text of the FOIA and the Uniform Freedom of Information Fee Act 
Schedule and Guidelines published by the Office of Management and 
Budget at 52 FR 10012 (Mar. 27, 1987) (the ``OMB Guidelines''). 
Requests made by individuals for records about themselves under the 
Privacy Act of 1974, 5 U.S.C. 552a, are processed under 45 CFR part 
1182 as well as under this part.


Sec.  1184.2  What are IMLS's general policies with respect to FOIA?

    (a) Non-exempt records available to the public. Except for records 
exempt or excluded from disclosure by 5 U.S.C. 552 or published in the 
Federal Register under 5 U.S.C. 552(a)(1), IMLS records subject to the 
FOIA are available to any person who requests them in accordance with 
these regulations.
    (b) Records available at the IMLS FOIA Electronic Reading Room. 
IMLS makes records available on its Web site in accordance with 5 
U.S.C. 552(a)(2), as amended, and other documents that, because of the 
nature of their subject matter, are likely to be the subject of FOIA 
requests. IMLS establishes categories of records that can be disclosed 
regularly and proactively identifies and discloses additional records 
of interest to the public. To save time and money, IMLS strongly urges 
you to review documents available at the IMLS FOIA Electronic Reading 
Room before submitting a FOIA request.
    (c) Definitions. For purposes of this part, all of the terms 
defined in the Freedom of Information Act, and the OMB Guidelines 
apply, unless otherwise defined in this part.
    (1) Commercial use request. A request by or on behalf of anyone who 
seeks information for a use or purpose that furthers his or her 
commercial, trade, or profit interests, which can include furthering 
those interests through litigation.
    (2) Direct costs. Those expenses that IMLS actually incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order 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 16.1 
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. 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, audiovisual materials, or electronic 
records (for example, magnetic tape or disk), among others.
    (4) Educational institution. Any school that operates a program of 
scholarly research. 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 not sought for a 
commercial use, but rather are sought to further scholarly research.
    (5) Fee waiver. The waiver or reduction of processing fees if a 
requester can demonstrate that certain statutory standards are 
satisfied including that the information is in the public interest and 
is not requested for a commercial interest.
    (6) FOIA Public Liaison. An IMLS official who is responsible for 
assisting in reducing delays, increasing transparency and understanding 
of the status of FOIA requests, and assisting in the resolution of 
disputes.
    (7) Non-commercial scientific institution. An institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (c)(1) 
of this section, 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 not for a commercial use.
    (8) Representative of news media. Any person or entity organized 
and operated to publish or broadcast news to the

[[Page 9424]]

public 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 that disseminate news 
and make their products available through a variety of means to the 
general public. A request for records that supports the news-
dissemination function of the requester will not be considered to be 
for a commercial use. ``Freelance'' journalists who demonstrate a solid 
basis for expecting publication through a news media entity will be 
considered as working for that entity. A publishing contract would 
provide the clearest evidence that publication is expected; however, 
IMLS will also consider a requester's past publication record in making 
this determination.
    (9) Requester Category. One of the three categories that IMLS 
places requesters in for the purpose of determining whether a requester 
will be charged fees for search, review and duplication, and include 
commercial requesters; non-commercial scientific or educational 
institutions or news media requesters, and all other requesters.
    (10) Review. The examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential business information submitter under Sec.  
1184.8 but it does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (11) Search. The process of looking for and retrieving records or 
information responsive to a FOIA request. Search time 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.
    (12) Working day. A regular Federal working day. It does not 
include Saturdays, Sundays, or legal Federal holidays.


Sec.  1184.3  How do I request records?

    (a) Where to send a request. You may make a FOIA request for IMLS 
records by writing directly to the FOIA Officer, Institute of Museum 
and Library Services, 1800 M Street NW., 9th Floor, Washington, DC 
20036-5802. Requests may also be sent by facsimile to the FOIA Officer 
at (202) 653-4625 or by email to foia@imls.gov. You may also submit 
your FOIA request online through the IMLS FOIA Request Form located at: 
https://www.imls.gov/about/foia_request_form.aspx.
    (b) Form of request. Your FOIA request need not be in any 
particular format, but it must be in writing, include your name and 
mailing address, and should be clearly identified as a Freedom of 
Information Act or ``FOIA'' request. You must describe the records 
sought with sufficient specificity to enable the agency to identify and 
locate the records, including, if possible, dates, subjects, titles, or 
authors of the records requested. If IMLS determines that your request 
does not reasonably describe the requested records, the agency will 
advise you what additional information is required to perfect your 
request, or why your request is otherwise insufficient. You should also 
indicate if you have a preferred form or format in which you would like 
to receive the requested records.
    (c) Electronic format records. IMLS will provide the responsive 
records in the form or format you request if the records are readily 
reproducible by IMLS in that form or format. IMLS will make reasonable 
efforts to maintain its records in forms or formats that are 
reproducible for the purpose of disclosure. IMLS may disclose records 
in electronic format if the records can be downloaded or transferred 
intact through electronic media currently in use by the agency. In 
responding to a request for records, IMLS will make reasonable efforts 
to search for the records in electronic form or format, except where 
such efforts would significantly interfere with the operation of the 
agency's automated information system(s).
    (d) Date of receipt. IMLS considers a request that complies with 
paragraphs (a) and (b) of this section to be a perfected request. The 
agency considers a request to be received on the date that the request 
is perfected.


