Public Access to NEH Records Under the Freedom of Information Act, 9413-9421 [2014-03549]

Agencies

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

[Federal Register Volume 79, Number 33 (Wednesday, February 19, 2014)]
[Rules and Regulations]
[Pages 9413-9421]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03549]


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NATIONAL FOUNDATION ON THE ARTS AND THE 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: Final 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. This final rule provides the NEH's procedures for 
disclosure of its records, as required by the FOIA, 5 U.S.C. 552, as 
amended. These regulations also provide the procedures for disclosing 
records of the Federal Council on the Arts and the Humanities (FCAH), 
an agency for which NEH provides legal counsel.

DATES: The final rule will be effective March 21, 2014.

FOR FURTHER INFORMATION CONTACT: Mara Campbell, Office of the General 
Counsel, National Endowment for the Humanities, at 202-606-8322, or 
mcampbell@neh.gov.

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

[[Page 9414]]

with the NEA and the former Institute of Museum Services (now, the 
IMLS) last issued joint FOIA regulations, 45 CFR part 1100, on December 
21, 1987. Each agency has 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.
    These regulations were published for public comment in the Federal 
Register on February 11, 2013 (78 FR 9654), the comment period ended on 
April 12, 2013, and three commenters provided input. The NEH carefully 
considered these comments and has made some changes to the final rule 
in response. The comments and NEH's responses are discussed below.
    The first commenter was a federal agency and it offered suggestions 
to clarify the rule. First, the commenter suggested adding language 
clarifying the intersection between FOIA and the Privacy Act. We agree 
and in response have added language into section 1171.2.
    The commenter applauded the NEH for incorporating a foreseeable 
harm standard in its policy and for stating it will make discretionary 
disclosures of records and information. The commenter was also pleased 
to see a listing of the types of information available on the agency's 
Web site as well as our definition of ``submitter in section 1171.9.
    In response to section 1171.5, addressing requests for records, the 
commenter suggested changing ``must'' to ``should'' in subpart (a)(4). 
We agree and have updated this section.
    In section 1171.6, the commenter suggested that referrals include 
information on the portion of the request referred and the receiving 
agency's FOIA contact information. We agree and have added this 
language into subsection (d).
    In section 1171.7, the commenter suggested that NEH's 
acknowledgement letters provide requesters with an individualized 
tracking number and a brief description of the request if it takes NEH 
longer than twenty working days to respond. After considering the 
suggestion, we have decided to retain the proposed language. We believe 
section 1171.8(a) adequately addresses the commenter's concern (to 
assign a tracking number to requests taking twenty days), because it 
already requires NEH to provide an individual tracking number for 
requests that will take longer than ten days. With respect to the 
suggestion to include a brief description, NEH acknowledgement letters 
typically provide requesters with a verbatim description of the 
requested records and the contact information for the FOIA office. 
Thus, a requester can always contact the FOIA office if he/she needs 
further clarification.
    In section 1171.8, the commenter suggested that when marking on 
released documents, NEH indicate the precise amount of information 
deleted, if technically feasible. After considering the suggestion, NEH 
has decided to retain the proposed language. As a matter of practice, 
NEH routinely indicates the amount of information redacted, if doing so 
is feasible and does not create an undue burden on FOIA staff and the 
efficiency of the agency's FOIA program.
    The commenter also had comments on section 1171.10, concerning 
administrative appeals. The commenter's first suggestion was to change 
``must'' to ``should'' in section 1171.10(a), particularly in light of 
section 1171.8(a) which does not require NEH to assign tracking numbers 
to all requests. In order to clarify this section we have modified 
section 117.10(a) in part. The commenter also suggested the rule 
provide information on the National Archives and Records 
Administration, Office of Government Information Services. We agree and 
have updated section 1171.10(b).
    The commenter provided various comments on section 1171.11, 
addressing fees. First the commenter suggested that NEH provide 
requesters with an estimate amount of fees, including a breakdown of 
fees for search, review and/or duplication. While we appreciate the 
commenter's suggestion, we have decided to keep the proposed language 
as it follows best practice language used in other agency FOIA 
regulations. The commenter also suggested that NEH state it would not 
charge a requester the operator/programmer salary while a computer is 
running a query or automatic search in response to a request. In order 
to clarify this section we have modified section 1171.11(c)(1)(ii) in 
part. The commenter further suggested that NEH define ``fee waiver'' 
and recommended striking the word ``attenuated'' from section 
1171.11(f)(2)(i) in the ``interest of plain language.'' After 
considering the suggestion, we have decided to retain the proposed 
language. The commenter applauded NEH for including a provision that 
non-commercial FOIA requesters are entitled to two hours of search time 
and 100 pages of duplication free of charge in 1171.11(d)(1). In light 
of this section, the commenter suggested revising section 1171.11(g)(2) 
for consistency. We agree and have modified this section accordingly.
    The commenter recommended that NEH release all documents without 
any charge or at reduced charge if the information is in the public 
interest. NEH regularly releases information that would likely be of 
public interest on its Web site and notes that the majority of its FOIA 
requests come from educational institutions that are not charged for 
the information received. NEH will continue to assess what information 
it may proactively release while complying with FOIA.
    Finally, the commenter suggested that the rule include a section on 
the preservation of records and records management. We agree and have 
added a new section.
    The second commenter was a public interest research center. The 
comments offered improvements to the rule. Some of the commenter's 
suggestions mirrored other comments, many of which were accepted.
    The commenter had various suggestions regarding document 
disclosure. The commenter suggested that NEH post all released records 
online and that it consider joining the multi-agency FOIAonline portal. 
While NEH appreciates the suggestion, posting all released records 
would be impractical and a heavy administrative burden for the small 
team that administers the NEH FOIA program. Additionally, NEH routinely 
proactively releases documents that are likely to have a significant 
public interest, and posts these documents in its electronic FOIA 
Library. Regarding the portal, NEH may assess joining in the future. 
The commenter further suggested that the rule explicitly state that NEH 
will proactively identify records of public interest, post these 
records online and establish categories of records that can be 
disclosed regularly and posted online. We agree and have modified 
section 1171.4(c) in part. The commenter also suggested that NEH 
publish indexes of disclosed records online. NEH appreciates the 
comment but has previously determined that publication and distribution 
of these indexes is impracticable, and in any event NEH routinely 
releases these indexes under FOIA upon request. The commenter also 
suggested, in the case of FOIA referrals, the rule provide the FOIA 
contact at the receiving agency.