Sec.  1184.4  When will I receive a response to my request?

    (a) Responses within 20 working days. IMLS will ordinarily grant, 
partially grant, or deny your request for records within 20 working 
days after receiving a perfected request.
    (b) Extensions of response time in ``unusual circumstances''. (1) 
Where the time limits for processing a request cannot be met because of 
``unusual circumstances,'' as defined in the FOIA, the FOIA Officer 
will notify you as soon as practicable in writing of the unusual 
circumstances and may extend the response period for up to ten (10) 
working days. (2) Where the extension is for more than ten (10) working 
days, the FOIA Officer will provide you with an opportunity either to 
modify the request so that it may be processed within the time limits 
or to arrange an agreed upon alternative time period for processing the 
request or a modified request.


Sec.  1184.5  How will my request be processed?

    (a) Acknowledgment of requests. IMLS will assign a tracking number 
to your request and will, as soon as practicable, advise you in writing 
of this tracking number, and, as appropriate, a brief description of 
the request, and relevant IMLS contact information, including the name 
and contact information of the FOIA Public Liaison.
    (b) Clarifications. If there is any uncertainty, IMLS will attempt 
to communicate with you to clarify the scope of your request.
    (c) Referrals of requests. Whenever IMLS refers all or any part of 
the responsibility for responding to a request to another agency, IMLS 
will notify you of the name of the agency to which the request has been 
referred.
    (d) Grants of requests. When responsive records are located, IMLS 
will apply a presumption of disclosure and openness. If IMLS decides to 
grant your request in whole or in part, the agency will notify you in 
writing. The notice will include any applicable fee and the agency will 
disclose records to you promptly upon payment of applicable fees. IMLS 
will mark or annotate any records disclosed in part to show the amount, 
the location, and the FOIA exemptions under which the redaction is 
made, unless doing so would harm an interest protected by an applicable 
exemption.
    (e) Denials of requests. Denials of your FOIA request, either whole 
or in part, will be made in writing by the FOIA Officer. IMLS will 
inform you of the reasons for the denial, including any FOIA 
exemption(s) applied by the agency in denying the request, and notify 
you of your right to appeal the determination as described in Sec.  
1184.6. IMLS will, as appropriate, provide a brief description of the 
information being withheld.

[[Page 9425]]

Sec.  1184.6  How can I appeal a denial of my request?

    (a) Submission of an appeal. If your FOIA request has been denied 
in whole or in part, or if the agency has not found any records in 
response to your request, you may file an appeal no later than thirty 
(30) calendar days following the date of the notification of denial. 
Your appeal must include a description of the initial request, the 
reason for the appeal, and why you believe the agency's response was 
incorrect. Your appeal must be in writing, signed, and filed with the 
IMLS Director, c/o Office of the General Counsel, 1800 M Street NW., 
9th Floor, Washington, DC 20036-5802. Appeals may also be sent by email 
to foia@imls.gov, or by facsimile to (202) 653-4625.
    (b) Decisions on appeal. The Director of IMLS will make a 
determination with respect to your appeal within twenty (20) working 
days after the agency has received the appeal, except as provided in 
Sec.  1184.4(b). If the decision on appeal is favorable to you, the 
Director of IMLS will take action to assure prompt dispatch of the 
records to you. If the decision on appeal is adverse to you, in whole 
or in part, you will be informed by the Director of IMLS of the reasons 
for the decision and of the provisions for judicial review set forth in 
the FOIA. As appropriate, IMLS will advise you in a response to an 
appeal that the 2007 FOIA amendments created the Office of Government 
Services (OGIS) to offer mediation services to resolve disputes between 
FOIA requesters and Federal agencies as a non-exclusive alternative to 
litigation.