[[Page 9415]]

We agree and have modified section 1171.6(d).
    The commenter had a number of suggestions regarding notifying 
requesters of dispute resolution services. The commenter suggested that 
all acknowledgment letters include the FOIA Public Liaison's contact 
information and that the rule include a new ``Dispute Resolution'' 
section to provide instructions on how to access the Public Liaison. 
Although we appreciate both comments, we believe that by posting the 
Public Liaison's contact information on the NEH's Web site and in its 
annual FOIA documents the public is sufficiently informed about how to 
contact this individual.
    The commenter also had comments regarding the Office of Government 
Information Services (OGIS). Specifically, the commenter suggested that 
(1) all NEH decision and appeal letters include information on the role 
of OGIS and its contact information (2) the rule include a new 
``Dispute Resolution'' section that describes how requesters may access 
OGIS services, and (3) the NEH Web site include information on OGIS. 
With respect to the first suggestion, while we agree that appeal 
letters would be improved by providing information on OGIS, we do not 
believe this information is appropriate in decision letters. Regarding 
the second suggestion, we do not believe it is necessary to create a 
new ``Dispute Resolution'' section of the rule, particularly now that 
the rule will include the contact information for OGIS. Regarding the 
third suggestion, we agree and will add information on OGIS to the NEH 
FOIA Web site.
    The commenter also suggested revising the rule to allow requesters 
to submit administrative appeals by email and fax. We agree and have 
revised section 1171.10(a). The commenter further suggested allowing a 
minimum of sixty days for administrative appeal submissions. We agree 
more time could be helpful and have increased the timeframe to thirty 
days. The commenter also recommended increasing the threshold of the 
minimum fee charge. We agree and have increased the threshold from $14 
to $25. Finally, the commenter suggested that section 1171.11 include 
information on possible fee waivers if NEH fails to comply with 
statutory time limits. We agree and have added new language to this 
section.
    The third commenter was a private citizen and provided comments to 
improve the rule. First, the commenter thought section 1171.7(d)(2) was 
generally duplicative of section 1171.11(k). Although we appreciate the 
commenter's perspective, NEH believes both sections are useful. One 
section serves the purpose of informing the public that NEH may 
aggregate requests in certain circumstances, and the other is about 
fees related to aggregated requests. The commenter also suggested the 
regulation include information on possible fee waivers if NEH fails to 
comply with statutory time limits. As noted above, we agree and have 
added new language to 1171.11(d). Finally, the commenter believed that 
portions of section 1171.11(c)(1)(ii) reflected an outdated and 
antiquated practice. We agree and have modified this section.
    NEH will comply with all applicable laws in its FOIA 
administration, including Presidential memoranda and Attorney General 
guidance. We thank all commenters for their thoughtful input.