Sec.  1184.7  How will fees be charged?

    (a) In general. IMLS will use the most efficient and least costly 
methods to comply with FOIA requests. IMLS will charge fees to recover 
all allowable direct costs incurred, and may charge fees for searching 
for and reviewing requested records even if the records are determined 
to be exempt from disclosure or cannot be located. IMLS will charge 
fees in accordance with the category of the FOIA requester.
    (1) Commercial use requests. IMLS will assess charges to recover 
the full direct cost of searching for, reviewing and duplicating the 
requested records. IMLS may recover the cost of searching for and 
reviewing records even if there is ultimately no disclosure.
    (2) Requests from educational and non-commercial scientific 
institutions. IMLS will charge for duplication costs.
    (3) Requests by representatives of the news media. IMLS will charge 
for duplication costs.
    (4) All other requests. IMLS will assess charges to recover the 
full direct cost for searching for and duplicating the requested 
records.
    (5) Status of Requester. IMLS' decision regarding the 
categorization of a requester will be made on a case-by-case basis 
based upon the requester's intended use of the requested records.
    (b) General fee schedule. The following fees will be charged in 
accordance with paragraph (a) of this section.
    (1) Manual search fee. The fee charged will be the salary rate(s) 
(i.e., basic pay plus 16.1 percent) of the employee(s) conducting the 
search.
    (2) Computer search fee. The fee charged will be the actual direct 
cost of providing the service including the cost of operating the 
central processing unit for the operating time that is directly 
attributed to searching for records responsive to a request and the 
operator/programmer salary apportionable to the search.
    (3) Review fee. The fee charged will equal the salary rate(s) 
(i.e., basic pay plus 16.1 percent) of the employee(s) conducting the 
review.
    (4) Duplication fee. Copies of records photocopied on an 8\1/2\ x 
11 inch sheet of paper will be provided at $.10 per page. For 
duplication of other materials, the charge will be the direct cost of 
duplication.
    (c) Restrictions on charging fees. (1) Except for records provided 
in response to a commercial use request, the first 100 pages of 
duplication and the first two (2) hours of search time will be provided 
at no charge.
    (2) Fees will not be charged to any requester, including commercial 
use requesters, if the total amount calculated under this section is 
less than $25.
    (d) Fees likely to exceed $25. If the total fee charges are likely 
to exceed $25, IMLS will notify you of the estimated amount of the 
charges, including a breakdown of the fees for search, review and/or 
duplication, unless you have indicated in advance that you are willing 
to pay higher fees and will offer you an opportunity to confer with the 
FOIA Public Liaison to revise the request to meet your needs at a lower 
cost.
    (e) Waiver or reduction of fees. (1) IMLS will disclose records 
without charge or at a reduced charge if the agency determines that 
disclosure of the 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.
    (2) IMLS will use the following factors to determine whether a fee 
will be waived or reduced:
    (i) The subject of the request. Whether the subject of the 
requested records concerns the ``operations or activities of the 
government'';
    (ii) The informative value of the information to be disclosed. 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities;
    (iii) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. Whether disclosure of 
the requested information will contribute to ``public understanding'';
    (iv) The significance of the contribution to public understanding. 
Whether disclosure is likely to contribute ``significantly'' to public 
understanding of government operations or activities;
    (v) The existence and magnitude of a commercial interest. Whether 
you have a commercial interest that would be furthered by the 
disclosure; and if so
    (vi) The primary interest in disclosure. Whether the magnitude of 
your commercial interest is sufficiently large in comparison with the 
public interest in disclosure, that disclosure is primarily in the your 
commercial interest.
    (f) Assessment and collection of fees. (1) If you fail to pay your 
bill within thirty (30) days, interest will accrue from the date the 
bill was mailed, and will be assessed at the rate prescribed in 31 
U.S.C. 3717.
    (2) If IMLS reasonably believes that you are attempting to divide a 
request into a series of requests to avoid the assessment of fees, the 
agency may aggregate such requests and charge accordingly.
    (3) Advance payment. (i) Advance payment of fees will generally not 
be required. IMLS may request an advance payment of the fee, however, 
if:
    (A) The charges are likely to exceed $250; or
    (B) You have failed previously to pay a fee in a timely fashion.
    (ii) When IMLS requests an advance payment, the time limits 
described in section (a)(6) of the FOIA will begin only after IMLS has 
received full payment.
    (g) Failure to comply. In the absence of unusual or exceptional 
circumstances, IMLS will not assess fees if the agency fails to comply 
with any time limit set forth in these regulations.
    (h) Waivers. IMLS may waive fees in other circumstances solely at 
its discretion, consistent with 5 U.S.C. 552.