E.O. 12866, Regulatory Review

    This 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), has certified that this 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 fewer 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, Public 
Law 104-4, the 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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This 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 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 amends 45 CFR chapter XI, subchapter D, to add 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 Preservation of records.
1171.13 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.

[[Page 9416]]

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 and OMB's Free Guidelines, which provides additional 
information about access to NEH and FCAH records. FOIA applies to 
requests for records concerning the general activities of the 
government and of the NEH in particular. When individuals seek records 
about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, NEH 
processes those requests under both NEH's Privacy regulations at part 
1115 of this chapter, and this part. Although requests are considered 
either FOIA requests or Privacy Act requests, agencies process requests 
in accordance with both laws, which provides the greatest degree of 
lawful access while safeguarding an individual's personal privacy.


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) of 
this section.
    (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) NEH proactively identifies records of interest to the public, 
such as past awards, press releases, grant guidelines, and grant terms 
and conditions, and makes these records available on the NEH's Web site 
at www.neh.gov. In addition, copies of the NEH's policy statements, 
information about the NEH's FOIA program, sample grant narratives, and 
other frequently requested records are available in the NEH's 
Electronic Library.


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 be in writing, include your full name, 
mailing address, daytime telephone number. If you choose to submit your 
request on the NEH Web site, the request must also include your email 
address. Your request should be clearly identified as a FOIA request in 
both the text of the request and on the envelope (or on the facsimile 
or in the subject heading of an email message) and must 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 records 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, subject to the fee limitations of Sec.  1171.11(d). 
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 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. Ordinarily, 
the agency that originated a record will be presumed to be best able to 
determine whether to disclose it.
    (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

[[Page 9417]]

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, provide the name of the 
agency to which the referral was directed, and include that agency's 
FOIA contact information. NEH will notify the requester of the part of 
the request that has been referred, unless such notification would 
disclose information otherwise exempt. If notification to the requester 
about the referral would cause a harm meant to be protected against by 
the FOIA, NEH will coordinate with the agency rather than referring the 
records to it.


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 fewer 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 process requests and 
appeals on an expedited basis 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 place the request in the expedited 
processing track and then 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 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.

[[Page 9418]]

    (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. You may also send your appeal to 
the NEH General Counsel by facsimile at 202-606-8600, by email at 
gencounsel@neh.gov, or through the NEH's electronic FOIA request 
system, which is available on the NEH Web site at www.neh.gov. For a 
denial of your request for OIG records, you may appeal by facsimile at 
202-606-8329, by email at oig@neh.gov or by mail to The Inspector 
General, National Endowment for the Humanities, 1100 Pennsylvania Ave. 
NW., Room 419, Washington, DC 20506. Your appeal must be in writing and 
received by NEH within thirty (30) days of the date of the letter 
denying your request, in whole or in part (weekends and Federal 
holidays excluded). Your appeal letter must clearly identify the NEH 
decision that you are appealing and contain the tracking number, if 
assigned. 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, except as provided by 
1171.7(d). 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. A response to an appeal will 
advise the requester that the 2007 amendments to FOIA created the 
Office of Government Information Services (OGIS) to offer mediation 
services to resolve disputes between FOIA requesters and Federal 
agencies as a non-exclusive alternative to litigation. A requester may 
contact OGIS in any of the following ways: Office of Government 
Information Services, National Archives and Records Administration, 
8601 Adelphi Road--OGIS, College Park, MD 20740; https://ogis.archives.gov; email: ogis@nara.gov; telephone: 202-741-5770; 
facsimile: 202-741-5769; toll-free: 1-877-684-6448.
    (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 
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

[[Page 9419]]

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, 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.
    (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 first two hours of search, the total fee is $25.00 
or less for any request, the NEH will not charge a fee.
    (3) When the NEH fails to comply with the time limits to which to 
respond to a request, and if no unusual or exceptional circumstances, 
as those terms are defined by FOIA, apply to the processing of the 
request, it may not charge search fees, or, in the instance of requests 
from requesters defined in paragraphs (b)(4), (b)(5) and (b)(6) of this 
section, may not charge duplication fees.
    (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.

[[Page 9420]]

    (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 paragraphs (f)(2) and (3) 
of this section. 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 and inform the requester of paragraph 
(d)(1) of this section, if applicable. 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 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

[[Page 9421]]

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  Preservation of records.

    NEH will preserve all correspondence pertaining to the requests 
that it receives as well as copies of all requested records, until 
disposition or destruction is authorized by the agency's General 
Records Schedule of the National Archives and Records Administration 
(NARA) or other NARA-approved records schedule. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the Act.


Sec.  1171.13  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. 2014-03549 Filed 2-18-14; 8:45 am]
BILLING CODE 7536-01-P