[[Page 9426]]

Sec.  1184.8  How can I address concerns regarding my request?

    (a) FOIA Public Liaison. If you have questions or concerns 
regarding your request, your first point of contact should be the FOIA 
Public Liaison, who is responsible for reducing delays, increasing 
transparency and understanding of the status of requests, and assisting 
in the resolution of disputes.
    (b) Additional resource. The National Archives and Records 
Administration (NARA), Office of Government Information Services (OGIS) 
offers non-compulsory, non-binding mediation services to help resolve 
FOIA disputes. If you seek information regarding OGIS and/or the 
services it offers, please contact OGIS directly at Office of 
Government Information Services, National Archives and Records 
Administration, Room 2510, 8601 Adelphi Road, College Park, MD 20740-
6001, Email: ogis@nara.gov, Phone: (301) 837-1996, Fax: (301) 837-0348. 
This information is provided as a public service only. By providing 
this information, IMLS does not commit to refer disputes to OGIS, or to 
defer to OGIS' mediation decision in particular cases.


Sec.  1184.9  What are IMLS' policies regarding disclosure of 
confidential business information?

    (a) In general. Confidential business information obtained by IMLS 
from a submitter will be disclosed under FOIA only under this section.
    (b) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Confidential business information. Commercial or financial 
information obtained by IMLS from a submitter that may be protected 
from disclosure under Exemption 4 of FOIA.
    (2) Submitter. Any person or entity from whom IMLS obtains 
confidential business information, directly or indirectly. The term 
includes corporations; state, local and tribal governments; and foreign 
governments.
    (c) Designation of confidential business information. A submitter 
of confidential business information will use good-faith efforts to 
designate, 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) Notice to submitters. When required under paragraph (e) of this 
section, subject to the exceptions in paragraph (h) of this section, 
IMLS will provide a submitter with prompt written notice of a FOIA 
request or administrative appeal that seeks its confidential business 
information, in order to give the submitter an opportunity to object to 
disclosure of any specified portion of that information. The notice 
will either describe the confidential business information requested or 
include copies of the requested records or record portions containing 
the information. When notification of a voluminous number of submitters 
is required, notification may be made by posting or publishing the 
notice in a place reasonably likely to accomplish it.
    (e) Where notice is required. IMLS will give notice to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) IMLS has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. IMLS will allow a 
submitter a reasonable time to respond to the notice described in 
paragraph (d) of this section and will specify that time period within 
the notice. If a submitter has any objection to disclosure, it must 
submit a detailed written statement to IMLS. The statement must specify 
all grounds for withholding any portion of the information under any 
exemption of FOIA and, in the case of Exemption 4, it must show why the 
information is a trade secret or commercial or financial information 
that is privileged or confidential. If a submitter fails to respond to 
the notice within the time specified, the submitter will be considered 
to have no objection to disclosure of the information. Information 
provided by the submitter that is not received by IMLS until after the 
agency's disclosure decision has been made will not be considered by 
IMLS. Information provided by a submitter under this paragraph may 
itself be subject to disclosure under FOIA.
    (g) Notice of intent to disclose. IMLS will consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose confidential business information. If IMLS decides to 
disclose confidential business information over the objection of a 
submitter, IMLS will give 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 confidential business information to be 
disclosed; and
    (3) A specified disclosure date, which will be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section will not apply if:
    (1) IMLS determines that the information should not be disclosed;
    (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 FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous--except that, in such a case, 
IMLS will, within a reasonable time prior to a specified disclosure 
date, give the submitter written notice of any final decision to 
disclose the information.
    (i) Notice of FOIA lawsuit. If a requester files a lawsuit seeking 
to compel the disclosure of confidential business information, IMLS 
will promptly notify the submitter of the filing of the lawsuit.
    (j) Corresponding notice to requesters. If IMLS provides a 
submitter with notice and an opportunity to object to disclosure under 
paragraph (d) of this section, IMLS will also notify the requester(s). 
If IMLS notifies a submitter of its intent to disclose requested 
information under paragraph (g) of this section, IMLS will also notify 
the requester(s). If a submitter files a lawsuit seeking to prevent the 
disclosure of confidential business information, IMLS will notify the 
requester(s) of the filing of the lawsuit.


Sec.  1184.10  Disclaimer.

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

    Signed: February 12, 2014.
Nancy E. Weiss.
General Counsel.
[FR Doc. 2014-03545 Filed 2-18-14; 8:45 am]
BILLING CODE 7036-01-P